Mahamad Khasim Vs. State of Mysore - Court Judgment

Excerpt:
- karnataka value added tax act, 2003 [k.a. no. 30/2005] section 35 (1): [d.v.shylendra kumar,j] failure to file periodic return and the tax within the permitted time stipulated under penalty levied under section 72 (1) challenge as to - declaration sought to declare that the provision of sub-section (1) of section 72 of the act is unconstitutional, being violative of articles 14 and 19 of the constitution of india and also beyond the legislative competence of the state legislature to make laws with reference to entry 54 of list ii of the seventh schedule to the constitution - held, when the provisions of sub-section (1) of section 72 of the act are tested on the touchstone of articles 14 and 19 of the constitution of india, it is seen that the provision fails both the tests of articles 14 and 19 of the constitution of india. the test under article 14 is not passed as the levy of penalty under sub-section (1) of section 72 of the act becomes an arbitrary and irrational levy depending upon the quantum of tax liability being huge and resulting in a fixed penalty of 10% of the tax liability, also being a huge penalty in the case of smaller dealers and in the case of small tax liability, the extent of delay being large, i.e. to say, 3 to 5 years, the penalty based on the extent of delay again assuming gigantic proportions to make it an irrational levy of penalty. an arbitrary penalty, which is also an irrational levy, automatically loses the nexus of achieving the object of correcting the mischief sought to be prevented by the legislature and therefore renders itself unconstitutional. the extent of levy of penalty in fact goes much beyond the scope of the power of ancillary and incidental power i.e. for ensuring prompt tax remittance to the state, as the only possible loss to the state is loss of revenue for the period of delay and when the loss is compensated by other statutory provisions providing for levy of penalty should be within reasonable limits to act as a sufficient or mere deterrent and not reaching the levels of confiscation. when such levels are reached, it becomes a tax in the nature of tax on income being at 10% of the tax liability. it is to be noticed that the 10% tax liability may not even be the entire profit of the dealer and such levy of penalty while therefore becomes an oppressive levy being confiscatory of a percentage of the tax liability, partakes the character of a levy of tax on income, as the penalty has to be inevitably borne by the dealer and cannot be passed on to the consumer/buyer and therefore travels beyond the legislative competency of the state legislature, as enabled under entry 54 of list-ii of the 7th schedule to the constitution of india. the levy of penalty being a disproportionately high penalty, failing the test of reasonable restrictions saved under article 19(6) of the constitution of india vis-a-vis article 19(1)(g). - in this connection, i would also like to refer to a case of the madras high court reported in in re, govindaswamy air1950mad31 .in that case, the accused was prosecuted under section 75 of the madras city police act and was convicted. it is not urged that the petitioner is a man of bad antecedents and was at any time guilty of a crime involving a breach of the peace.order1. in this case, the petitioner stands convicted by the learned special first class magistrate, ramanagaram, in c. c. 800/56, for. an offence under section 56(o) of the mysore police act, for having used indecent language in a public road at ramanagaram town, and sentenced to undergo simple imprisonment for eight days. in addition to this, the learned magistrate directed that the accused should execute a bond in a sum of rs. 300/-under section 106 of the cr. p. c. with two suieties for keeping the peace for a period of two years. this revision petition is admitted only for considering the propriety of the order passed by the learned magistrate under section 106 cr. p. c. 2. the contention urged on the side or the petitioner is that the order under section 106 cr. p. c. cannot be sustained. i think that there is considerable force in this contention. section 103 cr. p. c. inter alia provides that a court may, at the time of passing sentence, order an accused to execute a bond, with or without sureties, if he is convicted of offences involving breach of the peace and when the court is of opinion that it is necessary to require the accused to execute such a bond. prom a reading of the provisions of this section, i am of opinion that the order of the learned magistrate cannot at all be justified. the words 'involving a breach of the peace' appearing in section 106 cr. p. c. require that 'breach of the peace' should be an ingredient of the offence, and not offences provoking or likely to lead to a breach of the peace; in other words, to justify an order under section 106 cr. p. c. a breach of the peace should be an ingredient of the offence, and that before an order under this section is passed, the court should give a finding that a breach of the peace had actually occurred. 3. the use of indecent language towards an individual in a public street with which the present petitioner was accused cannot be said to be an offence necessarily involving a breach of the peace, and this point was rightly conceded by the learned advocate-general. the learned magistrate also has not given any finding that 6 breach of the peace actually occurred. under these circumstances. i think the order of the learned magistrate under section 106 of the cr. p. c. cannot be supported. in this connection, i would also like to refer to a case of the madras high court reported in in re, govindaswamy : air1950mad31 . in that case, the accused was prosecuted under section 75 of the madras city police act and was convicted. in addition to the conviction and sentence passed for that offence, the learned magistrate also ordered under section 106 cr. p_ c. that the accused should execute a bond for keeping the peace. it was decided in that case that there was no justification to make such an order and that the same was liable to be set aside. 4. it may also be stated in this connection that section 75 of the madras city police act is almost similar to section 56(o) of the mysore police act. in that case, the case against the accused was he abused certain people in filthy and indecent language, as in this case. it is not urged that the petitioner is a man of bad antecedents and was at any time guilty of a crime involving a breach of the peace. under these circumstances, i am of opinion that the order under section 106 cr, p. c. passed by the learned magistrate has to be set aside. 5. in the result, the order of the learned magistrate passed under section 106 of the cr. p. c. calling upon the petitioner to execute a bond with two sureties to keep the peace, is set aside and this revision petition is allowed to that extent. if the petitioner is already sent to jail for not executing the bond, he is directed to be released forthwith, and if the bond is already executed, the game stands cancelled. 6. order accordingly.

Judgment:
ORDER

1. In this case, the petitioner stands convicted by the learned Special First Class Magistrate, Ramanagaram, in C. C. 800/56, for. an offence under Section 56(O) of the Mysore Police Act, for having used indecent language in a public road at Ramanagaram Town, and sentenced to undergo simple imprisonment for eight days. In addition to this, the learned Magistrate directed that the accused should execute a bond in a sum of Rs. 300/-under Section 106 of the Cr. P. C. with two suieties for keeping the peace for a period of two years. This revision petition is admitted only for considering the propriety of the order passed by the learned Magistrate under Section 106 Cr. P. C.

2. The contention urged on the side or the petitioner is that the order under Section 106 Cr. P. C. cannot be sustained. I think that there is considerable force in this contention. Section 103 Cr. P. C. Inter alia provides that a Court may, at the time of passing sentence, order an accused to execute a bond, with or without sureties, if he is convicted of offences involving breach of the peace and when the Court is of opinion that it is necessary to require the accused to execute such a bond. Prom a reading of the provisions of this section, I am of opinion that the order of the learned Magistrate cannot at all be Justified. The words 'involving a breach of the peace' appearing in Section 106 Cr. P. C. require that 'breach of the peace' should be an ingredient of the offence, and not offences provoking or likely to lead to a breach of the peace; in other words, to Justify an order under Section 106 Cr. P. C. a breach of the peace should be an ingredient of the offence, and that before an order under this section is passed, the Court should give a finding that a breach of the peace had actually occurred.

3. The use of indecent language towards an individual in a public street with which the present petitioner was accused cannot be said to be an offence necessarily involving a breach of the peace, and this point was rightly conceded by the learned Advocate-General. The learned Magistrate also has not given any finding that 6 breach of the peace actually occurred.

Under these circumstances. I think the order of the learned Magistrate under Section 106 of the Cr. P. C. cannot be supported. In this connection, I would also like to refer to a case of the Madras High Court reported in in re, Govindaswamy : AIR1950Mad31 . In that case, the accused was prosecuted under Section 75 of the Madras City Police Act and was convicted.

In addition to the conviction and sentence passed for that offence, the learned Magistrate also ordered under Section 106 Cr. P_ C. that the accused should execute a bond for keeping the peace. It was decided in that case that there was no Justification to make such an order and that the same was liable to be set aside.

4. it may also be stated in this connection that Section 75 of the Madras City Police Act is almost similar to Section 56(O) of the Mysore Police Act. In that case, the case against the accused was he abused certain people in filthy and indecent language, as in this case. It is not urged that the Petitioner is a man of bad antecedents and was at any time guilty of a crime Involving a breach of the peace. Under these circumstances, I am of opinion that the order under Section 106 Cr, P. C. passed by the learned Magistrate has to be set aside.

5. In the result, the order of the learned Magistrate passed under Section 106 of the Cr. P. C. calling upon the petitioner to execute a bond with two sureties to keep the peace, is set aside and this revision petition is allowed to that extent. If the petitioner is already sent to Jail for not executing the bond, he is directed to be released forthwith, and if the bond is already executed, the Game stands cancelled.

6. Order accordingly.