2022 (9) TMI 112

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.... NOS. 100123/2022, 100125/2022, 100126/2022, 100127/2022, 100130/2022, 100131/2022, 100132/2022, 100133/2022, 100134/2022, 100135/2022, 100136/2022, 100137/2022, 100138/2022, 100139/2022, 100140/2022, 100141/2022, 100142/2022, 100143/2022, 100144/2022, 100145/2022, 100172/2022, 100173/2022, 100026/2022, 100077/2022, 100078/2022, 100079/2022, 100080/2022, 100081/2022, 100082/2022, 100083/2022, 100084/2022, 100085/2022, 100086/2022, 100090/2022, 100091/2022, 100092/2022, 100093/2022, 100094/2022, 100095/2022, 100114/2022 Appellant (By Sri. Y. V. Raviraj, Adv.) Respondent (By Shri. Ashok A Kulkarni & Shri. H.R. Kambiyavar, Advs.) By Shri. Aravind D Kulkarni, Adv.) Shri. V. G. Patil Advs. For R1 & R2 ORDER These appeals are filed by....

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....o have filed memos stating that the Deputy Commissioner of Income Tax has ordered for refund of some amount and hence, the complaint becomes infructuous. Based upon the memos, the impugned orders are passed by the Magistrate by closing the complaints which are under challenge. 6. Before going to consider the maintainability of appeal or revision, it is worth to mention the judgment of Madhya Pradesh High Court relied on by the learned counsel for the respondents in the case of Income Tax Officer, D-ward, Circle-II, Indore v. Kaluram reported in ITR Vol.156, 748 wherein the Madhya Pradesh High Court has held as: "The learned counsel for the petitioner did not dispute the fact that the learned trial court had given several opportu....

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....al, granting of leave also does not arise." In another case, the High Court of Allahabad in the case of Alim and Ors. V. Taufiq and Anr. Reported in 1982 Crl.L.J. 1264 has held as under: "Section 378 Cr.P.C. deals with appeals in cases of acquittals. It does not come into play against an order of discharge. Distinction between discharge and acquittal is well established. Discharge is before the framing of the charge while acquittal is after the framing of the charge in a trial. Acquittal operates as a bar for retrial of the offender on the same fact about the same offence while discharge does not operate as a bar vide Section 300 Cr.P.C. The order of discharge was clearly revisable by learned Sessions Judge. The remedy against a....

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....ease shall have the effect of discharge." 10. In view of the judgments above and provisions of Section 258 of Cr.P.C., let me see the order under challenge in these appeals falls in any of these categories. The order under appeals is as under: "Complainant and Ld. Counsel for complainant present and filed memo with enclosure and prayed to close the case of action becomes infructuous for the order passed by the Deputy Commissioner of Income-Tax, Central Circle, Belagavi. Hence, prayed to close the case as the purpose of the filing the petition by the complainant is satisfied long back. The submission are taken on record. Perused found satisfied. Hence this petition/case stands closed as per the memo and enclosures filed by the Ld....

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....d opinion, the orders under challenge passed by the Magistrate, stopping proceedings and releasing the accused, is nothing but an order of discharge, which is challengeable under the revisional provisions of Section 397(1) of Cr.P.C. 13. That apart, as per Section 372 of Cr.P.C., no appeal lies unless and otherwise provided by the Code of Criminal Procedure. Such being the case, the appellant-Income Tax Authority cannot invoke the provisions of either Section 372 or Section 378 of Cr.P.C. Hence, in the present case on hand, the appellant has to challenge under the revisional provisions of Section 397 of Cr.P.C. 14. At this stage, learned counsel for the appellant wants to file a memo for converting the criminal appeals into criminal r....