L.Palamalai, Member -
(1.) THIS O.P. is directed against the order of the XVI Metropolitan Magistrate dated December 29, 1997, whereby a non -bailable warrant issued was pending against the petitioner. The learned advocate for the petitioner contended that for arrears of sales tax, a claim petition was filed before the Metropolitan Magistrate by the assessing authority under Section 24(2)(b) of the Tamil Nadu General Sales Tax Act, 1959 to recover the amount as if it were a fine imposed by the Magistrate, that the relevant provision of the Criminal Procedure Code, 1973 for this purpose is Section 421 and according to this section, the Magistrate can issue a warrant for attachment and sale of any movable property belonging to the offender or issue a warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both of the defaulter. However, there is no power to the Magistrate to issue a non -bailable warrant to arrest the defaulter, when he acts to recover the tax as if it were a fine. The amount to be recovered is not under the Criminal Procedure Code, but under the provisions of the Sales Tax Act. Therefore he has no powers to issue a non -bailable warrant to recover the tax and in such matters he is not under the jurisdiction of superior criminal courts. Even if there is failure on the part of the petitioner to appear before the court, the Magistrate could have passed ex parte order instead of issuing a non -bailable warrant. The learned advocate for the petitioner in this regard relied on the following decisions :
Habibunnissa v. State of Madras  15 STC 271 (Mad.).
M. Nagendrappa v. Commercial Tax Officer  103 STC 551 (Kar).
Smt. Sakuntala Bai v. State of Sikkim  66 STC 402 (Sikkim).
Ganesh Narayana Hegde v. Commercial Tax Officer, Sirsi (N.K.)  37 STC 567 (Kar).
C. Correya v. Sales Tax Officer  28 STC 687 (Ker) and
Dargah Committee v. State of Rajasthan : AIR 1962 SC 574.
(2.) THE learned Government Advocate argued that the petitioner, though present in the court on September 30, 1997 with reference to a complaint preferred by the Sales Tax Officer, he has not chosen to attend the court subsequently. Therefore, the issue of non -bailable warrant by the Magistrate was for the failure of the petitioner to appear before the court. Hence, the superior criminal courts have jurisdiction, if any further appeal is preferred against the order of the Magistrate. I have considered the contentions carefully. On perusing the records, I find that the non -bailable warrant was issued by the XVI Metropolitan Magistrate for non -appearance of the petitioner with reference to a complaint pending before him. Though the complaint relates to recovery of tax under Section 24(2)(b) of the Tamil Nadu General Sales Tax Act, 1959, I find that the non -bailable warrant was not issued for failure to pay the arrears, but it was only for the failure of the petitioner to appear before the XVI Metropolitan Magistrate on November 4, 1997 and again on November 18, 1997, either in person or through a representative. Therefore, the various decisions relied on by the learned advocate for the petitioner which related to recovery of tax with reference to an application filed before the Magistrate for recovery are not at all relevant. In the case of Habibunnissa v. State of Madras reported in  15 STC 271 (Mad.), it was held that the pecuniary limit of fine prescribed by the Criminal Procedure Code need not be applied in respect of collection of tax as if it were a fine. In such tax recovery cases, the foundation of the Magistrates' jurisdiction to collect the tax emanates from the Madras Sales Tax Act, 1959 itself and not the Criminal Procedure Code. In the case of M. Nagendrappa v. Commercial Tax Officer, Harapanahalli reported in  103 STC 551 (Kar), it was held that if the arrears could not be collected because the dealer did not possess either movable or immovable property, the Magistrate cannot proceed to impose a sentence of imprisonment for the default of tax arrears. In Smt. Sakuntala Bai v. State of Sikkim reported in  66 STC 402 (Sikkim), it was held that the Magistrate cannot issue a warrant for attachment of immovable property straightaway for recovery of sales tax arrears and it was without jurisdiction. Similarly, in Ganesh Narayana Hegde v. Commercial Tax Officer, Sirsi (N.K.)  37 STC 567 (Kar), it was held that Section 421 of the Code of Criminal Procedure has to be followed while issued warrant to recover sales tax arrears. In C. Correya v. Sales Tax Officer, First Circle, Ernakulam reported in  28 STC 687 (Ker), it was held that the right to pass an order in exercise of the powers conferred on the Magistrate under the Act cannot be equated with the power of the Magistrate to pass an order under the Criminal Procedure Code though the proceedings to recover fine may be identical to proceedings to recovery of tax. The recovery of tax by the Magistrate is conferred upon him as he is designated under the Act to recover it. He cannot be regarded as an inferior court exercising jurisdiction under the Criminal Procedure Code. Therefore, an order passed by the Magistrate under Section 23(2) of the Kerala General Sales Tax Act, 1963 cannot be revised either under Section 438 or under Section 439 of the Criminal Procedure Code. The Supreme Court's decision reported in : AIR 1962 SC 574 in the case of Dargah Committee, Ajmer v. State of Rajasthan also reiterates the position that in recovery proceedings of dues to municipality, the Magistrate who entertains application for recovery cannot be held to be an inferior criminal court under the Code of Criminal Procedure.
(3.) AS already stated, the short point for consideration in this case is whether the Metropolitan Magistrate is competent to secure the attendance of the petitioner before him in a complaint filed against the petitioner by the Sales Tax Officer though for recovery of tax. Under Section 87 of the Criminal Procedure Code, the Metropolitan Magistrate has got powers to secure the presence of a defaulter in a complaint by issuing a non -bailable warrant also. In fact, it was also stated during arguments by the learned Advocate for the petitioner that the issue of non -bailable warrant was agitated before the Magistrate, but he declined to cancel the non -bailable warrant. As the non -bailable warrant has been issued to secure the presence of the petitioner as a defaulter in a complaint filed before the Magistrate, if the petitioner is aggrieved he can seek relief from a Superior Court under the Criminal Procedure Code. As the issue of non -bailable warrant for arrest was not as a sentence for default to pay the tax arrears under the Tamil Nadu General Sales Tax Act, the various decisions cited by the learned Advocate for the petitioner are not relevant to the issue. There is no case to interfere with the non -bailable warrant issued by the Metropolitan Magistrate against the petitioner who is a defaulter in a case pending before him, though the complaint relates to recovery of tax arrears. In the above circumstances, the original petition is dismissed.
And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned.
Issued under my hand and the seal of this Tribunal on the 2nd day of June, 1998.;