T. S. BALIAH versus T. S. RENGACHARI

T. S. BALIAB

T. S. RENGACHARI

DecCJ!lber 12, 1968

[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)

Income 'Tax Act, 1922, s. 52-lf repealed s. 177 l.P.C.~lf prosecu-tion under both provisions le11a!-E/Jeat of s. 26 General Clauses Act-Choice of prosecution under either provisions left to l.T.0.-lf violative of Art. 14 of th• Constitution-Income Tax Act, 1961, s. 297 (2)-Not tnG:king express provision for continuing proce.edings pending at com-mencement of Act-Effect of-Ifs. 6 General Clauses Act enabled conti-nuation of pending prosecutions,

In respect of the appellant's assessment to income-tax for three years from 1958-59 to 1960-61, the respondent filed three oomplaint petitions before the Chief Presidency Magistrate, Madras, at the instance of the Inspecting Assistant Commissioner, charging the appellant with having committed offences under s. 52 of the Income-tax Act, 1922, and under s. 177 I.J>.C. He also filed another complaint petition in respect of the appellant's assessment to tax for the year 1961-62 under s. 277 of the Income-tax Act, 1%1 and under s. 177 l.P.C. It was alleged that !be appellant had made statements in verification under the Income-tax Act which were false knowing them to be false and had deliberately sup-pressed certain income. The appellant thereafter filed four applications before the Chief Presidency Magistrate praying that the legality of the trial fcJr the offences should be tried as preliminary issue. This appli-cation was dismissed and revision petition to !lie High Court was also dismissed.

In appeal to this Court it was contended Inter a/la on behalf of the appellant (i) that be could only be prosecuted under s. 52 of the 1922 Act which was special provision and not under s. 177 I.P.C. which was general provision and which should be taken to have been repealed by implication; and that bis prosecution under s. 177 I.P.C. was therefore illegal; (ii) under clause (2) (a) to (m) of s. 297 of the 1961 Act the prosecutions in 'respect of assessment proceedings pending at the com-mencement of the 1961 Act were not expressly saved and it must there-fore be presumed that Parliament had not intended to save such prosecu-tions; (iii) in view of the provisions of s. 26 of the General Clauses Act, 1897, the appellant could be prosecuted either under s. 52 of the 1922 Aet or under s. 177 I.P.C. and not under both provisions at the same time (iv) the appellant's prosecution, was illegal as the complaint peti-tions were required to be filed by the Inspecting Assistant Commissioner himself under the 1922 Act but this requirement had not been complied with; (v) as it was open to the Income-tax Officer to prosecute the appellant either under s. 177 l.P.C. or unde'r s. 52 of the 1922 Act. and the choice of prosecution was left to the arbitrary or unguided discretion of the Income-tax Officer, there was violation of the guarantee under Art. 14 of the Constitution.

HELD : Dismissini the appeal :

( i) Althou~h ·there were some differences between the provmions of ., 52 of the 1922 Act and s. 177 l.P.C., there was no repugnancy or In· consiStency between the two statutes. Section 22 af the .1922 Act did not lllter fhe Q8111re or quality of the Qlfence under s. 177 l.P.C. hut merely

provided new course of procedure for what was already an offence. In case of this description the new statute Is regarded not as superseding. nor repealin~ bv implication the previous law, but as cumulative. [69 DJ

R. v. Robinson (1759) 2 Burr. 800, 803 and R. ,._Hopkins [1893] 1 Q.B. 621 relied on.

(ii) Parliament had not made any detailed provision for thr institu-tion of prosecutions in respect of prriceedings which were pending at the commencement of the 1961 Act. In view of this and the absence of any contrary intention ex)'.!res"sed in the provisions of the 1961 Act, '· 6 cif the General Clauses Act was applicable in the present case and the pro-secution of the appellant under s. 52 of the 1922 Act was therefore valid. [72 DJ

Kalawati Devi Harlalka v. C.l.T. West Bengal 66 I.T.R. 680 and The 111 Income-tax Officer, Mangalore v. Sri N. Damodar BhGt [1969] ··c 2 S.C.R. 29. referred to.

(iii) plain readin~ of s. 26 of the General Clauses Act shows that there is no bar to the trial o'r copvic.tion of the offender under both enact-ments but there is only bar to the punishment of the offender twice for the rame offence. [72 HJ

(iv) There is no statutory requirement that the complaint petition itself must be filed by the Insoectin~ Assistant Commissioner. The clause 11at his instance" in s. 53 of the 1922 Act only means "on his authority" and it is therefore sufficient compliance of the statutory requi'rement if the complaint petition is filed by the resoondent on being authorised by the Inspectin~ Assistant Commissioner, which had admittedly been done in the present case. [73 DJ ·

(v) The offence provided for in s. 52 of the 1922 Act is an offence soecially donstituted and the orosecution for that offence requires the sanction of the Insoectine Assistant Commissioner. No oroseciJ.tion also c•n take place if penalty has been imposed un~e'r s. 28 of the 1922 Act. The institution of comolaint under s. 52 of the 1922 Act is therefore circumscribed bv sufficient sllfee;uards and there was therefore no viola-tion of the 2uarantee under Art. 14 of the Constitution. [73 Fl

CRIMINAL APPELLATE JURISDICTION : Criminal Nos. 130 to 133 of 1968.

Appeals bv soecial leave from the judgment and order dated f'ebruarv 14. 1968 of the Madras High Court ln Criminal Revi-sioo Cases Nos. 645 to 648 of 1967.

M. K. Rnmamurthi. Shvamala Parmu, P. S. Khera and Vineet Kumar, for the aopellant (in alt the appeals).

B. Sen. T. A. Ramachandran and R. N. Sachthey, for the respondent (in all the appeals).

The Judgment of the Court was delivered by

Ramaswami. J. The appellant is cinema actor and the nresent proceedines have arisen in respect of the Income Ta-.: Return• flied bv him for the assessment vears 1958-59, 1959-60. 1960-61 and 1961-62. In resoect of the ll!'$t three assessment years.· the appellant was asses•ed tci income-tait. Thereafter penalty proceedinss had been instituted under s. 28 of the Income

Tax Act, 1922, hereinafter called the 1922 Act and penalties were imposed. In respect of the last assessment year, notice has been issued to the appellant asking him to show cause why the penalty should not be imposed. The respondent filed four complaint petitions at the instance of the Inspecting Assistant Commissioner, Central Range, Madras in respect of the first three assessment years and at the instanoe of the Commissioner of Income Tax, Madras Central in respect of the fourth assessment year before the Chief Presidency Magistrate, Egmore, Madras charging the appellant with having committed offences under s. 52 of the 1922 Act and under s. 177 Indian Penal Code in the first three complaints and under s. 277 of the Indian Income Tax Act, 1961, hereinafter called the 1961 Act and under s. 177, Indian Penal Code in the fourth complaint petition. In substance the allegation of the first respondent was that the appel-lant had made statement in the verification under the Income Tax Act which was false \mowing it to be false, and he bad wilfully omitted and deliberately suppressed the inclusion of certain sums of money in his Income Tax Returns with view to evade lawful taxes due to the Government. The aopellant filed four aoolications before the Chief Presidencv Magistrate praying that the legality of the trial for both the offences should be tried as the Preliminary issue. This app licatfon was dismissed bv the Chief Presidency Magistrate by common order dated May 22, 1967, holding that the Points of law raised by the anpellant were such that they could be agitated in the course of the trial and therefore it was not necessary to give any findinl! on those points at that stage. Thereafter the appellant· filed Criminal revision petitions in the Madras Hi11h Court al!ainst the orders of the Chief Presidencv Magistrate. These petitions were dismissed bv the Madras High Court by its order dated Febru-F ary 14, 1968.

These appeals have been brought by special leave from the order of the Madras High Court dated February 14, 1968 in Criminal Revisions Nos. 645 to 648 of 1967.

It is necessary at this stage to set out the relevant orovisiom of the Indian Penal Code and of the 1922 Act. Section 177 Indian Penal Code states :

"177. Whoever, being legally bound to furnish in-fonnation on any subiecf . to anv oubtic servant as such. furnishes, as true, infonnation on the subiect which he knows or has reason to believe to be false, shall be punished with simole imprisonment for term which mav extend to six months. or with fine which may extend to QDe thQus1111d !'llpees, Qt' with both;

o O O O o o 0 o o o I 0 0 o 0 o o t t Ito o o o O 0 'to' o Io o o o' o 0 1 "

Section 52 of the 1922 Act is to the following effect : "52. False statement in declaration.-!£ person makes statement jn verification mentioned in section 19A or section 20A or section 21 or section 22 or sub-section (2) of section 26A or sub-section (3) of section 30, or s11b-section (3) of section 33 or fur-nishes .a certificate under sub-section (9) of section 18, which is false, and which he either knows or believes to be false, or does not believe to be true, he shall be p11nishable, on conviction before Magistrate, with simple il)lpr_isonment which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

Section 5 3 reads as follows :

"53. Prosecution to be at instance of Inspecting As-

sistant Commissioner.-(1) A. persoli shall not be pro-ceeded against for 8)1l offence under section 51 or sec-tion 52 except at the instance of the Inspecting Assis-tant Commissioner.

( 2) The Inspecting Assistant Commissioner may either before or after the institution of proceedings com-pound any such offence."

As regards the criminal prosecution arising from the returns for the assessment years 1958-59, 1959-60 and 1960-61, it was contended on behalf of the appellant that the provision of s. 52 of the 1922 Act was special provision in this behalf, so that there could be prosecution of the appellant only under that provision and not under s. 177, Indian Penal Code which was · general provision. It was said that in respect of the matters covered by s. 52 of the 1922 Act; the provisions of s. 177, Indian Penal Code should be taken to have been repealed by implication and therefore the prosecution of the appellant under s. 177, Indian Penal Code was illegal. We are unable to accept this argument as correct. Before coming to the conclusion that there is repeal by implication, the Court must be satisfied that the two enactments are so inconsistent or repugnant that thev· cannot stand together and the repeal of the express prior enact-ment must flow from necessary implication of the language of the later enactment. It is therefore necessary in this connection to scrutinise the terms and consider the true meaning and effect of the two enactments. It was argued on behalf of the appellant that there was inconsistency between the provisions of s. 177. Indian Penal Code and of s. 52 of the 1922 Act. It was said that the differences between the -two enactments were as follows : (1) Section 177, Indian Penal Code is non-compoundable

whereas the offence under s. 52 of the 1922 Act is compoundable with the permission of the Inspecting Assistant Commissioner by virtue of cL (2) of s. 53 of the 1922 Act, (2) The prosecution wider s. 1 77, Indian Penal Code can be instituted by any public servant under s. 195, Criminal Procedure Code, whereas the prosecution under s. 53 of the 1922 Act has to be instituted at the instance of the Inspecting Assistant Commissioner as provid-ed under s. 5 3 (1 ) of the 1922 Act, ( 3) An offence under s. 177, lndian Penal Code is triable by the Presidency Magistrate, Magistrate of the First Class or Second Class, whereas the offence under s. 52 of the 1922 Act cannot be tried by Second Class Magistrate unless specially empowered by the Central Gov-emment, and ( 4) If penalty is levied under the 1922 Act in respect of certaih matters, no prosecution can be instituted by virtue of the provisions under s. 28 ( 4) of the 1922 Act in respect of the same matters, whereas there is no such bar under s. J Indian Penal Code. ln our opinion, these differences do not support the argument that there is any repugnancy or inconsis-tency between the two statutes. The provisions enacted in s. 52 of the 1922 Act do not alter the nature or quality of the offence enacted in s. 177, Indian Penal Code but it merely provides new course of procedure for what was already an offence. In case of this description the new statute is regarded not as super-seding, nor repealing by implication the previous law, but as cumulative. For instanceJ it was held in R. v. Robinson(') that s. 10 of the Poor Relief Act, 1691 (c. 11), in imposing penalty of £5, recoverable summarily, on parish officers who refused to receive pauper removed to their parish by an order of justices, was to leave those officers still liable to indictment for the common law offence of disobeying the order which the justices had authority to make under the Poor Relief Act, 1662 (c .. 12). In cases such as these, it is to be presumed that the legISlature knew that the offence was punishable by indictment, and that, as it did not in express terms abolish the common law proceedings, it intended that the two remedies should co-exist. In R. v. Hopkins,(') where the Metropolitan Police Act, 18~9 (c. 47), by one section (s. 57) empowered magistrate to impose penalty of not more than 40s. for an offence, and by another section ( s. 77) empowered him, if the penalty was not paid, to commit the offender to prison for month, and later statute [Metropolitan Police Act, 1864 (c. 55), s. (1)] repe:iJed section 57 and substituted for it one empowering the magistrate to impose the same penalty or to commit to prison for not more than three days, it was held by the Queen's Bench that this did not impliedly repeal s. 77, but that it was competent for the magistrate to sentence an offender to pay penalty of (I) [1759] 2 Burr. 800, 803. (2) [1893] I Q.B. 621.

(2) [1893] I Q.B. 621.

40s. and in default of payment to be imprisoned for month, The principle of these decisions applies to the present case and having regard to the terms and language of the two enactments, we are of opinion that there is no repugnancy or inconsistency and the two enactments can stand together and they must there-fore be treated as cumulative in effect. We are of the opinion that the doctrine of implied repeal cannot be applied in the cir-cumstances of this case and that the argument of the appellant on this point must be rejected.

We pass on to consider the next question argued .m behalf

of the appellant, viz., whether by reason of the repeal of the 1922 Act by the 1961 Act, the prosecutions in respect of the prior proceedings under the 1922 Act were not saved and there-fore the prosecution under s. 52 of the 1922 Act was not sus-tainable. Section 297(1) of the 1961 Act expressly repeals the 1922 Act. Clause (2) of s. 297 provides that the matters ex-pressly referred to in c!S. {a) to (m) are saved notwithstanding the repeal of the 1922 Act. It was contended on behalf of the appelant that under cl. (2) (a) to (m) of s. 297 of the 1961 Act the prosecution in respect of proceedings pending at the com-mencement of the 1961 Act. was . not expressly saved and there-fore it must be presumed that Parliament had not intended to save · prosecutions in respect of proceedings pending at the commenco-. ment of the 1961 Act. In our opinion, there is no justification for this argumejllt. Section 6 of the General Clauses Act reads as follows: "6. Effect of repeal.-Where this Act or any Cen-tral Act or Regulation made after the commencement of this Act; repeals any enactment hitherto made or hereafter to be made, then, unless different intention appears, the repeal shall not-F (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered there-under; or · ( c) affect any right, privilege, obligation or liabi-lilty acquired, accrued or incurred under any enact-ment so repealed; or ( d) affect any penalty, forfeiture or punishment incurred in respect. of any c;iffence committed against any enactment so repealed; or ff

{ ~) affeet any investigation, legal proceeding or

remedy in respect of any such right, privilege, obli-

SAl..IAh v. RENGACllARI (R.amaSW(lmi, J.)

gation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continuea or enforcea.. and any such penalty, forfeiture or punishment may be im· posed as if the repealmg Act or Regulation had not oeen passed."

The principle of this section is that unless different intention appears in the repealing Act, any legal proceeding can be m sututed and contmued m respect of any matter pending under the repealed Act as if that Act was in force at the time ot repeal . In oilier words, wh~ever there is repeal of an enactment the consequences laid down in s. 6 of the General Clauses Act will follow unless, as the section itself says, different inten· tion appears in the repealing statute. In the case of simple repeal tnere is scarcely any room for expression of contrary opmion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of deter· mining whether they indicate different intention. The ques· tion is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Section 6 of the General Clauses Act therefore will be applicable uriless the new legislation manifests an intention in· compatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from considera· tion of all the relevant provisions of the new statute and the mere absence of saving clause is by itself not material. In other words, the provisions of s. 6 of the General Clauses Ac: will apply to case of repeal even if there is simultaneou; • re-enactment unless contrary intention can be gathered from the new statute. Having examined the provisions of cl. (2) of s. 297 of the 1961 Act we are of the opinion that it is not the intention of Parliament to take away the right of instituting pro· secution in respect of proceedings which are pending at the com· mencement of the Act. It is true that there is no express sub-G clause in s. 297(2) of the 1961 Act which provides for th.e continuation of such proceedings but our concluded opinion is that Parliament did not intends. 297(2) of the 1961 Act to be completely exhaustive and in regard to such matters as are not expressly saved by s. 297(2) of the 1961 Act the provisions of s. 6 ( e) of the General Clauses Act will apply. It follows there-H fore in the present case that under s. 6 of the General Qauscs Act legal proceeding in respect of an offence committed under the 1922 Act may be instituted even after the repeal of the 1922 Act by the 1961 Act and punishment may be imposed as if therepealing Act had not ~n passed. On behalf of the appellant reliance was placed on the decision of this Court in Kalawati Devi Harlalk.a v. C.I.T. West Bengal(') in which there is an observation that "s. 6 of the General Clauses Act will not apply because s. 297(2) evidences an intention to the contrary and s. 297 ( 2) was meant to provide as far as possible for all con-tingencies which may arise out of the repeal of the 1922 Act". But this observation in Kalawati Devi Harlalka v. C.I.T. West Bengal ( [1]) has been explained and interpreted by this Court in subsequent case--The III Income-tax Officer, Mangalore v. Sri N. Damodar Bhat(') wherein it was pointed out that the ratio of the decision in Kalawati Devi Harlalka v. C.l.T. West Ben-gal(') was that "s. 6 of the General Clauses Act will not apply in respect of those matters where Parliament had clearly express-ed its intention to the contrary by making detailed provisions for similar matters mentioned in that section". As we have already pointed out, Parliament had not made any detailed provision for the institution of prosecutions in respect of proceedings which were pending at the commencement of the 1961 Act. It follows therefore that the provisions of s. 6 of the General Clauses Act are applicable in the present case and the prosecution of the appellant under s. 52 of the 1922 Act is legally valid.

We proceed to consider the next question arising in this case, viz., whether the appellant can be prosecuted both under s. 177, Indian Penal Code and s. 52 of the 1922 Act at the same time. It was argued on behalf of the appellant that in view of the provisions of s. 26 of the General Clauses Act (Act 10 of 1897) the appellant can be prosecuted either under s. 52 of the 1922 Act or under s. 177, Indian Penal Code and not under both the sections at the same time. We are unable to accept this argument as correct. Section 26 of the General Clauses Act states :

"26. Provision as to offences punishable under two or more enactments-Where an act or omission con-stitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punish-ed under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

plain reading of the section shows that there is no bar to the · trial or conviction of the offender under both enactments but there is only bar to the punishment of the offender twice for the same offence. In other words, the section provides that

(I) [1967! 3 S.C.R. 833.

(2) [1969]'2 S.C.R. 29.

where ll1i act or omission constitutes an offence under two enact-ments, the offender may be prosecuted and punished under either or both ihe enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect. of the case.

It was then contended on behalf of the appellant that the prosecution is illegal as complaint petition was required to be Iiled by the_ Inspecting Assistant Commissioner under the 1922 Act. ln our opinion, there is no substance in this argument. Section 5 3 of the 1922 Act only requires that person shall not be proceeded against for an offence under s. 51 or s. 52 of the 1922 Act "except at the instance of the Inspecting Assis-1tant Commissioner". It is not disputed in the present case that the responden,t has filed complaint petitions on tile authority of the Inspecting Assistant Commissioner. There is no statutory require-ment that the complaint petition itself must be filed by the Ins-pecting Assistant Commissioner. The clause "at his instance" in s. 53 of the 1922 Act only means "on his authority" and it is therefore sufficient compliance of the statutory requirement if the complaint petition is filed by the respondent on being authorised by the Inspecting Assistant Commissioner.It was also said in the course of argument that it was open to the Income Tax Officer to prosecute the appellant either under s. 177, Indian Penal Code or under s. 52 of the 1922 Act and the choice of prosecution was left to the arbitrary and unguided discretion of the Income Tall Officer and therefore there was violation of the guarantee under Art. 14 of the Constitution. We do oot consider there is any substance in this argument. The offence provided for in s. 52 of the 1922 Act is an offence specially constituted and the prosecution for that offence requires the sanction of the Inspecting Assistant Commissioner. No pro· secution also can take place if penalty has been imposed under s. 28 of the 1922 Act. The institution of complaint under s. 52 of the 1922 Act is therefore circumscribed by sufficient safe-guards and we do not consider that there is any violation of the guarantee under Art. 14 of the Constitution.

Lastly, it was pointed out that penalties have been already impos~d on the appellant in respect of the first three assessment years and that there can therefore be no prosecution of the appel-lant under s. 52 of the 1922 Act. Reference was made to s. 28(4) of the 1922 Act which states that "no prosecution for an offence against this Act shall be instituted in respect of the same facts on which penalty has been imposed under this section". There is however no sufficient material before us to determine L7Sup.C.I./69-6

[1969] 3 S.C.ll.

StJl>llEME COtiR't lli!PORTS

' this point. We therefore consider that the point should be left open and the appellant may urge the argument before the trying magistrate at the time of the commencement of the trial.

Subject to this observation, we dismiss these appeals.

R.K.P.S.

Appeals dismissed.