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PETITIONER: T. S. BALIAH

       Vs.

RESPONDENT: T. S. RENGACHARI

DATE OF JUDGMENT: 12/12/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. GROVER, A.N.

CITATION:  1969 AIR  701            1969 SCR  (3)  65  CITATOR INFO :  RF         1971 SC 815  (3)  F          1971 SC1193  (8)  RF         1975 SC 902  (7)  R          1979 SC 898  (34)  R          1987 SC1217  (11)

ACT: Income  Tax  Act, 1922, s. 52-If repealed s.  177  I.P.C.-If prosecution  under  both provisions legal-Effect  of  s.  26 General  Clauses  Act-Choice  of  prosecution  under  either provisions  left  to I.T.O.-If violative of Art. 14  of  the Constitution-Income  Tax Act, 1961, s. 297  (2)--Not  making express provision for continuing proceedings pending at com- mencement  of  Act-Effect  of-If s. 6  General  Clauses  Act enabled continuation of pending prosecutions.

HEADNOTE: In  respect of the appellant’s assessment to income-tax  for three  years from 1958-59 to 1960-61, the  respondent  filed three  complaint  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.P.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,  1961 and  under s. 177, I.P.C. It was alleged that the  appellant had made statements in verification under the income-tax Act which   were  false  knowing  them  to  be  false  and   had deliberately  suppressed  certain  income.   The   appellant thereafter   filed  four  applications  before   the   Chief Presidency Magistrate praying that the legality of the trial for  the  offences should be tried as a  preliminary  issue. This  application was dismissed and a revision  petition  to the High Court was also dismissed. In  appeal  to  this Court it was contended  inter  alia  on behalf of the appellant (i) that he could only be prosecuted under  s. 52 of the 1922 Act which was a  special  provision and  not under s. 177 I.P.C. which was a general  ’provision and  which  should  be  taken  to  have  been  repealed   by implication;  and that his prosecution under s.  177  I.P.C.

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was  therefore illegal; (ii) under clause (2) (a) to (m)  of 8.  297  of  the 1961 Act the  prosecutions  in  respect  of assessment  proceedings pending at the commencement  of  the 1961  Act were not expressly saved and it must therefore  be presumed  that  Parliament  bad not intended  to  save  such prosecutions;  (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 19 Act 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 petitions  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 I.P.C. of under 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 a  violation of the guarantee under Art. 14 of the Constitution. HELD : Dismissing the appeal (i)  Although  there  were  some  differences  between   the provisions of s.    52  of  the 1922 Act and s.  177  I.P.C, there  was no repugnancy or inconsistency between  -the  two statutes.  -Section  22 of the 1922 Act did  not  alter  the nature  or-quality  of the offence under s, 177  t.p.C.  but merely 66 provided  a new course of procedure for what was already  an offence.   In a case of this description the new statute  is regarded  not as superseding. nor repealing  by  implication the previous law, but as cumulative. [69 D] R.   v.  Robinson (1759) 2 Burr. 800, 803 and R. v.  Hopkins [1893] 1 Q.B. 621 relied on. (ii) 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.  In  view of this and the absence of any contrary intention  expressed in  the  provisions  of the 1961 Act, s. 6  of  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 D] Kalawati  Devi Harlalka v. C.I.T. West Bengal 66 I.T.R.  680 and The III Income-tax Officer, Mangalore v. Sri N.  Damodar Bhat [1969] 2 S.C.R. 29, referred to. (iii)     A  plain reading of s. 26 of the  General  Clauses Act 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. [72 H] (iv) There  is no statutory requirement that  the  complaint petition  itself must be filed by the  Inspecting  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,  which bad admittedly been done in the present case. [73 D] (v)  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 prosecution also can take place if penalty has  been  imposed  under  s.  28  of  the  1922  Act.   The institution  of a complaint under s. 52 of the 1922  Act  is therefore  circumscribed by sufficient safeguards and  there was therefore no violation of the Guarantee under Art. 14 of the Constitution. [73 F]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  130 to 133 of 1968. Appeals by special leave from the judgment -and order  dated February 14, 1968 a the Madras High Court in Criminal  Revi- sion Cases Nos. 645 to 648 of 1967. M.   K. Ramamurthi, Shyamala Pappu, P. S. Khera and Vineet Kumar,    for the appellant (in all 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 a  cinema  actor  and  the present proceedings have arisen in respect of the Income Tax Returns filed by him for the assessment years 1958-59, 1959- 60,  1960-61  and 1961-62.  In respect of  the  first  three assessment years, the appellant was assessed to  income-tax. Thereafter penalty proceedings had been instituted under  s. 28 of the Income 67 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 instance  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 appellant had made a statement in the verification under the  Income Tax Act which was false knowing it to be  false, and he had wilfully omitted and deliberately suppressed  the inclusion of certain sums of money in his Income Tax Returns with  a  view to evade lawful taxes due to  the  Government. The  appellant  filed  four applications  before  the  Chief Presidency Magistrate praying that the legality of the trial for  both the offences should be tried as  the  -preliminary issue.    This  application  was  dismissed  by  the   Chief Presidency Magistrate by a common order dated May 22,  1967, holding that the points of law raised by the appellant  were such that they could be agitated in the course of the  trial and  therefore it was not necessary to give any  finding  on those points at that stage.  Thereafter the appellant  filed Criminal revision petitions in the Madras High Court against the  orders  of  the  Chief  Presidency  Magistrate.   These petitions  were  dismissed by the Madras High Court  by  its order dated February 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 provisions  of  the Indian Penal Code and of the  1922  Act. Section 177, Indian Penal Code states :               "177.  Whoever, being legally bound to furnish               information  on  any  subject  to  any  public               servant,   as   such,  furnishes,   as   true,

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             information  on the subject which he knows  or               has  reason to believe to be false,  shall  be               punished  with simple imprisonment for a  term               which  may extend to six months, or with  fine               which  may extend to one thousand  rupees,  or               with both; ..........               68               Section 52 of the 1922 Act is to the following               effect :               "52.   False  statement in  declaration  If  a               person  makes  a statement in  a  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 sub-section (3) of section 33 or  furnishes               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  punishable,   on               conviction  before a Magistrate,  with  simple               imprisonment  which may extend to six  months,               or with fine which may extend to one  thousand               rupees, or with both."               Section 53 reads as follows               "53.    Prosecution  to  be  at  instance   of               Inspecting   Assistant   Commissioner.-(1)   A               person  shall not be proceeded against for  an               offence under section 51 or section 52  except               at  the instance of the  Inspecting  Assistant               Commissioner.               (2)   The  Inspecting  Assistant  Commissioner               may either before or after the institution  of               proceedings compound 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 a 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 a 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, as illegal.  We are unable to accept this argument  as correct.  fore  coming  to the conclusion that  there  is  a repeal by implication , the Court must be satisfied that the two  enactments are so inconsistent or repugnant  that  they cannot  stand together and the repeal of the  express  prior enactment  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,                              69 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 under s. 177, Indian Penal Code can  be instituted  by  any public servant under  s.  195,  Criminal Procedure  Code, whereas the prosecution under s. 53 of  the

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1922  Act  has  to  be instituted at  the  instance  of  the Inspecting  Assistant Commissioner as provided under  s.  53 (1)  of  the 1922 Act, (3) An offence under s.  177,  Indian Penal  Code  is  triable by  the  Presidency  Magistrate,  a Magistrate  of the First Class or Second Class, whereas  the offence  under  s. 52 of the 1922 Act cannot be tried  by  a Second  Class Magistrate unless specially empowered  by  the Central  Government, and (4) If penalty is levied under  the 1922  Act in respect of certain 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. 177 Indian Penal  Code.   In  our opinion, these differences do not support the argument  that there  is  any repugnancy or inconsistency between  the  two statutes.   The provisions enacted in s. 52 of the 1922  Act do not after the nature or quality of the offence enacted in s.  177,  Indian Penal Code, but it merely  provides  a  new course  of procedure for what was already an offence.  In  a case of this description the new statute is regarded not  as superseding, nor repealing by implication the previous  law, but  as  cumulative.)  For instance, it was held  in  R.  v. Robinson(-’)  that  s. 10 of the Poor Relief Act,  1691  (c. 11),   in  imposing  a  penalty  of  pound  51   recoverable summarily,  on  parish  officers who refused  to  receive  a 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  coexist.  In R. v. Hopkins,(2)  where  the Metropolitan  Police Act, 1839 (c. 47), by one  section  (s. 57)  empowered a magistrate to impose a 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  a  month,  and  a  later  statute [Metropolitan  Police  Act, 1864 (c. 55), s.  (1)]  repealed 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 a penalty of (1) [1750] 2 Burr. 800, 803. (2) [1893] 1 Q.B. 621. 70 40s. and in default of payment to be imprisoned for a 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 therefore be treated as cumulative in effect.   We are  of  the  opinion that the doctrine  of  implied  repeal cannot be applied in the circumstances 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 on 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 therefore  the prosecution under s. 52 of the 1922  Act  was not  sustainable.  Section 297(1) of the 1961 Act  expressly repeals  the 1922 Act.  Clause (2) of s. 297  provides  that

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the  matters  expressly referred to in cls. (a) to  (m)  are saved  notwithstanding the repeal of the 1922 Act.   It  was contended on behalf of the appellant that under cl. (2)  (a) to (m) of s. 297 of the 1961 Act the prosecution in  respect of  proceedings pending at the commencement of the 1961  Act was  not expressly saved and therefore it must  be  presumed that  Parliament  had not intended to save  prosecutions  in respect  of proceedings pending at the commencement  of  the 1961  Act.   In our opinion, there is no  justification  for this  argument.  Section 6 of the General Clauses Act  reads as follows -               "6.  Effect of repeal.-Where this Act  or  any               Central  Act  or  Regulation  made  after  the               commencement   of   this  Act,   repeals   any               enactment  hitherto  made or hereafter  to  be               made,  then,  unless  a  different   intention               appears, the repeal shall not-               (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 thereunder; or               (c)   affect any right, privilege,  obligation               or  liabililty acquired, accrued  or  incurred               under any enactment so repealed; or               (d)   affect   any  penalty,   forfeiture   or               punishment incurred in respect of any  offence               committed  against any enactment so  repealed;               or               (e)   affect    any    investigation,    legal               proceeding  or remedy in respect of  any  such               right, privilege, obli-               7 1               gation,  liability,  penalty,  forfeiture   or               punishment as aforesaid;               and  any such investigation, legal  proceeding               or  remedy  may be  instituted,  continued  or               enforced, and any such penalty, forfeiture  or               punishment may be imposed as if the  repealing               Act or Regulation had not been passed." The  principle  of this section is that unless  a  different intention appears in the repealing Act, any legal proceeding can  be in stituted and continued in respect of  any  matter pending  under the repealed Act as if that Act was in  force at the time of repeal.  In other words, whenever there is  a repeal of an enactment the consequences laid down in s. 6 of the  General Clauses Act will follow unless, as the  section itself says, a different intention appears in the  repealing statute.   In the case of a simple repeal there is  scarcely any room for expression of a contrary opinion.  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  determining whether  they indicate a different intention.  The  question 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 unless  the  new  legislation manifests an intention incompatible with or contrary to  the provisions of the section.  Such incompatibility would  have to  be ascertained from a consideration of all the  relevant provisions  of  the new statute and the mere  absence  of  a saving  clause is by itself not material.  In  other  words, the  provisions  of s. 6 of the General  Clauses  Act,  will

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apply  to a case of repeal even if there is  a  simultaneous re-enactment  unless  a 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 prosecution in respect of proceedings which  are pending  at  the commencement of the Act.  It is  true  that there is no express subclause in s. 297 (2) of the 1961  Act which provides for the continuation of such proceedings  but our  concluded opinion is that Parliament did not intend  s. 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 therefore in the present  case that under s. 6 of the General Clauses  Act  a 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 the 72 repealing Act had not been passed On behalf of the appellant reliance  was  placed  on  the decision  of  this  Court  in Kalawati  Devi  Harlalka v. C.I.T. West Bengal(1)  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 contingencies 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 a subsequent case-The  III Income-tax  Officer,  Mangalore v. Sri N. Damodar  Bhat  (2) wherein it was pointed out that the ratio of the decision in Kalawati Devi Harlalka v. C.I.T. West Bengal(1) was that "s. 6  of the General Clauses Act will not apply in  respect  of those  matters  where Parliament had clearly  expressed  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  constitutes an offence under two  or               more  enactments, then the, offender shall  be               liable  to  be prosecuted and  punished  under               either  or any of those enactments, but  shall               not  be  liable to be punished twice  for  the               same offence." A 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 a bar to the punishment of  the

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offender twice for the same offence.    In  other words, the section provides that (1)  [1967] 3 S.C.R. 833.                     (2)  [1969]  2 S.C.R. 29. 73 where  an act or omission constitutes an offence  under  two enactments,  the  offender may be  prosecuted  and  punished under either or both the 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 filed by the_ Inspecting Assistant Commissioner under the 1922  Act.   In our opinion, there is no substance  in  this argument.   Section 53 of the 1922 Act only requires that  a 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 Assistant Commissioner".  It is not  disputed in the present case that the respondent  has filed complaint petitions  on  the  authority of  the  Inspecting  Assistant Commissioner.   There is no statutory requirement  that  the complaint  petition itself must be filed by  the  Inspecting 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 Tax  Officer and  therefore there was a violation of the guarantee  under Art.  14 of the Constitution.  We do not 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  prosecution also can take place if penalty has been imposed under s.  28 of the 1922 Act.  The institution of a complaint under s. 52 of  the  1922 Act is therefore circumscribed  by  sufficient safeguards  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 imposed  on  the  appellant in respect of  the  first  three assessment  years  and  that  there  can  therefore  be   no prosecution  of the appellant 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  a penalty  has  been imposed under this  section".   There  is however no sufficient material before us to determine sup.C.I./69-6 74 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. 75

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