# T. S. BALIAB v. T. S. RENGACHARI DecCJ!lber 12, 1968

- **Citation:** [1969] 3 S.C.R. 65
- **Court:** Supreme Court of India
- **Decided:** 1969
- **Case number:** Criminal Appeals Nos. 130 to 133 of 1968
- **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-s-baliab-v-t-s-rengachari-deccj-lber-12-1968-4624
- **Pages:** 10

## Headnote

Income 'Tax Act, 1922, s. 52-lf repealed s. 177 l.P.C.~lf prosecution under both provisions le11a!-E/Jeat of s. 26 General Clauses ActChoice of prosecution under either provisions left to l.T.0.-lf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 commencement of Act-Effect of-Ifs. 6 General Clauses Act enabled continuation 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 suppressed 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 a preliminary issue. This application was dismissed and a 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 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a general provision and which should be taken to have been repealed by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 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 commencement of the 1961 Act were not expressly saved and it must therefore be presumed that Parliament had 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 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 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 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 a 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
66
SUPREME COURT REPORTS
[1969] 3 S.C.R
provided a new course of procedure for what was already an offence. In
A
a 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 institution of prosecutions in respect of prriceedings which were pending at the
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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 prosecution 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.

## Text

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T. S. BALIAB
v.
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 prosecution under both provisions le11a!-E/Jeat of s. 26 General Clauses ActChoice 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 commencement of Act-Effect of-Ifs. 6 General Clauses Act enabled continuation 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 suppressed 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 a preliminary issue. This application was dismissed and a 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 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 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 commencement of the 1961 Act were not expressly saved and it must therefore be presumed that Parliament had 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 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 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 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 a 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
66
SUPREME COURT REPORTS
[1969] 3 S.C.R
provided a new course of procedure for what was already an offence. In
A
a 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 institution of prosecutions in respect of prriceedings which were pending at the
B
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 prosecution 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) A 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 enactments 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
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(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
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c•n take place if penalty has been imposed un~e'r s. 28 of the 1922 Act.
The institution of a comolaint under s. 52 of the 1922 Act is
therefore
circumscribed bv sufficient sllfee;uards and there was therefore no violation of the 2uarantee under Art. 14 of the Constitution. [73 Fl
CRIMINAL APPELLATE
JURISDICTION : Criminal
Appeals
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 Revisioo 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 a 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
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llALIAH v. Rl!NGACHA!ll. (Ramaswami, J.)
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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 appellant had made a 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 a 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 a 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 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 orovisiom
of the Indian Penal Code and of the 1922 Act.
Section 177
Indian Penal Code states :
"177. Whoever, being legally bound to furnish infonnation 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 a term
which mav extend to six months. or with fine which
may extend to QDe thQus1111d !'llpees, Qt' with both;
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SUPREME COURT REPORTS
[1969] 3 S.C.R.
Section 52 of the 1922 Act is to the following effect :
"52. False statement in declaration.-!£ a person
makes a statement jn 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 s11b-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
p11nishable, on conviction before a 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 Assistant Commissioner.-(1) A. persoli shall not be proceeded against for 8)1l 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 was illegal. We are unable to accept
this argument as correct. Before coming to the conclusion that
there is a repeal by implication, the Court must be satisfied that
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the two enactments are so inconsistent or repugnant that thev·
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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
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BALIAH v. RENGACHARr (Ramaswami,J.)
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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 provided under s. 5 3 (1 ) of the 1922 Act, ( 3) An offence under s.
177, lndian 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 Govemment, 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 inconsistency 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 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 instanceJ it was held in R. v. Robinson(') that
s. 10 of the Poor Relief Act, 1691
(c. 11), in imposing a
penalty of £5, 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,(') where the Metropolitan Police Act,
18~9 (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)]
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 a penalty of
(I) [1759] 2 Burr. 800, 803.
(2) [1893] I Q.B. 621.
'10
SUPIU!ME COURT lll!POllTS
(1969) 3 S.C.R.
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 .m behalf
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of the appellant, viz., whether by reason of the repeal of the
1922 Act by the 1961 Act, the prosecutions in respect of the
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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 the matters expressly 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
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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 commenco-.
ment of the 1961 Act. In our opinion, there is no justification
for this argumejllt.
Section 6 of the General Clauses Act reads
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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 notF
(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
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( 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 c;iffence committed against
any enactment so repealed; or
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{ ~) affeet any investigation, legal
proceeding or
remedy in respect of any such right, privilege, obli-
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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 a 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 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 inten·
tion appears in the repealing statute. In the case of a simple
repeal tnere is scarcely any room for expression of a 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 a 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 a considera·
tion 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 Ac:
will apply to a case of repeal even if there is a simultaneou;
F • 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 pro·
secution in respect of proceedings which are pending at the com·
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mencement of the Act.
It is true that there is no express subclause 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 therefore in the present case that under s. 6 of the General Qauscs
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
SUPREME COURT REPORTS
[1969) 3 s.c.il.
repealing 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 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(') wherein it was pointed out that the ratio
of the decision in Kalawati Devi Harlalka v. C.l.T. West Bengal(') 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 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.
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where ll1i act or omission constitutes an offence under two enactments, 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 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 Assis1tant 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 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 Tall Officer and therefore there was a
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 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
impos~d 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.
H
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
L7Sup.C.I./69-6
74
StJl>llEME COtiR't lli!PORTS
[1969] 3 S.C.ll.
'
this point.
We therefore consider that the point should be left
A
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.
B