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TMI Blog2012 (6) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... lso operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. appeals are allowed. The impugned order is set aside and the matter is remitted to the trial court for considering whether the allegations contained in the complaint lodged by Brij Kishor Saxena constitute any offence under the IPC - CRIMINAL APPEAL NOS. 2263 AND 2264 OF 2010 - - - Dated:- 1-12-2010 - G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ. Uday U. Lalit, Pramod Dayal and Nikunj Dayal for the Appellant. R.P. Gupta, Neeraj Shekhar and Ms. Vibha Datta Makhija for the Respondent. JUDGMENT G.S. Singhvi, J. - Leave granted. 2. The question which arises for consideration in these appeals is whether the provisions contained in sections 24, 24A and 26 of the Chartered Accountants Act, 1949 (for short the Act ) operate as a bar against the prosecution of a person who is charged with the allegations which constitute an offence or offences under other laws including the Indian Penal Code (IPC). 3. Respondent, Vimal Kumar Surana, who is a graduate in Commerce and has passed the examination of Chartered Accountant but is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le offence under section 468 of the Indian Penal Code. (5) The said Shri Vimal Kumar Surana with a view to perform aforesaid acts prepared forged seals and used the same, which is an offence punishable under section 472 of the Indian Penal Code. He is in possession of the seal which he uses as Chartered Accountant. Therefore, this act is punishable offence under section 473 of the Indian Penal Code." 5. After conducting investigation, the police filed challan in the Court of Chief Judicial Magistrate, Betul ( the trial court ), who passed order dated 10-3-2003 for framing charges against the respondent under sections 419, 468, 471 and 472 IPC. The respondent challenged that order by filing revision under section 397 of the Code of Criminal Procedure (Cr.P.C.). 1st Additional Sessions Judge, Betul allowed the revision, set aside order dated 10-3-2003 and remitted the case to the trial court with the direction to decide whether there are sufficient grounds for framing charges under sections 419, 420, 465, 467 and 473 IPC, read with sections 24 and 26 of the Act. After remand, the trial court passed order dated 8-12-2003 and held that there was no basis for framing any charge ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta, learned senior counsel appearing for the respondent, argued that the Act is a special legislation and as specific penalties have been provided for contravention of section 24 and sub-section (1) of sections 24A, 25 and 26, the provisions contained in the IPC and Cr.P.C. cannot be invoked for prosecuting and punishing such person. Learned senior counsel further argued that the respondent could not have been prosecuted for the alleged contravention of sub-section (1) of sections 24A and 26 of the Act because no complaint was filed against him under section 28 of the Act. In support of this argument, the learned senior counsel relied upon the judgments of this Court in Jeewan Kumar Raut v. Central Bureau of Investigation AIR 2009 SC 2763 and Jamiruddin Ansari v. Central Bureau of Investigation AIR 2009 SC 2781. Learned counsel then submitted that this Court may not interfere with the impugned order because the allegations levelled against the respondent do not constitute any offence under the IPC. 9. Ms. Vibha Datta Makhija, learned counsel for the State of Madhya Pradesh relied upon the judgment of this Court in Maqbool Hussain v. State of Bombay AIR 1953 SC 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peditious action is taken against the members against whom allegations of misconduct are levelled and he gets fair opportunity to contest those allegations. An order passed by the Disciplinary Committee can be appealed against under section 22G. Section 23 which finds place in Chapter VI provides for constitution and functions of Regional Councils. Chapter VII specifies the penalties, which can be imposed on a member, a non-member and a company. Chapter VII-A contains provisions for establishment of Quality Review Board, functions of the Board, etc., and Chapter VIII contains miscellaneous provisions. Schedules I and II appended to the Act specify various acts of misconduct of a chartered accountant in practice. These Schedules obviously do not enumerate the wrong doings of a person who is not a member of the Institute. 11. Sections 2(1)( b ), 24, 24A, 25, 26 and 28 of the Act, which have bearing on this case, read as under : "2. Interpretation. (1) In this Act, unless there is anything repugnant in the subject or context, ( b )"chartered accountant" means a person who is a member of the Institute. 24. Penalty for falsely claiming to be a member, etc. Any person who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofessional capacity. (2) Any person who contravenes the provisions of sub-section (1) shall, without prejudice to any other proceedings, which may be taken against him, be punishable on first conviction with a fine not less than five thousand rupees but which may extend to one lakh rupees, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to one year or with fine not less than ten thousand rupees but which may extend to two lakh rupees or with both. 28. Sanction to prosecute. No person shall be prosecuted under this Act except on a complaint made by or under the order of the Council or of the Central Government." Sections 2( d ), 4, 5 and 195 Cr.P.C. on which reliance has been placed by learned senior counsel for the respondent read as under : "2( d ) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation . A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause ( a ) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint : Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause ( b ) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause ( b ) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept on a complaint made by or under the order of the Council or of the Central Government is attracted only when such person is sought to be prosecuted for contravention of the provisions contained in section 24 or sub-section (1) of section 24A, 25 or 26 and not for any act or omission which constitutes an offence under the IPC. The use of expression without prejudice to any other proceedings which may be taken against him in sub-section (2) of sections 24A and 26 and somewhat similar expression in sub-section (2) of section 25 show that contravention of the provisions contained in sub-section (1) of those sections can lead to filing of complaint under section 28 of the Act and if the particular act also amounts an offence under the IPC or any other law, then a complaint can also be filed under section 200 Cr.P.C. or a first information report lodged with the police under section 156 Cr.P.C. The said expression cannot be given a restricted meaning in the context of professional and other misconducts which may be committed by a member of the Institute and for which he may be punished under section 21B(3) because the violation of sections 24 to 26 can be committed by a person wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used for committing any forgery which would be punishable under section 467 or with such intent, in his possession any such seal, plate or other instrument, knowing the same to be counterfeit then he is liable to be punished with imprisonment for life or with imprisonment which may extend to 7 years. He shall also be liable to fine. The provisions contained in Chapter VII of the Act neither define cheating by personation or forgery or counterfeiting of seal, etc., nor provide for punishment for such offences. If it is held that a person acting in violation of section 24 or contravening sub-section (1) of sections 24A and 26 of the Act can be punished only under the Act even though his act also amounts to one or more offence(s) defined under the IPC and that too on a complaint made in accordance with section 28, then the provisions of Chapter VII will become discriminatory and may have to be struck down on the ground of violation of Article 14. Such an unintended consequence can be and deserves to be avoided in interpreting sections 24A, 25 and 26 keeping in view the settled law that if there are two possible constructions of a statute, then the one which leads to anomaly or absurd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the same offence . (Per Charles, J. in Reg v. Miles ). To the same effect is the ancient maxim Nemo bis debet puniri pro uno delicto , that is to say that no one ought to be twice punished for one offence or as it is sometimes written pro eadem causa , that is, for the same cause. This is the principle on which the party pursued has available to him the plea of autrefois convict or autrefois acquit . The plea of autrefois convict or autrefois acquit avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. . . . The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of autrefois acquit is not proved unless it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court held : "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 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." 17. In State of Bombay v. S.L. Apte AIR 1961 SC 578, the question that fell for consideration was whether in view of an earlier conviction and sentence under section 409 IPC, a subsequent prosecution for an offence under section 105 of Insurance Act, 1935, was barred by section 26 of the General Clauses Act and Article 20(2) of the Constitution. This Court answered the question in following words : "To operate as a bar the second prosecution and the consequential punishment thereunder, must be for the same offence . The crucial requirement, therefore, for attracting the article is that the offences are the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be an offence under the Gold (Control) Act. It is, therefore, stating the obvious to say that the ingredients of the two offences are altogether different. Such being the case the question arises whether the acquittal for the offences under the Customs Act which requires the prosecution to establish altogether different ingredients operates as a bar to the prosecution of the same person in connection with the charge of having committed the offence under the Gold (Control) Act. . . . In the present case, the concerned respondents could be found guilty of both the offences in the context of the possession of gold. If it was established that there was a prohibition against the import of gold and that he was found in possession of gold which he knew or had reason to believe was liable to confiscation he would be guilty of that offence. He would also be guilty of an offence under the Gold (Control) Act provided the gold is of a purity of at least 9 carats. He would have violated the provisions of "both" the Customs Act and the Gold (Control) Act if the aforesaid ingredients were established. It is not as if in case he was found guilty of an offence under the Customs Act, he could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the anomalies that might arise from taking cognizance of the same offence more than once. But, where, as here, cognizance can be taken only in one way and that on the complaint of a particular statutory functionary, there is no scope or occasion for taking cognizance more than once and, accordingly, section 210 has no role to play. The view taken by the High Court on the footing of section 210 is unsupportable. We are unable to accept the contention of Shri R.F. Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant, and that such an offence, at all events, falls within the overlapping areas between of section 429 IPC on the one hand and section 9(1), read with section 50(1), of the Act on the other and, therefore, constitutes the same offence. Apart from the fact that this argument does not serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound. The expression "any act or omission which constitutes any offence under this Act" in section 56 of the Act, merely imports the idea that the same act or omission might constitute an offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me offence . Friedland in Double Jeopardy (Oxford 1969) says at p. 108 : The trouble with this approach is that it is vague and hazy and conceals the thought processes of the Court. Such an inexact test must depend upon the individual impressions of the Judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are substantially the same may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible. . . . In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Superintendent , District Jail , the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said : (SCR p. 827) The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst prosecution of the respondent under section 5 even though his prosecution under section 6(3) had failed. 21. In view of the above discussion, the argument of the learned senior counsel appearing for the respondent that the Act is a special legislation vis- -vis IPC and a person who is said to have contravened the provisions of sub-section (1) of sections 24, 24A, 25 and 26 cannot be prosecuted for an offence defined under the IPC, which found favour with the High Court does not commend acceptance. 22. The judgments on which the learned senior counsel appearing for the respondent has placed reliance are clearly distinguishable. In Jamiruddin Ansari s case ( supra ), this Court was called upon to consider whether an order for investigation could be passed under section 156(3) Cr.P.C. in a case involving violation of the provisions contained in the Maharashtra Control of Organised Crime Act, 1999. This Court referred to the provisions of sections 9 and 23 of the Maharashtra Act and held that the Special Judge cannot take cognizance of any offence under that Act unless sanction has been given by a police officer not below the rank of Additional Director General of Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar of section 23(2) continues to remain in respect of complaints, either of a private nature or on a police report." The question which fell for consideration in Jeewan Kumar Raut s case ( supra ) was whether the Transplantation of Human Organs Act, 1994 ( the 1994 Act ) is a special law and has overriding effect qua the provisions of the IPC. This Court referred to sections 18, 19 and 22 of the 1994 Act and observed : "TOHO being a special statute, section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc., according to the provisions of the Code. Sub-section (2) of section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences. TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a complaint made by or under the order of the Council or the Central Government, the Act does not specify the procedure to be followed for punishing such person. In the absence of any such provision, the procedure prescribed in Cr.P.C. has to be followed for inquiry, investigation and trial of the complaint which may be filed for contravention of any of the provisions contained in Chapter VII of the Act - Section 4 Cr.P.C. 25. The submission of Shri Gupta that the respondent cannot be prose-cuted for offences defined under the IPC because no complaint had been filed against him by the concerned Court or authority as per the requirement of section 195(1)( b )( ii ) Cr.P.C. sounds attractive but lacks merit. The prohibition contained in section 195 Cr.P.C. against taking of cognizance by the Court except on a complaint in writing made by the concerned Court before which the document is produced or given in a proceeding is not attracted in the case like the present one because the officers of the Income-tax Department and the authorities constituted under the Madhya Pradesh Trade Tax Act, 1995 before whom the respondent is alleged to have acted on the basis of power of attorney o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument has actually been produced or given in evidence in the Court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in Court, does not appear to be in tune with clauses ( a )( i ) and ( b )( i ) and consequently with the scheme of section 195 Cr.P.C. This indicates that clause ( b )( ii ) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court. Section 195(1) mandates a complaint in writing to the Court for taking cognizance of the offences enumerated in clauses ( b )( i ) and ( b )( ii ) thereof. Sections 340 and 341 Cr.P.C. which occur in Chapter XXVI give the procedure for filing of the complaint and other matters connected therewith. The heading of this Chapter is - "Provisions as to Offences Affecting the Administration of Justice". Though, as a general rule, the language employed in a heading cannot be used to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ratio of Patel Laljibhai v. State of Gujarat and the private complaint was held to be maintainable. In Mohan Lal v. State of Rajasthan the abovenoted two decisions were relied upon for holding that provisions of section 195(1)( c ) (old Code) would not be applicable where mutation proceedings were commenced after a Will had been forged. In Legal Remembrancer, Govt. of W.B. v. Haridas Mundra, Bhagwati, J. (as His Lordship then was), speaking for a three-Judge Bench observed that earlier there was divergence of opinion in various High Courts, but the same was set at rest by this Court in Patel Laljibhai Somabhai and approved the view taken therein that the words of section 195(1)( c ) clearly meant the offence alleged to have been committed by a party to the proceeding in his character as such party, i.e., after having become a party to the proceeding, and sections 195(1)( c ), 476 and 476A (of the old Code) read together indicated beyond doubt that the Legislature could not have intended to extend the prohibition contained in section 195(1)( c ) to the offences mentioned in the said section when committed by a party to a proceeding prior to his becoming such party ..... X X X X Extracts X X X X X X X X Extracts X X X X
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