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TMI Blog1960 (12) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... er, control and possession inter alia of the moneys belonging to the company with a view to have them invested in proper securities. The second respondent as Manaaing Director also acted under another power of attorney executed by the company in her favour in or about June, 1942, and by virtue thereof she was assisting the first respondent in main- taining the accounts of the company. While the respondents were thus functioning, an audit conducted in 1952 disclosed that considerable sums of money amounting to over ₹ 55,000 were shown as cash balances with the first respondent. Further enquiries made by the Directors showed that moneys aggregating to over ₹ 95,000 had from time to time been withdrawn from the company by the first respondent with the assistance and sanction of the second respondent, professedly for the expenses of the company. Among the papers of the company was a voucher dated August 9, 1952, evidencing the withdrawal of this amount by the first respondent and signed by him and this also bore the signature of the second respondent in token of her sanction. The respondents, however, could furnish no proper account of the legitimate expenses of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted the respondents on the ground that Art. 20(2) of the Constitution and s. 26 of the General Clauses Act were a bar to their conviction and punishment. The State of Bombay thereupon filed an appeal to the High Court under s. 417 of the Criminal Procedure Code. The appeal was dismissed by the learned Judges who however granted a certificate on the strength of which this appeal has been preferred. As the prosecution against the respondents under s. 105 of the Insurance Act has been held to be barred by reason of the provisions contained in Art. 20(2) of the Constitution and s. 26 of the General Clauses Act, it would be convenient to set out these provisions before entering on a discussion of their content and scope. Article 20(2) of the Constitution runs: No person shall be prosecuted and punished for the same offence more than once. Section 26 of the General Clauses Act enacts: 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. As the application of these two provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an insurer. Before addressing ourselves to the arguments urged before as by the Yearned Counsel for the appellant State it is necessary to set out one matter merely to put it aside. The entire argument on behalf of the State before the High Court proceeded on denying that the order of a Criminal Court passed under s. 105 of the Indian Insurance Act directing the accused to deliver up or refund...... any such property improperly withheld or wilfully misapplied was a punish- ment within either Art. 20(2) of the Constitution or s. 26 of the General Clauses Act. The learned Judges of the High Court rejected this contention. Though learned Counsel for the appellant originally submitted that he was contesting this conclusion of the High, Court, he did not address us any argument under that head and we do not therefore find it necessary to dwell on this point any further, but shall proceed on the basis that a direction by the Magistrate to replace the moneys of the insurer with a penalty of imprisonment in default of compliance therewith was a punishment within Art. 20(2) of the Constitution and s. 26 of the General Clauses Act. Turning to the main points urged before us, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be prosecuted and punished for the same offence more than once. 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 same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. It would be seen from a comparison of s. 105 of the Insurance Act and a. 405 of Indian Penal Code (a. 409 of the Indian Penal Code being only an aggravated form of the same offence) that though some of the necessary ingredients are common they differ in the following: (1)Whereas under a. 405 of the Indian Penal Code the accused must be entrusted with property or with dominion over that property , under s. 105 of the Insurance Act the entrustment or dominion over property is unnecessary it is sufficient if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the ratio underlying it in the context of Art. 20(2) ,of the Constitution that is of relevance to the present appeal. The occasion for this arose in State of Madhya Pradesh v. Veereshwar Rao Agnihotry ([1957] S.C.R. 868:). The res- pondent was a tax-collector under a municipality and was prosecuted for offences among others under s. 409 of the Indian Penal Code and s 5(2) of the Prevention of Corruption Act for misappropriation of sums 'entrusted to him as such tax-collector. By virtue of the provision contained in s. 7 of the Criminal Law Amendment Act, XLVI of 1952, the case was transferred to a Special Judge who was appointed by the State Government after the prosecution was commenced before a Magistrate. The Special Judge found the accused guilty of the offence under s. 409 of the Indian Penal Code and convicted him to three years' rigorous imprisonment but as regards the charge under S. 5(2) of the Prevention of Corruption Act, he acquitted the accused on the ground of certain procedural non-compliance with the rules as to investigation prescribed by the latter enactment. The respondent appealed to the High Court against this conviction and sentence under s. 409 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the accused cannot plead the trial and acquittal, or the conviction and punishment for one offence in bar to a conviction for the other (1). In Albrecht v.(1)Constitution of the United States, Vol.II.- p. 1158., United States ((1927) 273 TT.S. I: 71 Law. Ed. 505.) Brandeis, J., speaking for a unanimous Court said: There is a claim of violation of the Vth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine, counts in the information four charged illegal possession of liquor, four illegal sale and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offences. One may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offence. There is nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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