1. A common point of law arises in these two Criminal Revision Applications, filed by the State, against the order of discharge, passed by the Additional Metropolitan Magistrate, 2nd Court, Mazgaon, Bombay on October 18, 1976. The respondent-original accused is also common.
2. Case No. 2505/P of 1974 and case No. 2506/P of 1974, were filed against the respondent Jayantilal Kalidas Mehta, who is the Proprietor of M/s Pravinchandra Jagdishkumar & Co. He was assessed for sales tax for the Samvat year 2023 and on his producing certificates in Form No. 16, deductions were granted to him. It appears for the period June 4, 1967 to July 28, 1967, on the basis of a declaration of one Chandrakant S. Sahu, deductions to the extent of Rs. 24,600 were granted to the accused. Similarly, for the period between June 5, 1967 to October 15, 1967, on the basis of a declaration of one Hiralal Gandhi, deductions to the extent of Rs. 51,923 were granted. Both these persons deny having signed any such certificate. Consequently, the Sales Tax Officer filed a complaint with the police against the respondent for proceeding against him under Sections 467, 471 and 420 of the Indian Penal Code.
3. The two cases were filed in respect of the declarations allegedly made by the two abovenamed persons. Before the charge was framed the respondent preferred an application in both the cases contending that there was no proper sanction to prosecute him for the wrongs committed by him falling under the Sales Tax Act and as such he should be discharged. According to him, Section 67 of the Bombay Sales Tax Act, provides for not taking cognizance of any offence punishable under Section 63, except with the previous sanction of the Sales Tax Commissioner, and hence the charge could not be sustained.
4. A reading of Section 63, Clauses (c), (f), (ga), (k) and (m) would show that knowingly furnishing a false return, giving a certificate which is known to be or believed to be false, issuing or producing before the Commissioner a false certificate, knowingly producing a false document or furnishing incorrect information and aiding or abetting such offences, are offences punishable under that section. It was therefore, argued that the prosecutions in question under the Indian Penal Code were filed to circumvent the provisions of Section 67 of the Sales Tax Act, That was not permissible under the law and hence the prosecutions could not proceed. The State did not deny that no action under the Sales Tax Act was taken or is in contemplation. It is however, maintained that proceeding against the accused under the Penal Code is proper.
5. The learned Magistrate has referred to the various paragraphs of the first information report, lodged by a Sales Tax Inspector who was authorised by his Deputy Commissioner, to investigate the offences under the sales tax law. He had information that certain persons were getting wrongful deductions by producing false evidence of sales commonly called Havala Transactions. The complainant was satisfied that the accused had obtained such wrongful deductions and had thus cheated the Government. But no action under-the Sales Tax Act was taken, instead the complaint was filed on the basis of forgery and using forged document for cheating that is for offences under Sections 467, 471 and 420 of the Penal Code.
6. The submissions made on behalf of the accused that the facts alleged disclosed non-payment of sales tax dues and the violation of the Sales Tax Act by obtaining false Havala bills, was accepted by the learned Magistrate. According to him, the main charge related to non-payment of the proper sales tax by the accused. The learned Magistrate observes that by saying simply that the accused had committed offences under the Penal Code, the prosecution could not give a go-by to the requirements under ,the Sales Tax Act and avoid to get the necessary sanction. In truth and substance, the prosecution was under the Sales Tax Act and therefore, relying upon the judgments in The State of Maharashtra v. R. Rajan alias Ramiah Rajan (1973) Criminal Revision Application No. 402 of 1973 and The State of Maharashtra v. Jayantilal Kalidas Mehta (1976) Criminal Revision Application No. 582 of 1974 of this High Court, the accused was discharged.
7. Aggrieved by that decision, the State has come in revision. It is contended on behalf of the State that when the facts alleged constitute an offence, under two different enactments, the option or the choice is of the prosecution to proceed against the accused, charging him of either or any of the, offences, and as such, the trial under the Penal Code was not illegal. The order of discharge therefore, is invalid.
8. For the decision of the issue, mainly three cases, Basir-ul-Huq v. State of West Bengal : 1953CriLJ1232 , Chandrika Sao v. State of Bihar AIR S.C. 170 and State v. Pandurang Baburao AIR(1955) 57 S.C. 868, will have to be looked into. The subsequent decisions referred to, at the Bar, follow one or the other of the above-noted authorities. Basir-ul-Huq's case is a Full Bench decision of the Supreme Court given by Mahajan, Bose and Jagannadha Das, JJ. The Court was concerned in determining the effect of Section 195 of the Code of Criminal Procedure (1898) on the trial of offences under Sections 182, 297 and 500 of the Indian Penal Code. The contention raised on behalf of the accused that the trial was vitiated in the absence of sanction under Section 195 of the Criminal Procedure Code, was not upheld; that was because Section 195 did not bar the trial of a distinct offence. The well-known passage occurs in para. 14 of this judgment, which runs as follows (p. 296):
Though, in our judgment, Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section 195, Cr.P.C. merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.
9. A reading of this passage would show that although there could be a trial, without sanction under Section 195 of the Criminal Procedure Code for a distinct offence, that provision cannot be mis-used by avoiding to take sanction, if the facts primarily and essentially indicate an offence for which the complaint of a public servant is necessary. Efforts should be made to find out the offence alleged in truth and substance and then to apply the tests regarding the distinct offence and the non-necessity of sanction under Section 195 of the Criminal Procedure Code.
10. Mr. Mehta, the learned advocate, appearing on behalf of the respondent, contends that the present Revision Petition squarely falls within the principle laid down in this ruling. According to him, it is the Sales Tax Inspector who has started the action against the respondent-accused. He has mentioned that the government was cheated by obtaining deductions falsely and on submission of false or forged forms. He urges that the alleged preparing of false or forged forms amounts only to the method or the modus operandi followed by the accused but in truth and substance, the offence is against the Sales Tax Act. Primarily, the acts or omissions, fall under the Sales Tax Laws and therefore, without obtaining sanction of the Sales Tax Commissioner, the trial even under the Penal Code cannot proceed.
11. When the learned advocate says that the present case is primarily and essentially one of circumventing the Sales Tax Act, I feel there is a good deal of substance in it. At the same time, it may have to be observed, as pointed out by Mr. Deshmukh, the learned advocate, for the State, that the offence charged under the Penal Code is a graver offence.
12. If we now turn to the Full Bench decision of the Bombay High Court in State v. Pandurang Baburao that was a case where a public servant had misappropriated the amount entrusted to him. An action was taken under Section 409 of the Indian Penal Code. There was no sanction to prosecute him under Section 5(2) of the Prevention of Corruption Act. Contesting claims were made whether the prosecution ought to have) proceeded against the accused under Section 5(1)(c) of the Prevention of Corruption Act and whether mere action under Section 409 of the Indian Penal Code, was not proper. The division Bench referred the case to the Full Bench for determining the following question:
When an offence falls under a special Act and sanction is necessary under that Act, and the offence also falls under the ordinary law and no sanction is necessary in respect of that offence, is it open to the prosecution to proceed tinder the ordinary law and not obtain the sanction which would have been necessary if the accused had been proceeded against under the special law? (p. 870).
13. A reading of the question formulated would show that on facts our case is akin to it. It also appears that the division Bench referring the matter to the Full Bench, had taken into consideration the observations of the learned Judges in Basir-ul-Huq's case. The Full Bench consisting of the Chief Justice Chagla, Justice Dixit and Justice Desai, answered the question in the affirmative and held that the trial under the Indian Penal Code, alone was not improper. The Full Bench took into consideration the effect of Section 26 of the General Clauses Act, 1897. In the context of the law enunciated by the Supreme Court, speaking through the mouth of Justice Mahajan in paragraph 14 of the judgment in Basir-ul-Huq's case, the observations of the Full Bench are as follows (p. 872):
Applying this principle the learned Judges thought that the facts primarily and essentially disclosed an offence which fell under Section 5(2) of the Prevention of Corruption Act and therefore the prosecution would be guilty of a device or a camouflage in prosecuting the accused under Section 409 of the Indian Penal Code and not under the Prevention of Corruption Act. With very great respect, the learned Judges overlooked the vital distinction which exists between a case where offences in respect of the same facts are constituted under the same enactment and offences are constituted under different enactments.
14. The decision proceeds to take note of the statutory principle laid down by the Supreme Court that it would not be open to the prosecution at its own option to proceed under a particular section under the Indian Penal Code, which did not require a sanction when the facts disclosed would constitute an offence under different section, which would require a sanction. It is observed that the provision of Section 26 of the General Clauses Act, 1897 could not be overlooked and that the answer to the question raised in the Full Bench, was to be found in terms of Section 26 of the General Clauses Act,
15. Section 26 of the General Clauses Act is as follows:
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.
16. According to that judgment Section 26 of the General Clauses Act is applicable when any act or omission constituting the offence, falls under two enactments as in the case before the Full Bench the act of misappropriating money falls under the Indian Penal Code as also under the prevention of Corruption Act. In no uncertain terms the Full Bench after considering the observations of the Supreme Court in para. 14 of its judgment in Basir-ul-Huq's case, has held that when an offence falls under two different enactments, Section 26 of the General Clauses Act is attracted and there would be no impediment of the observations appearing in Basir-ul-Huq's case.
17. Mr. Mehta for the respondent invited my attention to the definition of the word 'enactment' appearing in the General Clauses Act, 1897, which includes any provision contained in any Act. He also relied upon the observations made in Chunilal v. State : AIR1959Bom554 , where the definition of enactment has been so understood. However, the reading of the Full Bench decision in State v. Pandurang Baburao makes it clear that Section 26 is interpreted to speak of fact or facts, constituting offences falling under two distinct statutes. The entire discussion has proceeded on that basis, and the principle enunciated is that when the facts alleged constitute an offence under such two distinct statutes, one requiring sanction and another not so requiring, the proceeding falling under the statute or enactment not requiring the sanction could not be looked as illegal or invalid.
18. Another important decision to be noticed in this connection is Chandrika Sao v. State of Bihar. That is a judgment delivered by three Judges of the Supreme Court, Justice Mudholkar speaking for the Bench. Action against the accused was taken under Section 353 of the Indian Penal Code although it could have been taken under Section 26(1)(h) of Bihar Sales Tax Act, 1947. To the extent necessary the facts are, the Assistant Superintendent of Commercial Taxes paid a surprise visit to the shop of the original accused and' started looking into the books of account lying in the shop, which were found to have been kept in two sets. The shopkeeper snatched away those books and passed them on to his servant, who in turn passed them to another servant on the first floor. The peon of the officer was prevented by the shopkeeper going upstairs, a scuffle ensued and the peon's shirt was torn. On these facts the Supreme Court held that the action of the shopkeeper did amount to use of force as contemplated by Section 349, Indian Penal Code. The Court also came to the conclusion that the force was used intentionally with the knowledge that the use of force would cause injury, fear or annoyance to the person against whom the force was used and hence Section 353 of the Indian Penal Code was also attracted.
19. On behalf of the appellant, it was argued that he had committed an offence under Section 26(1)(h) of the Bihar Sales Tax Act, which covered an obstruction caused to the officer of the Tax Department. The argument advanced, that the prosecution intentionally wanted to obviate the necessity of obtaining the Commissioner's sanction for the offence under the Sales Tax Act and the prosecution ought not to be allowed to do it by proceeding under Section 353 of the Indian Penal Code, was repelled. The relevant observations in this connection, in para. 9 of the judgment, are as follows (p. 173):
He next contended that the only offence which the appellant has committed was one under Section 26(1)(h) of the Act and that as no previous sanction of the Commissioner had been obtained for launching the prosecution the trying Magistrate was precluded by the provisions of Sub-section (2) of Section 26 from taking cognizance of the alleged offence. Undoubtedly had the appellant been prosecuted for obstructing Mr. Singh from inspection or seizing the account books, the trying Magistrate would have been incompetent to take cognizance of the offence without the previous sanction of the Commissioner. The appellant is, however, not being proceeded against for that offence but only for the offence under Section 353 I.P.C. for which no sanction is required, Learned Counsel contends that the whole object of the prosecution is to get round the provisions of Sub-section (2) of Section 26 and that that is why the prosecution was launched under Section 353, I.P.C. The suggestion apparently is that the prosecution of the appellant for the offence under Section 353 is merely colourable. Whether Mr. Singh was obstructed while making an inspection of the account books or while he was intending to seize them, the Commissioner's sanction would certainly have been required under Sub-section (2) if in fact the appellant was prosecuted specifically for obstructing Mr. Singh. He could have been prosecuted for these offences even without proof of the fact that he had used criminal force. From the facts found it would no doubt appear that the appellant has committed an offence under Section 26(1)(h) of the Act as also under Section 353 I.P.C. because he has used criminal force. He could be prosecuted for either or both these offences at the discretion of the prosecution. It may be that he was not prosecuted in respect of both the offences and the prosecution was restricted to the offence under Section 353 I.P.C. only to obviate the necessity of obtaining the Commissioner's sanction. Even so, the prosecution cannot be Said to have done something which is unwarranted by law. An offence under Section 353, I.P.C. is a graver offence than the one under Section 26(1)(h) of the Act because it is punishable with imprisonment for a period upto two years or to payment of fine without any limit, or both, whereas an offence under Section 26(1)(h) is punishable with imprisonment which may extend upto six months or with a fine not exceeding Rupees 1,000, or both. In choosing to prosecute the appellant for a graver offence under the general law the prosecution cannot be regarded as having acted colourably.
20. According to this judgment, the prosecution under the Penal Code which did not require any sanction is not looked upon as colourble. When the accused was prosecuted for a graver offence, there was nothing wrong in the prosecution exercising that option.
21. lit may be noted at once that this decision does not refer to Section 26 of the General Clauses Act though it seems the result is in consonance with the application of that provision. Considerations of a graver offence however, have been introduced. Earlier decision of the Supreme Court in Basir-ul-Huq's case, is, not referred to, as there is no discussion of any conflict between the two decisions or of any distinction between the two.
22. The learned advocate for the State, Mr. Deshmukh, says that in view of this decision of the Supreme Court, the learned Magistrate was in error in not proceeding with the trial under the Penal Code alone. In this connection Mr. Mehta for the respondent invited my attention to para. 10 of the same judgment, which runs as under (p. 173):
Section 26(1)(h) of the Act deals only with one kind of obstruction and no more. But there may be an obstruction which may involve graver consequences to the officer obstructed such as grievous hurt or even death. It would lead to startling results if it were to be held that the prosecution acted colourably in not restricting the accusation to a minor offence requiring sanction. For, if the prosecution were to be so restricted, grave offences will go unpunished. Surely, that is not what the legislature could ever have intended when it enacted Section 26 of the Act. It makes little difference if the prosecution decided to proceed with respect to a graver offence and ignore one which is of a comparatively minor character.
23. According to Mr. Mehta, therefore the distinguishing factor is that the charge under Section 26(1)(h) of the Bihar Sales Tax Act was considered minor, as it dealt with only one kind of obstruction and when under Indian Penal Code the charge was of a graver type, the option for the prosecution to proceed under it, is recognised. He argues that the test of primarily and essentially the offence being under the Sales Tax Act was not satisfied in this case. It should however, be remarked that the case weighs the two charges in terms of gravity and it is on that background that reference is made to the graver consequence of the obstruction resulting in grievous hurt or death, which may constitute a distinct offence. I am unable to find out how the inherent application of Section 26 of the General Clauses Act, could not be read into this decision.
24. Before going to the decisions in the two Revision Applications relied upon, by the learned Magistrate, we can go to the earlier decisions. One is Durgacharan v. State of Orissa AIR S.C. 1975, wherein the division Bench of the Supreme Court was considering the effect of a prosecution under Sections 353 and 186 of the Indian Penal Code, on the same facts but without a sanction under Section 195 of the Code of Criminal Procedure (1898). It is said that the two sections relate to two distinct offences and the prosecution under Section 353 is not invalid though the prosecution under Section 186 was barred under Section 195 of the Criminal Procedure Code (1898). The facts briefly stated are : that the officers of the Court had gone with the police to execute a money decree, the amount was paid, but while they were returning, the next day the decree-holder used force in trying to obtain back the amount paid. The division Bench remarked that the quality of the two offences under Sections 186 and 353 of the Indian Penal Code is different. Section 353 relates to offences affecting human body, Section 186 deals with causing obstruction to a public servant in discharge of public functions. This decision follows the principle laid down in Basir-ul-Huq's case regarding distinctness of offences. It may have to be noticed that both the offences were under the Penal Code so as to make inapplicable Section 26 of the General Clauses Act as detailed in the Bombay Full Bench decision viz., State v. Pandurang Baburao.
25. Chronologically we can now go to the decision reported in Waman v. Narhari : AIR1968Bom124 , where the division Bench consisting of Patel and Deshmukh JJ. dealt with three charges levelled against the original accused. He was an officer of a co-operative society and during the course of his duty as such officer, he was alleged to have tampered with the record of the society. He was prosecuted under Sections 406, 467 and 420 of the Indian Penal Code. On his behalf a plea was raised that a sanction under Sub-section (3) of Section 148 of the Maharashtra Co-operative Societies Act, was necessary before launching the prosecution against him in respect of the acts committed in relation to the books of the society. The case thus, covered allegations on facts constituting an offence under two different enactments and there was no sanction as required under the provisions of the Maharashtra Co-operative Societies Act. The factual position that out of the three offences with which the accused was charged, two offences were not covered under any of the provisions of the Maharashtra Co-operative Societies Act, was taken into consideration. The division Bench relied upon the Full Bench decision in State v. Pandurang Baburao. In para. 5 of the judgment, reference to Section 27 of the Bombay General Clauses Act corresponding with Section 26 of the General Clauses Act is made and it is said that it is open and permissible for the prosecution to choose to prosecute the accused under the provisions of the Indian Penal Code alone. In para. 8 of the decision the Supreme Court ruling in Chandrika Sao v. State of Bihar is looked into and it is said that the observations made therein squarely apply to the facts and circumstances of the case in hand.
26. It is worthwhile noticing that the ruling in Basir-ul-Huq's case is not referred to. But the ratio of the Bombay Full Bench in State v. Pandurang Baburao that Basir-ul-Huq's case will have a restrictive application, when the offences fall under the same statute or enactment and not when Section 26 of the General Clauses. Act, is attracted, is acted upon.
27. In all cases, so far looked into, either where the prosecution was under one of the sections of the Penal Code in preference to the other or under the Penal Code excluding the prosecution under a different enactment, where sanction to prosecute was necessary, the ultimate decision has been that there was no bar for the proceedings that were taken.
28. We can now usefully refer to the decision in Phoenix Mills v. C.B.I. (1971) 75 Bom. L.R. 87. That is a decision of the division Bench consisting of Kamat and Hajaraavis JJ. The petitioners were charge-sheeted for an offence under Section 120B of the Indian Penal Code, 1860, read with Section 5 of the Imports and Exports (Control) Act, 1947; the allegations were that they had entered into a conspiracy in breach of the conditions of the licence issued under the Imports and Exports (Control) Act and that in pursuance of that conspiracy the goods were actually disposed of. When an objection was taken that in the absence of a complaint, as required by Section 6 of the Imports and Exports (Control) Act, 1947, the Court was not entitled to take cognizance of the offence, the prosecution contended that there was no such impediment inasmuch as the petitioners were being prosecuted merely for the offence under Section 120B read with Section 5 of the Imports and Exports (Control) Act, which was distinct offence from the offence under Section 5 of the Act.
29. It may be worthwhile noticing that in order to lay the foundation of conspiracy, the prosecution was interested in taking assistance of Section 5 of the Imports and Exports (Control) Act. It was held that the allegations contained in the charge-sheet disclosed primarily and essentially an offence falling within the ambit of Section 5 of the Act. The mandatory provisions of Section 6 could not be permitted to be avoided or circumvented and as there was no complaint in writing as required by Section 6 of the Act, the Court was debarred from taking cognizance, of the offence under Section 5 of the Act. Basir-ul-Huq's case was relied upon. The observations in para. 14 of that judgment are quoted and in the light of those observations it was held that the averments in the charge-sheet spoke of a criminal conspiracy to dispose of the goods in breach of the condition of the licence and it was obvious to their Lordships that the offence committed fell squarely and fully within the ambit of Section 5 of the Imports and Exports (Control) Act.
30. This case does not refer to the decision of Chandrika Sao v. State of Bihar nor the Full Bench decision of the Bombay High Court in State v. Pandurang Baburao nor does it seem that the arguments were advanced on Section 26 of the General Clauses Act.
31. The State of Maharashtra v. R. Rajan alias Ramiah Rajan, was decided by Vaidya J. The trial Magistrate has relied upon this decision. The two cases arose out of the charge-sheet under Section 120B read with Sections 419, 420, 467, 471 and 468 of the Indian Penal Code read with Sections 4 and 5 of the Foreign Exchange Regulation Act, 1947. By reason of Section 23 of the Foreign Exchange Regulation Act, no Court could take cognizance of any offence falling under that Act except upon a complaint in writing by the Director of Enforcement. There was no such complaint on the file. The facts in brief were: that the accused had entered into a conspiracy in two different cases to remit illegally amounts to Singapore. They held documents showing import of sheep skin in India, though no goat and sheep skin actually were imported. They remitted amounts as price of goods with the help of forged invoices and false documents in fictitious names through Bank and also shipping bills, bills of lading, sight drafts etc., covering bogus shipment of goat and sheep skin from Singapore to Bombay. On behalf of the accused, it was said that the prosecution was attempting to evade and circumvent the mandatory provisions of the Foreign Exchange Regulation Act and the answer to it was that the charge-sheets were in compliance with Section 23 of the Act but the cases related to the offences of conspiracy, cheating, forgery and using forged documents as defined in the Indian Penal Code.
32. The learned Judge upheld the order of discharge passed by the learned Additional Chief Presidency Magistrate, concluding that the main object of the prosecution was of taking action against the illegal remittances of Indian currency following the modus operandi of fictitious imports, fabricated invoices and forged bills of lading. The Supreme Court decision in Basir-ul-Huq's case and the division Bench decision in Phoenix Mills v. C.B.I. were referred in arguments on behalf of the accused. The learned Judge applying the principles laid down in those cases remarked that there can be no doubt that there was no offence under any of the sections of the Indian Penal Code, which could be described as a distinct offence of remittances of currency from Bombay to Singapore, The cheating and fabrications were all integrally and inseparably woven with the truth and substance of the offence contained in the remittances of cash. Nothing remained after taking away the offence committed under the Foreign Exchange Act. That was the substance and the very soul of the prosecution and hence the Revision Application against the order of discharge came to be rejected.
33. It is worthwhile noticing that the Full Bench decision of our High Court in State v. Pandurang Baburao or the decision in Chandrika Sao's case are not referred to, there was therefore, no occasion to distinguish the ratio of those cases, or distinguishing the Full Bench decision laying down the principles that Basir-ul-Huq's case applies when the offences fall under one enactment only.
34. It appears from the reference made to this case in The State of Maharashtra v. Jayantilal Kalidas Mehta, that leave to appeal to the Supreme Court was not granted and the special leave was also rejected.
35. In The State of Maharashtra v. Jayantilal Kalidas Mehta, also a case relied upon by the learned trial Magistrate the facts alleged1 are that the accused as an importer had a contract to import raw hides and skins from the Exporter in Hongkong. These articles were not dutiable at that time. The accused purported to import raw hides and skins on the basis of the licence but checking of the parcels at the time of the clearance, showed that in fact, tanned leather which was a dutiable and prohibited article, was imported. The duty on such article, if permitted, was also very high. In substance a case of conspiracy between the Importers here and the Exporters there, was alleged.
36. After investigations were complete, two complaints came' to be filed, one was by the Assistant Collector of Customs on April 8, 1968. That was the only surviving complaint at the time of the decision of the division Bench, because the complaint filed by the Director of Enforcement under the Foreign Exchange Act, even before the commencement of the adjudication proceedings contemplated under that Act was improperly filed. The learned Magistrate while discharging the accused remarked that that was a, complaint falling under Sections 4, 5 and 9 of the Foreign Exchange Regulation Act read with Section 23 of the same Act. There was no proper complaint filed by him and the prosecution could not be permitted to ignore the breach of that Act, which according to him, was the principal offence. He relied upon Basir-ul-Huq's case. In pursuing the same argument in the High Court, it was said that when the prosecution was prohibited from doing same thing directly they cannot do the same indirectly. This statement was made on the basis that the accused was principally involved in an offence of breach of the provisions of the Foreign Exchange Act. The question posed was whether the conspiracy was principally for committing the offence under the Customs Act or the commission of those offences was merely a modus operandi adopted by the accused for entering into a criminal conspiracy with the object of importing and exporting goods, in contravention of the conditions of the licence to carry out their intended trade. The contention on behalf of the accused found favour with the division Bench. During the course of the argument the judgment in The State of Maharashtra v. R. Rajan alias Ramiah Rajan came to be looked into. The line of reasoning contained therein was adopted and the Revision Application was rejected.
37. Although the division Bench follows the reasoning adopted in The State of Maharashtra, v. R. Rajan alias Ramiah Rajan, as in that case neither the Full Bench decision in State v. Pandurang Baburao nor the Supreme Court decision in Chandrika Sao's case, has been looked into. Consequently, we are not having the benefit of knowing how Section Foreign Exchange of the General Clauses Act will have no application.
38. Mr. Mehta for the respondent, heavily relies upon these unreported judgments in The State of Maharashtra v. R. Rajan alias Ramiah Rajan and The State of Maharashtra v. Jayantilal Kalidas Mehta and says that since in the present case the offence principally and essentially is under the Sales Tax Act, the prosecution under the Indian Penal Code cannot be permitted. According to him, forgery and use of forged documents was a modus operandi employed for1 obtaining the alleged deductions. In fact, it is said that in case such prosecutions are permitted, the whole object for which Section Foreign Exchange was enacted, would be rendered nugatory. In fairness to the prosecution it can be said that nowhere there is any whisper that the Government intends modifying the assessment order or the order granting refund. The prosecution focuses attention only on the alleged forgery and cheating and it is said that a person committing it should be punished.
39. A plain reading of the Supreme Court decision in Chandrika Sao's case would show that when facts alleged constitute an offence under two different statutes, an option is given to the prosecution to proceed under one statute alone more so if that is a graver offence. The pertinent point for determination would be whether this principle is in conflict with the principle enunciated in Basir-ul-Huq's case that the prosecution will not be allowed to take resort to devices and camouflages and it will be obligatory to find out what offence is primarily and essentially disclosed on facts. On the face of it facts in Basir-ul-Huq's case did not fall under two different enactments. The principle generally stated emphasises the need not to circumvent the obligation cast on the prosecution, It cannot however, be ignored that the Full Bench of our High Court in State v. Pandurang Baburao interprets that judgment in a particular manner. That decision is not overruled. In fact it is followed by our division Bench in deciding Woman v. Narhari. Incidentally Justice Deshmukh was a party to that judgment as also in deciding The State of Maharashtra v. Jayantilal Kalidas Mehta. If the distinction indicated by the Full Bench of our High Court, is taken as the implied basis for the decision in Chandrika Sao's case, there is no conflict in all the three cases viz., Basir-ul-Huq's case, Pandurang Baburao's case and Chandrika Sao's case. In that event the unreported judgment of the division Bench in The State of Maharashtra v. Jayantilal Kalidas Mehta, the unreported judgment of the single Judge in The State of Maharashtra v. R. Rajan alias Ramiah Rajan as also the reported judgment of the division Bench in Phoenix Mills, strike a discordant note with the weighty decisions of the highest Court of our land and the Full Bench decision of our Court. I do not think I will be, well advised in following those cases. The judgment in Chandrika Sao's case para. 10, does deal with the question of a distinct offence but the whole purpose, according to me, is to bring to the forefront the advisability and normal persuation in the prosecution to make a choice for booking an offender with a graver offence.
40. Nathmull v. Salil Kumar : AIR1971Cal93 , is a decision of a single judge of the Calcutta High Court. It has the merit of considering the judgments in; Chandrika Sao's case and Basir-ul-Huq's case together. The prosecution was filed under Section 406 read with Section 403 of the Indian Penal Code in spite of the offence falling under Employees' State Insurance Act, 1948, Section 40 read with Regulation 26 Employees' State Insurance (General) Regulation, punishable under Section 85(a) and (g) of the Act. It is held that:
In view of the provisions of Section 26 of the General Clauses Act, there is no bar in limine on the prosecution to proceed under the General Act on an offence which otherwise lies, merely because the same facts also constitute an offence under the Special Act, subject only to the overriding consideration of double jeopardy.
Consequently proceedings under Sections 406 and 403 of the Penal Code, were held maintainable.
41. With respect, following this decision and the decision in Chandrika Sao's case, I feel the same ought to be the result in our case. Bombay Full Bench decision provides for separate field of operation for the principle enunciated in Basir-ul-Huq's case and Section 26 of the General Clauses Act. With utmost respect since I feel bound by the decision of the Full Bench of our High Court and the Supreme Court decision referred to above, I cannot follow the unreported judgment referred to above or the reasoning contained in Phoenix Mills v. C.B.I. Consequently the order passed by the learned Magistrate discharging the accused cannot be sustained.
42. Hence I pass the following order:
The Rule is made absolute. Order passed by the learned Additional Metropolitan Magistrate, 2nd Court, Mazagaon, Bombay, dated October 18, 1976, discharging the accused, is set aside and the papers are sent back to him for proceeding according to law, in the light of the above judgment.