1. This matter has been directed to come before a Bench of five Judges. The referring Bench has not formulated the points for our decision, and some statement of history is necessary. I omit dates which are not of importance.
2. It appears that a Sub-Inspector of Police, Hullender, was conducting the investigation of a case Under Sections 7 and 10, Essential Supplies Temporary Powers Act, 1940, and also Under Sections 420 and 182, Penal Code, against two persona. In the course of his investigation, the Sub-Inspector made a written request to the Income-tax Officer, Jullundur, asking him to hand over certain income-tax returns and statements relating thereto made by the two persons, There is no dispute that this request must be referred to Section 94, Criminal P.C. The Income-tax Officer declined to hand over the papers, stating that Under Section 51, Income-tax Act, he was precluded from so doing. The Sub-Inspector then made a written application Under Section 96 of the Code to the Ilaqa Magistrate, Jullundur, requesting issue of a search warrant, and the Magistrate made an order directing the Sub-Inspector 'to enter the Income-tax Office, Jullundur, and to obtain possession of the relevant record in accordance with law.'
Following his order the Magistrate issued a search warrant in the form provided in sch. 5 of the Code, which form is as follows:
VIII. - WASRANT TO SEARCH AFTER INFORMATION OB A PARTICULAR OFFENCE.
(See Section 96)
To (Name and designation of the Police Officer or other person or persons who is or are to execute the warrant.)
Whereas information has been laid (or complaint has been made) before me of the commission (or suspected commission) of the offence of (mention the offence concisely), and it has been made to appear to me that the production of (specify the thing clearly) is essential to the Inquiry now being made or about to 'be made into the said offence or suspected offence;
This is to authorize and require you to search for the said (the thing specifies) in the (describe the house or .place or part thereof to which the search ia to be confined) and, if found, to produce the game forthwith before this Court, returning that warrant, with an endorsement certifying what you have done under it, immediately upon its execution.
Given under my hand and the seal of the Court,
this...day of...19.(Seal) (Signature).
3. A revision application against the order of the Magistrate and the warrant issued was filed on behalf of the Income-tax Officer in the Sessions Court, Jullundur. This revision application was rejected by the Sessions Judge who gave reasons which it does not appear necessary to set out. A further revision was then filed in this Court, and it is with this revision application that we have now to deal. There have been orders of stay in all the Courts, and the warrant has not bean executed.
4. It ia claimed by Mr. Puri on behalf of the Income-tax Office that the warrant issued is illegal as it offends against express provisions contained in 6. 64, Income tax Act, and at this stage it seems desirable to set out the material parts of Section 54, which are els. (1) and (2):
(1) All particulars contained in any statement, disclosure made, return furnished or accounts or information or documents produced under the provisions of this Act, or in any evidence given, or affidavit or deposition made, in the course of any proceedings under this Act other than proceedings under this Chapter, or in any record of any assessment proceeding, or any proceedings relating to the recovery of a demand, prepared for the purposes of this Act, shall be treated as confidential, and notwithstanding anything contained in the Evidence Act, 1872, no Court shall, save as provided in this Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record, or to give evidence before it in respect thereof.
(2) If a public servant discloses any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, deposition or record, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine.
5. Clause (3) provides that nothing in the section shall apply to the disclosure of certain particulars of fact to certain persona, officers or Courts for certain purposes or in certain conditions. It is to be mentioned that no exception of the operation of the section is provided when there ia investigation by the police into offences such as were the subject of investigation in the present case; and the reliance place by the Jullunder Magistrate upon Clause (3) in the order which he made was not justified.
6. Clause (4) is not material. Clause (s) pro. vides that no prosecution shall be instituted under the section except with the previous sanction of the Commissioner.
7. The first question which calla for our decision is that raised by Mr. Puri, namely, whether the warrant issued by the Magistrate was illegal as offending against the provisions of Section 64, Income-tax Act. This Act (to which it will be convenient to refer as the Act) is a special Act, and any prohibition made by it will prevail against any power conferred or procedure prescribed by the Code of Criminal Procedure (to which I will refer as the Code). We have heard argument upon the meaning to be given to the words ''public servant' which appear in els. (1) and (2) of Section 64 of the Act. Relying upon a Bombay deoision, Emperor v. Osman Ghotani I. L. R. (1942) Bom 767 : A I. R. (29) 1942 Bom. 289 : 44 Cr.L.J. 7, the learned Advocate-General claims that public servants in this section must be held restricted to Officers of the Income-tax Department and therefore, there is no satiation provided in the section against disclosure by other public servants. Mr, Puri on the other hand has pointed out that Public servant is defined in Section 130 of the Act to have the same meaning as in the Penal Code. He claims, therefore, that there is no justification for limiting its meaning to one particular class of Public servants. He has drawn our attention to the fact that it is in Section 54 alone of the Act that the expression public servant finds place, and be urges that the legislature should be taken to have intended their definition of an expression they have used only in one section to be precise, notwithstanding the provision in Section 2 that definitions given in the section must be subject to repugnancy in the context.
8. I do not think it necessary for us to decide this point. We are not here concerned with admissibly of evidence. The legality of disclosure by the Police Officer will become of importance only when there is a question of disclosure being made by him, and in any event not before the Police Officer has obtained possession or inspection of the documents. Assuming without accepting that the words 'public servant' refer to the Income-tax Officer, there can be no doubt that under Clause (1) of Section 54 of the Act the Magistrate was debarred from requiring the Income-tax Officer to produce before him the documents to which the application and warrant referred. I am unable to accept that what the Court is prohibited from doing it can perform through an agent. Whether the requirement was attempted by the Magistrate by request, demand or computation, the prohibition of el. (1) of Section 54 is there. The warrant which was issued dearly was illegal.
9. The conclusion may be said to dispose of this matter, but the learned Advocate General has urged that, in exercise of our powers of revision, we should determine whether by issue of another form of warrant, not requiring production of the document before the Magistrate, what be claims to be the valid order preceding the issue of the warrant could not be implemented. He claims that the form of warrant in Sch. (v) of the Code is appropriate only to cases when there is inquiry, trial or other proceedings before a Court, and is not appropriate when the war. rant is sought by a Police Officer in the course of an investigation. He refers to Section 585 of the Code which permits such variation of the forms set forth in Sch. 5 as the circumstance of each case may require. Mr. Puri on the other hand urges that when the assistance of the Court has been invoked Under Section 96, the Court necessarily ia in control, and production before it of articles seized in execution of the warrant is essential, He points to Section 99 of the Code, which no doubt provides for the special case of search beyond jurisdiction, but in which the requirement o production before the Court ia expressly stated. He claims that the variation allowed by a. 685 must be confined to matters of detail.
10. This point also is not free from difficulty, but again, in my opinion, its decision is not necessary for our purpose. Execution of any form of warrant, which would enable the Polios Officer in the present case to effect his declared purpose of necessity would involve disclosure of particulars of the documents to the Police Officer. Also having regard to the provisions of Section 103 of the Code, it ia difficult to see how disclosure to the two or more respectable inhabitants of the locality could be avoided. Disclosure by the Income tax Officer to the police officer is made punishable by Clause (2) of Section 54 of the Act. It is true that after disclosure effected by a warrant of a Court, the Income-tax Officer might well plead Section 78, Penal Code. Also it is not likely that the sanction of the Income-tax Commissioner would not be given to a prosecution. But what the law makes punishable the law must be taken to forbid, as said by Lord Wright in Bowell v. Pratt (1937) 3 ALL. E. R. 660 at p. 662 : 106 L. J. K. B. 790:.but a prohibition of an act mutt be implied when the act is made a criminal offence, punishable by fine oc imprisonment or both.
11. Even under the terms of Section 96 of the Code, a Magistrate is not compelled to take action., He 'may' issue a search warrant. It is the issue of the warrant rather than the belief in the existence of the circumstances set out in Part I of Section 96 which is the operative part of that section. The Courts will not assist to have done what is prohibited by law. No warrant involving the disclosure prohibited by Section 64 of the Act could properly be issued. As no form of warrant avoiding such disclosure would be of any effect, I consider that the Magistrate should have rejected the application which was made to him.
12. I would make the rule absolute, and set aside the order made and the warrant issued by the Jullundur Magistrate.
13. I agree and have nothing further to add.
Harnam Singh, J.
14. I concur in the fore, going judgment prepared by my Lord the Chief Justice.
15. I agree with the opinion of my Lord the Chief Justice and because of the importance of the matter I think I should add my reasons. (After stating the facts-his Lordship proceeded :)
16-21. The main point for decision is the effect of Section 84, Income-tax Act, which is as follows:
(1) All particulars contained in any statement made,
Discloser of in return furnished or account or formation by a pub documents produced under theIts servant provisions of this Act, or in anyevidence given, or affidavit ordeposition made, in the course of any proceedings under this Act other than proceedings under this Chapter, or in any record of any assessment proceeding, or any proceeding relating to the recovery of a demand, prepared for the purposes of this Act, shall be treated as confidential, and notwithstanding anything contained in the Indian Evidence Act, 1872, no Court shall, save as provided in this Act. be entitled to require any Public servant to produce before it any such return, accounts, documents or record or any part of any such record, or to give evidence before it in respect thereof.
(3) If a Public servant discloses any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, deposition or record, ha shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine.
(3) ... Nothing in this section shall apply to the disclosure....
22. Clauses (a) to (m) give the Government Officers to whom and the conditions under which disclosures can be made.
(4) Nothing in this section shall apply to the production by a Public servant before a Court of any document, declaration or affidavit filed, or the record of any statement or deposition made in a proceeding Under Section 25A or Section 26A, or to the giving of evidence by a public servant in reaped thereof.
(5) No prosecution shall be instituted under this section except with the previous sanction of Commissioner.
23. As I read it, the object of the section is the secrecy of the financial affairs of the assesses as disclosed in the assessment proceedings and the reason for having a provision of this kind in the Income-tax Act is that assesseea may not be reluctant to disclose the details of their business, and it is quite possible that they may not disclose their affairs without any kind of reserve unless they had an assurance that the information contained in these returns, accounts, statements and so forth furnished by them would not be divulged to anyone, This is really to encourage the assessee to make a full and true disclosure of all relevant facts within his know-ledge knowing that any statement made by him will not subsequently be used against him, and it appears to ma that it was for this express purpose that Section 64 was worded in the way that it has been done so as to give the assurance which was thought necessary for the income-tax purposes. It is to be noted that the provisions of the previous Acts had been held not to be sufficient to provide the secrecy which the Legislature intended to provide.
24. The petitioner's counsel on the basis of this section submitted that not only have the documents mentioned in the section, been made confidential and have been expressly prohibited1 from production in Court but the penalty pro-vided for disolosure in Sub-section (2) was a clear indication that the secrecy was inviolate so that even if express prohibition against production was not there no Court would order production nor can any one under a colour of authority given by law take possession of the documents and thus nullify the true object of the section. He also submitted that Sub-section (3) which gave exceptions as to persona to whom disclosure could be made supported the contention of secreoy and also because the Police are not mentioned amongst the exceptions given in the section they were not entitled to inspect the documents or to seize them. In support he relied on Bowell v. Pratt (1937) 3 all E. B. 660 : 106 L. J. K. B. 790 which interpreted Section 17, Agricultural Marketing Act of 1931 which is ia more or less the same terms as Section 54, Income-tax Act. This submission is not without force and must in my opinion be accepted.
25. Section 17, Agricultural Marketing Act of 1931, provides as follows:
(1) No information with respect to any particular undertaking (other than the undertaking of a board} shall without the consent of the owner of that undertaking, be included in any report laid before Parliament in pursuance of this Act of in arty recommendations of an Agricultural Marketing Reorganization Commission published in pursuance of this Act.
(2) Any person who discloses any information obtained by him in the exercise of any power conferred on him by or under the provisions of this Act relating to polls, or in the exercise of any power conferred by or under this Act on any board, consumer's committee, committee of investigation or Agricultural Marketing Reorganisation Commiasion shall be liable on oonviotion on indictment to imprisonment for a term not exceeding. 2 years or a tine not exceeding 100 or to both such imprisonment and fine, or on summary oonviotion to imprisonment for a term not exceeding three months or to a fine not exceeding 50 or to both such imprisonment and fine : Provided that nothing In this section shall apply to the disolosure of any information ia so far as it is required to be disclosed for the purposes of (legal proceedings (including arbitrations) under this Act or any scheme made thereunder, or for the purpose of any report of such proceedings, or in so far as the disolosure is required or authorised by this Act, or any scheme made thereunder,
26. Interpreting this, Lord Maugham at p. 667 said as follows:
In my opinion, it is not a correct proposition to say that there is a presumption that the secrecy attaching to such a return is not intended to be applicable if its production is called for in a legal proceeding, unless the-Legielature has in plain language declared to the oontrary. In my judgment the matter ia one to be deoided without any presumption either way. The reaeona for secrecy in such a oa.se are, I think, almost equally oogent, whether the produaiion of a return is demanded for some collateral purpose i an action or whether the information is sought for out of Court.
His Lordship proceeds to say:
It is not unimportant to note that Section 17 (1) prohibits the use of any information with respect to any undertaking without the consent o( the owner, even in a report laid before Parliament in pursuance of the Act, 1 do not think it can be doubted that the first part of Section 17 (2) impliedly prohibits the disclosure of any information such as that contained in a return, for there Is no better way of prohibiting an act than by making the doer of it liable to fine and imprisonment. The only question is whether the prohibition applies to ordinary legal proceedings....
I am quite unable to take the view that the proviso relates only to disclosure to solicitors and counsel employed in proceedings under the Act. In my opinion, it plainly relates to any disclosure foe the purposes of legal proceedings under the Act....
The proviso, in my view, according to its true construction makes an exception for any information required to be disclosed for the purposes of legal proceedings under the Act, and it accordingly follows that there is no exception for information which a litigant may date to have disclosed for the purposes of legal proceedings not under the Act....
27. Lord Wright who concurred in the opinion of Lord Maugham said at p. 662:
For myself, I find the language of section 17 (2) clear and unambiguous , , , . It is curious that the sub section does not contain an express prohibition, but a prohibition of an act must be implied when the act is made a criminal offence, punishable by fine or imprison rodent both, This prohibition is quite unqualified.
Dealing with the proviso, his Lordship said:
The exception relates to disclosures be far as required for the purposes of legal proceedings. If the paragraph stopped there, that exception would have covered the present case, But the super-imposed limitation is fatal to that view. The exception is limited by the superimposed limitation to legal proceedings under or in virtue of the Act. It is only within these patron limits that the information may be disclosed.
28. Applying to the present case the observations of their Lordships, I am of the opinion, that the first part of Section 54 (1) makes certain documents and depositions confidential. By the second part of that Sub-section, Courts are debarred from requiring any public servant from producing these documents or depositions before them. The second Sub-section in a clear and unambiguous manner makes the disclosure a criminal offence and from this it is quite obvious that even if there was not an express provision excluding the powers of the Courts such a prohibition would necessarily follow because there is no better way of implying a prohibition than by making the act a criminal offence punishable by fine or imprisonment and the fact that the statute gives certain exceptions for cases where disclosures can be made is a clear indication that with regard to the documents referred to in sub-a. (1) there is a presumption that secrecy attaches to them. If the object of the Act is secrecy, I cannot see how that object can be defeated by issuing process under the powers given by another statute. In the English case a prohibition against production in Court was implied from the fact that the disclosure was made a criminal offence. I do not why a similar prohibition should not be implied against the powers of the Police from taking possession of the documents mentioned in Sub-section (1).
29. It is a well-known principle of interpretation that if the co-existence of two sets of provisions would be destructive of the object for which the later was passed, the earlier would be repealed by the later. See Maxwell on Interpretation of Statutes, p. 171. It is maxim of con-struction that where the provisions in two Acts of Parliament are clearly inconsistent, then there is of necessity an implied repeal of the inconsistent provisions of the earlier Act. See The Queen v. Commissioner of Inland Bevenue (1888) 21 Q. B. D. 569 at p. 577.
30. In Queen v. Wilidmon (1891) 1 Q. B. 722, Lord Coleridge C. J., remarked:
Prior to the passing of the and 5 Wm. IV, o. 7ft, the law relating to the poor had got into a very disastrous condition and that Act was passed with the object of remedying that condition. It was intended to create a new code of poor law, and to substitute a new system for an old one. If, therefore, we find any provisions in that Act which. are inconsistent with the practice under any earlier Act, such earlier practice must be taken to be repealed.
31. In O'Flaherty v. McDowell (1357) 6 H. L. C. 142 : 108 R. R. 61, the Lord Chancellor said:
I do not dispute the general proposition that an affirmative statute giving a new right, does not of Itself and of necessity destroy a previously existing right. But it has that elect if the apparent intention of the Legislature is that the two rights should not exist together. And that is, I think, the case here. The remedy given against the public officer is not in terms expressed to be a substitution for the Common law right of action, but, from the nature of the case, it was held in Stewart v. Greaves (1842) 10 M. & W. 711 : 152 E. R. 658, that this must have been what the Legislature intended. The evil to be guarded against was, the inconvenience to which creditors would be put if they were driven to bring action against parties so numerous as those of whom joint' Stock banks might, and probably would consist.
32. According to this case then not only would there be a repeal if the intention of the Legislature was that two rights should not co-exist, but there was also the further fact that remedy against the public officer therein mentioned was considered to be the intention of the Legislature as the evil to be guarded against was the inconvenience of the creditors.
33. The rule to be deduced from these various cases appears to be this that if the object of Section 54 is secrecy and if a provision of any other statute ia destructive of that object then such provision must be taken to have been repealed portents. It is no doubt true that in express language the power of a police officer to make a search of an Income-tax Office for the purpose of inspection and possession has not been taken away by Section 54, but as in the case decided by the House of Lords in Bowell v. Pratt, (1937) 3 ALL B. B. 660 : (106 L. J. K. B, 790), a prohibition of production in Court was implied from the disclosure being made an offence it would not be unjustified in this case if the powers of the police to proceed Under Section 54 were also implied to be prohibited.
34. This argument is further strengthened by the fact that in Sub-section (3) the Legislature has allowed disclosure to be made to persons and officers mentioned in clauses (a) to (m), but amongst these exceptions disclosure to the police does not exist. I, therefore, consider that a prohibition against disclosure to the police is to be implied and the power of the police to make a search and to take into possession documents mentioned in Section 51 (1), Income tax Act, must be considered to have been taken away. And if the two sections together are not so construed there will be evasion of an Act of the Legislature, i. e , of Section 51, Income-tax Act As stated by Maxwell p. 118,
to carry out effectually the object of a (statute, it must be eo construed as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined. Contra legem facit, qui id facit guad lex prohibit. In fraudem vero legis facit, qui salvis verbis legis sententiam ejus circumvenit and a statute ia understood as extending to all circumventions, and rendering them unavailing.
For these reasons I am of the opinion that the police had not in this case the power to issue any requisition or order Under Section 94, Criminal P.C.
35. Coming now to the order of the Magistrate Under Section 96, Criminal P.C., and the warrant issued in pursuance of it I am of the opinion that the former was contrary to law and the latter in direct violation of the express prohibition of the income-tax laws of which the learned Magistrate should have been aware as the application of the police itself said so, At any rate the order was improper and it appears to me that the learned Magistrate never applied his mind to the matter and did not consider the implication of the whole proceeding before him.
36. Under Section 96, Criminal P.C., if the Magistrate has reason to believe that a person to whom an order Under Section 94 has been addressed will not or would not produce the documents as required by such requisition or where he considers that the purposes of any enquiry, trial or other proceeding under this code will be served by a general search or inspection he may issue a search warrant. This section gives very wide powers to Magistrates but in exercising them they have to use their discretion judicially. It should be remembered that it is a grave step to issue a search warrant directing that the office of income-tax should be invaded and searched. Such powers Should act be exercised without fully appreciating the gravity of the step.
37. In this case the application of the police indicated that the Income-tax Officer had refused to comply with the requisition Under Section 94, Criminal P.C., because under Income-tax laws he could not comply with it. The applicability of Section 94 in the face of the provisions of Section 5i, Income-tax Act, was not considered by the learned Magistrate. Nor did he realise that the secrecy imposed by the section was being trans, grossed. When a search warrant is issued by the Magistrate the documents seized have to be produced before the Magistrate. This appears to be the necessary corollary deduced from the succeeding sections of the Criminal Procedure Code, And therefore even if Section 94, Criminal P.C.,. remains unaffected by Section 54, Income-tax Act, which in my opinion it does not, it is clear that the search in the presence of two witnesses Under Section 103, Criminal P.C. would defeat the object. of serology which is the main object of Section 54, And if the contention that the things seized have to be produced before the Court is correct, as-indeed it ia correct, it would be destructive of the provisions of Section 54, Income-tax Act, which prohibits the production in Court.
38. Even if there is no implied prohibition contained in Section 54 against the police and, therefore, their powers Under Section 94 are to that extent not taken away, the learned Magistrate has not considered what the documents were required for. They could not be produced in Court and the police officer is a Public servant within the meaning of the words as used in Section 54, Income, tax Act, (the only section using these words) and he was prohibited from breaking the confidence-imposed by the section. And this I say in spite of the opinion of the Bombay Court in Emperor v. Osman Chotani I. L. R (1942) Bom. 767 : A.I.R. (29) 1942 Bom. 289 : 44 Cr.L.J. 7 where Beaumont C. J., confined this definition to Income tax Officer or at the most officials of that department only, because that, I must say with the greatest respect, would be putting too-narrow a construction on those words. And therefore, the search warrant beyond satisfying the vanity of the police would remain a dead letter, and therefore should never have been ordered.
39. And even if the expression 'public servant' is to be interpreted in a restricted sense the Magistrate would be doing something through another what he cannot do himself. Qui facit per aliwm facet per se. It makes no difference whether the destruction of the object of the statute is caused by the Magistrate himself oc through another.
40. For the reasons given above, I am of the Opinion:
(1) Sub-section (1) of Section 84 makes the documents confidential and read with Sub-section 12) production of the documents in Court as well as disclosure to another person is impliedly prohibited,
(2) This matter ia placed beyond all doubt by the fact that although public officers are mentioned to whom disclosures can be made, police officers are not be mentioned.
(3) Police, Under Section 94, Criminal P, 0., have not the power to aak for these documents, and in my opinion, if this power was held not to be impliedly repealed the object of Section 54 will be destroyed.
(4) The police in the present case wanted to take possession of these documents and to produce them in the case and this cannot, under the law, be done.
(5) After the Income, tax officer had refused to comply with the order of the Sub-Inspector of Police made Under Section 94, Criminal P.C. the Court could not issue a search warrant in view of the provisions of Section 54, Income-tax Act.
(6) Even if the Magistrate had the power he did not exercise his discretion judicially in this case and he should have refused the request of the police.
41. I am, therefore, of the opinion that the order of the learned Magistrate was illegal and without jurisdiction, and certainly improper, and I would, therefore, make the rule absolute and set aside the order of the learned Magistrate dated 5th July 1949, and would also quash the warrant which was issued on the same day.
42. I agree with the Chief Justice.