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Segu Baliah Vs. N. Ramasamiah - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in42Ind.Cas.608
AppellantSegu Baliah
RespondentN. Ramasamiah
Cases ReferredChandi Pershad v. Abdur Rahman
Excerpt:
penal code (act xlv of 1860), sections 421, 424 - provincial insolvency act (iii of 1907), section 43--permission granted to official receiver to prosecute insolvent, whether sanction--report of official receiver, value of--offence falling under penal code and insolvency act, prosecution for--general clauses act (x of 1897), section 26--criminal procedure code (act v of 1898), sections 195, 476. - .....to the receiver, is alleged to have committed an offence under sections 421 and 424 of the indian penal code. the learned counsel for the petitioner contends that the report of the receiver is not evidence and cites a ruling of the allahabad high court in nand kishore v. suraj mal 29 ind. cas. 998., holding that a conviction based on such a report is not legal. but that has nothing to do with the present case. what the district judge has done is only to grant permission to the receiver to prosecute the insolvent, as it is alleged that he has committed an offence of the nature described.2. then it is argued that the prosecution ought to be under section 43 of the provincial insolvency act, and i am asked to hold that that section virtually repeals sections 421 and 424 of the indian penal.....
Judgment:

Abdur Rahim, J.

1. This is not a case of an order either under Section 195 or Section 476 of the Criminal Procedure Code. It is a permission granted to the Receiver, who is an officer of the District Court, to prosecute an insolvent who, within the knowledge of the Receiver or upon the information available to the Receiver, is alleged to have committed an offence under Sections 421 and 424 of the Indian Penal Code. The learned Counsel for the petitioner contends that the report of the Receiver is not evidence and cites a ruling of the Allahabad High Court in Nand Kishore v. Suraj Mal 29 Ind. Cas. 998., holding that a conviction based on such a report is not legal. But that has nothing to do with the present case. What the District Judge has done is only to grant permission to the Receiver to prosecute the insolvent, as it is alleged that he has committed an offence of the nature described.

2. Then it is argued that the prosecution ought to be under Section 43 of the Provincial Insolvency Act, and I am asked to hold that that section virtually repeals Sections 421 and 424 of the Indian Penal Code. Taking for instance Section 421, the offence with which it deals is not exactly the same as is covered by Section 43 of the Insolvency Act. But apart from that, Section 26 of the General Clauses Act is quite express on this point. It says 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.' The authority relied upon on behalf of the petitioner, i. e., the case reported as Chandi Pershad v. Abdur Rahman 22 CA. 131., was not one in which the prosecution was under Section 421 or 424, Indian Penal Code. But I may observe that if this case is intended to support a general proposition that because a special enactment deals with an offence similar to the offence which is dealt with by the Indian Penal Code, therefore, the provisions of the Indian Penal Code should be taken to have been repealed to that extent, I am not prepared to accept that proposition. In the Calcutta case the provisions of Section 26 of the General Clauses Act were not apparently brought to the notice of the learned Judges, and those provisions to my mind are too clear to be ignored. The petition is dismissed.


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