Segu Baliah vs N. Ramasamiah

Abdur Rahim, J.—This is not a case of an order either u/s 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.

Then it is argued that the prosecution ought to be u/s 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 u/s 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taken to have been repealed to that extent, I am not prepared to accept that proposition.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.