STATE OF BOMBAY Vs. S.L. APTE

JUDGEMENT

(1.) THIS appeal raises an interesting question of law under Section 26 of the General Clauses Act and Article 20(2) of the Constitution of India. The question arises in this way: The two respondents were tried for an offence under Section 409 of the Indian Penal Code and Section 105 of the Indian Insurance Act in Criminal Case No. 82 of 1953. They were both convicted and sentenced for both the said offences. When the order of conviction and sentence imposed on them by the learned trial Magistrate was challenged before the learned Sessions Judge at Poona in Criminal Appeal No. 77 of 1954, the learned Sessions Judge confirmed the order of conviction under Section 409 of the Indian Penal Code but set aside the order of conviction under Section 105 of the Indian Insurance Act. He held that the proceedings instituted against them under Section 105 were invalid and incompetent in the absence of a complaint as required by the said Act. Thereafter the State obtained sanction for filing a proper complaint and on this complaint a charge is framed against the respondents under Section 105 of the Indian Insurance Act. The learned Magistrate has found that the charge is proved and that both the respondents are guilty of the offence under Section 105 of the Act. He, however, held that having regard to the provisions of Section 26 of the General Clauses Act and Article 20(2) of the Constitution of India they could not be punished for the said offence. That is why he has ordered that the respondents should be acquitted of the offence under Section 105. It is this order of acquittal that is challenged before us by the learned Government Pleader on behalf of the State, and his argument is that the learned Magistrate was in error in coming to the conclusion that Section 26 of the General Clauses Act or Article 20(2) of the Constitution creates a bar against adequate and proper orders being passed against the respondents under Section 105 of the Indian Insurance Act.

(2.) SECTION 26 of the General Clauses Act provides that 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. Article 20(2) of the Constitution contains a similar provision by way of fundamental rights. Under this article no person shall be prosecuted and punished for the same offence more than once. It is thus clear that if the acts or omissions on which the charge against the respondents in the present case is based under Section 105 of the Insurance Act are the same on which the charge under Section 409 of the Indian Penal Code was based in the earlier trial, the respondents could not be prosecuted and punished for the same acts twice over. The bar is not so much against the second prosecution as against the second punishment being imposed on the accused person for the same act or omission. This position is plain and cannot be disputed. It is common ground that the facts on which the two charges are respectively based are identical, but the argument is that the respondents can be prosecuted under Section 105(1) of the Insurance Act and an appropriate order can be passed without violating the bar created by Section 26 of the General Clauses Act or Article 20(2) of the Constitution, and that is the argument which needs to be considered in the present appeal.

(3.) IT has been strenuously urged before us by the learned Government Pleader that the bar on which the order of acquittal is based cannot come in our way of convicting the respondents under Section 105(1) of the Insurance Act and passing an appropriate order, because it is urged that under the penal section in question we could, after convicting the respondents, order them to deliver up or refund within a time to be fixed by us the property which has been improperly obtained or wrongfully withheld or wilfully misapplied by them, and that such an order can be made under Section 105 of the Act and it does not amount to a punishment at all. If such an order can be passed by us without imposing any sentence as to fine and if the order does not amount to a punishment, then it may be possible to take the view that the respondents can be convicted under Section 105(1) of the Act and an appropriate order may be passed against them without offending against the bar on which the order of acquittal is based. The answer to this point would naturally depend upon a fair and reasonable construction of Section 105(1) of the Insurance Act. This section provides that any director or managing agent of an insurer who wrongfully obtains possession of any property of the insurer or having any such property in his possession wrongfully withholds it or wilfully applies it to purposes other than those expressed or authorised by this Act shall on the complaint of the Controller made after giving the insurer not less than fifteen days notice of his intention, or on the complaint of the insurer or any member or any policy -holder thereof, be punishable with fine which may extend to one thousand rupees and may be ordered by the Court trying the offence to deliver up or refund within a time to be fixed by the Court any such property improperly obtained or wrongfully withheld or wilfully misapplied and in default to suffer imprisonment for a period not exceeding two years. The argument is that even after an accused person is convicted under this section, it is not obligatory on the Court to impose a sentence of fine. The Court may content itself on convicting the accused to direct the accused to deliver up or refund within a time to be fixed by the Court the property in question. Such an order is not punishment properly so -called. Again the sentence of imprisonment which the Court may impose on the accused, in default of his carrying out this order cannot be said to be punishment imposed on him for the principal act for which he is convicted under the section. A sentence in default is, as the expression 'in default' itself indicates, a sentence no doubt, but it is imposed on the accused because he does not carry out the earlier substantive order. The learned Government Pleader has pointed out that an order calling upon the offender to deliver up the property is in effect an order for restitution of property; and if the offender is compelled to restitute the property to its rightful owner, that cannot be regarded as a punishment, so that a person ordered to cause restitution of the property cannot be held to be punished within the meaning of Section 26 of the General Clauses Act or Article 20(2) of the Constitution of India.