EMPEROR Vs. MULSHANKAR HARINAND BHAT

JUDGEMENT

(1.) The three petitioners are being prosecuted on the complaint of a creditor of the first petitioner in the Court of the Third Presidency Magistrate, Bombay, the charge against the first petitioner being an offence under Section 421 of the Indian Indian Penal Code and the charge against the other two being abetment thereof. The first petitioner was adjudged insolvent under the Presidency Towns Insolvency Act (III of 1909) ten days prior to the institution of the complaint. It was urged for them before the learned Magistrate by way of preliminary objection to the complaint that his jurisdiction to try them for an offence under Section 421 of the Indian Indian Penal Code was excluded by the provisions of the Presidency Towns Insolvency Act and that the only Court which was competent to entertain a complaint of the offence was this Court exercising insolvency jurisdiction under the Act. The preliminary objection having been overruled by the Magistrate, the petitioners ask this Court to quash his order and proceedings in the exercise of its revisional jurisdiction.

(2.) First, it is contended that the Magistrate's jurisdiction is excluded, because no leave of the Insolvency Court under Section 17 of the Presidency Towns Insolvency Act has been obtained for the institution of the criminal proceedings in the Magistrate's Court. That section provides that "on the making of an order of adjudication...no creditor to whom the insolvent is indebted in respect of any debt provable in insolvency shall, during the pendency of the insolvency proceedings, have any remedy against the property of the insolvent in respect of the debt, or shall commence any suit or other legal proceeding except with the leave of the Court and on such terms as the Court may impose." By the complaint filed in the Magistrate's Court the creditor here concerned is not asking for "any remedy against the property" of the first petitioner. Nor is the criminal proceeding initiated in that Court a suit. But it is urged that it falls within the mote general expression " or other legal proceeding." That general expression, coming after "suit", a word of more limited application, must, in my opinion, be construed on the principle of ejusdem generis. It was said that such construction was opposed to the general scheme of the Act, which is to give complete control to the Insolvency Court over matters, both civil and criminal, affecting the property and the person of an adjudged insolvent. Where the Act creates an offence, it is the Insolvency Court which has jurisdiction as to it; as to offences under the Indian Penal Code, the ordinary jurisdiction of the criminal Courts cannot be held to be excluded, unless expressly or by necessary implication the Act repeals the Code for the purposes of those offences.

(3.) The question, therefore, is whether there is anything in the Act which repeals Section 421 of the Indian Penal Code. We have at the outset Section 39 of the Act which directs that "the Court shall refuse the discharge in all cases where the insolvent has committed any offence under this Act, or under Secs.421 to 424 of the Indian Penal Code." Then Section 79 of the Act makes it the duty of the Official Assignee " to investigate the conduct of the insolvent and to report to the Court upon any application for discharge, stating whether there is reason to believe that the insolvent has committed any act which constitutes an offence under this Act or under Secs.42 r to 424 of the Indian Penal Code in connection with his insolvency " and " to take such part and give such assistance in relation to the prosecution of any fraudulent insolvent as the Court may direct or as may be prescribed". This language is consistent only with the preservation of the jurisdiction of the ordinary criminal Courts as to the offences under Sections 421 to 424 of the Indian Penal Code. These sections, so far from being repealed, are recognized by the Act as being operative and the prosecution of the insolvent for the offences created by them is distinctly contemplated.