V SESHA AYYAR Vs. VENKATASUBBA CHETTY

JUDGEMENT

(1.) This is a revision petition against the order of the Sub-Divisional Magistrate of Trichinopoly, acquitting accused Nos. 2 to 5, who were charged before him, under Section 55 (1) of Madras Act (V of 1920) and Section 109, Indian Penal Code. The Magistrate was wrong in saying that be acquitted the accused under Section 245, Criminal Procedure Code. What he really did was to refuse to entertain or proceed with the complaint, on a legal point raised by the defence. The Magistrate rightly held that as no sanction had been obtained under Section 196, Criminal Procedure Code, as amended by Section 3 of Act XXXIX of 1920, the new portion of the Pinal Code, Section 171-A-1, relating to election offences and inquiries, was not applicable to this case. The accused Nos. 2 to 5 were charged with the abetment of an election offence, i.e., an application for a second voting paper by a person who has already voted once at the B?me election, punishable under Section 55(1) of the Madras Act V of 1920. This argument is that though no doubt abetment of an election offence is punishable under the Indian Penal Code as now amended, Act V of 1920 makes no provision for abetment of election offences and it is not permissible to borrow the provisions of the Indian Penal Code, where that Code itself makes provision for the offence in question. By Section 107, Indian Indian Penal Code, a person abets the "doing of a thing" in three ways therein set out. If "the thing" in question is an offence, then the abetment of it becomes an offence ( Section 108) and the "offence of abetment" is constituted ( Section 108, explanation 2), which is thus a separate and distinct offence. "Offence" by Section 40 (paragraph 1) and Section 108-A means: (1) a thing made punishable by the Indian Penal Code; and (2) a thing made punishable by the Indian Penal Code though it is committed without and beyond British India. Consequently, the abetment of an offence means the abetment in British India of a thing made punishable by the Indian Penal Code. Section 40, Indian Penal Code, has, however, been extended by amendment. The limitation in paragraph I, confining an offence to a thing punishable by the Indian Penal Code, has beep relaxed and "offence" in Section 109 (inter alia) now denotes a thing punishable under the Code, or any special or local law. There is no doubt that Madras Act V of 1920 is a local law and it, therefore, seems clear that Section 109 can be applied to a thing punishable under it. As pointed out, abetment is a separate and distinct offence, provided the thing abetted is an offence; and the thing abetted here is made an offence by the second paragraph to Section 40, Indian Penal Code. Section 26 of the General Clauses Act shows that an act may constitute an offence under two or more enactments. In Probodh Chandra V/s. Corporation of Calcutta 24 C.W.N. 196, Section 40, Indian Penal Code, was held applicable in order to constitute abetment of an offence under a local law--the Calcutta Municipal Act. I am of opinion that the accused Nos. 2 to 5 could legally be charged, under Section 55(1) of Madras Act V of 1920 and Section 109, Indian Penal Code. This Criminal Revision Case must be allowed. Wallace, J.

(2.) I agree. Petitioner charged respondents in this case with abetment of an offence under Section 55(1) of Madras Act V of 1920, the substance of the charge being that they abetted a case of double voting, by one Krishnaswamy Chetty, at a Municipal election in Trichinopoly. The Sub-Divisional Magistrate has held that since Section 171-D of the Indian Penal Code specifically provides for such an abetment Section 109 of that Code cannot be called in aid; and that such abetment is chargeable and punishable only under Section 171-D and not under Section 55(1) of Madras Act V of 1920, read with Section 40, Indian Penal Code and that since petitioner has not obtained the authority of Government, requisite under Section 196, Criminal Procedure Code, for a prosecution under Section 171-D, Indian Penal Code, his charge cannot stand.

(3.) Petitioner rejoins that since Section 40, Indian Penal Code, which makes Section 109, Indian Penal Code, applicable to an offence under Section 55(1) of Madras Act of 1920, has not been so far and to that extent repealed, there is nothing to prevent the Court taking cognizance of his complaint.