CHHOTELAL Vs. EMPEROR

JUDGEMENT

(1.) These two revisions can be dealt with together. In one case Chhote Lal and Mahabir were convicted under Section 353, I.P.C. and Section 295, Municipalities Act, and in the other case Sheo Narain and Ram Prasad were convicted of similar offences. It appears that the applicants were in arrears in respect to certain taxes which were due to the Notified Area Committee of Chunar. First a bill of demand was issued to them and then a notice of demand, and finally a distress warrant was issued. The Superintendent of the Notified Area Committee went with a peon and attempted to execute the warrant; but they were resisted and the applicants were accordingly prosecuted. The trial Court sentenced each of them to undergo two years rigorous imprisonment and to pay a fine of Rs. 200 each under Section 353, I.P.C., and to pay a fine of Rs. 50 each under Secs.295, Municipalities Act; but in appeal the Sessions Judge was very rightly of opinion that there was no sufficient ground for inflicting the maximum penalty and he reduced the sentence to six months rigorous imprisonment and a fine of Rs. 20 under Section 353,I.P.C. and to a fine of Rs. 10 under Section 295, Municipalities Act.

(2.) Various points have been taken before me in revision. The first is that a person cannot be legally tried for an offence under Indian Penal Code where the offence is triable under the Municipalities Act. This plea is based on the assumption that an assault or use of criminal force is punishable under the Municipalities Act. I am referred to the case of Chandi Pershad V/s. Abdur Rahman (1895) 22 Cal 131. In that case the Court observed: The Municipal Act is intended to be complete in itself as regards offences committed against the Municipal Commissioners and we can find no indication in the Act of any intention to make a delinquent also liable to punishment under the Indian Penal Code.

(3.) But in Joti Prasad V/s. Emperor 1931 ALJ 986 where a person had been convicted under Section 9(a), Salt Act and under Section 117, I.P.C., it was held by a Bench of this Court that as there was nothing in the special act to exclude the operation of the general criminal law, it could not be inferred that there was an intention on the part of the legislature to exclude it. It was held that there was no bar to the accused being prosecuted for abetment under Section 117, I.P.C., instead of under Section 9(c), Salt Act. It was pointed out by the learned Judges that in Segu Baliab V/s. Ramasamiah 1918 42 IC 608, the case in Chandi Pershad v. Abdur Rahman (1895) 22 Cal 131 had not been followed by the Madras High Court. It was held in that case that a person could be convicted under Sections 421 and 424,I.P.C., although the facts alleged amounted to an offence under Section 43, Provincial Insolvency Act ( 3 of 1907); the prosecution could be either under the provincial Insolvency Act or under the Indian Penal Code. Under Section 26 General Clauses Act, it is laid down 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. In the present case however the applicants have been convicted on the same set of facts for two different offences, one being the offence of obstructing or molesting an employee of the board in the performance of his duty (which is practically equivalent to Section 186, I.P.C., Vide note 1, to Section 295, Municipalities Act) and the other being the offence of assaulting or using criminal force to a public servant in the execution of his duty. "Molesting" is not defined, but presumably it is something less than an assault or use of criminal force and is ejusdem generis with "obstructing." Under Section 235 (2), Criminal P.C., the applicants could be tried for each of these offences at one and the same trial, since the allegations, if true, will constitute two offences and will not be the same offence within the meaning of Section 26, General Clauses Act. The position in fact is just the same as though the applicants had been prosecuted under Section 186 and Section 353, Indian Penal Code and, as I have already said, the trial under those two sections will be competent under Section 235(2) Criminal P.C., Vide Illustrations (I) and (K) to that section.