JUDGMENT
Sahai, J.
1. The petitioners have filed this application under Articles 20, 226 and 227 of the Constitution or India and under Sections 439 and 581A of the Code of Criminal Procedure. Their prayer is that a prosecution which is pending against them be quashed.
2. This application has arisen in the following circumstances: Sri Vishnu Swaroop is an Inspector of Commercial Taxes at Monghyr. The petitioners and Anant Ram, father of petitioner Shyam Lal Jagnani, have their shops for sale of cloth and grains and other articles in Barhee Bazar within the district of Monghyr. On the 22nd April, 1952, Vishnu Swaroop filed a written report at Barhee police station. In this report, he stated that, while inspecting the papers of the petitioners in connection with an agricultural income-tax case, he found a rokar relating to transactions to food grains by the Bihar Food Trading Co. with the petitioners as its proprietors and started taking extracts from that rokar and signing its pages. The petitioners showed a threatening attitude to Vishnu Swaroop, snatched away the rokar from him and became ready to assault him. After making an investigation into these allegations, the Sub-Inspector of Barhee police station submitted charge-sheet against the petitioners and they were, thereupon, put upon their trial. As the case was transferred to Mr. J. Singh, a Magistrate with Second Class powers, he tried the case. The petitioners were charged under Section 353 of the Indian Penal Code for having
used criminal force by threatening to assault Vishnu Swaroop, Inspector of Commercial Taxes, a public servant with object of not allowing him to look into your account books and thus preventing him from discharging his duty as such public servant.
By his order dated the 20th December 1952, Mr. J. Singh acquitted the petitioners of the charge framed against them.
3. Under Sub-section (1) of Section 26 of the Bihar Sales Tax Act, 1947, a person is liable to be punished if he does any of the acts specified in the different clauses of that sub-section. Clause (a) prohibits the carrying on of business as a dealer in contravention of Sub-section (1) of Section 9. Sub-section (1) of Section 9 lays down:
No dealer shall, while being liable under Section 4 to pay tax under this Act, carry on business as a dealer unless he has been registered under this Act and possesses a registration certificate.
Clause (h) of Sub-section (1) of Section 26 prohibits obstruction to an “officer making an inspection, a search or a seizure under Section 17”. Section 17 provides for inspection, search or seizure by the Commissioner but Section 18 authorises the State Government by notification to direct that the powers and duties imposed upon the Commissioner under the Act shall be exercised and performed by any officer appointed under Section 3 to assist the Commissioner. Sub-section (2) of Section 26 lays down:
No Court shall take cognizance of any offence under this Act, or under the rules made thereunder, except with the previous sanction of the Commissioner….
4. In view of the aforesaid provisions, it was necessary for Vishnu Swaroop to secure the sanction of the Commissioner before filing a complaint against the petitioners for offences under clauses (a) and (h) of Sub-section (1) of Section 26. He secured the sanction from the Commissioner and then filed a complaint before the Sub-divisional Magistrate of Monghyr, In this complaint, he alleged that petitioner Shyam Lal Jagnani was a registered dealer for his firm at Barhee styled as the Bihar Trading Co. and petitioner Ramballay Jagnani was a registered dealer at Khagaria in respect of a business which he carried on as a partner under the name and style of Mahabir Oil Mills but both the petitioners had an additional place of business styled as Messrs. Ramballav Shyamlal and they were liable to punishment under Clause (a) of Sub-section (1) of Section 26 because they had not got themselves registered as dealers in respect of this business in contravention of Sub-section (1) of Section 9 of the Act.
He further alleged that the petitioners were liable to punishment under Clause (h) of Sub-section (1) of Section 26 because they obstructed him in making an inspection on the 22nd April 1952. The Sub-divisional Magistrate perused letter No. 2280 dated the 23rd October, 1952 from the Commissioner of Sales Tax, Bihar, conveying the sanction of the petitioners’ prosecution under clauses (a) and (h) of Sub-section (1) of Section 26 and took cognizance of Vishnu Swaroop’s complaint on the 16th January 1953. This case has been transferred to Mr. D. Prasad, a Munsif-Magistrate with First Class powers at Monghyr, and the trial of the petitioners is pending in his Court. The petitioners filed applications before him, alleging that this trial was barred under the provisions of Section 403 of the Code of Criminal Procedure, but he rejected the applications. The petitioners have, therefore, filed the present application in this Court.
5. It is quite clear that the acts which the petitioners are alleged to have done on the 22nd April 1952 are the same in the trial which is proceeding before Mr. D. Prasad as they were in the trial, which concluded before Mr. J. Singh by his order dated the 20th December 1S52. Mr. Kaushal Kishore Singh, who has appeared on behalf of the petitioners before us, has argued that, in view of the provisions of Article 20(2) of the Constitution and Section 26 of the General Clauses Act, the present trial of the petitioners is illegal and unconstitutional. It appears to me that this argument cannot possibly have any application to the petitioners’ trial for the offence under Section 26(l)(a) because that offence is constituted not by any act done by them on the 22nd April 1952 but by their general act of not having got themselves registered as dealers under the Bihar Sales Tax Act, though they were required to get themselves registered under the provisions of Section 9(1) of that Act. The mere fact that Vishnu Swaroop learnt of this default on the aforesaid date cannot make it an act done or an offence committed by the petitioners on that particular date. It is, however, to be considered whether the petitioners’ trial for the offence under Section 26(1)(h) is barred by the provisions of Article 20(2) of the Constitution and Section 26 of the General Clauses Act. Article 20(2) of the Constitution is to the following effect:
No person shall be prosecuted and punished for the same offence more than once.
6. The word “offence” has been defined in Section 3(38) of the General Clauses Act as an “act or omission made punishable by any law for the time being in force”. The definition of this word is exactly the same in Section 4(o) of the Code of Criminal Procedure. In view of this definition, an act may be an offence under two or more sections of the Indian Penal Code if it is made-punishable by all those sections, and it may also be an offence under two or more enactments if it is made punishable by those enactments. The same act may thus constitute two or more different offences. The prohibition in Article 20(2) is against prosecution & punishment for the same ‘offence’. The petitioners are not being prosecuted in the pending trial for an offence under Section 353 of the Indian Penal Code for which they have already been tried. Hence, I am of opinion that the present trial of the petitioners is not unconstitutional under Article 20(2) of the Constitution.
7. Section 26 of the General Clauses Act lays down:
When 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 prohibition in this section is against liability to punishment of a person twice for the same offence. The offence for which the petitioners are being tried is, as I have already said, not the same offence for which they have already been tried. The elements of an offence under Section 26(1)(h) are also different from those of an offence under Section 353 of the Penal Code. The first trial having ended in acquittal, the petitioners’ liability to punishment under the Penal Code has ceased. In these circumstances, Section 26 of the General Clauses Act does not seem to have any application to the present case.
8. Mr. Sinha has lastly argued that the pending trial against the petitioners for the offence under Section 26(1)(h) of the Bihar Sales Tax Act is barred by the principle of ‘autre fois acquit’ as embodied in Section 403 of the Code of Criminal Procedure. In my opinion, this argument must also fail. Mr. J. Singh, holding as he did not only second class powers as a Magistrate, was competent to try an offence under Section 353 of the Indian Penal Code but he was not competent to try an offence under Clause (a) or (h) of Sub-section (1) of Section 26 of the Bihar Sales Tax Act, because it is provided in Section 26(2) of the same Act that “no Court inferior to that of a Magistrate of the first class shall try any offence under that Act. Sub-section (4) of Section 403 of the Code of Criminal Procedure lays down as follows:
A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
The words of this sub-section leave no room for doubt that the petitioners can be tried for an offence under Section 28(1)(h) of the Bihar Sales Tax Act, even though this offence is constituted by the very acts in connection with which they were tried for an offence under Section 353 of the Indian Penal Code because the Magistrate who first tried them was not competent to try the offence for which they are now being tried.
9. Mr. Sinha has relied upon the decision of a single Judge of this Court in the case of – Gauri Shankar v. Emperor AIR 1947 Pat 290 (A), in support of his argument that the pending trial is barred Under Section 403 of the Code of Criminal Procedure. In that case, the accused were tried for offences under Sections 147 and 323 of the Indian Penal Code and were acquitted. Subsequently, they were again put upon their trial on the same facts for an offence under Section 188 of the Indian Penal Code on the ground that an order under Section 144 of the Code of Criminal Procedure was in force on the date of occurrence and they had disobeyed the Magistrate’s direction not to go upon the land. The accused persons moved this Court for quashing their prosecution for the offence under Section 188 of the Indian Penal Code.
It was argued on behalf of the opposite party that the Magistrate who had tried the accused persons for the offence under Sections 147 and 123 of the Indian Penal Code was not competent to try them for the offence under Section 188 of the Indian Penal Code because, in view of Section 195 of the Code of Criminal Procedure, cognizance of an offence under Section 188 could only be taken on the complaint of the Magistrate whose direction had been disobeyed. The learned single Judge of this Court negatived this argument on the ground that the Magistrate had already made the complaint for the offence under Section 188 of the Indian Penal Code on a date when the previous trial was pending. The bar to the trial for the offence under Section 188 having thus been removed before the conclusion of the first trial, the Court holding the first trial had become competent to try the accused persons for the offence under Section 188 of the Indian Penal Code also.
10. The decision in Gauri Shankar Rai’s case has no application to this case because Mr. J Singh who held the first trial was not competent at any time during the pendency of the trial before him to try the petitioners before us for the offence under Section 26(1)(h) of the Bihar Sales Tax Act. I may also refer to another decision of the same single Judge of this Court, i.e., the case Of – Ramautar Lal v. Emperor AIR 1948 Pat 32 (B). After quoting Sub-section (4) of Section 403 of the Code of Criminal Procedure, the learned Judge has observed as follows:
The sub-section has been enacted in an enabling form providing that a man can be tried for a second time for another offence arising out of the same identical acts for which he has already been tried where the latter trial would not have been competently held by the previous Court.
In view of this observation, it is clear that the learned Judge applied the principle of ‘autre fois acquit’ in ‘Ramautar Lal’s case (B)’, only because he came to the conclusion for reasons, which need not be considered at present, that the Court which held the first trial was not incompetent to try the accused for the offence with which he was being charged at the second trial.
11. It seems to be manifest that the present case comes within the four corners of Sub-section (4) of Section 403 of the Code of Criminal Procedure and the trial which is pending before Mr. D. Prasad cannot be held to be barred under the provisions of that section.
12. The result is that I hold that the trial pending against the petitioners is neither illegal nor barred under any provision of law. No other point has been raised on behalf of the petitioners. I would, therefore, dismiss their application and discharge the rule.
Jamuar, J.
13. I agree.