Supreme Court of India
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIAversusVIMAL KUMAR SURANA AND ANOTHER
- Citation
- 2010 INSC 840
- Decided
- 1 December 2010
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
A person may be prosecuted under the Chartered Accountants Act only after a complaint under Section 28, but the same act can also give rise to independent prosecution under the IPC; simultaneous prosecution is allowed but double punishment for the same offence is barred.
Summary
Vimal Kumar Surana, who had passed the Chartered Accountant examination but was not a member of the Institute, impersonated a chartered accountant, prepared audit reports and forged the Institute's seal before tax authorities. The Institute filed a criminal complaint alleging offences under the Chartered Accountants Act, 1949 (ss. 24, 24A, 26) and the Indian Penal Code (ss. 419, 420, 468, 473). The trial court and the High Court held that cognizance could not be taken because no complaint under s. 28 of the Act was filed, and that the IPC charges could not be pursued. On appeal, the Supreme Court held that a complaint under s. 28 is required only for prosecution under the Act, but the same conduct may also attract prosecution under the IPC; simultaneous prosecution is permissible provided the bar on double punishment under Article 20(2) and the General Clauses Act is respected. The Court set aside the lower courts' orders and remitted the matter to the trial court to determine whether the IPC offences are made out, while noting that without a s. 28 complaint no charges can be framed under the Act. The appeals were allowed.
Issues considered
- The applicability of Sections 24, 24A and 26 of the Chartered Accountants Act when the alleged conduct also constitutes offences under the IPC.
- Whether a complaint under Section 28 of the Chartered Accountants Act is a prerequisite for cognizance of offences under the Act.
- Whether a person can be simultaneously prosecuted under the Chartered Accountants Act and the IPC, and the effect of the double jeopardy bar.
- The proper construction of the phrase ‘without prejudice to any other proceedings’ in ss. 24A(2), 25(2) and 26(2).
- The procedural route for framing charges when no Section 28 complaint is filed.
Legislation cited
- Chartered Accountants Act, 1949s. 24, s. 24A, s. 25, s. 26, s. 28, s. 2(d)
- Code of Criminal Procedure, 1973s. 156, s. 195(1)(b)(ii), s. 200, s. 300
- General Clauses Act, 1897s. 26
- Income Tax Act, 1961
- Indian Penal Code, 1860s. 419, s. 420, s. 463, s. 464, s. 468, s. 471, s. 472, s. 473
- Madhya Pradesh Trade Tax Act, 1995
Subjects
Chartered Accountants ActImpersonationForgerySection 28 complaintDouble jeopardySimultaneous prosecutionStatutory interpretationProfessional misconduct
Judgment
[2010] 14 (ADDL.) S.C.R. 248
A THE INSTITUTE OF CHARTERED ACCOUNTANTS OF
INDIA
v.
VIMAL KUMAR SURANA AND ANOTHER
(Criminal Appeal Nos. 2263-2264 of 2010)
B DECEMBER 01, 2010
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Chartered Accountants Act, 1949:
c
ss. 2(d), 24, 24A, 25, 26 and 28 - Person qualifying the
exam of Chartered Accountant but not a member of the Institute
of Chartered Accountant of India - Person impersonating as
Chartered Accountant, preparing audit reports and forged
D seals - Criminal complaint before police against him alleging
commission of offences punishable ulss. 419, 420, 468 and
473 /PC - Prosecution under the provisions of Penal Code rl
w ss. 24 and 26 of the Act - Trial court and High Court holding
that even though prima facie case made out against the
accused u/s. 24, 24A and 26, cognizance could not have been
E taken on the basis of the complaint because no complaint was
filed u/s. 28 ;and that he could not be prosecuted under the
Penal Code - On appeal, held: If the particular act of a member
or a non-member or a company results in contravention of the
provisions contained ins. 24 or sub-section (1) of s.24A, 25 or
F 26 of the Act and such act also amounts to an offence of
criminal misconduct under /PC, then a complaint can be filed
by or under the order of the Council uls. 28, which may result
in punishment prescribed u/s. 24 or sub-section (2) of ss. 24A,
25 or 26 - Such member or non-member or company can also
G be prosecuted for any identified offence under /PC - There is
no bar against prosecution of such person if he is charged with
the allegations constituting offences under Penal Code or
under other laws - Matter remitted to trial court to consider
whether a/legations contained in the complaint constitute any
H 248
INSTITUTE OF CHARTERED ACCOUNTANTS OF 249
INDIA v. VIMAL KUMAR SURANA
offence under Penal Code - In the absence of a complaint ul A
s. 28, no charges could be framed against chartered
accountant for the alleged contravention of ss. 24, 24A or 26 -
Penal Code, 1860 - ss. 419, 420, 468 and 473.
ss. 24A(2), 26 and 25(2) - Expression 'without prejudice 8
to any other proceedings which may be taken against him' in
ss. 24A(2), 26 and s. 25(2) - Meaning of
Criminal Law:
Double jeopardy - Simultaneous prosecution of offender C
for contravention of ss. 24, 24A and 26 of the 1949 Act and for
the offences under the Penal Code - Permissibility of - Held:
Simultaneous prosecution is permissible but in view of the bar
contained in Article 20(2) of the constitution rlw s. 26 of the 1897
Act and s.300 Cr.P.C., punishment twice for the same offence D
is barred- Chartered Accountants Act, 1949- ss. 24, 24A, 26
- Penal Code, 1860- Constitution of India, 1950- Article 20(2)
- General Clauses Act, 1897 - s. 26.
Interpretation of statutes:
E
Construction of statutory provisions - Held: When there
are two possible constructions of a statute, then the one which
leads to anomaly or absurdity and makes the statute vulnerable
to the attack of unconstitutionality should be avoided in
preference to the other which makes it rational and immune F
from the charge of unconstitutionalJfy.
The respondent qualified the exam of Chartered
Accountant but was not a member of the appellant-
Institute. The appellant-Institute filed a complaint before G
the police against the respondent alleging cheating by
impersonation, forgery and counterfeiting of seal of the
Institute, punishable under Sections 419, 468, 471and472
IPC. The police filed the challan before the Magistrate. The
trial court held that there was no basis for framing any
H
250 SUPREME COURT REPORTS [20~0] 14 (ADDL.) S.C.R.
A charge against the respondent under IPC; and cognizance
of offences under Sections 24 and 26 of the Act could not
be taken because no complaint was filed by or under the
order of the Council of the appellant-Institute, before the
Magistrate. Aggrieved, the appellant filed revisions. The
B Single Judge of the High Court dismissed the same.
Therefore, the appellant-institute filed the instant appeals.
Allowing the appeals and remitting the matter to the
trial court, the Court
C HELD: 1.1. Section 24 of the Chartered Accountants
Act, 1949 provides for punishment of a person who is not
a member of the Institute, but represents himself as a
member of the Institute or uses the designation of
chartered accountant. Similar punishment can be
D imposed on a member of the Institute who does not have
a certificate of practice but represents that he is in practice
or practises as a chartered accountant. Sub-section (2) of
Sections 24A, 25 and 26 provide for imposition of different
kinds of punishment for violation of the provisions
E contained in sub-section (1) of those sections. Section 26
provides for imposition of punishment ifa person other
than a member of the Institute signs any document on
behalf of a chartered accountant in practice or a firm of
such chartered accountants in his or its professional
F capacity. [Para 12] [266-B, D, F]
1.2. Section 28 which is couched in negative form
declares that no person would be prosecuted under the
Act except on a complaint made by or under the order of
the Council or of the Central Government. The prohibition
G contained in Section 28 is attracted only when such
person is sought to be prosecuted for contravention of the
provisions contained in Section 24 or sub-section (1) of
Sections 24A, 25 or 26 and not for any act or omission
which constitutes an offence under the IPC. The use .of
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 251
INDIA v. VIMAL KUMAR SURANA
expression 'without prejudice to any other proceedings A
which may be taken against him' in sub-section (2) of
Sections 24A and 26 and somewhat similar expression in
sub-section (2) of Section 25 shows that contravention of
the provisions contained in sub-section (1) of those
sections can .lead to filing of complaint under Section 28 8
of the Act and if the particular act also amounts to an
offence under the IPC or any other law, then a complaint
can also be filed under Section 200 Cr.P .C. or a first
information report lodged with the police under Section
156 Cr.P.C. The said expression cannot be given a c
restricted meaning in the context of professional and other
misconducts which may be committed by a member of the
Institute and for which he may be punished under Section
218(3) because the violation of Sections 24 to 26 can be
committed by a person who may or may not be a chartered 0
accountant as defined in Section 2(b). Thus, if the
particular act of a member of the Institute or a non-member
or a company results in contravention of the provisions
contained in Section 24 or sub-section (1) of Sections 24A,
25 or 26 and such act also amounts to criminal
misconduct which is defined as an offence under the IPC,
E
then a complaint can be filed by or under the order of the
Council or of the Central Government under Section 28,
which may ultimately result in imposition of the
punishment prescribed under Section 24 or sub-section
(2) of Sections 24A, 25 or 26 and such member or non- F
member or company can also be prosecuted for any
identified offence under the IPC. The object underlying the
prohibition con!_ained in Section 28 is to protect the
persons engaged' in profession of chartered accountants
against false and unt~nable complaints from dissatisfied G
litigants and others: However, there is nothing in the
language of the provisions contained in Chapter VII from
which it can be inferred that Parliament wanted to confer
immunity upon the members and non-members from
H
252 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A prosecution and punishment if the action of such member
or non-member amounts to an offence under the IPC or
any other law. [Para 13] [267-A, E-H; 268-A]
1.3. Unlike ss. 416, 463, 464, 468 and 471 of the Penal
Code, the provisions contained in Chapter VII of the Act
8
neither define cheating by personation or forgery or
counterfeiting of seal, etc. nor do they provide for
punishment for such offences. If it is held that a person
acting in violation of Section 24 or contravening sub-
section (1) of Sections 24A and 26 of the Act can be
C punished only under the Act even though his act also
amounts to one or more offence(s) defined under the IPC
and that too on a complaint made in accordance with
Section 28, then the provisions of Chapter VII would
become discriminatory and might have to be struck down
D on the ground of violation of Article 14. Such an
unintended consequence can be, and deserves to be
avoided, in interpreting Sections 24A, 25 and 26 keeping
in view the settled law that if there are two possible
constructions of a statute, then the one which leads to
E anomaly or absurdity and makes the statute vulnerable to
the attack of unconstitutionality should be avoided in
preference to the other which makes it rational and
immune from the charge of unconstitutionality. That apart,
the court cannot interpret the provisions of the Act in a
F manner which would deprive the victim of his right to
prosecute the wrong doer for the offences defined in
Sections 416, 463, 464, 468 and 471 by IPC filing a first
information report or a complaint under the relevant
provisions of Cr.P.C. [Para 14] [268-G-H; 269-A-C]
G
1.4. The respondent could have been simultaneously
prosecuted for contravention of Sections 24, 24A and 26
of the Act and for the offences defined under the IPC but
in view of the bar contained in Article 20(2) of the
Constitution read with Section 26 of the General Clauses
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 253
INDIA v. VIMAL KUMAR SURANA
Act, 1897 and Section 300 Cr.P.C., he could not have been A
punished twice for the same offence. [Para 15] [269-D]
Maqbool Hussain v. The State of Bombay (1953) 4 SCR
730; T.S. Baliahv. T.S. Rangarchari (1969) 3 SCR 65; State
of Bombay v. S.L Apte (1961) 3 SCR 107; V.K. Agarwal v. B
Vasantraj B. B(7atia (1988) 3 SCC 467; State of Bihar v. Murad
Ali Khan (1988) 4 SCC 655; State of Rajasthan v. Hat Singh
(2003) 2 sec 152, referred to.
1.5. The submission that the Chartered Accountants
Act, 1949 is a special legislation vis-a-vis IPC and a person C
who is said to have contravened the provisions of sub-
section (1) of Sections 24, 24A, 25 and 26 cannot be
prosecuted for an offence defined under the IPC, which
found favour with the High Court, cannot be accepted.
[Para 21] [279-G] D
Jeewan Kumar Raut v. CBI (2009) '7 SCC 526;
Jamiruddin Ansari v. CBl(2009) 6 SCC 316 - distinguished.
1.6. Except the provision contained in Section 28
against the prosecution of a person, who is alleged to have E
acted in contravention of sub-section (1) of Sections 24,
24A, 25 or 26 otherwise than on a complaint made by or
under the order of the Council or the Central Government,
the Act does not specify the procedure to be followed for
punishing such person. In the absence of any such F
provision, the procedure prescribed in Cr.P.C. has to be
followed for inquiry, investigation and trial of the complaint
which may be filed for contravention of any of the
provisions contained in Chapter VII of the Act. [Para 24]
[283-C-D] G
1.7. It is incorrect to say that the respondent cannot
be prosecuted for offences defined under the IPC because
no complaint had been fil~(Lagainst him by the court or
authority concerned a_s per the requirement of Section
H
254 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A 195(1)(b)(ii) Cr.P.C. The prohibition contained in Section
195 Cr.P.C. against taking of cognizance by the court
except on a complaint in writing made by the court before
which the document is produced or given in a proceeding
is not attracted in the instant case because the officers of
B the Income Tax Department and the authorities constituted
under the Madhya Pradesh Trade Tax Act, 1995 before
whom the respondent is alleged to have acted on the basis
of power of attorney or as legal representative or produced
audit report do not fall within the ambit of the term 'court'
c as defined in Section 195(3) Cr.P.C. Such officer/
authorities were neither discharging the functions of a
civil, revenue or criminal court nor could they be treated
as tribunal constituted by or under the Central or State Act,
which is declared to be a court for the purpose of Section
D 195. [Para 25] [283-E-H; 284-A]
Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC
370; Emperorv. Kushal Pal Singh AIR 1931 Allahabad 443 -
referred to.
E 1.8. The impugned order is set aside and the matter is
remitted to the trial court for considering whether the
allegations contained in the complaint lodged by 'B'
authorized by the appellant-Institute constitute any
offence under the IPC. If the trial court comes to the
F conclusion that the allegations do constitute one or more
offence(s), then it would proceed against the respondent
in accordance with law. However, it is made clear that in
the absence of a complaint having been filed under Section
28, no charges could be framed against the respondent
G for the alleged contravention of Sections 24, 24A or 26 of
the Act. [Para 27] [288-D-E]
Case Law Reference:
(1953) 4 SCR 730 Referred to. Para 15
H (1969) 3 SCR 65 Referred to. Para 16
INSTITUTE OF CHARTERED ACCOUNTANTS OF 255
INDIA v. VIMAL KUMAR SURANA
'
(1961) 3 SCR 107 Referred to. Para 17 A
(1988) 3 sec 467 Referred to. Para 18
(1988), 4 sec 655 Referred to. Para 19
(2003) 2 sec 152 Referred to. Para 20
B
(2009) 1 sec 526 Distinguished. Para 22
(2009) 6 sec 316 Distinguished. Para 22
(2005) 4 sec 370 Referred to. Para 25
c
AIR 1931 All 443 Referred to. Para 25
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 2263-2264 of 2010.
From the Judgment & Order dated 27.1.2009 of the High D
Court of Judicature at Madhya Pradesh at Jabalpur in Cr.
Revision Nos. 436 & 550 of 2004.
Uday U. Lalit, Pramod Dayal, Nikunj Dayal for the Appellant.
R.P. Gupta, Neeraj Shekhar, Vibha Datta Makhija for the E
Respondents.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
F
2. The question which arises for consideration in these
appeals is whether the provisions contained in Sections 24, 24A
and 26 of the Chartered Accountants Act, 1949 (for short, 'the
Act') operate as a bar against the prosecution of a persbn who
is charged with the allegations which constitute an offence or G
offences under other laws including the Indian Penal Code (IPC).
3. Respondent, Vimal Kumar Surana, who is a graduate in
Commerce and has passed the examination of Chartered
Accountant but is not a member of the appellant-Institute is H
256 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A alleged to have represented himself before the Income Tax
Department and the authorities constituted under the Madhya
Pradesh Trade Tax Act on the basis of power of attorney or as
legal representative and submitted documents such as audit
reports and certificates required to be issued by the Chartered
B Accountants by preparing forged seals. He is also said to have
impersonated himself as Chartered Accountant and prepared
audit reports for monetary consideration.
4. Shri Brij Kishor Saxena, who was authorised by the
appellant-Institute to do so, submitted complaint dated
C 18.3.2001 to the Station House Officer, Police Station, Betul with
following allegations:
"(1) That the said Shri Vimal Kumar Surana is not registered
with the Institute of Chartered Accountants of India as
D Chartered Accountants, but he being not a Chartered
Accountant impersonated in the public as such, and
performed such functions which are being performed by a
Chartered Accountant. Whereas without being registered
as Chartered Accountant, he is not legally authorized to
E perform the said functions before the Income Tax
Department, under the provisions of Income Tax Act, 1961,
he represented himself as legal representative. Similarly
under Section 31 of the M.P. Trade Tax Act, 1995 he worked
on the basis of Power of Attorney or as legal representative.
F In this manner he has worked contrary to the provision of
Section 24 of the Chartered Accountants Act, 1949, which
is punishable offence under section 24 of the Act.
(2) That in the manner above mentioned, the said Shri Vimal
Kumar Surana not being a Chartered Accountant,
G personated to the public as Chartered Accountant and in
the same manner unauthorisedly worked, which is an
offence under Section 419 of the Indian Penal Code.
(3) That the said Shri Vimal Kumar Surana impersonated
H himself as the Chartered Accountant, prepared the audit
INSTITUTE OF CHARTERED ACCOUNTANTS OF 2S7
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
reports; which are required to be issued under different A
provisions of law and obtained monitory consideration which
is an offence under Section 420 of the Indian Penal Code.
(4) That the said Shri Vimal Kumar Surana with the intention
of cheating with a view to extract money by playing fraud 8
upon the general public, prepared valuable documents such
as audit reports, certificates required to be issued by
Chartered Accountants for being used, which is punishable
offence under Section 468 of the Indian Penal Code.
(5) The said Shri Vimal Kumar Suran a with a view to perform C
aforesaid acts prepared forged seals and used the same,
which is an offence punishable under Section 472 of the
Indian Penal Code. He is in possession of the seal which
he uses as Chartered Accountant. Therefore, this act is
punishable offence under Section 473 of the Indian Penal D
code."
5. After conducting investigation, the police filed challan in
the Court of Chief Judicial Magistrate, Betul (hereinafter referred
to as 'the trial Court'), who passed order dated 10.3.2003 for E
framing charges against the respondent under Sections 419,
468, 471 and 472 IPC. The respondent challenged that order
by filing revision under Section 397 of the Code of Criminal
Procedure (Cr.P.C.). 1st Additional Sessions Judge, Betul
allowed the revision, set aside order dated 10.3.2003 and
remitted the case to the trial Court with the direction to decide
F
whether there are sufficient grounds for framing charges under
Sections 419, 420, 465, 467 and 473 IPC read with Sections
24 and 26 of the Act. After remand, the trial Court passed order
dated 8.12.2003 and held that there was no basis for framing
any charge against respondent under the IPC. It further held that G
cognizance of offences under Sections 24 and 26 of the Act
cannot be taken because no complaint had been filed by or under
the order of the Council before the Magistrate.
6. The appellant questioned the correctness of orders dated H
258 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A 29.10.2003 and 8.12.2003 passed by 1st Additional Sessions
Judge, Betul and the trial Court respectively by filing two separate
revisions. The learned.Single Judge of the High Court dismissed
both the revisions. He held that even though prima facie case
was made out against the respondent under Sections 24, 24A
B and 26 of the Act, the Magistrate could not have taken cognizance
because no complaint was filed under Section 28 and the report
submitted by the police could not be made basis for punishing
him on the allegation of contravention of any of those provisions.
The learned Single Judge also referred to Sections 2(d), 4, 5
c and Section 195(1)(b)(ii) Cr.P.C. and held that in the absence
of a complaint filed by the concerned Court, the Magistrate was
not competent to frame charges against the respondent. The
learned Single Judge also held that in view of the special
mechanism contained in the Act for prosecution of a person
violating Sections 24, 24A and 26 of the Act, he cannot be
0
prosecuted under the IPC.
I
7. Shri U.U. Lalit, learned senior counsel appearing for the
appellant argued that even though the provisions contained in
Chapter VII of the Act specify penalties for certain acts
E committed by a member of the Institute or a non member or a
company, there is no bar against prosecution of such member,
non member or company if he/it commits an offence under the
IPC. Learned senior counsel invited our attention to the
expression 'without prejudice to any other proceedings, which
F may be taken against him' used in sub-section (2) of Sections
24A, 25 and 26 of the Act and argued that any person who
contravenes these provisions can be punished by levy of fine
and/or imprisonment and also prosecuted for offence(s) under
the IPC. Learned senior counsel emphasized that while enacting
G Chapter VI I of the Act, the legislature has designedly not excluded
the applicability of the provisions contained in the IPC and
argued that the learned Single Judge committed serious error
by approving the orders of the trial Court and 1st Additional
Sessions Judge, Betul.
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 259
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
8. Shri R.P. Gupta, learned senior counsel appearing for A
the respondent argued that the Act is a special legislation and
as specific penalties have been provided for contravention of
Section 24 and sub-section (1) of Sections 24A, 25 and 26, the
provisions contained in the IPC and Cr.P.C. cannot be invoked
for prosecuting and punishing such person. Learned senior B.
counsel further argued that the respondent could not have been
prosecuted for the alleged contravention of sub-section (1) of
Sections 24A and 26 of the Act because no complaint was filed
against him under Section 28 of the Act. In support of this
argument, the learned senior counsel relied upon the judgments c
of this Court in Jeewan Kumar Rauf v. CBI (2009) 7 SCC 526
and Jamiruddin Ansari v. CBI (2009) 6 SCC 316. Learned
counsel then submitted that this Court may not interfere with the
impugned order because the allegations levelled against the
respondent do not constitute any offence under the IPC.
D
9. Ms. Vibha Datta Makhija, learned counsel for the State
of Madhya Pradesh relied upon the judgment of this Court in
Maqbool Hussain v. The State of Bombay (1953) 4 SCR 730
and T.S. Baliah v. T.S. Rangachari (1969) 3 SCR 65 and
argued that the offences specified in Sections 24 to 26 are E
distinct from the offences defined under Sections 419, 420, 465,
467, 468, 472 and 473 IPC and even ifthe complaint submitted
by Brij Kishor Saxena cannot be treated as a complaint filed
under Section 28 of the Act, his prosecution for offences defined
under the IPC cannot be treated as barred. F
10. The Chartered Accountants Act was enacted by
Parliament to make provision for regulation of the profession of
Chartered Accountants. Chapter I of the Act contains definitions
of various terms. Chapter II contains provisions relating to G
incorporation of the Institute, entry of names in the Register,
categorisation of the members of the Institute and certificate of
practice. Section 7 which also finds place in this Chapter
declares that every member of the Institute in practice shall, and
any other member may, use the designation of a chartered
H
260 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A accountant and no member using such designation shall use any
other description, whether in addition thereto or in substitution
therefor. Section 8 enumerates the disabilities which disentitles
a person to have his name entered in the Register. Section 9(1)
which finds place in Chapter Ill postulates that there shall be a
B Council of the Institute for the management of the affairs of the
Institute and for discharging the functions assigned to it. The other
provisions contained in Chapter Ill regulate constitution of the
Council of the Institute, establishment of Tribunal and their
functions, etc. The provisions contained in Chapter IV mandates
c the Council to maintain a Register of the members of the Institute,
inclusion of the particulars of the members and removal of the
name of any member of the Institute from the Register. Chapter
V_consists of thirteen sections i.e. Sections 21 to 22G. Section
21(1) postulates establishment of a Disciplinary Directorate by
D the Council headed by an officer of the Institute designated as
Director (Discipline). The main function of the Director
(Discipline) is to scrutinize any information or complaint received
against any member and place the same before the Disciplinary
Committee. Sections 21A, 21Band22A provide for constitution
of a Board of Discipline, a Disciplinary Committee ahd an
E Appellate Authority. The main function of these bodies is to
ensure that expeditious action is ta~en against the members
against whom allegations of misconduct are levelled and he gets
fair opportunity to contest those allegations. An order passed by
the Disciplinary Committee can be appealed against under
F Section 22G. Section 23 which finds place in Chapter VI
provides for constitution and functions of Regional Councils.
Chapter VII specifies the penalties, which can be imposed on a
member, a non member and a company. Chapter VI IA contains
provisions for establishment of Quality Review Board, functions
G of the Board, etc. and Chapter VIII contains miscellaneous
provisions. Schedules I and II appended to the Act specify
various acts of misconduct of a chartered accountant in practice.
These Schedules obviously do not enumerate the wrong doings
of a person who is not a member of the Institute.
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 261
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
11. Sections 2(1) (b), 24, 24A, 25, 26 and 28 of the Act, A
which have bearing on this case, read as under:
"2.. Interpretation
(1) In this Act, unless there is anything repugnant in the
subject or context,- B
(b) "chartered accountant" means a person who is a
member of the Institute.
24. Penalty for falsely claiming to be a member, etc.
c
Any person who ?
(i) not being a member of the Institute?
(a) represents that he is a member of the Institute;
D
or
(b) uses the designation Chartered Accountant; or
(ii) being a member of the Institute, but not having a
certificate of practice, represents that he is in practice or E
practises as a chartered accountant, shall be punishable on
first conviction with fine which may extend to one thousand
rupees, and on any subsequent conviction with
imprisonment which may extend to six months or with fine
which may extend to five thousand rupees, or with both. F
24A. Penalty for using name of the Council, awarding
degree of chartered accountancy, etc.
(1) Save as otherwise provided in this Act, no person shall?
G
(i) use a name or the common seal which is identical
with the name or the common seal of the Institute or
so nearly resembles it as to deceive or as is likely
to deceive the public;
(ii) award any degree, diploma or certificate or H
262 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A bestow any designation which indicates or purports
to indicate the position or attainment of any
qualification or competence similar to that of a
member of the Institute; or
B (iii) seek to regulate in any manner whatsoever the
profession of chartered accountants.
(2) Any person contravening the provisions of subsection
(1) shall, without prejudice to any other proceedings which
may be taken against him, be punishable with fine which
c may extend on first conviction to one thousand rupees, and
on any subsequent conviction with imprisonment which may
extend to six months, or with fine which may extend to five
thousand rupees, or with both.
D 25. Companies not to engage in accountancy
(1) No company, whether incorporated in India or elsewhere,
.:>hall practise as chartered accountants.
(2) If any company contravenes the provisions of sub-section
E (i), then, without prejudice to any other proceedings which
may be taken against the company, every director,
manager, secretary and any other officer thereof who is
knowingly a party to such contravention shall be punishable
with fine which may extend on first conviction to one
F thousand rupees, and on any subsequent conviction to five
thousand rupees.
26. Unqualified persons not to sign documents
(1) No person other than a member of the Institute shall sign
G any document on behalf of a chartered accountant in
practice or a firm of such chartered accountants in his or its
professional capacity.
(2) Any person who contravenes the provisions of sub-
H section (1) shall, without prejudice to any other proceedings,
INSTITUTE OF CHARTERED ACCOUNTANTS OF 263
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
which may be taken against him, be punishable on first A
conviction with a fine not less than five thousand rupees but
which may extend to one lakh rupees, and in the event of a
second or subsequent conviction with imprisonment for a
term which may extend to one year or with fine not less ten
thousand rupees but which may extend to two lakh rupees 8
or with both.
28. Sanction to prosecute
No person shall be prosecuted under this Act except on a
complaint made by or under the order of the Council or of C
the Central Government."
Sections 2(d), 4, 5 and 195 Cr.P.C. on which reliance has
been placed by learned senior counsel for the respondent read
as under:
D
"2(d). "complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action under
this Code, that some person, whether known or unknown,
has committed an offence, but does not include a police
report. · E
Explanation. -A report made by a police officer in a case
which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall F
be deemed to be the complainant;
4. Trial of offences under the Indian Penal Code and other
laws. - (1) All offences under the Indian Penal Code (45 of
1860) shall be investigated, inquired into tried, and
otherwise dealt with according to the provision hereinafter G
contained.
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to -
the same provisions, but subject to any enactment for the H
264 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with
such offences.
5. Saving. - Nothing contained in this Code shall in the
absence of a specific provision to the contrary, affect any
B special or local law any special jurisdiction or power
conferred, or any special form of procedure prescribed, by
any other law for the time being in force.
195. Prosecution for contempt of lawful authority of public
c servants, for offences against public justice and for
offences relating to documents given in evidence.- (1) No
Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188
(both inclusive) of the Indian Penal Code (45 of 1860), or
D
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit, such offence,
except on the complaint in writing of the public servant
E
concerned or of some other public servant to whom he is
administratively subordinate;
(b) (i) of any offence punishable under any of the following
section of the Indian Penal Code (45 of 1860), namely,
F sections 193 to 196 (both inclusive), 199, 200, 205 to 211
(both inclusive) and 228, when such offence is alleged to
have been committed in, or in relation to, any proceeding
in any Court, or
(ii) of any offence described in section 463, or punishable
G
under section 471, section 475 or section 476, of the said
Code, when such offence is alleged to have been
committed in respect of a document produced or given in
evidence in a proceeding in any Court, or
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 265
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.)
(iii) of any criminal conspiracy to commit, or attempt to A
commit, or the abetment of, any offence specified in sub-
clause (i) or sub-clause (ii),
except on the complaint in writing of that Court or by such
officer of the Court as that Court may authorise in writing in 8
this behalf, or of some other Court to which that Court is
subordinate.
(2) Where a complaint has been made by a public servant
under clause (a) of subsection (1) any authority to which he
is administratively subordinate may order the withdrawal of C
the complaint and send a copy of such order to the Court;
and upon its receipt by the Court, no further proceedings
shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial o
in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1 ), the term "Court" means
a Civil, Revenue or Criminal Court, and includes a tribunal
constituted by or under a Central, provincial or State Act if
declared by that Act to be a Court for the purposes of this E
section.
'
(4) For the purposes of clause (b) of sub-section (1 ), a Court
shall be deemed to be subordinate to the Court to which
appeals ordinarily lie from appealable decrees or F
sentences of such former Court, or in the case of a civil
Court from whose decrees no appeal ordinarily lies, to the
principal Court having ordinary original civil jurisdiction
within whose local jurisdiction such Civil Court is situate:
Provided that-
G
(a) where appeals lie to more than one Court, the
Appellate Court of inferior jurisdiction shall be the
r,ourt to which such Court shall be deemed to be
~ ubordinate; H
266 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A (b) where appeals lie to a civil and also to a Revenue
Court, such Court shall be deemed to be subordinate
to the civil or Revenue Court according to the nature
of the case or proceeding in connection with which
the offence is alleged to have been committed.'1
B
12. An analysis of Section 24 shows that if a person who
is not a member of the Institute represents himself as a member
of the Institute or uses the designation of chartered accountant
then he is liable to be punished on first conviction with fine which
may extend to Rs.1,000/-. On any subsequent conviction, he can
C be punished with imprisonment up to 6 months or fine which may
extend to Rs.5,000/- or with both. Similar punishment can be
imposed on a member of the Institute who does not have a
certificate of practice but represents that he is in practice or
practises as a chartered accountant. Sub-section (2) of Sections
D 24A, 25 and 26 provide for imposition of different kinds of
punishment for violation of the provisions contained in sub-
section (1) of those sections. The punishment prescribed under
Section 24A can be imposed if a person uses a name or the
common seal which is identical with the name or the common
E seal of the Institute or is almost similar to such seal and the use
of such seal has the effect of deceiving or is likely to deceive the
public. A person can also be punished if he awards any degree,
diploma or certificate or bestow any designation which indicates
or purports to indicate position or attainment of any qualification
F or competence at par with a member of the Institute or if he seeks
to regulate the profession of chartered accountants. Section 26
provides for imposition of punishment if a person other than a
member of the Institute signs any document on behalf of a
chartered accountant in practice or a firm of such chartered
G accountants in his or its professional capacity. Section 28 which
is couched in negative form declares that no person shall be
prosecuted under the Act except on a complaint made by or
under the order of the Council or of the Central Government.
13. What is most significant to note is that prohibition
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 267
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
contained in Section 28 against prosecution of a person except A
on a complaint made by or under the o.rder of the Council or of
the Central Government is attracted only when such person is
sought to be prosecuted for contravention of the provisions
contained in Section 24 or sub-section (1) of Sections 24A, 25
or 26 and not for any act or omission which constitutes an offence 8
under the IPC. The use of expression 'without prejudice to any
other proceedings which may be taken against him' in sub-
section (2) of Sections 24A and 26 and somewhat similar
expression in sub-section (2) of Section 25 show that
contravention of the provisions contained in sub-section (1) of C
those sections can lead to filing of complaint under Section 28
of the Act and if the particular act also amounts an offence under
the IPC or any other law, then a complaint can also be filed under
Section 200 Cr.P.C. or a first information report lodged with the
police under Section 156 Cr.P.C. The said expression cannot
be given a restricted meaning in the context of professional and D
other misconducts which may be committed by a member of the
Institute and for which he may be punished under Section 218(3)
because the violation of Sections 24 to 26 can be committed by
a person who may or may not be a chartered accountant as
defined in Section 2(b). In other words, if the particular act of a E
member'.of the Institute or a non member or a company results
in contravention of the provisions contained in Section 24 or sub-
section (1) of Sections 24A, 25 or 26 and such act also amounts
criminal misconduct which is defined as an offence under the
IPC, then a complaint can be filed by or under the order of the F
Council or of the Central Government under Section 28, which
may ultimately result in imposition of the punishment prescribed
under Section 24 or sub-section (2) of Sections 24A, 25 or 26
and such member or non member or company can also be
prosecuted for any identified offence under the IPC. The object G
underlying the prohibition contained in Section 28 is to protect
the persons engaged in profession of chartered accountants
against false and untenable complaints from dissatisfied litigants
and others. However, there is nothing in the language of the
provisions contained in Chapter VII from which it can be inferred H
268 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A that Parliament wanted to confer immunity upon the members
and non members from prosecution and punishment ifthe action
of such member or non member amounts to an offence under
the IPC or any other law.
14. The issue deserves to be considered from another
8 angle. If a person cheats by pretending to be some other person,
or by knowingly substituting one person for another, or
representing that he or any other person is a person other than
he or such other person really is (Section 416 IPC), then he can
be charged with the allegation of cheating by personation and
C punished under Section 419 for a term which may extend to 3
years or with fine or both. If a person makes any false document
with the intent to cause damage or injury to the public or to any
person, or to support any claim or title, then he can be prosecuted
for an offence of forgery (Section 463) and can be punished
D under Section 465 with imprisonment which may extend to 2
years or with fine or with both. If a person commits forgery for
the purpose of intending that the document forged by him shall
be used for the purpose of cheating then he can be punished
with imprisonment for a term which may extend to 7 years and
E fine (Section 468). If a person makes or counterfeits any seal,
plate or other instrument for making an impression, intending that
the same shall be used for committing any forgery which would
be punishable under Section 467 or with such intent, in his
possession any such seal, plate or other instrument, knowing the
F same to be counterfeit then he is liable to be punished with
imprisonment for life or with imprisonment which may extend to
7 years. He shall also be liable to fine. The provisions contained
in Chapter VI I of the Act neither define cheating by personation
or forgery or counterfeiting of seal, etc. nor provide for
G punishment for such offences. If it is held that a person acting in
violation of Section 24 or contravening sub-section (1) of
Sections 24A and 26 of the Act can be punished only under the
Act even though his act also amounts to one or more offence(s)
defined under the IPC and that too on a complaint made in
H accordance with Section 28, then the provisions of Chapter VII
INSTITUTE OF CHARTERED ACCOUNTANTS OF 269
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
will become discriminatory and may-have to be struck down on A
the ground of violation of Article 14. Such an unintended
consequence can be and deserves to be avoided in interpreting
Sections 24A, 25 and 26 keeping in view the settled law that if
there are ~o possible constructions of a statute, then the one
which leads to anomaly or absurdity and makes the statute B
vulnerable toithe attack of unconstitutionality should be avoided
in preference to the other which makes it rational and immune
from the charge of unconstitutionality. That apart, the Court cannot
interpret the provisions of the Act in a manner which will deprive
the victim of the offences defined in Sections 416, 463, 464, 468 c -t
and 471 of his right to prosecute the wrong doer by filing the first
information report or complaint under the relevant provisions of
Gr.P.C.
15. We may add that the respondent could have been
simultaneously prosecuted for contravention of Sections 24, 24A D
and 26 of the Act and for the offences defined under the IPC but
in view of the bar contained in Article 20(2) of the Constitution
read with Section 26 of the General Clauses Act, 1897 and
Section 300 Cr.P.C., he could not have been punished twice for
the same offence. In Maqbool Hussain v. The State of Bombay E
(supra), the Court considered the question whether the appellant
who had brought gold from Jeddah in contravention of
notification dated 25.8.1948 could have been prosecuted under
Section 8 of the Foreign Exchange Regulation Act, 1947 after
the gold had been confiscated by the authorities of the Customs F
Department under Section 167(8) of the Sea Customs Act,
1878. The appellant challenged his prosecution by contending
that this amounted to infringement of his fundamental right under
Article 20(2) of the Constitution. The Bombay High Court
negatived his challenge. This Court upheld the order of the High G
Court and observed:
"There is no doubt that the act which constitutes an offence
under the Sea Customs Act as also an offence under the
Foreign Exchange Regulation Act was one and the same
H
270 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A viz. importing the gold in contravention of the notification of
the Government of India dated 25th August, 1948. The
appellant could be proceeded against under Section 167(8)
of the Sea Customs Act as also under Section 23 of the
Foreign Exchange Regulation Act in respect of the said act.
B
The fundamental right which is guaranteed in Article 20(2)
enunciates the principle of "autrefois convict" or "double
jeopardy". The roots of that principle are to be found in the
well established rule of the common law of England "that
where a person has been convicted of an offence by a court
c of competent jurisdiction the conviction is a bar to all further
criminal proceedings for the same offence". (Per Charles,
J. in Reg v. Mi/es). To the same effect is the ancient maxim
"Nemo bis debet puniri pro uno delicto", that is to say that
no one ought to be twice punished for one offence or as it
D is sometimes written "pro eadem causa", that is, for the
same cause.
This is the principle on which the party pursued has available
to him the plea of "autrefois convict" or "autrefois acquit".
E "The plea of 'autrefois convict' or 'autrefois acquit' avers that
the defendant has been previously convicted or acquitted
on a charge for the same offence as that in respect of which
he is arraigned .... The question for the jury on the issue is
whether the defendant has previously been in jeopardy in
F respect of the charge on which he is arraigned, for the rule
of law is that a person must not be put in peril twice for the
same offence. The test is whether the former offence and
the offence now charged have the same ingredients in the
sense that the facts constituting the one are sufficient to
justify a conviction of the other, not that the facts relied on
G
by the Crown are the same in the two trials. A plea of
'autrefois acquit' is not proved unless it is shown that the
verdict of acquittal of the previous charge necessarily
involves an acquittal of the latter." (Vide Halsbury's Laws of
England, Hailsham Edition, Vol. 9, pp. 152 and 153, para
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 271
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
212). A
This principle found recognition in Section 26 of the General
Clauses Act, 1897,-
'Where an act or omission constitutes an offence
under two or more enactments, then the offender B
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 s~me offence,'
and also in Section 403(1) of the Criminal Procedure Code, c
1898,-
'A person who has been tried by a court of competent
jurisdiction for an offence and convicted or acquitted of such
offence shall, while such conviction or acquittal remains in
force, not be liable to be tried again for the same offence,
0
nor on the same facts for any other offence for which a
different charge from the one made against him might have
been made under Section 236, or for which he might have
been convicted under Section 237'."
E
The Court then referred to the provisions of the Sea Customs
Act, 1878 and held:
"We are of the opinion that the Sea Customs authorities are
not a judicial tribunal and the adjudging of confiscation,
F
increased rate of duty or penalty under the provisions of the
Sea Customs Act do not constitute a judgment or order bf
a court or judicial tribunal necessary for the purpose of
supporting a plea of double jeopardy.
It therefore follows that when the Customs authorities G
confiscated the gold in question neither the proceedings
taken before the Sea Customs authorities constituted a
prosecution of the appellant nor did the order of confiscation
·constitute a punishment inflicted by a court or judicial tribunal
on the appellant. The appellant could not be said by reason H
272 SUPREME COURT REPORTS (2010] 14 (AODL.) S.C.R.
A of these proceedings before the Sea Customs authorities
to have been "prosecuted and punished" for the same
offence with which he was charged before the Chief
Presidency Magistrate, Bombay, in the complaint which
was filed against him under Section 23 of the Foreign
E: Exchange Regulation Act."
16. In T.S. Ba/iah's case, the Court considered the question
whether the appellant could be simultaneously prosecuted under
Section 177 IPC and for violation of Section 52 of the Income
C Tax Act, 1922. After noticing Section 26 of the General Clauses
Act, the Court held:
"A plain reading of the section shows that there is no bar to
the trial or conviction of the offender under both enactments
but there is only a bar to the punishment of the offender twice
D for the same offence. In other words, the section provides
that where an act or omission constitutes an offence under
two enactments, the offender may be prosecuted and
punished under either or both the enactments but shall not
be liable to be punished twice for the same offence. We
E accordingly reject the argument of the appellant on this
aspect of the case."
17. In State of Bombay v. S.L. Apte (1961) 3 SCR 107, the
question that fell for consideration was whether in view of an
F earlier conviction and sentence under Section 409 IPC, a
subsequent prosecution for an offence under Section 105 of
Insurance Act, 1935, was bmred by Section 26 of the General
Clauses Act and Article 20(2) of the Constitution. This Court
answered the question in following words:
G "To operate as a bar the second prosecution and the
consequential punishment thereunder, must be for 'the same
offence'. The crucial requirement therefore for attracting the
article is that the offences are the same, i.e., they should be
identical. If, however, the two offences are distinct, then
H notwithstanding that the allegations of facts in the two
INSTITUTE OF CHARTERED ACCOUNTANTS OF 273
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
complaints might be substantially similar, the benefit of the A
ban cannot be invoked. It is, therefore, necessary to analyse
and compare not the allegations in the two complaints but
the ingredients of the two offences and see whether their
identity is made out. ...
B
... Though Section 26 in its opening words refers to 'the act
or omission constituting an offence under two or more
enactments', the emphasis is not on the facts alleged in the
two complaints but rather on the ingredients which constitute
the two offences with which a person is charged. This is
made clear by the concluding portion of the section which C
refers to 'shall not be liable to be punished twice for the same
offence'. If the offences are not the same but are distinct,
the ban imposed by this provision also cannot be invoked."
18. In V.K. Agarwal v. Vasantraj 8. Bhatia (1988) 3 SCC D
467, this Court considered the question whether the acquittal of
an accused charged with having committed an offence
punishable under Section 111 read with Section 135 of the
Customs Act, 1962 create a legal bar to the subsequent
prosecution of the said accused under Section 85 of the Gold E
(Control) Act, 1968. The Gujarat High Court answered the
question in affirmative. This Court reversed the order of the High
Court and observed:
"It is therefore evident that the ingredients required to be
F
established in respect of the offence under the Customs Act
are altogether different from the ones required to be
established for an offence under the Gold (Control) Act. In
respect of the former, the prosecution has to establish that
there was a prohibition against the import into Indian sea
waters of goods which were found to be in the possession G
of the offender. On the other hand in respect of the offence
under the Gold (Control) Act, it is required to be established
that the offender was in possession of primary gold meaning
thereby gold of a purity of not less than 9 carats in any
unfinished or semi-finished form. In regard to the latter H
274 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A offence it is not necessary to establish that there is any
prohibition against the import of gold into Indian sea waters.
Mere possession of gold of purity not less than 9 carats in
any unfinished or semi-finished form would be an offence
under the Gold Control Act. It is therefore stating the obvious
B to say that the ingredients of the two offences are altogether
different. Such being the case the question arises whether
the acquittal for the offences under the Customs Act which
requires the prosecution to establish altogether different
ingredients operates as a bar to the prosecution of the same
c person in connection with the charge of having committed
the offence under the Gold (Control) Act.
......... In the present case the concerned Respondents
could be found guilty of both the offences in the context of
the possession of gold. If it was established that there was
D a prohibition against the import of gold and that he was
found in possession of gold which he knew or had reason
to believe was liable to confiscation he would be guilty of
that offence. He would also be guilty of an offence under the
Gold (Control) Act provided the gold is of a purity of at least
E 9 carats. He would have violated the provisions of "both" the
Customs Act and the Gold (Control) Act if the aforesaid
ingredients were established. It is not as if in case he was
found guilty of an offence under the Customs Act, he could
not have been found guilty under the Gold (Control) Act or
F vice versa. Upon being found guilty of both the offences the
court may perhaps impose a concurrent sentence in
respect of both the offences but the court has also the power
to direct that the sentence shall run consecutively. There is
therefore no question of framing of an alternative charge
G one, under the Customs Act, and the other, under the Gold
(Control) Act. If the ingredients of both the offences are
satisfied the same act of possession of the gold would
constitute an offence both under the Customs Act as also
under the Gold (Control) Act. Such being the position it
H cannot be said that they could have been tried on the same
INSTITUTE OF CHARTERED ACCOUNTANTS OF 275
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
facts for an alternative charge in the context of Section 236 A
Cr.P.C. at the time of the former proceedings. The
submission urged in the context of Section 403(1) cannot
therefore succeed for it cannot be said that the persons who
are sought to be tried in the subsequent proceedings could
have been tried on the same facts at the former trial under 8
Section 236."
19. In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655,
the question considered by the Court was whether the complaint
lodged by the competent officer alleging commission of offence
under Section 9(1) read with Section 51 for killing elephants and C
removing its husk was maintainable notwithstanding the
pendency of police investigation for an offence under Sections
44 7, 429 and 4 79 read with Sections 54 and 39 of the Act. After
adverting to the relevant provisions, this Court held:
D
"What emerges from a perusal of these provisions is that
cognizance of an offence under the "Act" can be taken by a
court only on the complaint of the officer mentioned in
Section 55. The person who lodged complaint dated June
23, 1986 claimed to be such an officer. In these E
circumstances even if the jurisdictional police purported to
register a case for an alleged offence against the Act,
Section 210(1) would not be attracted having regard to the
position that cognizance of such an offence can only be
taken on the complaint of the officer mentioned in that
F
section. Even where a Magistrate takes cognizance of an
offence instituted otherwise than on a police report and an
investigation by the police is in progress in relation to same
offence, the two cases do not lose their separate identity.
The section seeks to obviate the anomalies that might arise
from taking cognizance of the same offence more than G
once. But, where, as here, cognizance can be taken only in
one way and that on the complaint of a particular statutory
functionary, there is no scope or occasion for taking
cognizance more than once and, accordingly, Section 210
H
276 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A has no role to play. The view taken by the High Court on the
footing of Section 210 is unsupportable.
We are unable to accept the contention of Shri R.F.
Nariman that the specific allegation in the present case
concerns the specific act of killing of an elephant, and that
B such an offence, at all events, falls within the overlapping
areas between of Section 429 IPC on the one hand and
Section9(1) read with Section 50(1) of the Act on the other
and therefore constitutes the same offence. Apart from the
fact that this argument does not serve to support the order
c of the High Court in the present case, this argument is, even
on its theoretical possibilities, more attractive than sound.
The expression "any act or omission which constitutes any
offence under this Act" in Section 56 of the Act, merely
imports the idea that the same act or omission might
D constitute an offence under another law and could be tried
under such other law or laws also.
The proviso to Section 56 has also a familiar ring and
is a facet of the fundamental and salutary principles that
E permeate penology and reflected in analogous provisions
of Section 26 of General Clauses Act, 1897; Section 71
IPC; Section 300 CrPC 1973, and constitutionally
guaranteed under Article 20(2) of the Constitution. Section
26 of the General Clauses Act, 1897 provides:
F "26. Provision as to offences punishable under two or more
enactments.-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
G punished twice for the same offence."
Broadly speaking, a protection against a second or
multiple punishment for the same offence, technical
complexities aside, includes a protection against re-
prosecution after acquittal, a protection against re-
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 277
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
prosecution after conviction and a protection against double A
or multiple punishment for the same offence. These
protections have since received constitutional guarantee
under Article 20(2). But difficulties arise in the application
of the principle in the context of what is meant by "same
offence". The principle in American law is stated thus: B
"The proliferation of technically different offences
encompassed in a single instance of crime behaviour has
increased the importance of defining the scope of the
offence that controls for purposes of the double jeopardy C
guarantee.
Distinct statutory provisions will be treated as involving
separate offences for double jeopardy purposes only if
'each provision requires proof of an additional fact which
the other does not' (Blockburgerv. United States). Where D
the same evidence suffices to prove both crimes, they are
the same for double jeopardy purposes, and the clause
forbids successive trials and cumulative punishments for the
two crimes. The offences must be joined in one indictment
and tried together ur'lless the defendant requests that they E
be tried separately. (Jeffers v. United States)"
The expression "the same offence", "substantially the
same offence" "in effect the same-Offence" or "practically the
same", have not done much tq lessen the difficulty in applying F
the tests to identify the legal common denominators of
"same offence". Friedland in Double Jeopardy (Oxford
1969) says at p. 108:
"The trouble with this approach is that it is vague and hazy
and conceals the thought processes of the court. Such an G
inexact test must depend upon the. individual impressions
of the judges and can give little guidance for future
decisions. A more serious consequence is the fact that a
decision in one case that two offences are 'substantially the
same' may compel the same result in another case involving H
278 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A the same two offences where the circumstances may be
such that a second prosecution should be permissible .... "
In order that the prohibition is attracted the same act
must constitute an offence under more than one Act. If there
are two distinct and separate offences with different
B
ingredients under two different enactments, a double
punishment is not barred. In Leo Roy Frey v.
Superintendent, District Jail, the question arose whether
a crime and the offence of conspiracy to commit it are
different offences. This Court said: (SCR p. 827)
c
'The offence of conspiracy to commit a crime is a different
offence from the crime that is the object of the conspiracy
because the conspiracy precedes the commission of the
crime and is complete before the crime is attempted or
D completed, equally the crime attempted or completed does
not require the element of conspiracy as one of its
ingredients. They are, therefore, quite separate offences."
20. In State of Rajasthan v. Hat Singh (2003) 2 SCC 152,
E the Court considered the question whether the High Court was
right in taking the view that the respondent could have been
prosecuted either under Section 5 or Section 6(3) of the
Rajasthan Sati (Prevention) Act, 1987 and not under both the
sections. The High Court had ruled in favour of the respondent.
This Court reversed the judgment of the High Court, referred to
F Article 20(2) of the Constitution, the judgments in Maqbool
Hussain v. The State of Bombay (supra), State of Bombay v.
S.L. Apte (supra) and observed:
"The rule against double jeopardy is stated in the maxim
G nemo debet bis vexari pro una et eadem causa. It is a
significant basic rule of criminal law that no man shall be put
in jeopardy twice for one and the same offence. The rule
provides foundation for the pleas of autrefois acquit and
autrefois convict. The mfinifestation of this rule is to be
H found contained in Section 26 of the General Clauses Act,
INSTITUTE OF CHARTERED ACCOUNTANTS OF 279
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
1897, Section 300 of the Code of Criminal Procedure, A
1973 and Section 71 of the Indian Penal Code. Section 26
of the General Clauses Act provides:
"26. Where an act or omission constitutes an offence under
two or more enactments, then the offender shall be liable to
B
be prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished twice for
the same offence."
Section 300 CrPC provides, inter a/ia;-
c
"300. (1) A person who has once been tried by a court of
competent jurisdiction for an offence and convicted or
acquitted of such offence shall, while such conviction or
acquittal remains in force, not be liable to be tried again for
the same offence, nor on the same facts for any other 0
offence for which a different charge from the one made
against him might have been made under sub-section (1)
of Section 221, or for which he might have been convicted
under sub-section (2) thereof."
Both the provisions employ the expression "same offence"." E
The Court then proceeded to analyze the relevant sections
of the Act and held that the offences under Sections 5 and 6(3)
of the Act were distinct and there was no bar against prosecution
of the respondent under Section 5 even though his prosecution F
under Section 6(3) had failed.
21. In view of the above discussion, the argument of the
learned senior counsel appearing for the respondent that the Act
is a special legislation vis-a-vis IPC and a person who is said to G
have contravened the provisions of sub-section (1) of Sections
24, 24A, 25 and 26 cannot be prosecuted for an offence defined
under the IPC, which found favour with the High Court does not
commend acceptance.
22. The judgments on which the learned senior counsel H
280 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A appearing for the respondent has placed reliance are clearly
distinguishable. In Jamiruddin Ansari v. C.B. I. (supra), this Court
was called upon to consider whether an order for investigation·
could be passed under Section 156(3) Cr.P .C. in a case
involving violation of the provisions contained in the Maharashtra
B Control of Organised Crime Act, 1999. This Court referred to the
provisions of Sections 9 and 23 of the Maharashtra Act and held
that the Special Judge cannot take cognizance of any offence
under that Act unless sanction has been given by a police officer
not below the rank of Additional Director General of Police. The
c Court further held that the provisions contained in the Maharashtra
Act have overriding effect and Section 156(3) cannot be invoked
for ordering special inquiry on a private complaint. Paragraphs
65 (part). 67 and 68 of the judgment, which contain this
conclusion, reads as under:
D "The wording of sub-section (2) of Section 23 leaves no
room for doubt that the learned Special Judge cannot take
. cognizance of any offence under MCOCA unless sanction
has been previously given by the police officer mentioned
hereinabove. In such a situation, even as far1as a private
E complaint is concerned, sanction has to be obtained from
the police officer not below the rank of Additional Director
General of Police, before the Special Judge can take
cognizance of such complaint.
F We are also inclined to hold that in view of the provisions of
Section 25 of MCOCA, the provisions of the said Act would
have an overriding effect over the provisions of the Criminal
Procedure Code and the learned Special Judge would not,
therefore, be entitled to invoke the provisions of Section
156(3) CrPC for ordering a special inquiry on a private
G
complaint and taking cognizance thereupon, without
traversing the route indicated in Section 23 of MCOCA. In
other words, even on a private complaint about the
commission of an offence of organised crime under
MCOCA cognizance cannot be taken by the Special Judge
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 281
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
without due compliance with sub-section (1) of Section 23, A
which starts with a non obstante clause.
,f
·, '
As indicated hereinabove, the provisions of Section 23 are
the safeguards provided against the invoc~tion of the
provisions of the Act which are extremely stringent ;:ind far B
removed from the provisions of the general crimina,l law. If,
as submitted on behalf of some of the respondents, it is
accepted that a private complaint under Section 90) is not
subject to the rigours of Section 23, then the very purpose
of introducing such safeguards lose their very.rai$on dietre. C
At the same time, since the filing of a private complaint is
also contemplated under Section 9(1) of MCOCA, for it to
· be entertained it has also to be subject to the rigours of
Section 23. Accordingly, in view of the bar imposed under
sub-section (2) of Section 23 of the Act, the learned Special
Judge is precluded from taking cognizance on a private D
complaint upon a separate inquiry under Section 156(3)
CrPC. The bar of Section 23(2) continues to remain in
respect of complaints, either of a private nature or on a
police report."
E
The question which fell for consideration in Jeewan Kumar Raut
v. C.B.I. (supra) was whether the Transplantation of Human
Organs Act, 1994 (for short, 'the 1994 Act') is a special law and
has overriding effect qua the provisions of the IPC. This Court
referred to Sections 18, 19 and 22 of the 1994 Act and observed: F
"TOHO being a special statute, Section 4 of the Code, which
ordinarily would be applicable for investigation into a
cognizable offence or the other provisions, may not be
applicable. Section 4 provides for investigation, inquiry, trial,
etc. according to the provisions of the Code. Sub-section G
(2) of Section 4, however, specifically provides that offences
under any other law shall be investigated, inquired into, tried
and otherwise dealt with according to the same provisions,
but subject to any enactment for the time being in force
regulating the manner or place of investigating, inquiring into, H
282 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A tried or otherwise dealing with such offences.
TOHO being a special Act and the matter relating to dealing
with offences thereunder having been regulated by reason
of the provisions thereof, there cannot be any manner of
B doubt whatsoever that the same shall prevail over the
provisions of the Code. The investigation in terms of Section
13(3)(iv) of TOHO, thus, must be conducted by an
authorised officer. Nobody else could do it. For the
aforementioned reasons, the officer in charge of Gurgaon
Police Station had no other option but to hand over the
c investigation to the appropriate authority.
Section 22 of TOHO prohibits taking of cognizance except
on a complaint made by an appropriate authority or the
person who had made a complaint earlier to it as laid down
D therein. The respondent, although, has all the powers of an
investigating agency, it expressly has been statutorily
prohibited from filing a police report. It could file a complaint
petition only as an appropriate authority so as to comply with
the requirements contained in Section 22 of TOHO. If by
E reason of the provisions of TOHO, filing of a police report
by necessary implication is necessarily forbidden, the
question of its submitting a report in terms of sub-section
(2) of Section 173 of the Code did not and could not arise.
In other words, if no police report could be filed, sub-section
F (2) of Section 167 of the Code was not attracted.
It is a well-settled principle of law that if a special statute lays
down procedures, the ones laid down under the general
statutes shall not be followed. In a situation of this nature,
the respondent could carry out investigations in exercise of
G its authorisation under Section 13(3)(iv) of TOHO. While
doing so, it could exercise such powers which are otherwise
vested in it. But, as it could not file a police report but a
complaint petition only; sub-section (2) of Section 167 of the
Code may not be applicable."
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 283
!NOIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
23. The language of the provisions, which were interpreted A
in the above noted two judgments was not similar to sub-section
(2) of Sections 24A, 25 and 26 of the Act which, as mentioned
above, contain the expression 'without prejudice to any other
proceedings, which may be taken'. Therefore, the ratio of those
judgments cannot be relied upon for sustaining the impugned B
order.
24. It is also apposite to mention that except the provision
contained in Section 28 against the prosecution of a person, who
is alleged to have acted in contravention of sub-section (1) of C
Sections 24, 24A, 25 or 26 otherwise then on a complaint made
by or under the order of the Council or the Central Government,
the Act does not specify the procedure to be followed for
punishing such person. In the absence of any such provision, the
procedure prescribed in Cr.P.C. has to be followed for inquiry,
investigation and trial of the complaint which may be filed for D
contravention of any of the provisions contained in Chapter VII
of the Act- Section 4 Cr.P.C.
25. The submission of Shri Gupta that the respondent
cannot be prosecuted for offences defined under the IPC E
because no complaint had been filed against him by the
concerned Court or authority as per the requirement of Section
195(1 )(b)(ii) Cr.P .C. sounds attractive but lacks merit. The
prohibition contained in Section 195 Cr.P.C. against taking of
cognizance by the Court except on a complaint in writing made F
by the concerned Court before which the document is produced
or given in a proceeding is not attracted in the case like the
present one because the officers of the Income Tax Department
and the authorities constituted under the Madhya Pradesh Trade
Tax Act, 1995 before whom the respondent is alleged to have G
acted on the basis of power of attorney or as legal representative
or produced audit report do not fall within the ambit of the term
'Court' as defined in Section 195(3) Cr.P.C. Such officer/
authorities were neither discharging the functions of a Civil,
Revenue or Criminal Court nor they could be treated as tribunal
H
284 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A constituted by or under the Central or State Act, which is declared
to be a Court for the purpose of Section 195. This provision was
analysed and interpreted by the Constitution Bench in Iqbal
Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370. The
Constitution Bench referred to other provisions of Cr.P.C. and
B considered earlier judgments and observed:
"The scheme of the statutory provision may now be
examined. Broadly, Section 195 CrPC deals with three
distinct categories of offences which have been described
in clauses (a), (b)(1) and (b)(ii) and they relate to (1)
c contempt of lawful authority of public servants, (2) offences
against public justice, and (3) offences relating to
documents given in evidence. Clause (a) deals with
offences punishable under Sections 172 to 188 IPC which
occur in Chapter X IPC and the heading of the Chapter is
D - "Of Contempts of the Lawful Authority of Public Servants".
These are offences which directly affect the functioning of
or discharge of lawful duties of a public servant. Clause-
(b)(i) refers to offences in Chapter XI IPC which is headed
as - "Of False Evidence and Offences Against Public
E Justice". The offences mentioned in this clause clearly relate
to giving or fabricating false evidence or making a false
declaration in any judicial proceeding or before a court of
justice or before a public servant who is bound or authorised
by law to receive such declaration, and also to some other
F offences which have a direct correlation with the
proceedings in a court of justice (Sections 205 and 211
IPC). This being the scheme of two provisions or clauses
of Section 195 viz. that the offence should be such which
has direct bearing or affects the functioning or discharge
G of lawful duties of a public servant or has a direct correlation
with the proceedings in a court of justice, the expression
"when such offence is alleged to have been committed in
respect of a document produced or given in evidence in a
proceeding in any court" occurring in clause (b)(i1) should
normally mean commission of such an offence after the
H
INSTITUTE OF CHARTERED ACCOUNTANTS OF 285
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
document has actually been produced or given in evidence A
in the court. The situation or contingency where an offence
as enumerated in this clause has already been committed
earlier and later on the document is produced or is given in
evidence in court, does not appear to be in tune with clauses
(a)(1) and (b)(1) and consequently with the scheme of Section B
195 CrPC. This indicates that clause (b)(il) contemplates
a situation where the offences enumerated therein are
committed with respect to a document subsequent to its
production or giving in evidence in a proceeding in any court.
Section 195( 1) mandates a complaint in writing to the court
c
fortaking cognizance of the offences enumerated in clauses
(b)(1) and (b)(il) thereof. Sections 340 and 341 CrPC which
occur in Chapter XXVI give the procedure for filing of the
complaint and other matters connected therewith. The
heading of this Chapter is - "Provisions as to Offences D
Affecting the Administration of Justice". Though, as a
general rule, the language employed in a heading cannot
be used to give a different effect to clear words of the
section where there cannot be any doubt as to their ordinary
meaning, but they are not to be treated as if they were E
marginal notes or were introduced into the Act merely for
the purpose of classifying the enactments. They constitute
an important part of the Act itself, and may be read not only
as explaining the sections which immediately follow them,
as a preamble to a statute may be looked to explain its F
enactments, but as affording a better key to the constructions
of the sections which follow them than might be afforded by
a mere preamble. (See Craies on Statute Law, 7th Edn.,
pp.207, 209.) The fact that the procedure for filing a
complaint by court has been provided in Chapter XXVI G
dealing with offences affecting administration of justice, is
a clear pointer to the legislative intent that the offence
committed should be of such type which directly affects the
administration of justice viz. which is committed after the
document is produced or given in evidence in court. Any H
286 SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A offence committed with respect to a document at a time
prior to its production or giving in evidence in court cannot,
strictly speaking, be said to be an offence affecting the
administration of justice."
The Court then referred to Section 195 of the Code of
B
Criminal Procedure, 1898, the Full Bench judgment of the
Allahabad High Court in Emperorv. Kushal Pal Singh AIR 1931
Allahabad 443 and observed:
"The Court clearly rejected any construction being placed
c on the provision by which a document forged before the
commencement of the proceeding in which it may happen
to be used in evidence later on, to come within the purview
of Section 195, as that would unreasonably restrict the right
to initiate prosecution possessed by a person and
D recognised by Section 190 CrPC.
The aforesaid decision was considered in Raghunath v.
State of UP. Here, the accused had obtained sale deed
of the property of a widow by setting up of an impostor and
thereafter filed a mutation application before the Tahsildar.
E
The widow contested the mutation application on .the
ground that she had never executed the sale deed and
thereafter filed a criminal complaint under Sections 465,
468 and 471 IPC in which the accused were convicted. In
appeal, it was contended that the private complaint was
F barred by virtue of Section 195(1 )(c) CrPC and the
Revenue Court alone could have filed the complaint. The
Court repelled the aforesaid contention after relying upon
the ratio of Patel Laljibhaiv. State of Gujarat and the private
complaint was held to be maintainable. In Mohan Lal v.
G State of Rajasthan-the abovenoted two decisions were
relied upon for holding that provisions of Section 195( 1)(c)
(old Code) would not be applicable where mutation
proceedings were commenced after a Will had been
forged. In Legal Remembrancer, Govt. of WB. v. Haridas
H Mundra, Bhagwati, J. (as His Lordship then was),
INSTITUTE OF CHARTERED ACCOUNTANTS OF 287
INDIA v. VIMAL KUMAR SURANA [G.S. SINGHVI, J.]
speaking for a three-Judge Bench observed that earlier A
there was divergence of opinion in various High Courts, but
the same was set at rest by this Court in Patel Laljibhai
Somabhai and approved the view taken therein that the
words of Section 195(1)( c) clearly meant the offence alleged
to have been committed by a party to the proceeding in his B
character as such party i.e. after having become a party to
the proceeding, and Sections 195(1)(c), 476 and 476-A (of
the old Code) read together indicated beyond doubt that the
legislature could not have intended to extend the prohibition
contained in Section 195(1)(c) to the offences mentioned c
in the said section when committed by a party to a
proceeding prior to his becoming such party. Similar view
has been taken in Mahadev Bapuji Mahajan v. State of
Maharashtra where the contention that the absence of a
complaint by the Revenue Court was a bar to taking D
cognizance by the criminal court in respect of offences under
Sections 446, 468, 471 read with Section 120-B IPC which
were committed even before the start of the proceedings
before the Revenue Court, was not accepted.
An enlarged interpretation to Section 195(1 )(b)(i1), whereby E
the bar created by the said provision would also operate
where after commission of an act of forgery the document
is subsequently produced in court, is capable of great
misuse. As pointed out in Sachida Nand Singh after
preparing a forged document or committing an act of F
forgery, a person may manage to get a proceeding instituted
in any civil, criminal or revenue court, either by himself or
through someone set up by him and simply file the document
in the said proceeding. He would thus be protected from
prosecution, either at the instance of a private party or the G
police until the court, where the document has been filed,
itself chooses to file a complaint. The litigation may be a
prolonged one due to which the actual trial of such a person
may be delayed indefinitely. Such an interpretation would
be highly detrimental to the interest of the society at large." H
288 SUPREME COURT REPORTS (2010) 14 (ADDL.) S.C.R.
A The attention of the High Court does not appear to have been
invited to the aforesaid judgment of the Constitution Bench and
this is the reason that the High Court declared that the complaint
filed by Brij Kishor Saxena was not maintainable because the
same was not filed in accordance with Section 195(1)(b)(ii)
B Cr.P.C.
26. Although, Shri Gupta argued that the allegations levelled
against the respondent do not constitute any offence under
Sections 419, 420, 465, 467, 468, 472 and 473 IPC, we do not
C consider it necessary to deal with this point because the High
Court did .not sustain the orders challenged before it on that
ground.
27. In the result, the appeals are allowed. The impugned
order is set aside and the matter is remitted to the trial Court for
D . considering whether the allegations contained in the complaint
lodged by Brij Kishor Saxena constitute any offence under the
IPC. If the trial Court comes to the conclusion that the allegations
do constitute one or more offence(s), then it shall proceed
against the respondent in accordance with law. However, it is
E made clear that in the absence of a complaint having been filed
under Section 28, no charges be framed against the respondent
for the alleged contravention of Sections 24, 24A or 26 of the
Act.
N.J. Appeals allowed.
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