REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1328-1329 OF 2019

(ARISING OUT OF SLP (CRIMINAL) NOS. 9981-9982 OF 2017)

THE STATE OF UTTAR PRADESH .....APPELLANT(S)

VERSUS

AMAN MITTAL & ANR. .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NOS.1330-1331 OF 2019

(ARISING OUT OF SLP (CRIMINAL) NOS. 1912-1913 OF 2018)

CRIMINAL APPEAL NO. 1332 OF 2019

(ARISING OUT OF SLP (CRIMINAL) NO. 3321 OF 2018)

J U D G M E N T

HEMANT GUPTA, J.

Crl. Appeal Nos. 1328-1329 of 2019 (@SLP (Criminal) Nos.9981-9982 of 2017)

AND

Crl. Appeal Nos. 1330-1331 of 2019 (@SLP (Criminal) Nos.1912-1913 of 2017)

1) Leave granted.

2) The order dated October 4, 2017 passed by the Lucknow Bench of

the High Court of Judicature at Allahabad is the subject matter of

challenge in these appeals.

1

3)An FIR No. 130 was lodged on April 28, 2017 with Police Station Cantt,

Lucknow for the offences punishable under Sections 265, 267, 420,

34, 120-B of the Indian Penal Code, 1860

1

and Sections 3/7 of the

Essential Commodities Act, 1955

2

in respect of short delivery of petrol

and diesel by 200-220 ml. on each sale of 5 liters.

4)On April 27, 2017, the Special Task Force

3

of the State Police took up

the investigation into the commission of offence viz. short delivery of

petroleum products i.e. high-speed diesel and motor spirit at various

retail outlets operating within the city of Lucknow. The STF with the

aid of officers of the Department of Weight and Measures and the

District Administration raided the premises of the retail outlets. The

team found that 15 nozzles connected to four machines i.e.

dispensing units with seals intact were operative and functional. The

testing was carried out in the presence of Apar Nagar Magistrate, two

Inspectors of Weights and Measures Department and the partners of

the firm M/s. Shiv Narain & Sons and its Manager. As per the

inspection memo recorded on April 27, 2017, out of 15 nozzles, 10

nozzles were used for sale of petrol and the remaining 5 nozzles were

used for sale of diesel. 13 nozzles were involved in malpractice of

short delivery. The team derived 5 liters of petrol and diesel

respectively in the testing work standard measurement kept at the

1 IPC

2 Act, 1955

3 STF

2

outlet but on calibration, it was found that the quantity of 200 ml.

was short. For such short delivery, the FIR, as mentioned above, was

lodged.

5)In the FIR, it is alleged that some electronic chip was fixed inside the

dispensing unit which was operated through a remote. Three remote

controls bearing Nos. 2, 3 and 4 were recovered and two remote

controls were recovered without any numbers. The inspection team

also verified the storage of stocks available as on date in the

underground tanks by using a dip rod. On verification of actual stock,

the comparative record maintained by the dealer was found to be

inconsistent rather the stock available was found to be excessive and

was recorded accordingly. The dispensing machines were sealed by

the inspection team and the sale was immediately stopped. The

accused were arrested on April 28, 2017. Later, on June 1, 2017, the

Investigating Officer along with seven persons including the City

Magistrate visited the retail outlet and with the help of technicians

hired from General Energy Management Systems Pvt. Ltd. opened the

dispensing machines. The seals were found intact both at the initial

stage of inspection i.e. on April 27, 2017 and on June 1, 2017. The

electronic chips fixed inside the 24 dispensing units were taken into

custody by the Investigating Officer. Such electronic chips recovered

on June 1, 2017 are now with Forensic Science Laboratory, Lucknow

for its forensic report. The Magistrate on an application made by the

3

Investigating Officer allowed the judicial remand of accused vide

order dated June 7, 2017 and also permitted the investigation under

Sections 467, 468, 471 IPC and Sections 12/30 of the Legal Metrology

Act, 2009

4

.

6)It is on the basis of investigations carried out, the charge-sheet dated

July 25, 2017 for the offences under Sections 265, 267, 420, 34, 120B

IPC and Sections 3 and 7 of the Act, 1955, Sections 467, 468, 471 IPC

and Sections 12/30 of the Weights and Measures Act, 1976 came to

be filed before the competent court. The Magistrate did not take

cognizance of offence under Sections 471 and 120B of IPC for want of

evidence but the Magistrate has taken cognizance of an offence

under Section 30 of the Act.

7)It is thereafter two applications were filed under Sections 167(2) and

190(1) of the Code of Criminal Procedure, 1973

5

on July 26, 2017 on

the ground that the prosecution has no material making out a case of

offences mentioned in the chargesheet, therefore, the cognizance

may not be taken. The learned Magistrate rejected both the

applications on July 27, 2017. It is thereafter the petition was filed

under Section 482 of the Code before the High Court, which was

decided by an order impugned in the present appeal. The High Court

has passed a detailed order examining the following questions of law:

4 Act

5 Code

4

“(i) Whether in view of the promulgation of Legal

Metrology Act, 2009, the offences relating to weights and

measures particularly short delivery of petroleum products

sold to the public at large through dispensing machines,

are open to be registered and investigated by the police

authorities in terms of the provisions of IPC and Code of

Criminal Procedure or the provisions of IPC and Cr.P.C. for

the said purpose would stand ousted/obliterated/eclipsed

by virtue of Section 51 of Legal Metrology Act, 2009;

(ii) Whether the Legal Metrology Act and the Essential

Commodities Act and the procedure envisaged thereunder

has an overriding effect over the provisions of Code of

Criminal Procedure insofar as the investigation/search and

seizure in respect of the offences relating to weights and

measures are concerned.

(iii) Whether the investigation held by the investigating

officer assuming as if the same was permissible, has been

held in consonance with the relevant law applicable as on

the date or not and if not, its effect;

(iv) Whether the court below while taking cognizance of

the offences has passed the orders in accordance with the

well-settled principles of law and if not, its effect.

(v) Directions and directives necessary in the case.”

8)It was held that the Code is applicable so long as a different

procedure is not prescribed under the special law with respect to the

cognizable or non-cognizable offences but application of the

provisions of IPC has to be understood within the broader scope of

special law in the light of exclusionary provision embodied

therein. Thus, considering Sections 3 and 51 of the Act, the High

Court held as under:

“From a conjoint reading of this provision with the other

5

provisions of the Act, the logical conclusion to serve the

purpose of the Act, 2009 that can be deduced is that all

other offences under the Legal Metrology Act, 2009 except

the offence under Section 26 are non-cognizable and

compoundable when committed for the first time; whereas

the offence under Section 26 of the Act is a non-

cognizable offence triable as per the procedure prescribed

under the Code of Criminal Procedure and the other

offences when committed second time as well. Thus, the

procedure of investigation, inquiry and trial under the

Cr.P.C. would accordingly apply inasmuch as, no procedure

in relation thereto is prescribed under the Special Act.”

9)It was further held that Section 26 of the Act overrides the provisions

of Sections 264 to 267 of IPC as Section 51 of the Act clearly excludes

the application of IPC and Section 153 of the Code insofar as it relates

with regard to weights and measures punishable under the special

Act. The High Court held as under:

“The violation of any provision of the Special Act or

Section 26 once noticed against any offender, as is the

situation in the present case, it would not attract violation

of Section 264 to 267 IPC at all and the prosecution is

bound to be guided by the relevant provisions under the

Special Act. The Special Act has replaced the entire

Chapter by defining the offences of all descriptions and

classified them in the nature of non-cognizable

compoundable offences, as such, the procedure deserves

to be applied accordingly as per the classification of

offences against other laws in the first schedule of Cr.P.C.

insofar as criminal prosecution is concerned.”

10)The High Court ordered that the trial court has not taken cognizance

of offence under Sections 34, 120B, 471 of IPC or 26 of the Act.

Therefore, there is no reason as to why the Court may not take into

account such materials for the purposes of taking cognizance of the

6

offences, in the light of the orders passed on July 7, 2017 and August

17, 2017. The High Court held that Sections 467, 468, 471, 120-B

and 34 of IPC stand clearly attracted.

11)In respect of third question, the High Court directed the District Judge,

Lucknow to ascertain the quantitative and qualitative figures of the

residual stock lying in the underground tanks and allow the stock to

be delivered to the oil company for custody after due calibration

through the dispensing pumps installed. The High Court issued the

following directions:

“(i) The Investigating Officer assigned the duty of

investigation in case crime no. 130/2017 shall stand

changed forthwith and the Superintendent of Police (City),

North, Lucknow at present is hereby directed to take over

the further investigation and cooperate with the District

Judge, Lucknow to deliver the custody of petrol/diesel in

the seized underground tanks to the respective oil

company after due calibration of the same through the

dispensing units. The District Judge/Investigating officer

shall collect the samples for quality and quantity checks

both in the calibrated containers to be provided by the

department of Weights and Measures and oil company

immediately on demand. The samples shall be collected

as per the procedure of sample collection provided for

quality/quantity check specified in the statutory Order,

2005;

(ii) The District Judge, Lucknow jointly with the

investigating officer authorised hereinabove shall submit

the calibration report of the residual stock to the court

concerned not later than a period of 15 days from the date

a copy of this order is communicated to them by the

Senior Registrar of this Court;

(iii) The investigating officer appointed hereinabove, in

association with the District Judge, Lucknow, shall jointly

7

forward the report of calibration of the stock in the

respective tanks by duly comparing the figures mentioned

in the seizure memo/F.I.R. and resultant excessive figures

be mentioned in clear figures taking aid of the totaliser

reading in each dispensing unit alongwith their

photographic evidence at the time of start/finish;

(iv) For the purposes of sample reports, the District

Judge/investigating officer are jointly authorised to

requisition the quality check from any of the nearest

defence laboratories notified in the statutory Order, 2005

and quantity check from any of the centres mentioned in

para-22 of the counter affidavit sworn by the Chief

Secretary, Government of U.P. The reports shall be called

for expeditiously and may be requested to be supplied not

later than a period of 6 weeks from the date of submission

of the samples. The reports so obtained may be filed in

the respective courts by the investigating officer after

endorsement by the District Judge;

(v) The seized dispensing machines be released to the

owner as soon as the residual stock in the underground

tanks is handed over to the oil company concerned for

which the oil company shall provide all the transport and

custodial facility besides operational guidance to the

investigating officer and learned District Judge, without

asking for any remuneration;

(vi) The investigating officer shall submit the

supplementary report in terms of the observations made

in this judgement not later than a period of two months,

by taking over all the materials and record from the

previous investigating officer in the form in which

discovery and seizure were made; and

(vii) The oil companies henceforth shall make use of

collapsible pulsers essential in the dispensing machines in

order to prevent malpractices. Thus, the State

Government is directed to implement the installation of

such a device in consultation with the oil companies within

a planned time framework of not later than four months.”

12)The State as well as one of the accused are in appeal before this

8

Court. At the outset, learned counsel for the parties stated that the

directions issued by the High Court cannot be sustained in law,

therefore, they have no objection if such directions are set aside.

Such directions are liable to be set aside in view of the fact that the

High Court, while exercising jurisdiction under Section 482 of the

Code, cannot interfere in the manner of investigation, in terms of the

Judgment of this Court in M. C. Abraham and Another v. State of

Maharashtra and Others

6

wherein it was held as under: -

“13. This Court held in the case of J.A.C. Saldanha [(1980)

1 SCC 554: 1980 SCC (Cri) 272] that there is a clear-cut

and well-demarcated sphere of activity in the field of crime

detection and crime punishment. Investigation of an

offence is the field exclusively reserved by the executive

through the police department, the superintendence over

which vests in the State Government. It is the bounden

duty of the executive to investigate, if an offence is

alleged, and bring the offender to book. Once it

investigates and finds an offence having been committed,

it is its duty to collect evidence for the purpose of proving

the offence. Once that is completed and the investigating

officer submits report to the court requesting the court to

take cognizance of the offence under Section 190 of the

Code of Criminal Procedure, its duty comes to an end. On

cognizance of the offence being taken by the court, the

police function of investigation comes to an end subject to

the provision contained in Section 173(8), then

commences the adjudicatory function of the judiciary to

determine whether an offence has been committed and if

so, whether by the person or persons charged with the

crime. In the circumstances, the judgment and order of

the High Court was set aside by this Court.”

13)Therefore, the directions issued including in respect of change of

Investigating Officer and that the District Judge to be associated with

6 (2003) 2 SCC 649

9

various action, falling exclusively in the domain of the Investigating

Agency are patently beyond the scope of the petition under Section

482 of the Code and are, therefore, liable to be set aside.

14)Learned counsel for the State vehemently argued that the Act does

not exclude the offences under IPC. It is contended that the Act

provides for the offences and penalties but reading of Sections 3 and

51 of the Act does not exclude the offences under the IPC. The Act

will override only those offences which are inconsistent with the

offences under IPC, except to the extent specified in the Act.

15)Learned counsel for the State relied upon an order passed by this

Court in State of Maharashtra v. Sayyed Hassan

7

wherein, while

interpreting the provisions of Food and Safety Standards Act, 2006, it

was held that the provisions of the said Act is not the only provision

that can be resorted to, the prosecution can be lodged for the

offences under IPC as well. Learned counsel for the State also relied

upon an order passed by this Court in Sangeetaben Mahendrabhai

Patel v. State of Gujarat & Anr.

8

wherein, for a dishonour of

cheque, the prosecution for an offence under Section 420 IPC was

found to be maintainable even after the prosecution under Section

138 of the Negotiable Instruments Act, 1881

9

is lodged. It was held

that the mens rea i.e. fraudulent or dishonest intention at the time of

7 Criminal Appeal No. 1195 of 2018 decided on September 20, 2018

8 (2012) 7 SCC 621

9 NI Act

10

issuance of cheque is not required to be proved in proceeding of an

offence under Section 138 of the NI Act, whereas in the case under

IPC, the issue of mens rea is relevant. It was held that the offences

under Section 420 of IPC and Section 138 of NI Act are different, may

on same facts.

16)On the other hand, Mr. Mukul Rohatgi, learned senior counsel for the

accused argued that the Act is a complete Code providing for the

standards of the weights and measures, the manner in which the

same are required to be tested and also the offences for which the

action can be taken. Since the Act is a special statute having

overriding effect, therefore, the accused cannot be charged for the

offences under IPC. Reliance is placed upon judgment of this Court in

Sharat Babu Digumarti v. Government (NCT of Delhi)

10

as also

the Division Bench judgment of Bombay High Court in Gagan Harsh

Sharma & Anr. v. The State of Maharashtra & Anr.

11

whereby,

considering the provisions of the Information Technology Act, 2000

12

,

it was held that the offence under IPC cannot be lodged. It is pointed

out that special leave petitions filed against the said judgment were

dismissed by this Court on December 7, 2018.

17)In this background, the arguments raised by learned counsel for the

parties need to be examined but before we examine the arguments,

10 (2017) 2 SCC 18

11 Criminal Writ Petition No. 4361 of 2018 decided on October 26, 2018

12 IT Act

11

certain provisions from the applicable statutes may be reproduced

hereunder:

“THE LEGAL METROLOGY ACT, 2009

2(g). "Legal Metrology" means that part of metrology

which treats units of weighment and measurement,

methods of weighment and measurement and weighing

and measuring instruments, in relation to the mandatory

technical and legal requirements which have the object of

ensuring public guarantee from the point of view of

security and accuracy of the weighments and

measurements;

xx xx xx

3. The provisions of this Act shall have effect

notwithstanding anything inconsistent therewith contained

in any enactment other than this Act or in any instrument

having effect by virtue of any enactment other than this

Act.

xx xx xx

26. Whoever tampers with, or alters in any way, any

reference standard, secondary standard or working

standard or increases or decreases or alters any weight or

measure with a view to deceiving any person or knowing

or having reason to believe that any person is likely to be

deceived thereby, except where such alteration is made

for the correction of any error noticed therein on

verification, shall be punished with fine which may extend

to fifty thousand rupees and for the second and

subsequent offence with imprisonment for a term which

shall not be less than six months but which may extend to

one year or with fine or with both.

xx xx xx

30. Penalty for transactions in contravening of

standard weight or measure. – Whoever-

(a) in selling any article or thing by weight, measure or

number, delivers or causes to be delivered to the

12

purchaser any quantity or number of that article or thing

less than the quantity or number contracted for or paid

for; or

(b) in rendering any service by weight, measure or

number, renders that service less than the service

contracted for or paid for; or

(c) in buying any article or thing by weight, measure or

number, fraudulently receives, or causes to be received

any quantity or number of that article or thing in excess of

the quantity or number contracted for or paid for; or

(d) in obtaining any service by weight, measure or

number, obtains that service in excess of the service

contracted for or paid for, shall be punished with fine

which may extend to ten thousand rupees, and; for the

second or subsequent offence, with imprisonment for a

term which may extend to one year, or with fine, or with

both.

xx xx xx

51. The provisions of the Indian Penal Code and section

153 of the Code of Criminal Procedure, 1973 in so far as

such provisions relate to offences with regard to weight or

measure, shall not apply to any offence which is

punishable under this Act.”

“THE CODE OF CRIMINAL PROCEDURE, 1973

153. Inspection of weights and measures.-(1) Any officer

in charge of a police station may, without a warrant, enter

any place within the limits of such station for the purpose

of inspecting or searching for any weights or measures or

instruments for weighing, used or kept therein, whenever

he has reason to believe that there are in such place any

weights, measures or instruments for weighing which are

false.

(2) If he finds in such place any weights, measures or

instruments for weighing which are false, he may seize the

same, and shall forthwith give information of such seizure

to a Magistrate having jurisdiction.”

13

“THE INDIAN PENAL CODE, 1860

265. Fraudulent use of false weight or measure.—

Whoever fraudulently uses any false weight or false

measure of length or capacity, or fraudulently uses any

weight or any measure of length or capacity as a different

weight or measure from what it is, shall be punished with

imprisonment of either description for a term which may

extend to one year, or with fine, or with both.

xx xx xx

267. Making or selling false weight or measure.—Whoever

makes, sells or disposes of any instrument for weighing, or

any weight, or any measure of length or capacity which he

knows to be false, in order that the same may be used as

true, or knowing that the same is likely to be used as true,

shall be punished with imprisonment of either description

for a term which may extend to one year, or with fine, or

with both.”

18)We do not find any merit in the argument of Mr. Mukul Rohatgi that

the Act is a complete Code which contains the provisions of offences

and penalties under the said Act, therefore, for any violation of the

provisions of the Act, the prosecution can be lodged only under the

Act and not for the offences even if disclosed under IPC.

19)In Sharat Babu Digumarti, an FIR was lodged for the offences

under Sections 292 and 294 of IPC and Section 67 of IT Act. This

Court struck down the offences under Sections 292 and 294 of IPC in

view of the provisions of Section 67 of the IT Act.

20)The question examined was as to whether an activity emanating from

electronic form which may be obscene would be punishable under

Section 292 IPC or Section 67 of the IT Act or both or any other

14

provision of the IT Act. This Court held that Section 292 IPC makes

offence sale of obscene books, etc. but once the offence has a nexus

or connection with the electronic record the protection and effect of

Section 79 cannot be ignored and negated in view of special provision

for a specific purpose. The IT Act has to be given effect to so as to

make the protection effective and true to the legislative intent. The

Court held as under:

“31. Having noted the provisions, it has to be

recapitulated that Section 67 clearly stipulates

punishment for publishing, transmitting obscene materials

in electronic form. The said provision read with Sections

67-A and 67-B is a complete code relating to the offences

that are covered under the IT Act. Section 79, as has been

interpreted, is an exemption provision conferring

protection to the individuals. However, the said protection

has been expanded in the dictum of Shreya

Singhal [Shreya Singhal v. Union of India, (2015) 5 SCC 1 :

(2015) 2 SCC (Cri) 449] and we concur with the same.

32. Section 81 of the IT Act also specifically provides that

the provisions of the Act shall have effect notwithstanding

anything inconsistent therewith contained in any other law

for the time being in force. All provisions will have their

play and significance, if the alleged offence pertains to

offence of electronic record. It has to be borne in mind that

IT Act is a special enactment. It has special provisions.

Section 292 IPC makes offence sale of obscene books, etc.

but once the offence has a nexus or connection with the

electronic record the protection and effect of Section 79

cannot be ignored and negated. We are inclined to think

so as it is a special provision for a specific purpose and the

Act has to be given effect to so as to make the protection

effective and true to the legislative intent. This is the

mandate behind Section 81 of the IT Act. The additional

protection granted by the IT Act would apply.”

21)The Bombay High Court in Gagan Harsh Sharma has found that

15

even a dishonest and fraudulent act falls within the scope of Section

66 of the IT Act and that the IT Act has been given overriding effect

notwithstanding anything inconsistent therewith, therefore, an

offender gets out of net of IPC. It was held that IPC is a general

statute whereas IT Act is a special statute and, therefore, special

enactment would prevail. The Bombay High Court held as under:

“11. Reading of the said judgment, makes is clear that the

Hon'ble Apex Court had considered the effect of the

overriding provisions contained in the Information

Technology Act and has observed that all the provisions in

the enactment are of significance particularly if the

alleged offences pertains to electronic record. By

observing that the Information Technology Act is a special

enactment and it contain special provision, the Hon'ble

Apex Court has also considered the effect of Section 79

contained in the Information Technology Act which is

enacted for a specific purpose and has observed that the

mandate behind Section 81 of the Information Technology

Act needs to be understood in its proper perspective. It

referred to the earlier precedents on the point where a

special statute is pitted against a General enactment and

thereafter has concluded by making reference Section 79

and 81 that once the special provisions are accorded

overriding effect to cover a criminal Act, the offender gets

out of the net of the Indian Penal Code and in the case in

hand of Section 292.

*** *** ***

21. Keeping the aforesaid authoritative pronouncements

in mind, if the scheme of the Information Technology Act

will have to be examined and given effect too. The said

Act which is a special enactment so as to give fillip to the

growth of electronic based transactions, and to provide

legal recognition for E-commerce and, to facilitate E-

Governance and to Ensure Security Practice and

Procedures in the context of the use of Information

Technology Worldwide. The said enactment contains a full

16

fledge mechanism for penalising certain acts which are

committed without permission of the owner or any other

persons who is in charge of a computer, computer system,

or computer network and those acts are enumerated in

Section 43. The said enactment also makes certain acts

punishable and Chapter-XI of the Information Technology

Act 2000 enumerates such acts. The same acts which are

enumerated in Section 43 of the enactment which would

invite penalty and compensation for accessing or securing

any information as contemplated in Section 43, would

amount to an offence under Section 66 if any person,

dishonestly, fraudulently commits such an act. The said

Section has an explanation appended to it to the effect

that the word “dishonestly” and “fraudulently” used in the

said Section will be assigned the same meaning as under

the Indian Penal Code. In such circumstances when the

Information Technology Act, 2000 specifically provides a

mechanism for dealing with an act covered in Section

43(a) and (j):—

“Section 43(a) Accesses or secures access to such

computer, computer system or computer network

(or computer resource);

43(j) Steel, conceals, destroys or alters or causes

any person to steal, conceal, destroy or alter any

computer source code used for a computer

resource with an intention to cause damage.”

and if this is done with a fraudulent or dishonest intention,

it becomes an offence under Section 66 of the Information

Technology Act. Since, the Information Technology Act

deals with the use of means of electronic communication

and has evolved a complete mechanism in itself to deal

with the offences in the use of electronic transactions, and

in the backdrop of the specific facts of the case in hand,

Section 66 would be attracted and in view of the

mechanism contained in the said section, the invocation of

the provisions of the Indian Penal Code is highly

unwarranted. This view has already been authored by their

lordships in case of Sharat Babu Digumarti (Supra).”

22)It may be noticed that Bombay High Court considered the judgment

17

of this Court in Sayyed Hassan wherein this Court has held that an

offence under Section 188 of IPC is wider in scope and did not cover

only breach of law but is attracted in cases where the act complained

of causes or tends to cause danger to human life, health or safety as

well. The Court held as under:

“24. The aforesaid judgment of the Hon'ble Apex Court is

therefore clearly distinguishable on facts but even the said

judgment of the Hon'ble Apex Court reiterates the settled

position of law that where an act or an omission

constitutes for an offence under two enactments the

offender may be punished under either or both enactment

but was not liable to be punished twice for the same

offence. It is always possible that the same set of facts can

constitute offence under two different laws but a person

cannot be punished twice for the said act which would

constitute an offence.”

23)The special leave petition against the said order was dismissed

without any reasoned order but with the order “The Special Leave

Petitions are Dismissed”.

24)Though, the Special Leave Petition against the order of the Bombay

High Court was dismissed but in view of three Judge Bench judgment

in Khoday Distilleries Ltd. & Ors. v. Sri Mahadeshwara

Sahakara Sakkare Karkhane Ltd.

13

, the dismissal of special leave

petition does not amount to merger of the order of the High Court

with the order passed in the Special Leave Petition. This Court held

as under:

13 (2019) 4 SCC 376

18

“20. The Court thereafter analysed number of cases

where orders of different nature were passed and dealt

with these judgments by classifying them in the following

categories:

(i) Dismissal at the stage of special leave petition —

without reasons — no res judicata, no merger. [Proposition

based on judgments in Workmen v. Cochin Port Trust,

(1978) 3 SCC 119; Western India Match Co.

Ltd. v. Industrial Tribunal, AIR 1958 Mad 398; Indian Oil

Corpn. Ltd. v. State of Bihar, (1986) 4 SCC 146; Rup

Diamonds v. Union of India, (1989) 2 SCC 356; Wilson v.

Colchester Justices, (1985) 2 All ER 97 (HL); Supreme

Court Employees' Welfare Assn. v. Union of India, (1989) 4

SCC 187; Yogendra Narayan Chowdhury v. Union of India,

(1996) 7 SCC 1; V.M. Salgaocar & Bros. (P) Ltd. v. CIT,

(2000) 5 SCC 373; Sree Narayana Dharmasanghom

Trust v. Swami Prakasananda, (1997) 6 SCC 78 and State

of Maharashtra v. Prabhakar Bhikaji Ingle, (1996) 3 SCC

463.

(ii) Dismissal of the special leave petition by speaking or

reasoned order — no merger, but rule of discipline and

Article 141 attracted. [Penu Balakrishna Iyer v. Ariya M.

Ramaswami Iyer, AIR 1965 SC 195; Abbai Maligai

Partnership Firm v. K. Santhakumaran, (1998) 7 SCC

386; Shankar Ramchandra Abhyankar v. Krishnaji

Dattatreya Bapat, (1969) 2 SCC 74; Sushil Kumar

Sen v. State of Bihar, (1975) 1 SCC 774; Gopabandhu

Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC

447; Junior Telecom Officers Forum v. Union of India, 1993

Supp (4) SCC 693 and Supreme Court Employees' Welfare

Assn. Case, (1989) 4 SCC 187.

(iii) Leave granted — dismissal without reasons — merger

results. [Thungabhadra Industries Ltd. v. Govt. of A.P., AIR

1964 SC 1372].”

“26. From a cumulative reading of the various judgments,

we sum up the legal position as under:

26.1. xx xx xx

26.2. We reiterate the conclusions relevant for these

19

cases as under: ( Kunhayammed case

[Kunhayammed v. State of Kerala, (2000) 6 SCC 359], SCC

p. 384)

“(iv) An order refusing special leave to appeal may be a

non-speaking order or a speaking one. In either case it

does not attract the doctrine of merger. An order refusing

special leave to appeal does not stand substituted in place

of the order under challenge. All that it means is that the

Court was not inclined to exercise its discretion so as to

allow the appeal being filed.”

25)The Bombay High Court in Gagan Harsh Sharma has found that

even a dishonest and fraudulent act falls within the scope of Section

66 of IT Act. We are not called upon in the present appeals to

examine whether an accused can be tried for an offence under IPC in

view of Section 66 of IT Act. Such question can be raised and decided

in an appropriate case.

26)In Sayyed Hassan, the Court held that Section 55 of Food and Safety

Standards Act, 2006 being a specific provision made in the special

enactment but still an offence under Section 188 of IPC is made out.

The Court held as under:

“8. There is no bar to a trial or conviction of an offender

under two different enactments, but the bar is only to the

punishment of the offender twice for the offence. Where

an act or an omission constitutes an offence under two

enactments, the offender may be prosecuted and

punished under either or both enactments but shall not be

liable to be punished twice for the same offence [ T.S.

Baliah v. T.S.Rengachari – (1969) 3 SCR 65]. The same set

of facts, in conceivable cases, can constitute offences

under two different laws. An act or an omission can

amount to and constitute an offence under the IPC and at

the same time, an offence under any other law [ State of

Bihar v. Murad Ali Khan – (1988) 4 SCC 655]. The High

20

Court ought to have taken note of Section 26 of the

General Clauses Act, 1897 which reads as follows:

“Provisions 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

punished twice for the same offence.”

27)However, the question as to whether the offences under Sections

188, 272, 273 and 328 IPC have been made out against the

respondents in the facts of that case, the matter was remitted back to

the High Court to examine the contentions of respective parties.

28)The Sharat Babu Digumarti is a judgment dealing with obscenity in

the electronic form. This Court has held that IT Act is a special

enactment. Since the offence has nexus or connection with the

electronic record the protection and effect of Section 79 cannot be

ignored and negated. Section 292 IPC makes sale of obscene books

as an offence which cannot be made out in view of special provision

made in the IT Act. The said judgment is, that an offence pertaining

to electronic record falls within Section 67 of the IT Act, whereas,

Section 292 IPC deals with an offence of obscenity in the printed

format, therefore, two offences operate in different field.

29)In Sangeetaben Mahendrabhai Patel, a subsequent First

Information Report under Sections 406, 420 read with 114 of IPC was

21

challenged on the ground that the accused has been tried earlier for

an offence under Section 138 of the NI Act and that accused cannot

be charged for the offence of criminal breach of trust, cheating and

abetment pertaining to the cheque for which proceedings were

initiated under Section 138 of the NI Act. In the said case, the Court

held that there may be overlapping of facts in both the cases but the

ingredients of the offences are entirely different. Thus, the

subsequent case is not barred by any of the provisions of the NI Act.

The Court held as under:

“37. Admittedly, the appellant had been tried earlier for

the offences punishable under the provisions of Section

138 of the NI Act and the case is sub judice before the

High Court. In the instant case, he is involved under

Sections 406/420 read with Section 114 IPC. In the

prosecution under Section 138 of the NI Act, the mens rea

i.e. fraudulent or dishonest intention at the time of

issuance of cheque is not required to be proved. However,

in the case under IPC involved herein, the issue of mens

rea may be relevant. The offence punishable under

Section 420 IPC is a serious one as the sentence of 7 years

can be imposed.

38. In the case under the NI Act, there is a legal

presumption that the cheque had been issued for

discharging the antecedent liability and that presumption

can be rebutted only by the person who draws the cheque.

Such a requirement is not there in the offences under IPC.

In the case under the NI Act, if a fine is imposed, it is to be

adjusted to meet the legally enforceable liability. There

cannot be such a requirement in the offences under IPC.

The case under the NI Act can only be initiated by filing a

complaint. However, in a case under IPC such a condition

is not necessary.

39. There may be some overlapping of facts in both the

cases but the ingredients of the offences are entirely

22

different. Thus, the subsequent case is not barred by any

of the aforesaid statutory provisions.”

30)This Court in Sangeetaben Mahendrabhai Patel has upheld the

prosecution for an offence under Section 420 IPC even when the

prosecution under Section 138 of NI Act was lodged earlier. This Court

has held that for an offence under Section 420 IPC, mens rea is an

essential ingredient for an offence under Section 138, the factum of

dishonour of cheque alone discloses an offence. Similarly, in Sayyed

Hassan, this Court has held that the provision of Food and Safety

Standards Act, 2006 is not the only provision that can be resorted to

for lodging a prosecution. The prosecution can be lodged for the

offences under IPC as well.

31)Section 51 of the Act provides that the provisions of IPC and of

Section 153 of the Code insofar as such provisions relate to offences

with regard to weight and measures only shall not apply to any

offence which is punishable under the Act. Section 153 of the Code

permits an officer in charge of police station to enter any place for the

purpose of inspecting or searching any weights or measures or

instruments for weighing, used or kept therein. Section 153 of the

Code has been made inapplicable under the Act as power of search

and seizure is vested with the designated authorities under the Act.

Therefore, the entire Code is inapplicable in respect of the prosecution

under the Act that the police cannot enter any place for the purpose

23

of inspecting or searching for any weights or measures.

32)The question required to be examined is whether all the offences

under IPC are excluded in view of Section 3 of the Act or only the

offences relating to the weights and measures as are contained in

Chapter XIII IPC alone stand excluded in view of Section 51 of the Act.

33)It cannot be disputed that the Act is a special Act vis-à-vis IPC. In

Macquarie Bank Limited v. Shilpi Cable Technologies Limited

14

,

this Court adopted a doctrine of harmonious construction to hold that

there was clear disharmony between the two parliamentary statutes

which cannot be resolved by harmonious interpretation. This Court

held as under:

“44. Similarly, in CTO v. Binani Cements

Ltd. [CTO v. Binani Cements Ltd., (2014) 8 SCC 319] , the

rule of construction of two parliamentary statutes being

harmoniously construed was laid down as follows: (SCC

pp. 332-33, para 35)

“35. Generally, the principle has found vast

application in cases of there being two statutes:

general or specific with the latter treating the

common subject-matter more specifically or

minutely than the former. Corpus Juris Secundum,

82 C.J.S. Statutes § 482 states that when

construing a general and a specific statute

pertaining to the same topic, it is necessary to

consider the statutes as consistent with one

another and such statutes therefore should be

harmonised, if possible, with the objective of

giving effect to a consistent legislative policy. On

the other hand, where a general statute and a

specific statute relating to the same subject-

matter cannot be reconciled, the special or specific

14 (2018) 2 SCC 674

24

statute ordinarily will control. The provision more

specifically directed to the matter at issue prevails

as an exception to or qualification of the provision

which is more general in nature, provided that the

specific or special statute clearly includes the

matter in controversy ( Edmond v. United

States [Edmond v. United States, 1997 SCC OnLine

US SC 45 : 137 L Ed 2d 917 : 520 US 651

(1997)], Warden v. Marrero [Warden v. Marrero,

1974 SCC OnLine US SC 136 : 41 L Ed 2d 383 : 417

US 653 (1974)] ).”

xx xx xx

47. Similarly, in R.S. Raghunath v. State of Karnataka [R.S.

Raghunath v. State of Karnataka, (1992) 1 SCC 335 : 1992

SCC (L&S) 286] , the non obstante clause contained in

Rule 3(2) of the Karnataka Civil Services (General

Recruitment) Rules, 1977 was held not to override the

Karnataka General Service (Motor Vehicles Branch)

(Recruitment) Rules, 1976. It was held: (SCC p. 348, para

13)

“13. As already noted, there should be a clear

inconsistency between the two enactments before

giving an overriding effect to the non obstante clause

but when the scope of the provisions of an earlier

enactment is clear the same cannot be cut down by

resort to non obstante clause. In the instant case, we

have noticed that even the General Rules of which

Rule 3(2) forms a part provide for promotion by

selection. As a matter of fact Rules 1(3)(a), 3(1) and

4 also provide for the enforceability of the Special

Rules. The very Rule 3 of the General Rules which

provides for recruitment also provides for promotion

by selection and further lays down that the methods

of recruitment shall be as specified in the Special

Rules, if any. In this background if we examine the

General Rules it becomes clear that the object of

these Rules only is to provide broadly for recruitment

to services of all the departments and they are

framed generally to cover situations that are not

covered by the Special Rules of any particular

department. In such a situation both the Rules

25

including Rules 1(3)(a), 3(1) and 4 of the General

Rules should be read together. If so read it becomes

plain that there is no inconsistency and that

amendment by inserting Rule 3(2) is only an

amendment to the General Rules and it cannot be

interpreted as to supersede the Special Rules. The

amendment also must be read as being subject to

Rules 1(3)(a), 3(1) and 4(2) of the General Rules

themselves. The amendment cannot be read as

abrogating all other Special Rules in respect of all

departments. In a given case where there are no

Special Rules then naturally the General Rules would

be applicable. Just because there is a non obstante

clause, in Rule 3(2) it cannot be interpreted that the

said amendment to the General Rules though later in

point of time would abrogate the special rule the

scope of which is very clear and which co-exists

particularly when no patent conflict or inconsistency

can be spelt out. As already noted, Rules 1(3)(a), 3(1)

and 4 of the General Rules themselves provide for

promotion by selection and for enforceability of the

Special Rules in that regard. Therefore, there is no

patent conflict or inconsistency at all between the

General and the Special Rules.”

34)In the light of principles laid down, we find that Section 3 of the Act

completely overrides the provisions of Chapter XIII of IPC in respect of

the offences and penalties imposable for violations of the provisions

of the Act, it being special Act. Therefore, if the offence is disclosed

to be made out under the provisions of the Act, an accused cannot be

charged for the same offence under Chapter XIII of IPC. Reading of

Section 51 of the Act makes it clear that the provisions of IPC insofar

as they relate to offences with regard to weight or measure, shall not

apply to any offence which is punishable under the Act. Therefore,

the provisions of IPC which relate to offences with regard to weight

26

and measure as contained in Chapter XIII of IPC alone will not apply.

No person can be charged for an offence relating to weight or

measure falling under Chapter XIII of IPC in view of the provisions of

the Act.

35)The scheme of the Act is for the offences for use of weights and

measures which are non-standard and for tampering with or altering

any standards, secondary standards or working standards of any

weight or measure. The Act does not foresee any offence relating to

cheating as defined in Section 415 of IPC or the offences under

Sections 467, 468 and 471 of IPC. Similarly, an act performed in

furtherance of a common intention disclosing an offence under

Section 34 is not covered by the provisions of the Act. An offence

disclosing a criminal conspiracy to commit an offence which is

punishable under Section 120-B IPC is also not an offence under the

Act. Since such offences are not punishable under the provisions of

the Act, therefore, the prosecution for such offences could be

maintained since the trial of such offences is not inconsistent with

any of the provisions of the Act. Similar is the provision in respect of

the offences under Sections 467, 468, 471 IPC as such offences are

not covered by the provisions of the Act.

27

36)Thus, we partly allow the present appeals with the following

directions:

(i) Directions given by the High Court, as mentioned in para 11

above, are hereby quashed.

(ii) We uphold the order of the High Court that the offences

under Sections 265 and 267 IPC are liable to be quashed.

(iii) The directions of the High Court in proceedings under

Section 482 of the Code against the interest of the accused

in a petition filed by the accused are beyond the jurisdiction

of the High Court and, thus, all such observations and

directions are quashed.

(iv) The directions issued by the High Court that the erring

officers/officials named in the supplementary report shall be

subject to disciplinary action are again beyond the scope of

the High Court in a petition under Section 482 of the Code

seeking quashing of the charge-sheet and are, thus,

quashed.

(v) It is open to the investigating agency to charge the accused

for such offences or any other offence by way of a

supplementary report or at a subsequent stage during trial

as considered appropriate by the investigating agency.

(vi) In other words, the entire order of the High Court is set aside

except the order which relates to the quashing of the

28

charges under Sections 265 and 267 IPC but it shall be open

to the investigating agency to take such steps as are

required to complete the investigation in accordance with

law.

Crl. Appeal No. of 2019 (@SLP (Criminal) No.3321 of 2018)

37)Leave granted.

38)The challenge in the present appeal is to an order passed by the High

Court of Allahabad at Lucknow on November 24, 2017 whereby,

petition under Section 482 of the Code for quashing of Crime

No.0313, P.S. Hasanganj dated April 28, 2017 for the offences under

Sections 265, 267, 420, 467, 468 and 34 IPC and Sections 3 and 7 of

the Act, 1955 and Section 26/30 of the Act, filed by the appellant

who is being prosecuted, was dismissed.

39)The present appeal was posted for final hearing along with Criminal

Appeals arising out of SLP (Criminal) Nos. 9981-9982 of 2017 and

1912-1913 of 2018. In the aforesaid case, it has been held that the

offence under Chapter XIII of IPC cannot be lodged in view of the

provisions of the Act whereas the prosecution under other offences of

IPC has been found to be maintainable.

40)In view of the said fact, the present appeal is partly allowed. The

offences under Sections 265 and 267 IPC are quashed in view of the

29

reasons recorded in the aforesaid appeals.

.............................................J.

(L. NAGESWARA RAO)

.............................................J.

(HEMANT GUPTA)

NEW DELHI;

SEPTEMBER 04, 2019.

30