Suhrawardy, J.
1. This is a Rule calling upon the Chief Presidency Magistrate and the opposite party to show cause why the conviction of the petitioner should not be set aside on the grounds : (1) that the conviction under Section 102 of the Presidency Towns Insolvency Act is bad in law, (2) that the joint trial of the petitioner with Monmohan Bose is illegal and (3) that the identity of the petitioner is not established. As to the third ground it has not been seriously pressed nor is tken any substance in it. The other two grounds are, therefore, to be considered in connexion with the facts of this ease which are : that the petitioner along with one Monmohan Bose was placed on his trial before the Chief Presidency Magistrate for an offence under Section 1o2 of the Presidency Towns Insolvency Act on the allegation that the accused contracted debts of about Rs. 6,000, while they were undischarged insolvents, and was convicted of the offence and sentenced to three months' rigorous imprisonment. Section 102 of the Presidency Towns Insolvency Act is in these words:
An undischarged insolvent obtaining credit to the extent of Rs. 50 or-upwards from any person without informing such person that he is an undischarged insolvent shall, on conviction by a Magistrate, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
2. It appears that the petitioner was adjudicated insolvent by the Court of the District Judge of Hooghly and his co-accused Monmohan Bose was adjudicated insolvent in the Original Side of this Court. The first question that arises is Can the petitioner be convicted tinder Section 102 of the Presidency Towns Insolvency Act? It has been urged on behalf of the Crown, and the trial Magistrate in his explanation has submitted the same view, that Section 102 enunciates an offence committed by an undischarged insolvent by whichever Court he may have been adjudicated. This view is clearly wrong. That section is included in Part VIII of the Presidency Towns Insolvency Act which deals with penalties presumably incurred by an insolvent so declared under the Act. Section 103 which also does not define the insolvent makes punishable certain acts of the insolvent which could only be done under the Presidency Towns Insolvency Act. The conviction of the petitioner under Section 102 of the Presidency Towns Insolvency Act is, therefore, illegal; but it is argued that he may be convicted under Section 72(1) of the Provincial Insolvency Act, 1920 and tried jointly with Monmohan Bose, under Section 239, Clause (d). Criminal P.C., as the facts found are that the two accused incurred the debts while carrying on a joint business under the name and style of the Indo-European Import and Export Company, Limited, in, the town of Calcutta.
3. Section 72, Clause (1) of the Provincial Insolvency Act is word for word the same as Section 102 of the Presidency Towns Insolvency Act III of 1909. The second clause of Section 72 runs thus:
Where the Court, has reason to believe that an undischarged insolvent has committed the offence referred in Sub-section (1), the Court, after making any preliminary enquiry that may be necessary, may send the case for trial to the nearest Magistrate of the First Class, and may send the accused in custody or take sufficient security for his appearance before such Magistrate; and may bind over any person to appear and give evidence on such trial.
4. It is contended on behalf of the petitioner that both clauses of Section 72 should be read together and no prosecution under the first clause can be initiated without the insolvency Court sending the case for trial to the nearest Magistrate of the First Class. In my opinion this contention ought to prevail. It seems to me that the 6rst clause of Section 72 defines and states an offence which an undischarged insolvent commits when he obtains credit to the extent of Rs. 50 or upwards and the second clause of that section prescribes the procedure to be followed when such offence is committed; in other words the first clause may be compared to the Penal Code and the second to the Criminal P.C. As there is no section in the Presidency Towns Insolvency Act corresponding to Section 72, Clause (2) of the Provincial Insolvency Act, it may or may not be necessary to invoke the help of the Insolvency Court to prosecute an insolvent under Section 102 of that Act. I express no opinion on the point. But Section 72, Clause (2) of the Provincial Insolvency Act corresponds to Section 161 of the English Bankruptcy Act, 1914, and the practice in England so far as I have been able to ascertain, (see Williams on Bankruptcy Practice, p. 450) is that for an offence under Section 155 of the Bankruptcy Act, which corresponds to Section 102 of the Presidency Towns Insolvency Act and Section 72(1) of the Provincial Insolvency Act, the Insolvency Court shall, before such prosecution, enquire and order a debtor to be prosecuted for such offence. It seems to me that the provision in Section 72(2) of the Provincial Insolvency Act has been borrowed from the English Act which for some reason or other has not been copied in the Presidency Towns Insolvency Act. Section 72 of the Provincial Insolvency Act, 1920, is a reproduction of Section 53 of the Provincial Insolvency Act III of 1907. The view that the Insolvency Court should take cognizance of the matter before prosecution can be initiated in the ordinary criminal Court is supported by the Report of the Select Committee on the Bill which became Act III of 1907. The Committee stated:
Section 53. We think that it is advisable to make provision by the addition of a new Sub-clause (2) to Clause 40 of the Bill as introduced, for the prosecution of an undischarged insolvent who obtains credit by concealing his insolvency, a procedure such as on the lines of the procedure enacted by Section 476 of the Criminal P.C. 1898 : Gazette of India, 2nd March 1907,part V, page 10.
5. This observation of the Select Committee supplies the true clue to the meaning of Section 72, Clause (2), and the intention of the Legislature in enacting it.
6. The accepted rule of construction of statutes in such cases also helps the view I am inclined to take. If a statute creates a new duty or imposes a new liability, and prescribes a specific remedy in case of neglect to perform the duty of discharge...the liability, the general rule is 'that no remedy can be taken, but the particular remedy prescribed by the statute' Craies on Statute Law, third Edition, p. 217.
7. The offence under Section 72, Clause (1) of the Provincial Insolvency Act has been created by statute and the mode of prosecution for such an offence if provided by that statute should be the only mode for initiating prosecution. I am not impressed by the argument that the wording of Clause (2) of Section 72 is different from that of Section 195 of the Criminal P.C., or similar sections in other enactments for the clause is sufficiently clear that the insolvency Court is to enquire into the matter before placing it before the Magistrate.
8. It is also argued that in Section 72, Clause (2) the use of the expression 'may send the case for trial' shows that it is not obligatory upon the Insolvency Court to enquire into the offence and thus take it out of the jurisdiction of the ordinary criminal Court, but the Court may, if in so pleases, do so when the matter is brought to its notice. I do not think that the word 'may' in the clause has been put with that intention. Why 'may' is used in the clause can be ascertained by comparing it with Section 161 of the English Bankruptcy Act, where it is not obligatory upon the Court to order prosecution unless it appears to the Court that there is reasonable probability that the debtor will be convicted and unless it appears to the Court that the circumstances are as to render a prosecution desirable. The second clause of Section 72 of the Provincial Insolvency Act, therefore, leaves it to the discretion of the Court not to order a prosecution if there are not sufficient materials to sustain it or if in the circumstances of the case it is not desirable. The view that I take avoids a serious anomaly. If the Insolvency Court does not deem it desirable to order prosecution, an ordinary-criminal Court should not take cognizance of the offence in supersession of the order of the Insolvency Court. The provision in the English Bankruptcy Act is an old one, a reproduction from the repealed Debtors Act, 1869, and is a salutary one, which should be followed in this country as a rule of justice, equity and good conscience.
9. The view that I have taken of the law is supported by the special provision in Clause (2) of Section 72 that if the Court sends the case for trial it must be done to the nearest Magistrate of the First Class. If it is open to any creditor to start proceedings before an ordinary criminal Court on a complaint, such complaint can be made not necessarily to a Magistrate of the First Glass. There doss not seem to be any sense in enacting that if a Court orders prosecution it must be before the nearest Magistrate of the First Class whereas a private party may prosecute the offender before any Magistrate exercising even second class powers if specially authorised to receive complaints.
10. In the above view of the law I hold that the prosecution of the petitioner without observing the procedure laid down in Section 72(2) of the Provincial Insolvency Act is invalid in law and the conviction and the sentence, therefore, must be set aside.
11. As my learned brother has taken a different view the case will be placed before the Honourable the Chief Justice under Section 439 read with Section 429, Criminal P.C., for reference to a third Judge.
Duval, J.
12. In this matter which is one which comes up in revision two persons Monmohan Bose and Asutosh Ganguly were put on their trial under Section 102 of the Presidency Towns Insolvency Act, on the complaint of one Mr. E.L. Watson of the firm of Messrs. D. Waldie and Company. It appears that Bo3e and Ganguly were members of a firm known as the Indo-European Export and Import Company and, as such, ordered goods amounting to several thousands of rupees in value from D. Waldie and Company. Subsequently, having obtained the goods they did not pay for them and a suit was brought in the High Court and a decree obtained. Then it transpired that Bose was an undischarged insolvent having been so adjudicated by the High Oourt and Ganguly, too, was an undischarged insolvent having been so adjudicated by the District Judge of Hooghly.
13. The present case was brought on the complaint of Mr. Watson; the facts are not in dispute. The Chief Presidency Magistrate has convicted both of them under Section 102 of the Presidency Towns Insolvency Act and has sentenced Bose to a fine of Rs. 100 and Ganguly to three months' rigorous imprisonment. A.T. Ganguly alone has moved this Court and has obtained a Rule on the grounds, firstly, that the conviction and sentence of the petitioner under Section 102 of the Presidency Towns Insolvency Act are bad in law and ought to be set aside; secondly, that the joint trial and conviction of Ganguly along with Bose are illegal under the provisions of Section 239, Criminal P.C., and the whole proceedings should, be quashed; and, thirdly, that the identity of the petitioner has not been legally established and, therefore, the conviction was not maintainable. At the hearing of the Rule, the third point was not urged. Now, it is clear that Ganguly was an insolvent by virtue of an order of the District Judge of Hoogly and not by a Judge in the Presidency Town. Section 102 of the Presidency Towns Insolvency Act appears to me only to relate to as insolvent adjudicated under that Act; but Section 72(1) of the Provincial Insolvency Act is exactly in the same words as Section 102 of the corresponding Presidency Towns Insolvency Act. In my opinion, therefore, though no doubt the conviction under Section 102 of the Presidency Towns Insolvency Act is incorrect the only difference is that the sentence should have been under Section 72(1) of Provincial Insolvency Act.
14. But it is urged that though there is nothing in the Presidency Towns Insolvency Act which requires the sanction of any Court before initiating any proceeding under Section iO2 of that Act, Section 72(2) of the Provincial Insolvency Act enjoins that there can be no prosecution except by order of the Court itself. And as the Court at Hoogly has not ordered this prosecution, the conviction cannot stand. In my opinion, that is not so. Any person aggrieved by an offence committed to his detriment is ordinarily entitled to make his complaint to a Magistrate without obtaining any sanction and, in my opinion, it is only when there is a definite legislative enactment preventing the entertainment of a complaint unless with sanction of a Court or other high authority (e.g., cases of perjury, sedition, offences under the Arms and Explosives Act and the like) that the sanction of a Court or other authority is necessary before a case can be instituted. Here Section 72 (2) of the Provincial Insolvency Act only lays down the procedure which the Court may adopt when it determines to prosecute for an offence under this section and there is no definite enactment debarring a private prosecution. In my opinion, this sub-section cannot take away the right of a private party to prosecute on his own motion if he is aggrieved by what has occurred. I would only contrast with Section 72(2) of the Act in this connexion the wording of Sections 195-199, Criminal P.C., where the restriction on the right of an individual to complain is in the words:
No Court shall take cognizance of an offence unless with the previous sanction or on the complaint; of
and Section 7 of the Explosive Substance Act.
No Court shall proceed to the trial of any person...under this Act except with the consent of the local Government or the Governor-General in Council.
15. As to the question of joint trial, though no doubt the proper conviction of the two accused should have been under two separate Acts, the facts alleged against them are the same, i.e., that each obtained credit concealing the fact that he was an undischarged insolvent.
16. In my opinion, under the new Section 239(d), Criminal P.C., which lays down that persons accused of different offences in the same transaction may be tried together, there is, in my opinion, nothing illegal in trying these two persons together. In my opinion, therefore, the Rule should be discharged with the exception that the conviction of A.T. Ganguly should be altered to one under Section 72(1) of the Provincial Insolvency Act.
B.B. Ghose, J.
17. This is an application for revision of an order passed-by the Additional Presidency Magistrate of Calcutta convicting the petitioner under Section 102 of the Presidency TOWBS Insolvency Act and sentencing him4 to three months' rigorous imprisonment. The case has come before me on account of a difference of opinion between two learned Judges of the Divisional Bench. His Lordship after setting out the facts proceeded. With, regard to the question whether the conviction of the petitioner under Section 102 of the Presidency Towns Insolvency Act can be sustained, it appears that both the learned Judges who heard the case on the previous occasion were agreed that the conviction under that section was not sustainable. But the whole case is before me now, and I have to decide the questions raised before me. Mr. Khondkar, the Deputy Legal Remembrancer, who appears in this case at the direction of the Bench which granted the Rule, contends that the conviction is sustainable under that section. Mr. Chatterjee, who appears for the complainant, opposite party, on whom the Rule was served, was also heard by me and he, too, supports that contention. It is, therefore, necessary for me to determine whether the conviction of the petitioner under Section 102 of the Presidency Towns Insolvency Act is sustainable or not. There is no question that the petitioner was not adjudicated an insolvent under the Presidency Towns Insolvency Act. But the contention on behalf of the opposite party is that Section 102 of the said Act is quite general in its terms, and is applicable to the case of the petitioner. It proceeds thus:
An undischarged insolvent obtaining credit to the extent of Rs. 50 or upwards from any person without informing such person that he is an undischarged insolvent shall, on conviction by a Magistrate, be punishable with imprisonment for a term which may extend to six months., or with fine, or with both.
18. The argument is that that there is no definition of an undischarged insolvent (given in the Act and the provisions of Section 102 of the Presidency Towns Insolvency Act are in the same terms as the provisions of Section 72, Sub-section (1) of the Provinical Insolvency Act. Whichever Act applies to the petitioner's case, he is an undischarged insolvent, and being such and having committed the off once within the Presidency Town of Calcutta he is punishable under Section 102 of the Presidency Towns Insolvency Act.
19. It seems to me that a fallacy underlies this contention. The offence defined in Section 102 of the Presidency Towns Insolvency Act has been created by the statute itself, and in order to determine who comes within the provisions of that section, one must find out whether he is an insolvent, as contemplated under the Act and is still undischarged. Under Section 10 of the Presidency Towns Insolvency Act, an order of adjudication may be made adjudging a person an insolvent In order to convict a person of an offence under Section 102 of that Act it must first be found that that person was adjudged an insolvent under Section 10 of the Act and he is still undischarged. That being so, in my opinion, the petitioner cannot be said to be a person falling within the description under Section 102 of the Presidency Towns Insolvency Act and cannot, therefore, be convicted of an offence under that section. It is argued that a person committing an offence in Calcutta, under Section 72(1) of the Provincial Insolvency Act cannot be proceeded against at all, as that Act does not apply to Calcutta. I do not think that would be the result of my holding that the petitioner cannot be convicted under Section 102 of the Presidency Towns Insolvency Act. There cannot be any question, however, nor has it been contended on behalf of the petitioner, that if the connection under Section 102 of the Presidency Towns Insolvency Act is unsustainable, but the facts disclose an effence under Section 72(1) of the Provincial Insolvency Act, this Court may alter the conviction to one under Section 72, Sub-section (1) of the latter Act, provided the proceedings can be held to be valid with reference to that section. The facts which have been found against the petitioner, apart from any other question, undoubtedly constitute an offence under Section 72, Sub-section (1) of t, as Provincial Insolvency Act.
20. The question that I have now to determine, which is the most important one in this case, is whether a complaint made otherwise than as provided by Sub-section (2) of Section 72 of the Provincial Insolvency Act is according to law and a conviction for an offence under Sub-section (1) based on such a complaint would be sustainable. The contention on behalf of the Crown as well as of the -complainant in substance is that Sub-section (1) of Section 72 defines take offence and Sub-section (2) of the said section enacts only one method by which the offender may be brought to justice and it does preclude the person who has been aggrieved by the act of the accused from lodging a complaint against him under the ordinary law as laid down in the Criminal P.C. The contention on behalf of the petitioner, on the other hand, is that Sub-section (2) of Section 72 prescribes the only mode by which the offender can be brought to trial. In support of the contention, on behalf of the petitioner, Mr. Dutt invited me to look into the report of the Select Committee on the Bill which was subsequently passed into the Provincial Insolvency Act of 1907. The Court, however, is not authorized to look into the proceedings of the Legislature to see what took place there during the passage of the Bill which passed in to law or what was the reason why a particular clause was put in for the purpose of interpreting a statute. I need only refer, to the well-known case of Administrator-General of Bengal v. Premlal Mullick [1895] 22 Cal. 788, where Lord Watson in delivering the judgment of the Judicial Committee said:
Their Lordships observe that the two learned Judges who constituted the majority in the appellate Court, although they do not base their judgments upon them,refer to the proceedings of the Legislature which resulted in the passing of the Act of 1874 as legitimate aids to the construction of Section 81. Their Lordships think it right to express their dissent from that proposition. The same reasons which exclude these considerations when the clauses of an Act of the British Legislature are under construction are equally cogent in the case of an Indian statute.
21. I, therefore, decline to look into the proceedings of the Legislature in order to assist me in construing the provisions of the Act. Mr. Dutt made reference to the English Bankruptcy Act for the purpose of pointing out that, in England, under the present Bankruptcy Act of 1914, as well as under the previous law, a private person is not allowed to prosecute in case of a similar offence. Section 155 of the Bankruptcy Act of 1914 makes it an offence for an undischarged bankrupt to obtain credit for a certain amount as is provided in Section 72 of the Provincial Insolvency Act here. In Section 161, there is a clear provision as to how a prosecution for an offence under Section 155 should be conducted. There is no room for any contention that a private person may lodge a complaint for an offence under the English Act and Section 165 provides that either the Public Prosecutor or the Board of Trade themselves, or through the Official Receiver may initiate the prosecution. Mr. Dutt argued that Section 72 of the Provincial Insolvency Act of 1920 is the same as Section 53 of the Provincial Insolvency Act of 1907 and both these sections have been taken from Section 31 of the English Bankruptcy Act of 1883. In the English Bankruptcy Act of 1888, there was the same provision as in the Act of 1914, namely, that the Court should direct the trustee to prosecute the bankrupt if it appeared that there was a reasonable probability that the bankrupt might be convicted. This provision appears in Section 16 of the Debtors Act of 1889, to which reference must be made in this connexion. The policy of the Legislature in England, therefore, it is contended, was that there should be no prosecution by a private person for such an offence as this and it may, therefore, be very reasonably inferred that it was the intention of the Legislature here in enacting Section 72 of the Provincial Insolvency Act to adopt the same policy, namely, that no private prosecution should be allowed in such a case.
22. The contention of Mr. Khondkar, on the other hand, is that the provisions in the English Act are very clear and definite, and if it had been the intention of the Legislature here that the same policy should be adopted in this country as in England, there was nothing to prevent the Legislature from making the language of the Act as clear as it is in the English Acts. It must be admitted that there is a good deal of force in this argument. I have, however, to construe the section as it stands and I must do so with reference to the accepted rules of construction in coming to my conclusion. Mr. Khondkar's contention is that the section should be construed in this way. If, in the course of any judicial proceeding, the Court finds that an undischarged bankrupt has committed the offence; mentioned in Section 72, Sub-section (1) of the Provincial Insolvency Act, then the Court-may proceed in the way prescribed in Sub-section (2); but if there is no proceeding in Court on account of any debt incurred by the insolvent, there is nothing that precludes the party injured by the offence-committed under Section 72, Sub-section (1), to have recourse to the Court of his own accord. One great difficulty in accepting this contention is that the provisions of Sub-section (2) of Section 72 would be absolutely unnecessary because, if any person is entitled to institute a complaint, why should he-take the trouble of bringing the matter to the notice of the Court and ask the Court to have a preliminary enquiry made and to send the case to be tried by a Magistrate. He would, if he is allowed to do so, under ordinary circumstances, go direct to the Magistrate and lodge his-complaint instead of going through the-circuitous process of asking the Court to send the case for trial to the Magistrate and taking the chance of an adverse-opinion.
23. The next question that seems to arise is whether the two sub-sections should be dealt with as laying down separate provisions or as separate enactments, or, in other words, whether Sub-section (1) of Section 72 should be read as a provision prescribing a penalty for an offence and Sub-section (2) as a matter of procedure quite dissociated from the provisions of Sub-section (1). It seems to me that the division of an enactment into sub-sections does not permit that mode of construction of the statute. I would refer to one of the rules of construction given in Craies on Statute Law, 3rd Edition, (page 194), which runs as follows:
Whether an enactment be printed as part of one section or made in another section can make no difference in the construction of the statute.
24. I must, therefore, read Section 72 as if there were no divisions into Sub-section (1) and Sub-section (2). If that is done, it would appear that Section 72 creates a new offence and it itself provides how the offender should be proceeded against. It is argued by Mr. Khondkar as well as by Mr. Chatterji that there is no such provision in the Provincial Insolvency Act as is contained in Section 195 of the Criminal P.C. which begins with the negative words : 'No Court shall take cognizance,' and particular reference is made to Suh-section (c) of that section in which it is provided which offences shall not be taken cognizance of except on the complaint in writing of the Court. Upon this, the contention is that the ordinary procedure under the Criminal P.C. is not excluded and, therefore, a private prosecutor may institute a complaint for an offence under Section 72(1) of the Provincial Insolvency Act.
25. I am unable to accept this contention, as I am of opinion that where a special offence is created by a statute and the mode how the penalty should be imposed is provided in that statute, it can only be imposed in the mode provided therein and in no other mode. In this connexion I may cite the case of Beg v. Cubitt [1889] 22 Q.B.D. 622, In that case, a certain person committed an offence under the Sea Fisheries Act, the provisions of Section 11 of which Act run thus : 'The provisions of this Act shall be enforced by Sea Fishery Officers,' who are defined by that section. It was held in that case that:
the effect of the above words is that no one except a Sea Fishery Officer can prosecute for an offence against the Act.
26. Mr. Khondkar, to whom I pointed out this, case attempted to distinguish it on the ground that there the enactment was that the provisions of the Act should be enforced by certain officers who were bound to act for the purpose of enforcing the penalty and, therefore, no other person could do so. There was no such provision in the Insolvency Act and, therefore, the offender might go unpunished. I do not think there is any substance in this contention. I must refer to the observations made by Lord Coleridge, C.J., in that case which are as follows:
Certain offences are created by the Act, which then goes on to point out who shall enforce its provisions. If anyone may enforce the Act, Section 11 is useless. I do not think that negative words are required to exclude proceedings by persons other than Sea Fishery Officers. For instance, if an Act provided that the Attorney-General was to sue for a penalty, no one else could sue for it, it is obvious that if every one could sue for the penalty the Attorney-General could sue for it so that on that view of the instatute the clause enabling him tosue would be unnecessary and useless. The same observation applies to this Act, the words of which are direct and clear.
27. The same learned Chief Justice repeated these observations in another case, Anderson v. Hamlin [1890] 25 Q.B.D. 221, and I think I must accept the principle laid down in those cases. I, therefore, hold that Section 72 of the Provincial Insolvency Act lays down the only mode by which a person accused of an offence under the first subsection of Section 72 of the Provincial Insolvency Act may be proceeded against that is, by the method laid down in Sub-section (2). In the present instance, the case having been tried an the complaint of a person who was not authorized to make the complaint the trial for an offence under that section would be vitiated, and on that ground I do not think I can alter the conviction as one under Section 72(1) of the Provincial Insolvency Act. The conviction of and the sentence passed on the petitioner must be set aside.
28. There is one observation that I ought to make with reference to the arguments advanced by Mr. Khondkar that there is no reason why an offender under the Provincial Insolvency Act should have a greater privilege than an offender under the Presidency Towns Insolvency Act. It is, however, difficult to divine the reas on why there is such a difference between the two enactments. The only thing that occurs to me is that the law of. insolvency was elaborately enacted for places outside the Presidency towns for the first time in 1907, and it might be that the policy of the Legislature was that prosecution for offences first created by that new Act should be under the control of the Court, that is, the insolvency Court which adjudged the person against whom a charge is made as an insolvent.
29. On the finding I have arrived at, it is unnecessary for me to go into the question as to whether the joint trial of the petitioner with the other man Monmohan Bose was bad. Considerable argument was addressed to me by both sides on this point. My inclination was to hold that, if the complaint against the petitioner had been in accordance with law there could be a joint trial. But it is not necessary for me to say anything further with regard to that question.
30. My order, therefore is that the conviction of and the sentence passed on the petitioner be set aside. This order of mine will not certainly preclude the Court from taking such steps as it may think fit under Section 72, Sub-section (2) of the Provincial Insolvency Act against the petitioner. Let the petitioner be discharged from his bail-bond.