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18. Another important decision to be noticed in this connection is Chandrika Sao v. State of Bihar. That is a judgment delivered by three Judges of the Supreme Court, Justice Mudholkar speaking for the Bench. Action against the accused was taken under Section 353 of the Indian Penal Code although it could have been taken under Section 26(1)(h) of Bihar Sales Tax Act, 1947. To the extent necessary the facts are, the Assistant Superintendent of Commercial Taxes paid a surprise visit to the shop of the original accused and' started looking into the books of account lying in the shop, which were found to have been kept in two sets. The shopkeeper snatched away those books and passed them on to his servant, who in turn passed them to another servant on the first floor. The peon of the officer was prevented by the shopkeeper going upstairs, a scuffle ensued and the peon's shirt was torn. On these facts the Supreme Court held that the action of the shopkeeper did amount to use of force as contemplated by Section 349, Indian Penal Code. The Court also came to the conclusion that the force was used intentionally with the knowledge that the use of force would cause injury, fear or annoyance to the person against whom the force was used and hence Section 353 of the Indian Penal Code was also attracted.

19. On behalf of the appellant, it was argued that he had committed an offence under Section 26(1)(h) of the Bihar Sales Tax Act, which covered an obstruction caused to the officer of the Tax Department. The argument advanced, that the prosecution intentionally wanted to obviate the necessity of obtaining the Commissioner's sanction for the offence under the Sales Tax Act and the prosecution ought not to be allowed to do it by proceeding under Section 353 of the Indian Penal Code, was repelled. The relevant observations in this connection, in para. 9 of the judgment, are as follows (p. 173):

He next contended that the only offence which the appellant has committed was one under Section 26(1)(h) of the Act and that as no previous sanction of the Commissioner had been obtained for launching the prosecution the trying Magistrate was precluded by the provisions of Sub-section (2) of Section 26 from taking cognizance of the alleged offence. Undoubtedly had the appellant been prosecuted for obstructing Mr. Singh from inspection or seizing the account books, the trying Magistrate would have been incompetent to take cognizance of the offence without the previous sanction of the Commissioner. The appellant is, however, not being proceeded against for that offence but only for the offence under Section 353 I.P.C. for which no sanction is required, Learned Counsel contends that the whole object of the prosecution is to get round the provisions of Sub-section (2) of Section 26 and that that is why the prosecution was launched under Section 353, I.P.C. The suggestion apparently is that the prosecution of the appellant for the offence under Section 353 is merely colourable. Whether Mr. Singh was obstructed while making an inspection of the account books or while he was intending to seize them, the Commissioner's sanction would certainly have been required under Sub-section (2) if in fact the appellant was prosecuted specifically for obstructing Mr. Singh. He could have been prosecuted for these offences even without proof of the fact that he had used criminal force. From the facts found it would no doubt appear that the appellant has committed an offence under Section 26(1)(h) of the Act as also under Section 353 I.P.C. because he has used criminal force. He could be prosecuted for either or both these offences at the discretion of the prosecution. It may be that he was not prosecuted in respect of both the offences and the prosecution was restricted to the offence under Section 353 I.P.C. only to obviate the necessity of obtaining the Commissioner's sanction. Even so, the prosecution cannot be Said to have done something which is unwarranted by law. An offence under Section 353, I.P.C. is a graver offence than the one under Section 26(1)(h) of the Act because it is punishable with imprisonment for a period upto two years or to payment of fine without any limit, or both, whereas an offence under Section 26(1)(h) is punishable with imprisonment which may extend upto six months or with a fine not exceeding Rupees 1,000, or both. In choosing to prosecute the appellant for a graver offence under the general law the prosecution cannot be regarded as having acted colourably.

24. Before going to the decisions in the two Revision Applications relied upon, by the learned Magistrate, we can go to the earlier decisions. One is Durgacharan v. State of Orissa [1966] A.I.R. S.C. 1975, wherein the division Bench of the Supreme Court was considering the effect of a prosecution under Sections 353 and 186 of the Indian Penal Code, on the same facts but without a sanction under Section 195 of the Code of Criminal Procedure (1898). It is said that the two sections relate to two distinct offences and the prosecution under Section 353 is not invalid though the prosecution under Section 186 was barred under Section 195 of the Criminal Procedure Code (1898). The facts briefly stated are : that the officers of the Court had gone with the police to execute a money decree, the amount was paid, but while they were returning, the next day the decree-holder used force in trying to obtain back the amount paid. The division Bench remarked that the quality of the two offences under Sections 186 and 353 of the Indian Penal Code is different. Section 353 relates to offences affecting human body, Section 186 deals with causing obstruction to a public servant in discharge of public functions. This decision follows the principle laid down in Basir-ul-Huq's case regarding distinctness of offences. It may have to be noticed that both the offences were under the Penal Code so as to make inapplicable Section 26 of the General Clauses Act as detailed in the Bombay Full Bench decision viz., State v. Pandurang Baburao.