Order.— In these Criminal Revision Petitions the order committing the petitioner for trial to the Sessions Court in respect of charges under sections 276 (d) and 276 (B) of the Indian Income-tax Act, 1961, which will hereinafter be referred to as the Act, has been challenged on the ground that the charge under section 276 (B) is violative of Article 20 (1) of the Constitution of India and that the charge under section 276 (d) is not otherwise sustainable. The Income-tax Officer, A-ward, Kottayam, instituted eight separate complaints at the instance of the Commissioner of Income-tax against the petitioner who was alleged to be the managing director of one Malabar Agricultural Company Limited, Kottayam, for his failure to pay to the Central Government income-tax which he deducted from the dividend when it was distributed among its shareholders each year beginning from 20th April, 1961 and ending with 1st February, 1968. The year of the assessement, the date of declaration of dividend, the date on which the tax was deducted from the dividend, the amount so deducted and the actual payment of the tax to the credit of the Government are given in a tabular form below: The column (3) of the above list shows that the tax was deducted each year on various dates. But the payment was delayed for a period ranging from If years to about 8 years as shown in column (5). Rule 30 of the Income-tax Rules. 1962, provides that all sums deducted in accordance with the provisions of section 194 of the Act shall be paid to the credit of the Central Government within one week from the date of such deduction or the date of receipt of the chalan for the person making the deduction, as the case may be. There is no case that any chalan had been either received or issued to the company. So the payments should have been made in each of the above cases within one week from the date of the deduction of the tax. It was because of the failure of the company represented by its principal officer to pay the tax within the stipulated period and thereafter that these prosecutions have been laid against the petitioner under sections 276 (d) and 276 (B) of the Act. It was because of the failure of the company represented by its principal officer to pay the tax within the stipulated period and thereafter that these prosecutions have been laid against the petitioner under sections 276 (d) and 276 (B) of the Act. It is necessary to refer the relevant sections of the Act to understand the liability of the petitioner to deduct the tax from the dividend and pay the same to the government. The first deduction being on 20th April, 1961, which was before the Act came into force on 1st April, 1962, it is better to quote the relevant provisions of the old Income-tax Act, 1922. Section 18 (3) (D) of that Act was read: “The principal officer of an Indian company or a company which has made the proscribed arrangements for the declaration and payment of dividends (including dividends on preference shares within India shall, before making any payment in cash, or before issuing any cheque or warrant in respect of any dividend or before making any distribution or payment to a shareholder of any dividend within the meaning of sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) or sub-clause (e) of clause (6-A) of section 2, deduct on the amount of such dividend, income-tax and super-tax at the prescribed rates”. After deducting the amount of tax out of the dividend under the above section the principal officer of the company shall pay that within the prescribed time to the Central Government as required by section 18 (6) which was read as follows: “All sums deducted in accordance with the provision of this section shall be paid within the prescribed time by the person making the deduction to the credit of the (Central Government) or as the (Central Board of Revenue) directs.” The failure to pay the tax to the Government under Income-tax Act, 1922 was made punishable under section 51 of the Act. “Section 51.—If a person fails without reasonable cause or excuse—(a) to deduct and pay any tax as required by section 18..........................he shall, on conviction before a Magistrate, be punishable with fine which may extend to ten rupees for every day during which the default continues.” The provisions similar to the above sections 18 (3) (D), 18 (6) and 51 are respectively provided in sections 194, 200 and 276 (d) and 276 (B) respectively in 1961 Act. Section 194 of the Act reads: “Dividends—The principal officer of an Indian company or a company which has made the prescribed arrangements for the declaration and payment of dividends (including dividends on preference shares within India, shall, before making any payment in cash or before issuing any cheque or warrant in respect of any dividend or before making any distribution or payment to a shareholder of any dividend within the meaning of sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) or sub-clause (e) of clause (22) of section 2, deduct from the amount of such dividend, income-tax at the rates in force.” The above section deals with the deduction of the tax from the dividend to be distributed. The duty of the person deducting the tax to pay the same to the credit of the Central Government is contained in section 200 of the Act which reads as follows: “Duty of person deducting tax.—Anyperson deducting any sum in accordance with the provisions of (sections 192 to 194, section 194-A and section 195) shall pay within the prescribed time, the sum so deducted to the credit of the Central Government or as the Board directs”. Consistent with the above sections, rule 30 of the Income-tax Rules, 1962, provides that all sums deducted in accordance with the provisions of section 194 shall be paid to the credit of the Central Government within one week from the date of such deduction. Non-compliance of sections 194 and 200 occurring in Chapter XVII-B of the Act read with rule 30 of the Rules was made punishable under section 276 (d) which was read as follows before 1st April, 1968: 276 If a person fails without reasonable cause or excuse— (d) to deduct and pay tax as required by the provisions of Chapter XVII-B or under subsection (2) of section 226 ; he shall be punishable with fine which may extend to ten rupees for every day during which the default continues ". Out of the above section the words "by the provisions of Chapter XVII-B or" had been omitted by the Finance Act of 1968 with effect from 1st April, 1968. Out of the above section the words "by the provisions of Chapter XVII-B or" had been omitted by the Finance Act of 1968 with effect from 1st April, 1968. Thus the words "Chapter XVII-B or" having been deleted out of section 276 (d) it is read as if the non-compliance of the provisions of sections 194 and 200 of the Act read with rule 30 of the Rules was no longer an offence under section 276 (d) after 1st April, 1968. But on the same day section 276 (B) came to be incorporated in the Act under the Finance Act, 1968. Therefore it is clear that the non-compliance of sections 194 and 200 occurring in Chapter XVII-B is an offence only under section 276 (B) after 1st April, 1968 and that section 276 (d) is defunct thereafter. The petitioner’s case is that by the addition of section 276 (B) with effect from 1st April, 1968, to the Act non-payment or non-deduction of tax on dividends payable to shareholders made an offence under section 276 (d) of the Income-tax Act of 1961 stood deleted and therefore a prosecution after 1st April, 1968 under section 276 (d) of the Income-tax Act of 1961 will not lie. According to the petitioner the General Clauses Act will not bring into operation for the continuity of the provision of that section. So it is alleged that there is no saving provision in the Income-tax Act, 1961 subsequent to the repeal made in section 276 (d) of the Act and therefore it is contended that the complaints filed under section 276 (d) are unsustainable and hence the District Magistrate was not competent to take cognizance of the complaints for offences alleged to have been committed under section 276 (d) of the Income-tax Act for non-payment of tax deducted at source. It is then contended that after the amendment on 1st April, 1968 the prosecution under section 276 (B) of the Act will not also lie as that section reveals that a minimum punishment of rigorous imprisonment and fine is made compulsory if the offence is proved. It is then contended that after the amendment on 1st April, 1968 the prosecution under section 276 (B) of the Act will not also lie as that section reveals that a minimum punishment of rigorous imprisonment and fine is made compulsory if the offence is proved. According to section 276 (d) as it stood before amendment on 1st April, 1908, non-payment of taxes on dividends are liable to be punished only with fine Therefore the offences alleged to have been committed prior to 1st April, 1908 could not be proceeded against under section 276 (B) by virtue of Article, 20 (1) of the Constitution of India as it has provided that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is accordingly that the petitioner has raised the contention that the complaints in these cases under section 276 (B) would be violative of Article 20 (1) of the Constitution of India as section 276 (B) will be attracted only to the cases of non-deduction or non-payment of taxes on dividends distributed to the shareholders after 1st April 1968 On these grounds the revision petitioner contended that the committal order passed against the petitioner shall be quashed. It is also further contended that there is no evidence to prove that the petitioner was the principal officer of the company as required by section 2 (35) when the tax deduction was made. There is yet another contention that the complaints in the respective cases should have been filed by the Commissioner himself under the provisions of section 279 of the Act. A common question has arisen in all these cases and therefore the revision petitions are disposed of in one and the same order. It is admitted that except in the failure to pay tax after the deduction of tax on 20th April, 1961 in all other cases the alleged offence would fall within the ambit of section 276 (d) of the Act. But in the nature of the case it is necessary to come to a conclusion whether an offence could be made out under section 276 (d) before an offence under section 276 (B) was considered. But in the nature of the case it is necessary to come to a conclusion whether an offence could be made out under section 276 (d) before an offence under section 276 (B) was considered. It is also clear that a conviction under sections 194 and 200 red with section 276 (d) depended upon a conviction under section 18 (3) (d) and 18 (6) read with section 51 of the Act of 1922 in respect of failure to pay the tax after the deduction was made on 20th April, 1961. The conviction and sentence in all the cases are therefore inter-related under these provisions of the two Acts referred to above. Under those circumstances this Court will not be justified at this stage to interfere with the committal order. In case reported in Thakurdas Kimatrai v. The State1, it is held that it would not be expedient in the interests of justice to allow the accused to raise an academic point of law under section 215 of the Criminal Procedure Code and to press the High Court to decide a hypothetical academic point. In that case the accused were committed to stand their trial in the Court of Sessions for the offences under sections 376 and 406, Indian Penal Code, and under section 6, Bigamous Marriages Act, and they applied under section 215 of the Criminal Procedure Code to quash the commitment in respect of the offence under section 376, Indian Penal Code. But the question of the competence of the charge and the effectiveness under section 376 depended on first establishing the charge under the Bigamous Marriages Act which was not established. Under those circumstances the High Court of Bombay did not think that it would be expedient in the interests of justice that it should allow an academic point at that stage. In all these cases one question that requires to be considered is whether either under the relevant provisions of Act 1922 or 1961 the offence contemplated under section 51 of the 1922 Act and section 276 (d) of the 1961 Act was a continuing offence or not. In all these cases one question that requires to be considered is whether either under the relevant provisions of Act 1922 or 1961 the offence contemplated under section 51 of the 1922 Act and section 276 (d) of the 1961 Act was a continuing offence or not. A Full Bench decision of this Court reported in Saidu Mohammad v. Bhanukuttan2, it is pointed out that the omission to pay within a particular time or to an omission to do a thing within a stipulated period is different from the omission to do the thing constituting the offence continued to be done so long as the obligation to do the thing continued. In the latter case, it was pointed out, that an offence was continued to be committed even after the particular provision of the particular Act or Rule came into force after the commission of the offence. In that case section 74 of the Kerala Panchayat Act, 1960 read with rule 26 of the Rules made thereunder made the non-payment of tax an offence though it was not an offence prior to the Act and the Rule. But since the failure to pay the tax was found continued to be done the omission to pay the tax was held to be an offence. But the Patna and Calcutta High Courts in connexion with the constriction of creches and bathrooms as provided in the Mines Creche Rules and the Coal Mines Pithead Bath Rules, 1964, the management having omitted to construct these amenities within the time specified, it was prosecuted in those cases, after the lapse of the term before which prosecution should have been launched. In both, the defence contended that the prosecution would not lie after the expiry of the term; the prosecution urged, however, that the offence of omission to construct these amenities was a continuing one. In the Patna High Court, State v. Kunj Behari3, there was a difference of opinion, the majority view being that it was a continuing offence and the prosecution was not barred by section 42 of the Mines Act, which provided a limitation for such prosecutions. The matter is elaborately discussed in the Calcutta Judgment in G.D. Bhattar v. State.4. In the Patna High Court, State v. Kunj Behari3, there was a difference of opinion, the majority view being that it was a continuing offence and the prosecution was not barred by section 42 of the Mines Act, which provided a limitation for such prosecutions. The matter is elaborately discussed in the Calcutta Judgment in G.D. Bhattar v. State.4. “The question whether an illegal omission is a continuing offence or not, can hardly be answered in summary manner without considering the nature of the duty imposed, and the object which the Legislature had in view in imposing the duty......................The pithead baths and the mines creches are amenities required by the Legislature, the first for the sanitation and health of the miners and the second for the proper care of the children of female miners..................without these, the miners could not be expected to preserve their health, and children of the female miners could not be properly looked after. The mere fact, therefore, that the specified date within which the baths and the creches were required under the rules to be constructed, expired, cannot possibly mean that the duty of the owner ended with the expiry of the date. That duty still remains. It continues till the pithead baths and creches are constructed as required by the rules. A continuing wrong or a continuing offence is, after all, a continuing breach of a duty which itself is continuing. If a duty continues from day today, the non-performance of that duty from day today is a continuing wrong.” Similar view was expressed in Akharbhai Nazarali v. Hussain Bhai5, In that case some employers of a textile industry were prosecuted under section 406 Indian Penal Code for criminal breach of trust read with paragraph 76 (a) and 76 (c) of the Employees, Provident Fund Scheme, 1952 which was notified in October, 1953, giving effect to it from 2nd September, 1952. The case against the employers was that the amounts deducted during the months of January, February and March, 1953 from the wages of their employees as contribution to the Employees’ Provident Fund, which the accused employers retained themselves and failed to deposit into the fund. The case against the employers was that the amounts deducted during the months of January, February and March, 1953 from the wages of their employees as contribution to the Employees’ Provident Fund, which the accused employers retained themselves and failed to deposit into the fund. Therefore they failed to comply with paragraph 38 of the Scheme which directed that the employer shall deduct the employees’ contribution from their wages, and then add his own contribution and such administration charges as might be fixed by the Central Government and shall pay to the Fund by cheque or bank draft within 15 days from the close of each month. The same paragraph directed that he should also forward to the Commissioner within 15 days from the close of each month, a monthly consolidated statement showing the recoveries from the employees’ and employer’s own contribution Failure to do so was punishable under paragraph 75 (a) and (c) of the Scheme with imprisonment upto 6 months and fine upto Rs. 1000 or both. It was contended that the act of non-payment into the Fund of the contribution and administration charges was a non-recurring or non-continuing offence and therefore unless the offence was committed after October, 1953 it could not be punished under paragraph 76. Dealing with that question the following observation was made in the above case: "Whether the non-payment of contribution and non-submission of the return, in the manner provided in paragraph 38, are offences that recur and continue every moment, till the payment is made and the returns are submitted, or whether they are complete on the 15th of the next month and do not continue after that. If these offences are continuing offences that are, as it were, being committed every moment till the payments are made and the returns submitted, they would be punishable after October, 1953. It is clear that the pith and substance of paragraph 38 is that the contributions should be paid into the Fund, and the return should be paid into the Fund, and the return should be made to the Commissioner. While the fixing of a date does mean that the employer should pay into the fund and send to the Commissioner the returns by that date, it cannot mean that once the date is passed, the employer is relieved of his duty and there is nothing more to be done. While the fixing of a date does mean that the employer should pay into the fund and send to the Commissioner the returns by that date, it cannot mean that once the date is passed, the employer is relieved of his duty and there is nothing more to be done. On the contrary, the duty of the employer is in any event, to pay and to send the returns ; otherwise, one will be ignoring the very purpose of the scheme." It is an obligation and duty covered by statute and therefore it continued day after day till of course the payment was made and the returns were submitted. If the above view point was to be accepted it would be obvious that the failure to pay up the tax on dividend in the instant case would be a continuing wrong which may become a penal offence even after 1st April, 1968. But I am afraid whether I should decide the question whether the offence was a continuing offence coming within the purview of section 276 (B) or not in view of the earlier circumstances which I pointed out. It is sufficient for me to say that a prima facie case having been made out the Court below was correct in committing the petitioner for trial to the Court of Sessions. I may also consider whether by reason of the repeal of the 1922 Act by the 1961 Act or by reason of the deletion of "Chapter XVII-B or" out of section 276 (d) of the Act the prosecutions under section 51 of 1922 Act or under section 276 (B) of the Act after the amendment on 1st April, 1968, are not saved and therefore the prosecutions under those sections are not maintainable. Baliah v. Rangachari1, is the authority for the position that by virtue of section 279 (2) of the Act the prosecution under section 52 of 1922 Act (section 51 applicable to this case) is saved in respect of any legal proceeding for an offence committed under the 1922 Act to be instituted even after the repeal of the 1922 Act by the 1961 Act and for punishment to be imposed as if the repealing Act has not been passed. In this regard, the following observation at page 705 of the Supreme Court decision referred to above may be seen: "It is true that there is no express sub-clause in section 297 (2) of the 1961 Act which provides for the continuation of such proceedings but our concluded opinion is that Parliament did not intend section 297 (2) of the 1961 Act to be completely exhaustive and in regard to such matters as are not expressly saved by section 297 (2) of the 1961 Act the provisions of section 6 (e) of the General Clauses Act will apply. It follows therefore in the present case that under section 5 of the General Clauses Act a legal proceeding in respect of an offence committed under the 1922 Act may by instituted even after the repeal of the 1922 Act by the 1961 Act and punishment may be imposed as if the repealing Act had not been passed." I have already indicated that for the offence committed prior to 1st April, 1968, in violation of sections 194 and 200 read with Rule 30 of the Rules if it was found to be an offence continued from day to day it would be open to prosecute the offender under section 276 (d) as it stood before the amendment on 1st April, 1968. I have already stated that I did not express any opinion as to whether the offence under section 276 (d) committed in this case was a continuing offence or not. The next point which has been urged on behalf of the petitioner was whether the provisions of section 276 (5) are hit by Article 20 (1) of the Constitution. Article 20 (1) reads as follows: "Protection in respect of conviction for offences: (1) No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence nor be subjected to a penalty greater than which might have been inflicted under the law in force at the time of the commission of the offence." I am of the view that I am relieved of the necessity of considering this question because in two cases Shivbahadur Singh v. State of Vindhya Pradesh1, and Kedar Math v. State of Bengal2, their Lordships of the Supreme Court have already considered the precise question. With regard to the applicability of the Article 20 (1) of the Constitution in a similar case their Lordships have been pleased to observe in Shiv Bahadur Singh v. State of Vindhya Pradesh1, that: "In this context it is necessary to notice that what is prohibited under Article 20 is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a Court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular Court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved." A reading of Article 20 (1) would show that it sets two limitations on the legislative authority: (1) that no person shall be convicted of any offence if there was no law in force at the time of commission off offence which make the act an offence. But it differently prohibits the creation of a new offence, the punishment of which may be prescribed with retrospective effect. This depends upon whether the offence with which the petitioner stood charged was not an offence at the time of the alleged commission. The other limitation is that no one shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is for the Presiding Judge over the Sessions to award a sentence in respect of the charges if any established against the petitioner. But at this stage no question of any heavier penalty arises and till the petitioner is tried and convicted there is no question of punishment. Article 20 (1) opens by saying that " no person shall be convicted of any offence" and not that no person shall be tried for any offence. In view of these circumstances I am of the opinion that it is not necessary for me to consider at this stage before the petitioner is convicted that the provisions of section 276 (B) of the Act are hit by Article 20 (1) of the Constitution. In view of these circumstances I am of the opinion that it is not necessary for me to consider at this stage before the petitioner is convicted that the provisions of section 276 (B) of the Act are hit by Article 20 (1) of the Constitution. Then there remained only one or two points more on which argument was advanced in these cases. One such point is that without the Commissioner of Income-tax himself filing the complaint against the petitioner the prosecution is invalid and unsustainable. It is conceded that the Commissioner of Income-tax has given written authority to the Income-tax Officer to file the prosecution against the petitioner and that his written authorisation had also been filed into Court. What section 279 of the Act requires is that the prosecution shall not be proceeded against an offender under section 276 (d) or 276 (B) except “at the instance of” the Commissioner. The clause “at the instance of” the Commissioner occurred in section 53 of the Act 1922 only meant “on his authority” and since it was sufficient compliance of the statutory requirement of the section the complaint filed under the Act had been held to be good in the case which is already quoted as Baliah v. Rangachari1. The relevant portion of the judgment is at page 706. I find, therefore, on the authority of the above decision that the prosecution of the petitioner under section 279 of the Act is sustainable. Then it is contended that the prosecution did not prove that the petitioner was the principal officer as required by sub-section (35) of section 2 of the Act and that therefore the prosecution could not be launched against him. It is contended further that there was no evidence in support of the case that the petitioner was the principal officer at the relevant time. It could not be said that the petitioner was not the principal officer when the admitted tax was paid to the credit of the Central Government. Exhibit P-2 dated 24th September, 1969, which is a statement furnished by the petitioner to the Income-tax Officer showing the various payments made by him and also the circumstances under which the payments could not be made earlier. Exhibit P-2 was signed by the petitioner as managing director of Malabar Agricultural Company Limited. Exhibit P-2 dated 24th September, 1969, which is a statement furnished by the petitioner to the Income-tax Officer showing the various payments made by him and also the circumstances under which the payments could not be made earlier. Exhibit P-2 was signed by the petitioner as managing director of Malabar Agricultural Company Limited. In all the revision petitions the petitioner is described as the managing director of the said company. There is the evidence of P.W. 1, Income-tax Officer, that the petitioner was the principal officer. I may also point out that in none of the grounds of the revision petitions filed in this Court the petitioner alleged any ground that he was not the principal officer during the relevant period and therefore he could not be proceeded against. In the absence of any specific allegation in the pleading to that effect and in view of the evidence of P.W. 1, I am of the opinion that the prosecution has made out a prima facie case to enable the lower Court to commit the petitioner to the Court of Sessions. I may not be understood to have stated that the prosecution has proved that the petitioner was the principal officer during the relevant period conclusively beyond reasonable doubt. It is sufficient to say that there is a prima facie case in favour of the prosecution. In view of all these circumstances, I have to hold that these revision petitions are not sustainable as against the committal order passed by the lower Court. Therefore, all the revision petitions are dismissed. M.C.M. ----------- Petitions dismissed.