TMI Blog1949 (5) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... on was before a Court of competent jurisdiction. 2. The appellant is the sole proprietor of Messrs. Alladin Dhanji, dealers in crockery, glassware and cutlery, in Bombay. He was charged in the Court of the Presidency Magistrate, 6th Additional Court, under Section 13(1) read with Section 5 of the Ordinance with the offence of hoarding. He was also separately charged in the said Court, under Section 13(1) read with Section 6 of the Ordinance, with the offence of profiteering. He pleaded not guilty to both charges. Section 14 of the Ordinance is in the following terms: No prosecution for any offence punishable under this Ordinance shall be instituted except with the previous sanction of the Central or Provincial Government or of an officer not below the rank in a Presidency town of a Deputy Commissioner of Police, or elsewhere of a District Magistrate empowered by the Central or the Provincial Government to grant such sanction. 3. Sanction to the appellant's prosecution had been granted before the institution thereof by C.C. Desai, Controller-General of Civil Supplies, who was authorised to give such sanction by virtue of a notification of the Government of India duly pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sanction was not below the rank of a District Magistrate. The Court did not base its opinion as to the invalidity of the sanction on the omission from the notification of a statement that the officers referred to therein were not below the rank of a District Magistrate, as the learned Magistrate seems to have thought. The present case arises in a Presidency towns, so that, if this decision of the High Court be correct, the prosecution had to prove that the Controller. General of Civil Supplies who gave the sanction was not below the rank of a Deputy Commissioner of Police. As the Controller is not in the same cadre as a District Magistrate or a Deputy Commissioner of Police, the reluctance of the Crown to undertake the task of establishing the comparative status of these officers is understandable. 7. In addition to his orders of acquittal the learned Magistrate on the same day passed two orders under Section 517, Criminal P.C., directing that the cutlery, glass, and other articles belonging to the appellant which had been marked as exhibits in the case, should be returned to him. 8. The Government of Bombay did not appeal against the two orders of the learned Magistrate ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the previous decision of such Court in Revision Application 191 of 1945 (A.I.R. (33) 1946 Bom. 492 : 47 Cr. L.J. 900), was correct, from which it followed that no valid sanction for the first prosecution of the appellant had been obtained. Following the decision of the Federal Court in Basdeo Agarwalla v. King-Emperor A.I.R. (32) 1945 F.C. 16 which was based on a clause in another Ordinance expressed in language similar to that used in Clause 14 of the present Ordinance, the Court held the earlier prosecution of the appellant to have been wholly null and void, and that accordingly the appellant had not been previously tried by a Court of competent jurisdiction within Section 403. 13. Before this Board the correctness of the decision of the High Court in Revision Application 191 of 1945 : (A.I.R. (33) 1946 Bom. 492 : 47 Cr. L.J. 900) has not been challenged, and their Lordships feel no doubt that the decision was correct, and that, as it was not proved that the officer who granted the sanction in the earlier prosecutions was not below the rank of a Deputy Commissioner of Police, those prosecutions were without valid sanction. 14. Mr. Page for the appellant urged various grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the High Court was based. Having reached that conclusion, the learned Magistrate ought to have discharged the accused on the ground that he had no jurisdiction to try him. The orders of acquittal were passed without jurisdiction, and could only operate as orders of discharge. 16. The next contention was that the failure to obtain a sanction at the most prevented the valid institution of a prosecution, but did not affect the competency of the Court to hear and determine a prosecution which in fact was brought before it. This suggested distinction between the validity of the prosecution and the competence of the Court was pressed strenuously by Mr. Page, but seems to rest on no foundation. A Court cannot be competent to hear and determine a prosecution the institution of which is prohibited by law and Section 14 prohibits the institution of a prosecution in the absence of a proper sanction. The learned Magistrate was no doubt competent to decide whether he had jurisdiction to entertain the prosecution and for that purpose to determine whether a valid sanction had been given, but as soon as he decided that no valid sanction had been given the Court became incompetent to procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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