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1948 Supreme(SC) 2
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD UTHWATT, LORD DU PARCQ, LORD OAKSEY AND SIR JOHN BEAUMONT.
GOKULCHAND DWARKADAS MORARKA - Appellant
Versus
THE KING - Respondents
On appeal from the High Court at Bombay.
Decided On : Jan. 13. 1948.
Solicitors for appellant : T. L. Wilson & Co.
Solicitor for respondent: Solicitor, High Commissioner for India.
A sanction for prosecution must be granted in reference to the specific facts constituting the offence. If the sanction document does not specify these facts, the prosecution must prove they were before the sanctioning authority, as a lack of valid sanction is a jurisdictional defect.
Headnote:(A) Cotton Cloth and Yarn (Control) Order, 1943 - Clause 23 - Sanction for prosecution - Requirement that sanction be given in respect of the facts constituting the offence - If facts are not on the face of the sanction, they must be proved by extraneous evidence - Sanction is a condition precedent to the institution of prosecution - Government's discretion to grant or withhold sanction based on knowledge of facts.
(B) Indian Evidence Act, 1872 - Section 114, Illustration (g) - Presumption that evidence withheld by a party would be unfavourable to them.
(C) Code of Criminal Procedure - Section 537 - Defect in jurisdiction cannot be cured as a mere irregularity or omission.
Facts of the case:
An agent of a mill was prosecuted for contravening provisions of a control order regarding the hoarding of cloth without textile marks. The prosecution was instituted after the Provincial Government granted sanction under the relevant order. The sanction document specified the person to be prosecuted and the clause contravened but did not detail the specific acts constituting the breach.
Findings of Court:
The sanction was held to be invalid as there was no evidence, either on the face of the document or through extraneous evidence, to show that the sanctioning authority had knowledge of the facts constituting the offence.
Issues: Whether a sanction that names the accused and the provision of law, but fails to specify the particular facts of the contravention, constitutes due compliance with the requirement for previous sanction.
Ratio Decidendi: To comply with the requirement for sanction, it must be proved that the sanction was given in respect of the facts constituting the offence charged. While the facts need not be explicitly stated in the sanction, the prosecution must prove they were placed before the sanctioning authority. Such sanction is a condition precedent to jurisdiction; therefore, its absence or invalidity constitutes a jurisdictional defect that cannot be cured under provisions relating to irregularities in proceedings.
Result: Appeal allowed.
Legal Category Hierarchy
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crime and sentencing
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regulatory offences
- control orders
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regulatory offences
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practice and procedure
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criminal procedure
- sanction to prosecute
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evidence
- presumptions
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jurisdiction
- competency of court
-
criminal procedure
Judgement
Appeal (No. 99 of 1946), by special leave, from a judgment and order of the High Court (September 5, 1946) setting aside the acquittal of the appellant of an offence under cl. 18, sub-cl. 2, of the Cotton Cloth and Yarn (Control) Order, 1943, by the judgment and order of the City Magistrate of Sholapur (August 21, 1945), and sentencing the appellant to undergo rigorous imprisonment for one month and to pay a fine of Rs. 1550.
The following facts are taken from the judgment of the Judicial Committee. The facts giving rise to the prosecution of the appellant were stated in a written report made by Mr. Mulik, Sub-Inspector of Police, Food Control, Sholapur, to the Sub-Inspector of Police, Sholapur, on January 24, 1945. The report was in the following terms " I, Raghunath Santaji " Mulik, Sub-Inspector of Police, Food Control, Sholapur, "give in writing as follows Having got information that " there were cloth without Textile mark and grain hoarded "in the bungalow situate at Motibag belonging to the Old "Mill at Sholapur, Mr. Yasin Ansar Bhai, the Inspector of " Police, took search of the said bungalow on the date the "4th August 1944 ; but as it drew dark, the search of the "outhouse pertaining to the said bungalow remained to be "taken. Therefore, the rooms of the said outhouse were "sealed. On the date the 5th August, 1944, the Inspector of "Police ordered me to take search of the said outhouse. " In pursuance thereof I took search of the said outhouse, "In the same, Dhoti pairs 196 (measuring 1,903% yards) "with a name in the borders ; Dhoti pairs 426 (measuring "3,804% yards) with no name in the borders ; Patals (Sarees) 25 " (measuring 125 yards) ; and muslin pieces 3, (measuring) "60 yards in all, 5,892 yards of cloth without Textile "mark were found. All that has been seized after making a " Panchanama. Mr. Gokulchand Dwarkadas Morarka is the "agent of the Sholapur Old Mill. Whenever he comes to "Sholapur, he puts up in the bungalow situated at Motibag. "Mr. Gokulchand Dwarkadas has purchased from the said "mill by oral order the aforesaid cloth between the dates the "2nd December, 1942, and 15th March, 1943, for his own use ; "and all that cloth has been taken and kept in the said "bungalow on the date the 2nd August, 1943.
"As Mr. Gokulchand Dwarkadas Morarka has been staying "at Malad, I went to Malad and took search of his house. "Whatever clothes of daily wear were found in the same, "were sufficient (for use) to him and the members of his " family. Accordingly, a Panchanama of the clothes in his " house was made.
" As Mr. Gokulchand Dwarkadas Morarka has kept with "him cloth in excess of what was necessary, I have a complaint "against him on behalf of the Government according to "clause 18 (2.) of the Cotton Cloth and Yarn (Control) Order " (of) 1943."
Clause 23 of the Cotton Cloth and Yarn (Control) Order, as amended, provided that " No prosecution for the contravention of any of the provisions of this Order shall be instituted without the previous sanction of the Provincial " Government (or of such officer of the Provincial Government " not below the rank of District Magistrate as the Provincial " Government may by general or special order in writing "authorize in this behalf)."
On January 5, 1945, sanction to the prosecution of the appellant was given by Order of the Government of Bombay in the following terms
"SANCTION TO PROSECUTE.
"(Signed) H. N. G.
"Cotton Cloth and Yarn (Control)
"Order, 1943.
"Contravention of the Provisions "Prosecutions for—
"Government of Bombay.
"Finance Department (Supply).
"Resolution No. 518.
"Bombay Castle, 5th January, 1945.
"Endorsement from the District Magistrate, Sholapur, "No. XIX/4500, dated the 8th November 1944.
"Resolution —Government is pleased to accord sanction " under clause 23 of the Cotton Cloth and Yarn (Control) " Order, 1943, to the prosecution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of clause 18 (2.) " of the said order.
" By order of t
