Sir John Beaumont.-This is an appeal by special leave against two judgments of the High Court of Judicature at Bombay1, dated 17th June, 1947, setting aside two orders of the Court of the Presidency Magistrate, 6th Additional Court, dated 16th September, 1946, whereby two prosecutions of the appellant for the offences of hoarding and profiteering under the Hoarding and Profiteering Prevention Ordinance, 1943 (Ordinance No. XXXV of 1943) (hereinafter called “the Ordinance”) were held to be barred by reason of the provisions of section 403, Criminal Procedure Code, since in the view of the learned Magistrate the accused had been previously tried and acquitted on exactly similar charges and facts by a Court of competent jurisdiction. The real question before the Board is whether in the circumstances of the case the plea autrefois acquit was open to the appellant, and that question in essence depends upon whether the earlier prosecution was before a Court of competent jurisdiction.

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.”

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 published.

The separate hearing of the two charges against the appellant proceeded in the normal manner under the Code of Criminal Procedure; evidence for the prosecution was called, and on 1st October, 1945, charges were framed; subsequently further evidence was called for the prosecution and some of the witnesses were re-called for cross-examination, and the case was adjourned to 17th December, 1945. On that date Mr. Khandalawalla, counsel for the prosecution, made a statement which the learned Magistrate took down in the following words:

“In view of the High Court decision in Revisional Application No. 191 of 1945, Purshottam Harjivan v. Emperor2, as this Court is not competent to try this offence, he does not wish to tender the witnesses already examined for further cross-examination nor to lead any further evidence.”

Thereupon the Magistrate recorded an order in the following terms:

“Mr. Mullick’s evidence is deleted. Accused acquitted for reasons to be recorded separately.”

On the same day, the learned Magistrate recorded his reasons for the orders of acquittal in identical terms on the two charges. After referring to the said statement of Mr. Khandalawalla and the order made upon it the learned Magistrate continued:

“On a perusal of the said decision, however, I find that the filing of this charge-sheet by the prosecution itself is invalid in law, because the sanction signed is by the Controller-General under a notification of the Government of India, and the said notification does not state that the various officers therein mentioned are not below the rank of a District Magistrate. Thus it is the incompetence of the prosecution to proceed against the accused without sanction as provided for in law. As however the invalidity of the sanction invalidates the prosecution in Court, the accused was acquitted.”

It is clear from this statement of