V S MAKWANA Vs. JAGDISHKUMAR KARSANDAS

JUDGEMENT

(1.) The petitioner is a Shop Inspector serving with the Rajkot Municipal Corporation Rajkot. He filed complaint against opponent No. 1 original accused alleging that the opponent-accused bad contravened the provisions of Bombay Shops and Establishments Act 1948 (hereinafter referred to as the Act) inasmuch as he had kept open his establishment on the weekly holiday and that he had taken work from the servant Rajubhai Ladharam. It was also alleged that the weekly holiday was not notified and the visit book was not produced when demanded. On these allegations it was alleged that the accused had contravened the provisions of sec. 15(1) of the Act and thereby committed an offence punishable under sec. As(b) and had also contravened the provisions of sec 51 punishable under sec. 52(e) of the Act. In support of the allegations the appellant-original complainant examined himself and examined other two witnesses also. He produced the order passed by the Deputy Municipal Commissioner granting sanction to prosecute the accused. This order is produced at Exh. 16. He also produced a report at Exh. 21 by which he sought sanction from the Municipal Commissioner as required under the Act. In his deposition before the learned Magistrate he stated that he had sent all the case papers to the Deputy Municipal Commissioner for granting requisite sanction. Before prosecuting the accused a notice was issued against him. It appeals that as there was no reply to the notice a reminder was also sent. Since there was no reply he sent the case papers to the Deputy Municipal Commissioner and sought the sanction to prosecute. As per order dated 25/02/1984 (Exh. 16) necessary Sanction to prosecute was granted and thereafter on 7/03/1984 the Shop Inspector filed the complaint for the offence as alleged hereinabove.

(2.) Before the learned Magistrate a question was raised that sanction to prosecute given by the appropriate authority suffered from the vice of non-application of mind as it was granted in a routine manner and therefore the cognizance taken of the offence against the accused was not legal and valid. It is also contended that the sanction was not in conformity with the provisions of sec 60 of the Act and the prosecution was required to be dropped. This contention raised by the accused was upheld by the learned Magistrate. The learned Magistrate has put much reliance on the fact that the Shop Inspector himself deposed to the effect that Exh. 16 was received back by him duly signed in routine course. From this part of the evidence the learned Magistrate inferred that before granting sanction the sanctioning authority had not applied his mind and the case was dealt with in mechanical manner. The learned Magistrate was also impressed by the fact that in the order granting sanction the blanks were filled in by the complainant himself and the sanctioning authority had not written anything. On this basis he came to the conclusion that the authority granting the sanction had not applied his mind and hence he held that the prosecution was required to be dropped.

(3.) Sec. 60 of the Act provides that no prosecution under the Act shall be instituted except by an Inspector and that there shall have to be previous sanction of the authority mentioned in the section. There is no dispute regarding the fact that in this case the sanctioning authority would be Deputy Municipal Commissioner. The principles of law underlying in this section are well-settled. The order of sanction on the face of it should show that the facts constituting the offence were present in the mind of the sanctioning authority and such facts should be there on the order granting the saction. If on the face of it the order does not show the facts constituting the offence that it will be open to the prosecution to show by other evidence also that those facts were placed before the sanctioning authority. In this connection reference may be made to the decision of the Privy Council in the case of Gokulchand Dwarkadas v. The King reported in AIR (35) 1948 Privy Council 82. As laid down in the case before the Privy Council it must be proved that the sanction was given in respect of the facts constituting the offence charged. It would be desirable that such facts should be referred to on the face of the sanction but if the facts constituting offence charged are not shown on the face of the sanction the prosecution must prove by extraneous evidence that these facts were placed before the sanctioning authority. The aforesaid principle has been laid down in the context of Cotton Cloth and Yarn (Control) Order (1943) but the same principle would also apply to the provisions of sec. 60 of the Act.