EMPEROR Vs. YUSOFALLI NOORBHAI

JUDGEMENT

(1.) THIS is an appeal by the Government of the Province of Bombay against the acquittal of Yusofalli Mulla Noorbhai who was tried by the Presidency Magistrate, 6th Additional Court, Bombay, for contravention of the provisions of Clause 6 of the Hoarding and Profiteering Prevention Ordinance, an offence punishable under Clause 13 (1) thereof. The accused was the sole proprietor of a firm named Alladin Dhanji, which dealt in crockery, and the case against him was that on or about May 26, 1945, he offered for sale a number of articles at prices which were higher than those allowed by the Hoarding and Profiteering Prevention Ordinance, such conduct on his part amounting to contravention of the provisions prescribed in Clause 6. The accused had previously been tried in case No.284/s of 1945 on the same facts by the same Magistrate, but he was acquitted on the ground that the sanction required under Clause 14 of the Ordinance, which purported to have been given by the Controller General of Civil Supplies, was invalid in law. In the present case the learned Magistrate has purported to act under Section 403 of the Criminal Procedure Code in acquitting the accused. Some time after the hearing had commenced learned Counsel for the accused raised a preliminary objection against the present trial under Section 403 and on December 17, 1945, Mr. Khandalawalla, who appeared for the prosecution, made a statement that in view of the High Court's decision in Emperor v. Purshottam Harjivan (1945) 48 Bom. L. R. 378, as the Court was not competent to try the offence he did not wish to tender the witnesses already examined for further cross-examination nor to lead further evidence. On November 20, 1945, this Court had decided that a notification issued under Clause 14 of the Hoarding and Profiteering Prevention Ordinance empowering the Controller General of Civil Supplies to grant sanction for prosecution under the said Ordinance was invalid and ultra vires in the absence of proof that the officer so empowered was not below the rank of a District Magistrate, THIS was the decision referred to by Mr. Khandalawalla on December 17, 1945, though it does not appear that be produced the judgment of this Court at the time. It seems to us, however, clear in view of that decision that the sanction which was produced in case No.284/s of 1945 cannot be regarded as a good sanction and that the learned Magistrate was right in following that decision. He held that "the filing of the charge sheet by the prosecution in that case (that is, case No.284/s of 1945) was invalid in law because the sanction was signed by the Controller General under notification of the Government of India and as such notification did not state that various officers therein mentioned were not above the rank of a District Magistrate" and that the invalidity of the sanction invalidated the prosecution in Court. The learned Magistrate in this case, however, has conic to the conclusion that the Court was competent to try case No.284/s of 1945, that "the bar is against the prosecution indulging in frivolous prosecution of and in protection of the accused" and that "this bar has no reference to the character and status of the Court of law, and has nothing to do with the competency of the jurisdiction of a Court of law. " Holding, therefore, that the previous trial was by a Court of competent jurisdiction, he has held that the bar of Section 403 of the Criminal Procedure Code applies to the facts of this case and has accordingly acquitted the accused.

(2.) THE learned Government Pleader has contended that the trial in case No.284/s of 1945 was not a valid trial within the meaning of Section 408 and that, therefore, the present trial is not barred under that section. He has relied mainly on a decision of the Federal Court in Basdeo Agarwalla v. Emperor (1945) 47 Bom. L. R. 392, F. C. THEre the Court was concerned with a case under the Drugs Control Order, 1948, Clause 16 of which provided that "no prosecution for any contravention of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government. " This clause is very similar to Clause 14 of the Ordinance under consideration, which reads: No prosecution for any offence punishable under this Ordinance shall be instituted excep with the previous sanction of the Central or the Provincial Government or of an officer not below the rank (in a Presidency-town a Deputy Commissioner of Police, or elsewhere) of a District Magistrate empowered by the Central or the Provincial Government to grant such sanction.

(3.) MR. Vimadalal, however, has contended that those words should not be interpreted to mean that the trial in the earlier case has been ab initio invalid or void. He has referred in this connection to Emperor v. Pandu Kusha (1943) 45 Bom. L. R. 902 and Emperor v. Vithal Tukaram (1944) 46 Bom. L. R. 860, In the earlier of these cases certain accused persons having been tried by a jury in excess of the legal number (that is, by a jury consisting of 9 persons where the proper jury should have been composed of 5) it was held that the trial was "necessarily a nullity" and the convictions of the appellants-accused were set aside and they were acquitted. Certain of the accused persons who had been acquitted at the trial, not being interested in the validity of the convictions of their co-accused who appealed to the High Court, remained satisfied with their acquittals, but later on they were again prosecuted; and the case of Emperor v. Vithal Tukaram arose out of those subsequent proceedings. Those accused persons pleaded the bar of Section 403 (1) of the Criminal Procedure Code and contended that their retrial was improper and barred. This Court came to the conclusion that the expression that the earlier trial was "necessarily a nullity", which appears in Emperor v. Pandu Kusha, did not mean that there had been a nullity in the sense that the Court had ab initio no jurisdiction to try the case; and it was held that the Court which had tried the earlier case had jurisdiction to try it although the Court had been guilty of a serious irregularity which might be said, in somewhat, loose phraseology, to have resulted in a trial which was void or was a nullity. That is the manner in which this Court found it necessary to interpret the expression "necessarily a nullity" used in Emperor v. Pandu Kusha, with reference to the facts of that case. It seems to us, however, that it is impossible to adopt a similar interpretation with regard to the expression "completely null and void" used by the Federal Court in Basdeo Agarwalla's case and that there can be no doubt that the Court meant exactly what the expression says, having held that the prosecution had not been initiated with the requisite sanction. We must, therefore, uphold the argument of the learned Government Pleader that in this case the sanction which was produced in the earlier case not having been a valid sanction there was no valid trial within the meaning of Section 403 of the Criminal Procedure Code of case No.284/s of 1945.