YUSOFALLI MULLA NOORBHOY Vs. KING

JUDGEMENT

(1.) THIS is an appeal by special leave against' two judgments of the High Court of Judicature at Bombay, dated June 17, 1947, setting aside two orders of the Court of the Presidency Magistrate. 6th Additional Court, dated September 16, 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 try reason of the provisions of Section 408 of the Code of Criminal Procedure, 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 of autre fois acquit was open to the appellant, and that question in essence depends upon whether the earlier prosecution 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 (7) read with Section 5 of the Ordinance with the offence of hoarding. He was also separately charged in the said Court, under Section 18 (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.) 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.