DWARKA PRASAD MARWARI (ACCUSED) Vs. EMPEROR

JUDGEMENT

(1.) This is an application against the order of the Additional District Magistrate of the Santal Fargannas remanding a case for retrial. The petitioner was convicted under Rule 81(4) of the Defence of India Rules and sentenced to undergo rigorous imprisonment for six months. It is said that he was in possession of 22 pieces of cloth which were unstamped and under marked mill made cloth and had thus- contravened the provisions of Order 13(c) of the Cotton Cloth and Yarn Control Order, 1943.

(2.) The petitioner appealed against his conviction, and the lower appellate Court remanded the case for retrial mainly on two grounds. The first ground was that under Clause 23 of the Cotton Cloth and Yarn Control Order, 1913, sanction of the "Provincial Government was necessary before a prosecution could be instituted against the petitioner. The Court of appeal thought that such a sanction had perhaps been obtained as there was on the record a copy of a letter from the Cloth Controller sanctioning the prosecution, but that the letter had not been exhibited at the trial. The petitioner had objected at the trial and his objection had been overruled by the Magistrate stating that the Court could take judicial notice of the paper conveying the sanction and the Sub divisional Officer endorsement on the order sheet and formal proof of these was not absolutely necessary. The Court of appeal, therefore, thought that the case must go back in order to bring on to the record byway of formal proof the sanction for the prosecution of the petitioner ordered by the Provincial Government. The other ground on which the Court of appeal thought it was necessary to remand the case was that the Notification made by the Textile Commissioner had not been brought on to the record and therefore, it was impossible to say that the possession of the 22 pieces of cloth was in contravention of Order 13(c) of the Cotton Cloth and Yarn Control Order, 1943. It was objected on behalf of the petitioner that the judgment of the lower appellate Court merely disclosed that perhaps there exists a letter from the Cloth Controller sanctioning the prosecution, but this is not the same thing as the Provincial Government sanctioning the prosecution. There appears to have been an amendment to Clause 23 of the Order by which the Provincial Government can delegate their power to certain officers to sanction prosecution, but this Notification was not made until 25 November 1944, whereas the Cloth Controller's letter is of 13 June 1944, and the proceedings were instituted against the petitioners on 28 October 1944. It seems that even if there is the Cloth Controller's letter in existence somewhere, it an hardly be said that his order sanctioning the prosecution is the order of the Provincial Government a copy of it on the record, which the Additional District Magistrate received and on which he passed orders, does not purport to show that the prosecution was being sanctioned by the Provincial Government.

(3.) Having regard to the decision of the Federal Court in Basdeo Agarwala v. Emperor A.I.R. 1945 F.C. 161 the absence of a sanction is fatal to the institution of criminal proceeding When a sanction is obtained it will be open to the prosecution to proceed ab initio.