ABU HASAN Vs. EMPEROR

JUDGEMENT

(1.) We are hearing these matters in revision, but, as well as the point of law, we have had the evidence laid before us. It is a prosecution under the Defence of India Consolidation Rules of 1915. Under Rule 21A of those rules it is made an offence to melt any current gold coin. It is urged against the accused No. 1 that he attempted to melt a number of sovereigns, add it is conceded that if he did attempt to melt sovereigns he is guilty under this rule together with another rule which penalizes attempts. It is provided by Rule 30 that "no Court shall take cognizance of any offence punishable under these rules" unless certain authorities, amongst whom is the District Magistrate, have "by order in writing consented to the initiation of the proceedings." We have in this case the order in writing which purports to be the consent to the initiation of the proceeding?, and that document recites that, in the exercise of the authority vented in him by Rule 30, the District Magistrate of Surat hereby consents to proceedings being; initiated against Memon Abu Hasan of Surat in the Court of the First Class Magistrate of Surat. The nature of the proceedings is not stated in the order. Memon Abu Hasan is the accused No. 1 in the case. After proceedings had been initiated against him, it transpired that there was another man, accused No. 2 in the case, who, it is alleged, abetted the offence by providing the sovereigns. It is claimed for him that there is no consent in writing to any proceedings against him. That, I think, is so. He might be got at, it seems to me, at most in only two ways, either by entering his name in the written consent, but that was not done, or possibly, (I will not say certainly) by describing the offence in the written consent and thereafter showing that he was concerned in that particular offence. But this has not been done either. There is no offence described in the consent in writing, and the name of accused No. 2 is not mentioned, therefore, it seems to me that accused No. 2 must be acquitted for the reason that I have stated that the proceedings against him have not been consented to in writing. This is a great deal more than a merely technical matter. We are dealing with an act which has been made an offence by certain rules which are temporary in their nature and are made to meet a special emergency. It is specially provided that there must be consent in writing for the initiation of proceedings. This is intended as a real safeguard and it must be given fall effect to. That has not happened in this case as regards accused No. 2.

(2.) This rule about a consent in writing is, as I read it, intended to be an undertaking by the Government that no one shall be prosecuted unless his case has been considered by one of the authorities named. This has to be shown by a consent in writing. There is no guarantee here that the case of accused No. 2 received any consideration whatever from the District Magistrate. Therefore, to uphold his conviction would cause a breach of an undertaking given by the Government. To that we cannot possibly consent

(3.) It is urged also that the consent in writing does not properly cover even the case of accused No. I. We think, however, that it does cover his case, because he is named and from what happened contemporaneously with the grant of this consent there is no doubt that the nature of the proceedings to be initiated was known and understood, so that the omission of mention of them in the document does not render that document inoperative as regards accused No. 1. But I must say that the document is very carelessly drawn up, and further that proper care and attention ought to be given to these matters by the responsible officers.