AHSANUL HAQ Vs. KING-EMPEROR

JUDGEMENT

(1.) The applicants, Absanulal Haq and Tufail Ahamad were originally tried in the Court of Sbri E. C. Dube, First Class Magistrate, Nagpur, under Secs.7 and 8, Essential Supplies {Temporary Powers) Aofc, 1946, for contravention of the provisions of the Cotton Cloth Movements Control Order, 1913, on 9 July 1917 and they were convicted and sentenced on 9 December 1947. That order had, however, ceased to be in force long before the date of the alleged contravention and the order which was operative on the relevant date was the Cotton Textile Control of Movement) Order, 1946. This signified that the applicants could have been validly tried for a contravention of that order of 1946 after the requisite sanction thereto, as required by Clause 10, had been obtained. Their trial for contravention of the earlier order was, therefore, illegal and the Second Sessions Judge in appeal quashed their convictions on 24 to February 1948.

(2.) Thereafter, the requisite sanction under the order of 1946 for the prosecution of the applicants was obtained and they were in due course prosecuted for contravention of that order. The applicants plea of autrefois acquit under Section 403, Criminal P. 0., was rejected by the First Glass Magistrate, Nagpur, and their application for revision of his order was dismissed by the Second Additional Sessions Judge, Nagpur. They have now come up in revision to this Court.

(3.) I am in agreement with the view of the learned Second Additional Sessions Judge, Nagpur, that the order of the First Class Magistrate, Nagpur, rejecting the applicants plea of autrefois acquit as the first trial was void ab initio was correct. The position, shortly stated, was as follows. The applicants could have been tried solely for contravention of the provisions of the order of 1946, but only after the requisite sanction for that prosecution under Clause 10 of the Order had been obtained. As no such sanction bad, in fact, been obtained, the Court by which they were first tried was incompetent to try them and this rendered the trial illegal and void ab initio. In other words, there was juridical no trial at all