1. In this appeal, by special leave under S. 417(3) of the Code of Criminal Procedure, the appellant, municipal committee, Saoner, is challenging the correctness of the acquittal of respondent 1 of an offence under S. 53 of the Bombay Shops and Establishments Act, 1948.
2. The appellant-committee, through its inspector appointed under S. 48 of the Bombay Shops and Establishments Act, 1948, had prosecuted respondent 1 under S. 53 of that Act, for contravening S. 12 by effecting certain sales beyond the closing hours of the shop on March 10, 1965. The respondent had challenge the tenability of the prosecution on the ground that previous sanction as required by S. 60 was not given by the proper authority before instituting the prosecution. The learned trial magistrate upheld this preliminary objection and held that the prosecution, without the requisite prior sanction, was not tenable. In that view, he acquitted the respondent. That is how the matter was brought before this Court.
3. Sri Gaikwad, advocate for the appellant-committee, was submitting that the Magistrate was in error in taking the view that no prior sanction was given. He relied on the resolution dated February 24, 1965, passed by the complaint-committee (p. 16 of the paper-book) in support of his contention that a valid sanction was given for this prosecution by that resolution. Sri G. S. Padhye, advocate for respondent 1, submitted, on the other hand, that this resolution was in one sense redundant and in another sense it was beyond the powers of the appellant-committee if thereby the appellant purported to delegate its powers of sanction to the inspector. He supported the reasoning of the learned trial magistrate.
4. The administration of the Bombay Shops and Establishments Act, 1948, has been entrusted to local authorities. Under S. 2(15) a 'local authority' means a body specified in Sch. I-A and includes any other body which the State Government may, by notification in the official gazette, declare to be a local authority for the purposes of this Act. The appellant-committee does not fall within Sch. I-A and would, therefore, not be 'a local authority' under the section, as it stands. However, Sri Gaikwad showed Notification No. BSE 2261-Lab-III, dated March 27, 1963, on p. 1508 of Part I-L of official gazette dated April 25, 1963, by which the appellant-committee was declared to be a local authority for the purposes of the Act. Consequently, there can be no dispute that the sanction required by S. 60 had to be given only by the local authority, viz., the appellant-committee and not by the District Magistrate.
5. Section 60, Sub-section (1), of the Bombay Shops and Establishments Act, 1948, is in the following words :
'No prosecution under this Act or the rules or orders made thereunder shall be instituted except by an inspector and except with the previous sanction of the District Magistrate or the local authority, as the case may be : Provided that any local authority may direct that the powers conferred on it by this sub-section shall, in such circumstances and subject to such conditions, if any, as may be specified in the direction, be exercised by its standing committee or by its committee appointed by it in this behalf.'
6. This section would unmistakably show that two conditions precedent have to be satisfied for a successful prosecution under this Act. The first is that the prosecution has to be 'instituted' by an inspector appointed under S. 48. That condition has been fulfilled in this case. The second condition is that no prosecution under the Act shall be instituted 'except with the previous sanction of the local authority.' The only question now is whether the resolution No. 4(c), dated February 24, 1965, can amount to a previous sanction of the local authority within the meaning of this section. That resolution is in the following words :
'... All the powers for filing a complaint and taking action for the offences committed in contravention with the Bombay Shops and Establishments Act, 1948, have been empowered to the shop inspector, Sri A. J. Lad.'
7. Since S. 60 itself authorizes inspectors appointed under the Act to institute proceedings under the Act, there was no point in the committee empowering the inspector with a power to file a complaint, and that part of the resolution was obviously superfluous and redundant. The remaining part also relates to empowering the inspector with 'taking action for the offences committed in contravention with the Act.' That also would again mean authorizing him to prosecute persons who are guilty under the Act and it would again be redundant. Sri Gaikwad wanted this latter half of that resolution to operate as a previous sanction to launch prosecutions, which the local authority was authorized and required to give as a condition precedent for launching prosecutions. When the resolution only purports to give authority to the shop inspector to file a complaint and 'to take action for offences committed,' it would not amount to a previous sanction or delegation of a authority for granting previous sanction of the local authority for such prosecutions. What the resolution calls upon him to do is to execute the sanction which would have to be given by the municipality. Grant of power to execute the sanctions given by the authority would not, by any stretch of imagination, amount to the exercise of the power of the committee to sanction the prosecutions themselves. Sri Gaikwad has not been able to satisfy me how this resolution, as it stands, could possibly be interpreted as amounting to the grant of a sanction by the committee for launching prosecutions. The plain language of the resolution only shows that the committee purported to empower the inspector with the powers to take action for the offences committed and to launch prosecutions, though those powers were already granted to the inspector by Ss. 49 and 52. Sri Gaikwad was not right in submitting that the inspector required no further empowering from the authority for taking steps of prosecuting people under the Act. Sub-section (bb) of S. 49 relating to the powers and duties of the inspector, lays down that in regard to offences under S. 52 or 55, the inspector can take action of seizure of documents, records, etc., with the previous permission of the local authority. True, such previous sanction is not required for offences, say under S. 53' as in the present case; but the resolution, as it stands, purports to grant general authority to the inspector as per S. 49(bb) for taking the requisite action even in prosecutions under Ss. 52 and 55. The language of the resolution would not lend itself to the interpretation of Sri Gaikwad that it evinces the exercise by the committee of its power to sanction a prosecution, under this Act. In that view, the present prosecution, without a previous sanction, was obviously untenable.
8. In the course of arguments it seemed to be suggested that if this resolution did not amount to the exercise of its powers of sanction by the local authority, it, at least, amounts to a delegation of its powers of granting a sanction for prosecution, to the inspector. Even that interpretation cannot be accepted. The proviso to S. 60(1) only authorizes the local authority to delegate its powers under S. 60(1) to the standing committee or to a smaller committee, and there is no warrant in the proviso to permit delegation of those powers to an individual official, whether he be an inspector or anyone else. Secondly, a perusal of S. 60 would show that the second condition precedent of a previous sanction, either from the District Magistrate or the local authority, obviously assumes that such sanction is to be given by an authority superior to the inspector, who is to launch the prosecution under condition 1. Accepting the suggestion in the argument would mean that the powers of executing the sanction for launching the prosecution as also the power of giving the sanction itself, have been given to the same official, which could obviously not be the intention of law. This resolution cannot, therefore, be treated as a delegation of the committee's powers to the shop inspector. In that view also, the prosecution was obviously untenable for the want of previous sanction.
9. Sri Gaikwad was then submitting that the authorization 'in this behalf' would also cover an authorization to a subordinate official like the shop inspector. He was relying on a decision in Corporation of Madras v. Arumugham : AIR1966Mad194 . In that case the question was whether there was any necessity of a specific sanction as regards an offence and person, and the learned single Judge had held that a general authority conferred on an officer was legal, and there was no necessity of any individual sanction. That decision was based on the wordings of S. 20 of the Prevention of Food Adulteration Act (37 of 1954). That section was in the following words :
'No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a local authority or a person authorized in this behalf by the State Government or a local authority.'
10. Apparently, the inspector was so authorized under this section. The learned single Judge held that such authority to him was valid. It would, however, be realized at once that the decision could not be of any help in the present case at all for two reasons; Firstly, that section itself permits an action to be taken either by the State Government or by a local authority 'or a person authorized in this behalf.' I have already indicated from the proviso to S. 60(1) of the Bombay Shops and Establishments Act quoted above, that there was no provision to authorize an individual official or a person to grant the requisite sanction. Unlike S. 20 of the Prevention of Food Adulteration Act, S. 60 of the Bombay Shops and Establishments Act limited the delegation by the local authority to either its standing committee or another committee which may be smaller or bigger than the standing committee. But there was no provision to authorize an individual subordinate official. Secondly, S. 20 of the Prevention of Food Adulteration Act spoke only of a written consent, either of the State Government or a local authority or a person authorized in that behalf. Under S. 60 of the Bombay Shops and Establishments Act, however, there had to be a previous sanction and not a mere written consent. Giving consent as in S. 20 could be consistent with some other authority or official taking a decision to launch a prosecution subject to some other authority or person specially empowered giving its or his consent. In that case, the person giving the consent is not required to apply his mind and to decide whether the prosecution should be launched or not, that decision being already taken by some other official. Section 60(1) of the Bombay Shops and Establishments Act, however, would not be complied with by a mere written consent, but it requires the 'previous sanction' of the District Magistrate or the local authority. Obviously, the authority granting a sanction has to apply its mind to the facts of each case and to decide whether a particular prosecution should or should not be launched. Normally, the authority granting a sanction has to apply its mind to all the facts and facets of the case that are present and to come to a decision that such a prosecution ought to be filed and then to sanction it. This requirement of a previous sanction under S. 60(1) would necessarily envisage the application of the authority's mind to an individual case before the prosecution is sanctioned or ordered and then put up in Court. A general authority of the kind mentioned in the resolution dated February 24, 1965, cannot possibly be treated as evidence of the fact that the authority had applied its mind to the facts of the particular case for deciding whether a prosecution should or should not be launched. The requirements of a previous sanction would necessarily imply the consideration of each case on its merits by the sanctioning authority and an application of its mind which should ordinarily be apparent from the order of sanction passed. For all these reasons the Madras decision was of no avail to Sri Gaikwad.
11. Sri Gaikwad was then submitting that there are some practical difficulties in obtaining previous sanction in each and every case. According to him, there could be numerous cases under the Act and it would be too much to except the inspector to obtain a previous sanction in each and every case before launching the prosecution. I am not aware about the extent of the cases under the Act and even if it were to be assumed that there is a likelihood of a large number of cases under the Act, that circumstances, by itself, would not authorize or permit disregard of the provisions of S. 60(1). If there are practical difficulties it is for the committee and other local authorities to bring them to the notice of the Government, so that S. 60(1) may be amended by deleting the provision of 'a previous sanction'; but so long as the provision stands, the law must be given effect to and there is no scope for whittling down provisions of law merely because of some assumed or possible practical exigencies. With S. 60(1) as it stands, the order of the learned Magistrate holding that the prosecution must fail for want of proper sanction is correct and must be affirmed.
12. The last submission made by Sri Gaikwad was that even if the magistrate were right in his view, that the prosecution was not tenable without a prior sanction, his order of acquittal was erroneous and without jurisdiction. Even Sri G. S. Padhye, advocate for the respondent, did not dispute that submission of Sri Gaikwad. Under S. 80(1), a magistrate was authorized to take cognizance only on the fulfilment of the two conditions mentioned therein and in the absence of those conditions, he had no jurisdiction to take cognizance; when he had no jurisdiction, he had certainly no authority to acquit the accused and the only order which he could have passed was of quashing the complaint and the proceedings. He could neither have passed an order of discharge, nor of an acquittal, nor of a conviction. However, I see no point in setting aside that erroneous order of an acquittal for the simple reason that even if that were done, no useful purpose would be served because no fresh prosecution can be launched in view of S. 61 of the Act which prescribes the limitation of three months.
13. In the result, the appeal is dismissed. The bail bond of respondent 1 is cancelled.