1. This is an appeal by the Government of the Province of Bombay against the acquittal of Yusofalli Mulla Noorbhai who was tried by the Presidency Magistrate, 6th Additional Court, Bombay, for contravention of the provisions of Clause 6 of the Hoarding and Profiteering Prevention Ordinance, an offence punishable under Clause 13(1) thereof. The accused was the sole proprietor of a firm named Alladin Dhanji, which dealt in crockery, and the case against him was that on or about May 26, 1945, he offered for sale a number of articles at prices which were higher than those allowed by the Hoarding and Profiteering Prevention Ordinance, such conduct on his part amounting to contravention of the provisions prescribed in Clause 6. The accused had previously been tried in case No. 284/S of 1945 on the same facts by the same Magistrate, but he was acquitted on the ground that the sanction required under Clause 14 of the Ordinance, which purported to have been given by the Controller General of Civil Supplies, was invalid in law. In the present case the learned Magistrate has purported to act under Section 403 of the Criminal Procedure Code in acquitting the accused. Some time after the hearing had commenced learned Counsel for the accused raised a preliminary objection against the present trial under Section 403 and on December 17, 1945, Mr. Khandalawalla, who appeared for the prosecution, made a statement that in view of the High Court's decision in Emperor v. Purshottam Harjivan (1945) 48 Bom. L.R. 378 as the Court was not competent to try the offence he did not wish to tender the witnesses already examined for further cross-examination nor to lead further evidence. On November 20, 1945, this Court had decided that a notification issued under Clause 14 of the Hoarding and Profiteering Prevention Ordinance empowering the Controller General of Civil Supplies to grant sanction for prosecution under the said Ordinance was invalid and ultra vires in the absence of proof that the officer so empowered was not below the rank of a District Magistrate, This was the decision referred to by Mr. Khandalawalla on December 17, 1945, though it does not appear that be produced the judgment of this Court at the time. It seems to us, however, clear in view of that decision that the sanction which was produced in case No. 284/S of 1945 cannot be regarded as a good sanction and that the learned Magistrate was right in following that decision. He held that 'the filing of the charge sheet by the prosecution in that case (that is, case No. 284/S of 1945) was invalid in law because the sanction was signed by the Controller General under notification of the Government of India and as such notification did not state that various officers therein mentioned were not above the rank of a District Magistrate' and that the invalidity of the sanction invalidated the prosecution in Court. The learned Magistrate in this case, however, has conic to the conclusion that the Court was competent to try case No. 284/S of 1945, that 'the bar is against the prosecution indulging in frivolous prosecution of and in protection of the accused' and that 'this bar has no reference to the character and status of the Court of law, and has nothing to do with the competency of the jurisdiction of a Court of law.' Holding, therefore, that the previous trial was by a Court of competent jurisdiction, he has held that the bar of Section 403 of the Criminal Procedure Code applies to the facts of this case and has accordingly acquitted the accused.
2. The learned Government Pleader has contended that the trial in case No. 284/S of 1945 was not a valid trial within the meaning of Section 408 and that, therefore, the present trial is not barred under that section. He has relied mainly on a decision of the Federal Court in Basdeo Agarwalla v. Emperor : (1945)47BOMLR392 . There the Court was concerned with a case under the Drugs Control Order, 1948, Clause 16 of which provided that 'no prosecution for any contravention of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government.' This clause is very similar to Clause 14 of the Ordinance under consideration, which reads:
No prosecution for any offence punishable under this Ordinance shall be instituted excep with the previous sanction of the Central or the Provincial Government or of an officer not below the rank (in a Presidency-town a Deputy Commissioner of Police, or elsewhere) of a District Magistrate empowered by the Central or the Provincial Government to grant such sanction.
3. In Basdeo Agarwalla's case the accused, who was charged with two offences under the Drugs Control Order, was produced before the Chief Presidency Magistrate on May 2, 1944, and a challan under Rules 81(4) and 121 of the Defence of India Rules was also filed on the same day. Thereafter it was only on May 24, 1944, that the sanction required by Clause 16 seems to have been filed, and their Lordships held that the absence of sanction prior to the institution of the prosecution could not be regarded as a mere technical defect, and that the decision (as indicated by the sanction) whether the accused should be prosecuted or not under the provisions of the Order must be made before the prosecution was actually initiated. Their Lordships observed (p. 398):
In our judgment the words of Clause 16 of this Order are plain and imperative, and it is essential that the provisions should be observed with complete strictness and where prosecutions have been initiated without the requisite sanction, that they should be regarded as completely null and void, and if sanction is subsequently given, that new proceedings should be commenced ab initio. Only so can the protection intended for the citizen be assured.
4. Their Lordships found that in that case the prosecution had been clearly instituted without the previous sanction required under Clause 16 and accordingly held that the whole proceedings in the case were null and void. It is no doubt true that in that case when the proceedings were initiated there had been no sanction at all, and Mr. Vimadalal on behalf of the accused has sought to draw a distinction between that case and the present one on the ground that in this case the document purporting to be the requisite sanction had been obtained before the proceedings in Court were commenced. It does not seem to us, however, that there is any distinction in principle on this point between the case decided by the Federal Court and the present case. If it is held, as we think it must be held, that the sanction that was produced in the earlier case was an invalid sanction, it must follow that the prosecution in the earlier case, not having been instituted with the requisite sanction, was not validly instituted. If that was so, it cannot be said that there was in the earlier case any proper or legal trial, and the words used in the Federal Court's judgment that the proceedings were 'completely null and void' would apply with equal force to the proceedings in case No. 284/S of 1945.
5. Mr. Vimadalal, however, has contended that those words should not be interpreted to mean that the trial in the earlier case has been ab initio invalid or void. He has referred in this connection to Emperor v. Pandu Kusha : (1943)45BOMLR902 and Emperor v. Vithal Tukaram : AIR1945Bom183 , In the earlier of these cases certain accused persons having been tried by a jury in excess of the legal number (that is, by a jury consisting of 9 persons where the proper jury should have been composed of 5) it was held that the trial was 'necessarily a nullity' and the convictions of the appellants-accused were set aside and they were acquitted. Certain of the accused persons who had been acquitted at the trial, not being interested in the validity of the convictions of their co-accused who appealed to the High Court, remained satisfied with their acquittals, but later on they were again prosecuted; and the case of Emperor v. Vithal Tukaram arose out of those subsequent proceedings. Those accused persons pleaded the bar of Section 403(1) of the Criminal Procedure Code and contended that their retrial was improper and barred. This Court came to the conclusion that the expression that the earlier trial was 'necessarily a nullity', which appears in Emperor v. Pandu Kusha, did not mean that there had been a nullity in the sense that the Court had ab initio no jurisdiction to try the case; and it was held that the Court which had tried the earlier case had jurisdiction to try it although the Court had been guilty of a serious irregularity which might be said, in somewhat, loose phraseology, to have resulted in a trial which was void or was a nullity. That is the manner in which this Court found it necessary to interpret the expression 'necessarily a nullity' used in Emperor v. Pandu Kusha, with reference to the facts of that case. It seems to us, however, that it is impossible to adopt a similar interpretation with regard to the expression 'completely null and void' used by the Federal Court in Basdeo Agarwalla's case and that there can be no doubt that the Court meant exactly what the expression says, having held that the prosecution had not been initiated with the requisite sanction. We must, therefore, uphold the argument of the learned Government Pleader that in this case the sanction which was produced in the earlier case not having been a valid sanction there was no valid trial within the meaning of Section 403 of the Criminal Procedure Code of case No. 284/S of 1945.
6. On this point it seems to us that certain cases decided with reference to Section 195 of the Criminal Procedure Code provide a useful analogy to the present case. In Emperor v. Jivram Dankarji 17 Bom. L.R. 881 the accused was tried in a Court of Session for abetment of forgery under Sections 467 and 109 of the Indian Penal Code and was acquitted. He was again tried for using as genuine the same forged document under Section 471 of the Penal Code, when it was objected that the previous acquittal was a bar to the second trial under Section 403 of the Criminal Procedure Code. It appears that at the time of the earlier trial there had been no proper complaint lodged in respect of the offence under Section 471 as required under Section 195 of the Criminal Procedure Code and it was held inter alia that the case fell under Sub-section (4) of Section 403, because the Court which had acquitted the accused on the charge of abetment of forgery had not been competent to try the offence under Section 471 of the Indian Penal Code, inasmuch as at the time of such trial there had been no proper complaint in respect of the latter offence. This decision was followed in Emperor v. Ambaji Dhakya (30 Bom. L.R. 380 where two previous prosecutions had been instituted against the accused, the first under Section 178 of the Indian Penal Code and the second under Section 174. The first case had been withdrawn on the ground that the prosecution was instituted under a wrong section and the second had also been withdrawn on the ground that there was no proper complaint in accordance with Section 195 of the Criminal Procedure Code. There was a third complaint under Section 174, on the same facts, and the accused was convicted. Fawcett J., in applying Section 403(4), held that the words 'not competent to try' therein included the meaning 'not having jurisdiction to try', and the conviction was upheld. He differed from the view taken by the Madras High Court which had held that Sub-section (4) of Section 403 referred to the character and status of the tribunal when it referred to the competency to try an offence, and that a sanction under Section 195 of the Criminal Procedure Code was not a condition of the competency of the tribunal but only a condition precedent for the institution of proceedings: In re Ganapathi Bhatta I.L.R.(1911) Mad. 308 . It will be seen that our High Court has not been inclined to draw any material distinction between the question of competency or jurisdiction of the Court and the question of the validity of a trial so far as the provisions of Section 403 of the Criminal Procedure Code are concerned. The material part of Section 195 of the Criminal Procedure Code referred to in the two decisions cited above is that no Court 'shall take cognizance' of the offence except with the previous sanction, or on the complaint, of such Court, clearly showing that the proceedings can be initiated only on such sanction or complaint being given or made. The learned Government Pleader, however, has not argued before us that the Court which tried the earlier case had jurisdiction to try it, and it is unnecessary, in view of the conclusion we have already reached, to decide specifically this question.
7. Mr. Vimadalal has finally relied on the case of Emperor v. Anant Narayan (1944) 47 Bom. L.R. 138 and has contended that in this case the present trial of the accused ought to be prevented in view of the principle enunciated in that case. There the accused. a kulkarni, who was found to have misappropriated a certain amount belonging to Government, was charged first under Sections 409 and 466 of the Indian Penal Code in respect of two items, and the result of the trial, which was by a jury, was that he was acquitted. Later on he was again put on his trial in respect of a certain amount which was a part of the total amount which at the investigation he had been found to have misappropriated; and it was held that even if the plea of autrefois acquit under Section 403 of the Criminal Procedure Code was not technically available to the accused, the principle of it was in the circumstances of the case available to him in the interests of justice and that he should not be tried again for the third offence. The basis of the decision was the principle enunciated by Subrahmania Ayyar J. in Emperor v. Chinna Kalliappa Gounden I.L.R. (1905) Mad. 126. Mr. Vimadalal has contended, in view of the fact that at the earlier trial the proceedings had gone on almost to the end and as the accused was not responsible for the technical defect that resulted in his acquittal at that trial, that his second trial on the same facts should be regarded as unduly burdensome and should be prevented. We do not think, however, that this is a case to which the principle enunciated in Anant Narayan Kulkarni's case should be applied. In that case the accused had undergone one complete and lengthy trial already before the second trial was instituted, and the jury had unanimously held the accused not guilty; and though it seemed probable that the prosecution of the accused in that case was spilt up owing to some technical considerations, at least two circumstances which existed in that case are wanting in the present case, namely, that the accused had already suffered one lengthy and complete trial and that it was undesirable that in the second trial there should be any risk of the jury's taking a view different from the one taken at the first trial. In this case there has been a technical defect in the first trial, which the prosecution speedily repaired, and having obtained a fresh sanction have initiated the second trial without undue delay. We, therefore, think that there is no ground for applying the principle relied upon to the present trial. Accordingly, we set aside the order of the learned Magistrate acquitting the accused and direct that the case should be sent to the Chief Presidency Magistrate who should send the case to any Magistrate other than Mr. Vyas for disposal according to law.