1. This is an appeal by the State against acquittal of the respondent, Shavakshaw Ratanji Deboo, in respect of breaches of Ss. 18(1) and 62 and rule 20(13)(a) of the rules framed under the Maharashtra Shops and Establishments Act.
2. Sri S. A. R. Rizvi, Inspector under the Bombay Shops and Establishments Act, filed a complaint in the Court of the Judicial Magistrate, First Class, Hingoli, against the respondent charging him with breach of the above provision of the Shops and Establishments Act and the rules framed thereunder. In respect of S. 18(1) the complaint stated that the accused had not closed his above-said establishment on its 'closed' day. In respect of S. 62 of the Act, the accusation was that the accused had not maintained registers and records provided for under the Act and the complaint in respect of rule 20(13)(a) was that he had not maintained the visit book. It appears, along with the complaint, a sanction, purporting to have been given by the District Magistrate, for prosecution of the respondent, was also filed. That is exhibited at Ex.3 in the records of the trying magistrate.
3. At the trial certain witnesses were examined and so was the accused. The examination of the accused under S. 342, in the case, however, disclosed that no specific question was put to the accused as to what he had to say with respect of the sanction purported to have been given by the District Magistrate. During the course of the arguments, however, the sanction given by the District Magistrate was attacked on the ground that there is no proof that the sanctioning authority had applied its mind to the facts and circumstances of the particular case, out of which the prosecution has arisen. Neither the sanctioning order referred to such fats nor was there any other evidence aliened to show that the facts were brought to the notice of the sanctioning authority and that authority, after applying its mind, had sanctioned the prosecution of the accused. The learned magistrate accepted this contention of the accused and has acquitted him, though on facts the learned magistrate has found that the accused had committed breaches of the several provisions of the Act and the rules. The learned magistrate observed in Para. 6 of his judgment as follows :
'Thus looked at, there can be no doubt that the complainant has failed to establish the validity or the sanction in the present case. Exhibit 3 does not detail the facts which constitute the contraventions. It does not even mention what documents were placed before the District Magistrate. That it is on a stereotyped form is plain to the naked eye, for except for the name of the complainant and a few other particulars, the major portion of the sanction form is nothing but a cyclostyled form. Complainant has not led any evidence on this point. It, therefore, has to be held that the sanction is defective.'
On this finding the learned magistrate has acquitted the respondent.
4. In support of this appeal, the learned Assistant Government Pleader has urged that no objection was taken to the validity of the sanction except at the time of the arguments. It is difficult to hold that there was any obligation on the part of the respondent to raise such objection any stage prior to the stage when the contention was actually raised. As the record shows, no attempt was made by the prosecution to prove the sanction. Probably no proof may be necessary because the act of according sanction was an official act and the fact that the sanction emanated from the District Magistrate and bore the seal of his office was sufficient to prove the public document of the nature of the sanction. But what was required to be proved by the prosecution was not merely that they had obtained the sanction under S. 60 of the Bombay Shops and Establishments Act, but further, which always is a question of fact, that the sanctioning authority had applied its mind to the facts of the case of a particular accused and that the sanction was given after it was satisfied that prosecution should be launched. Section 60(1) of the Bombay Shops and Establishments Act is as follows :
'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 ...'
5. It is thus clear that the obtaining of a previous sanction of the District Magistrate or the local authority is a condition precedent for the initiation of the prosecution in respect of the breaches of the provisions of the Act or the rules or orders made thereunder. As observed by the learned magistrate, it is well-settled that the giving of sanction is not a mechanical act. It is a decision, which is to be arrived at by the sanctioning authority after informing itself as to what the facts are and then decide in the case of each person, who is alleged to have contravened the provisions of the Act or the rules framed thereunder whether such person should be prosecuted. The law is well-settled by the judicial decisions. In Gokulchand Dwarkadas Morarka v. The King 50 Bom. L.R. 389, Which is a decision of the Privy Council, the question was regarding the sanction under Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943. It was held that in order to comply with the provisions of Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, it must be proved that the sanction was given in respect of the facts constituting the offence charged. If the facts constituting the offence are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that these facts were placed before the sanctioning authority. Their lordships of the Supreme Court in B. Naik v. State of Orissa : 1954CriLJ1002 lay down the law to the same effect. After referring to the decision of the privy Council quoted above, their lordships observed as follows :
'It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out the facts in respect of which it is given than it was under Clause 23 of the order which their lordships were considering. The desirability of such a course is obvious because when the facts are not set out in the sanction, proof has to be given that sanction was given in respect of the facts constituting the offence charged, but an omission to do so is not fatal so long as the facts can be, and are, proved in some other way.'
6. It was thus open to the prosecution, at any rate, when an objection was raised during the course of the arguments before the learned magistrate, that there was no valid sanction to prosecute the accused, that an opportunity may be given to the prosecution to prove the fact that all the facts were placed before the sanctioning authority and that the sanctioning authority having applied its mind to the facts placed before it, had accorded the sanction. In the absence of any such attempt being made and an opportunity sought, I do not think it is possible to disturb the order passed by the learned magistrate. As observed by the learned magistrate, a bare look at the sanction shows how essential it is for the sanctioning authority not to sign as it were on dotted lines on a cyclostyled form of sanction. It appears, the name of the accused, the local area from which he came and the sections or the rules for the contravention of which sanction is granted, are typewritten, whereas the other portion of the sanctioning order is facsimile of a cyclostyled form. If reliance is placed merely on such documents without more, it could hardly satisfy the requirements of a conscious exercise of power of granting sanction, which has to be proved as a condition precedent before the prosecution can be validly initiated. That not having been done in this case, in my opinion, there is no error in the finding of acquittal recorded by the learned magistrate.
7. The result, therefore, is that the appeal fails and is dismissed.