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Ahsanul Haq and anr. Vs. King-emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in1949CriLJ927
AppellantAhsanul Haq and anr.
RespondentKing-emperor
Excerpt:
- - 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. moreover, the allegations against the applicants relating, as they do, to the export of 360 hand- loom new loongis from nagpur to sind in con travention of the order of 1946 are clearly ones of gravity......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.....
Judgment:
ORDER

Hemeon, J.

1. The applicants, Absanulal Haq and Tufail Ahamad were originally tried in the Court of Sbri E. C. Dube, First Class Magistrate, Nagpur, under Sections 7 and 8, Essential Supplies {Temporary Powers) Aofc, 1946, for contravention of the provisions of the Cotton Cloth Movements Control Order, 1913, on 9th July 1917 and they were convicted and sentenced on 9th 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

4. Jurisdiction was conferred on the Court by the sanotion as their Lordships of the Judicial Committee of the Privy Council pointed out: in Gokulohand Dwarkadas Morarka v. The j King In Nanakram v. Emperor AIR 1918 Nag. 126: 19 Or. L. J. 796 the view i taken was that Section 403 (l), Criminal P. 0., was no ' bar to a fresh trial of an accused where the first I trial was ab initio void owing to the absence of I a complaint; and in Emperor v. Mahabirpuri, 2 N. L. B. 149 : l Cri. L.J. 422 Drake-Brook- man 0. J. C, as he then was, ruled that 8. 103 (1), Criminal P. C, had no application to a case in wbioh there was no complaint at all. In Babulal M ah ton v, King-Emperor, 9 Pat. 685: A.l.R. 1930 pat. 26: 80 Cri. L. J. 806 a Division Bench laid it down that where the acts of an accused person constitute more than one offence, the trial and conviction of the accused in respect of one of such offences is not a bar to his subsequent trial and conviction of any other offence constituted by the same fact, provided that the Court which tried the first offence was not, at the time of first trial, competent to try the offence subsequently charged.

5. In In re Muthu Moopan, I.L.R. (1987) Mad. 664 : (A.I.R. 1987 Mad. 801: 88 Cri. L.J. 167,a Full Bench decided that in a case where a Magistrate acquits an accused, after framing a charge and recording defence evidence, on the ground that the requisite com-plaint had not been filed, his trial, charge and judgment of acquittal are ail void under Section 630, Criminal P. C.; and 8. 408 (l) ibid is no bar to the trial of the accused for the same offence on a complaint filed by the public servant concern, ed. In P. Banerjee v. Bepin Behari Ghose A.I.R. 1926 Cal. 691: 27 Or. L. J. 751 an accused, who was prosecuted under 8. si, Bengal Food Adulteration Act without any order or consent in writing of the Municipal Commissioners within the meaning of 8, 16 of the Act, was subsequently acquitted, but the Division Bench in that case held that this constituted no bar to a subsequent trial on the same facts foe the same offence, as the original prosecution of the accused was incompetent and no cognizance could have been taken by any Court of any offence alleged to have been committed by him.

6. Knox J. in Emperor v. Husain Khan : AIR1917All410 decided that where a conviction and sentence are set aside merely for want of jurisdiction, there is no bar to a fresh trial on the same facts; and in Crown v. Ramrakah I. L. R. (1939) Lah. 373 : A. I. R. 1938 Lab. 626: 89 Or. L. J. 960 a Division Bench was of the view that the plea of autrefois acquit as contemplated by 8. 403 (l), Criminal P. 0., did not apply to a case in which the first Court was not competent to try the offence within the meaning of 8 408 (l) Hid. Finally, a Division Bench in Shankar Tulsiram v. Kundlik Anyaba, 68 bom. 69 : A.I.R. 1928 bom. 530 : 30 Or. L. J. 64 decided that where an accused person is tried and acquitted of an offence by a Court having no jurisdiction to try the offence, a subsequent trial for the same offence by a Court of competent jurisdiction is not barred under the provisions of 8. 403, Criminal P.C.

7. There is thus no substance in the contention raised in the applicants' behalf. It was, however, represented in their behalf that the original trial began so long ago as 25th August 1947 and that each of them had served about af months of his sentence already. These facts can- not, however, of themselves stand in the way of a fresh trial, although they will no doubt be taken into consideration if the applicants are convicted and sentenced at the end of their trial. Moreover, the allegations against the applicants relating, as they do, to the export of 360 hand- loom new loongis from Nagpur to Sind in con travention of the Order of 1946 are clearly ones of gravity. The application is dismissed.


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