(1) The respondents, five in number, were tried upon a charge under section 32/36 of the Administration of Evacuee Property Act and acquitted on the ground that a previous order of acquittal stood in the way of a conviction upon a second prosecution.
(2) The facts briefly are that the five respondents who are officials of the Custodian's Department were suspected of having 'maneuvered' a wrongful allotment in the name of one Ladha Mal who had been allotted land in a certain village. A report was made and the case was registered on 24-7-1956. Sanction by the Deputy Commissioner, Kapurthala, for the prosecution as required by section 38 of the Administration of Evacuee Property Act was given on 12-6-1957.
The challan was put into Court on 25-2-1958. After a number of witnesses had been examined, the representative of the State thought that no sanction as required by section 38 was in existence. He, therefore, made a prayer that the case may be dismissed on this ground. The trail Magistrate accordingly made an order on 2-6-1958 of which the concluding portion is as follows:
'As the prosecution withdraws its case no further proceedings need be taken in this case which is 'As the prosecution withdraws its case no further proceedings need been taken in this case which is filed and the accused are acquitted of the charge'.
(3) The accused were, therefore, acquitted on the ground that in the absence of a valid sanction under section 38 the Court had no jurisdiction to hear the case against them. It transpired later that this was due to an entire misconception on the part of the representative of the State. When proceedings were started a second time, it was realised that the Deputy Commissioner, Kapurthala, had given his sanction on 12-6-1957, i.e., some months before the case was put in to Court.
The accused raised the plea that they had been validly acquitted upon the previous occasion because the sanction was in existence and the Court had jurisdiction to pass an order of conviction or of acquittal. Whether the order of acquittal was based upon a misconception in the mind of the prosecuting agency, the order of acquittal was valid because the sanction of the Deputy Commissioner vested the Court with jurisdiction to pass and order of acquittal. The learned trial Magistrate followed the decision of a Division Bench of the Calcutta High Court in Emperor v. Pritam Singh, AIR 1948 Cal 128.
(4) Against this order of acquittal the State has brought an appeal to this Court and it has been urged on behalf of the State that the order is erroneous because the Magistrate did not, in fact, have jurisdiction to pass an order of acquittal; he had not jurisdiction because the sanction of the Deputy Commissioner was not on record. The learned counsel for the State has sought to distinguish the placing of the sanction on record and the actual giving of the sanction.
He contends that the actual giving of the sanction does not vest the Court with jurisdiction but it is the filing of the sanction in Court and placing it on the record of the case, which gives the power to the Court to hear the case.
(5) I cannot accept this argument. Section 38 merely requires that the Government must give sanction before a prosecution can be started. It does not even say that the sanction must be in writing and it certainly does not say that the piece of paper upon which the sanction is recorded must be placed before the Court or placed on the record of the case to which it relates. That being so, it is the giving of the sanction which gives the power to the Court to hear the case. In this case sanction was given on 12-6-1957.
The Magistrate, therefore, had jurisdiction to hear the case. In this review of the matter the Magistrate could pass an order of acquittal or of conviction. He passed an order or acquittal and that order stands because it has not been set aside. It is wholly immaterial upon what grounds the order of acquittal was based. Section 403 of the Criminal Procedure Code does not say that the order of acquittal must be made on merits before it operates as a bar to a second prosecution. Even if the order of acquittal is made on a technical ground, as long as the order stands, it will prevent further prosecution of the accused person.
(6) The Calcutta ruling to which a reference has been made is on all fours with the present case, and with great respect to the learned Judges of the Calcutta High Court I find myself in entire agreement with the view expressed by them. I, therefore, hold that there is no force in this appeal, that the order of acquittal made on 2-6-1958 stands and section 403 of the Criminal Procedure Code is a bar to a second prosecution of the respondents. This appeal must, therefore, fail and I would dismiss it.
Tek Chand, J.
(7) I agree.
(8) Appeal dismissed.