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V.S. Makwana Vs. Jagdishkumar Karsandas and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR710
AppellantV.S. Makwana
RespondentJagdishkumar Karsandas and anr.
Cases ReferredGokulchand Dwarkadas v. The King
Excerpt:
- - he filed complain against opponent no. the principles law underlying in this section are well-settled. the order of sanction clearly refers to the report made by the shop inspector. 6. the report made by the shop inspector clearly indicates the facts constituting the offence. however it would be interesting to examine the argument made by the counsel for the opponent-accused......from this part of the evidence, the learned magistrate inferred that before granting sanction, the sanctioning authority had not applied his mind and the case was dealt with mechanical manner the learned magistrate was also impressed by the fact that in the order granting sanction, the blanks were filled in by the complainant himself and the sanctioning authority had not written anything. on this basis he came to the conclusion that the authority granting the sanction had not applied his mind and hence, he held that the prosecution was required to be dropped.3. section 60 of the act that no prosecution under the act shall be instituted except an inspector and that there shall have to be previous sanction of the authority mentioned in the section. there is no dispute regarding the fact.....
Judgment:

A.P. Ravani, J.

1. The petitioner is a Shop Inspector serving with the Rajkot Municipal Corporation, Rajkot. He filed complain against opponent No. 1 original accused alleging that the opponent-accused had contravened the provisions of Bombay Shops and Establishments Act, 1948 (hereinafter referred to as 'the Act'), inasmuch as he had kept open his establishment on the weekly and that he taken work from the servant Rajubhai Ladharam. It was also alleged that the weekly holiday was notified and the visit book was not produced when demanded. On these allegations it was alleged that the accused had contravened the provisions of Section 18(1) of the Act and thereby, committed an offence punishable under Section 52(b) and had also contravened the provisions of Section 51 punishable under Section 52(e) of the Act. In support of the allegations, the appellant-original complainant examined himself examined other two witnesses also. He produced the order passed by the Deputy Municipal Commissioner granting sanction to prosecute the accused. This order is produced at Exh. 16. He also produced a report at Exh. 21, by which he sought sanction from the Municipal Commissioner as required under the Act. In his deposition before the learned Magistrate he stated that he had sent all the case papers to the Deputy Municipal Commissioner for granting requisite sanction. Before prosecuting the accused a notice was issued against him. It appears that as there was no reply to the notice, a reminder was also sent. Since there was no reply, he sent the case papers to the Deputy Municipal Commissioner and sought the sanction to prosecute. As per order dated February 25, 1984 (Exh. 16), necessary sanction to prosecute was granted and thereafter on March 7, 1984 the Shop Inspector filed the complaint for the offence as alleged hereinabove.

2. Before the learned Magistrate a question was raised that sanction to prosecute given by the appropriate authority suffered from the vice of-non-application of mind as it was granted in a routine manner and therefore, the cognizance taken of the offence against the accused was not legal and valid. It is also contended that the sanction was not in conformity with the provisions of Section 60 of the Act and the prosecution was required to be dropped this contention raised by the accused was upheld by the learned Magistrate. The learned Magistrate has put much reliance on the fact that the Shop Inspector himself deposed to the effect that Exh. 16 was received back by him duly signed in routine course. From this part of the evidence, the learned Magistrate inferred that before granting sanction, the sanctioning authority had not applied his mind and the case was dealt with mechanical manner the learned Magistrate was also impressed by the fact that in the order granting sanction, the blanks were filled in by the complainant himself and the sanctioning authority had not written anything. On this basis he came to the conclusion that the authority granting the sanction had not applied his mind and hence, he held that the prosecution was required to be dropped.

3. Section 60 of the Act that no prosecution under the Act shall be instituted except an Inspector and that there shall have to be previous sanction of the authority mentioned in the section. There is no dispute regarding the fact that in this case the sanctioning authority would be Deputy Municipal Commissioner. The principles law underlying in this section are well-settled. The order of sanction on the face of it should show that the facts constituting the office were present in the mind of the sanctioning authority and such facts should be thereon the order granting the sanction. If on the face of it, the order does not show the facts constituting the offence that it will be open to the prosecution to show by other evidence also that those facts were placed before the sanctioning authority. In this connection reference may be made to the decision of the Privy Council in the case of Gokulchand Dwarkadas v. The King reported in . As laid down in the case before the Privy Council, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It would be desirable that such facts should be referred to on the face of the sanction, but if the facts constituting offence charged 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. The aforesaid principle has been laid down in the context of Cotton Cloth and Yarn (Control) Order (1943), but the same principle would also apply to the provisions of Section 60 of the Act.

4. In the instant case, in the order of sanction to prosecute, it is stated that as per the report dated February 22, 1984 submitted by the Shop Inspector, the owner of Shree Emporium Shri Jagdishkumar Karsandas has contravend the provisions of Sections 18(1), 18(2) and 51 of the Act punishable under Sections 52(b) and 52(e) of the Act and the sanction is accorded to the Inspector to file complaint against the accused. The order of sanction clearly refers to the report made by the Shop Inspector. That report is produced at Exh. 21, and it is dated February 22, 1984. In he report it is stated that the accused had kept open his establishment on the weekly holiday for the purposes of work pertaining to the establishment and had taken one Rajubhai Ladharam the employee of the establishment, and thereby contravened the provisions of Section 18(1) of the Act. It was also alleged in the report that notice regarding weekly holiday was not displayed and that way the provisions of Section 18(1) of the Act was contravened. Similarly it is alleged in the report that visit book was not produced when demanded and therefore the provisions of Section 51 of the Act was contravened. There is no dispute with regard to the act that this report was sent by the Shop Inspector to sanctioning authority.

5. There is also no dispute with regard to the fact that the report Was placed before the sanctioning authority. The learned Magistrate, as stated hereinabove, was influenced by the stray sentence in the deposition of the Shop Inspector to the effect that sanction order was received back by him in routine course, and that the blanks in the sanction order were filled in by the Shop Inspector. These two circumstances, either taken singly or cumulatively, would not indicate that the sanctioning authority has not applied his mind before granting section. After all what does the phrase 'routine course' mean? One of the meanings of the word 'routine' as given in the Concise Oxford dictionary is 'regular course of procedure'?. Another meaning is 'performed by rule'. The learned Magistrate appears to have understood the word routine to mean 'mechanical'. In the context, this is not the meaning which can be ascribed to the phrase 'routine course'. It would only mean that the file was received back in usual course of procedure and there was nothing unusual or extraordinary in the case. Second circumstance 'blanks in the sanction order filled in by the Shop Inspector' is not at all relevant. Who writes the contents of the sanction order is immaterial. The important thing is as to whether the facts constituting offence were placed before the sanctioning authority or not?

6. The report made by the Shop Inspector clearly indicates the facts constituting the offence. Counsel for the opponent-accused has submitted that the report does not indicate the facts constituting the offence. According to him, further details with regard to the registration number of the establishment and specific weekly holiday should have been mentioned. It is further submitted that the Shop Inspector has assumed that Rajubhai Ladharam was an employee of the establishment. There is no merit in this contention. What is required to be taken into consideration by the sanctioning authority is, as to whether the facts constituting the offence are properly placed before him. As stated hereinabove, necessary facts were placed before the sanctioning authority. However it would be interesting to examine the argument made by the counsel for the opponent-accused. In the complaint filed by the Shop Inspector on March 7, 1984, verbatim same allegations have been reproduced as found in the report, Exhibit 21. The learned Magistrate himself thought that the facts disclosed in the complaint, prima facie, do constitute an offence and that is the reason why he ordered to issue process. If the learned Magistrate on the basis of these very facts prima facie found that offence as alleged was disclosed, how can it be said that when these very facts presented before the sanctioning authority would not constitute an offence? Unfortunately it has got to be observed that the learned Magistrate himself has not applied his mind properly and has not read the report and the complaint in proper context.

7. In above view of the matter, the appeal is required to be allowed. In the result, the appeal is allowed the judgment and order dated June 25, 1984 passed by the learned JMFC (Municipal), Rajkot, is quashed and set aside and the case is remanded to the trial court for proceeding further in accordance with law.


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