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Janwahar and anr. Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan
Decided On
Judge
Reported in1950CriLJ890
AppellantJanwahar and anr.
RespondentRex
Cases Referred and Bhagwat Saran v. Rex A.I.R.
Excerpt:
- .....and the signature of the chief commissioner are in ink. it could not thus safely be held that the sanction, in facts, was there before the trial court took cognisance of the case against the applicants. had the sanction been there from before, there would have also ken some mention about it by the prosecution before the trial court, when the complaint was filed before it on 12 6-1918. it appears to me not very unlikely that the sanction was obtained from the chief commissioner only after the proceedings had been initiated before the trial court on 12-6-1948. 5. there is nothing on the record of the trial court to justify the inference that an application had been made before it by the prosecution for the trial of the case summarily as required under section 12, central act, xxiv [24] of.....
Judgment:
ORDER

Atma Charan, J.C.

1. Heard the parties.

2. The counsel for the applicants has pressed the application in revision mainly on two grounds-firstly ,that there was no proper sanction to prosecute the applicants Under Section 10, Cotton Textile (Control of Movement) Order, 1946, and secondly, that there was no application on behalf of the prosecution to try the case summarily.

3. The complaint before the tri3l Court was lodged on 12-6-1948, and the processes against the applicants wore issued the game day for their presence on 8-7-1948. The sanction of the Chief Commissioner appears to have been filed before the trial Court on 8-7-1948. The sanction or the other papers on the record of the trial Court in no way go to show as to what facts had been placed for obtaining sanction before the Chief Commissioner, The sanction, in the circumstances, could be held to be no valid sanction within the meaning of Section 10, Cotton Textile (Control of Movement) Order, 1916. The counsel for the applicants baa drawn ray attention to the ruling reported in Gokul Chand Dwarka Das v. The King A.I.R. (35) 1948 P. C. 82 : 49 Cr. L. J. 261, wherein it has been laid down as below:

A sanction which simply names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened 1b not a sufficient compliance in cl. 23. In order to comply with the provisions of el. 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It 13 plainly desirable that the fact should be referred to on the face of the sanction, but this is not essential since cl. 23 does cot require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not concerned merely to see that evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Where facts are not referred to on the face of the sanction nor is it proved by extraneous evidence that they are placed before the sanctioning authority, the sanction is invalid, and the trial Court would not be a Court of competent jurisdiction. This being as the defect cannot be cured Under Section 637, Criminal P. C., as a defect in the jurisdiction of the Court can never be Under section Section 37.

4. The sanction appears to be dated 9-6.1948. The date is put down in pencil, while the names of the applicants and the signature of the Chief Commissioner are in ink. It could not thus safely be held that the sanction, in facts, was there before the trial Court took cognisance of the case against the applicants. Had the sanction been there from before, there would have also ken some mention about it by the prosecution before the trial Court, when the complaint was filed before it on 12 6-1918. It appears to me not very unlikely that the sanction was obtained from the Chief Commissioner only after the proceedings had been initiated before the trial Court on 12-6-1948.

5. There is nothing on the record of the trial Court to justify the inference that an application had been made before it by the prosecution for the trial of the case summarily as required Under Section 12, Central Act, xxiv [24] of 1946. The papers on the record, on the other hand, go to show that there was a request on behalf of the prosecution just for the trial of the case as a summons case Under Section a5 of Punjab Act II [2] of 1947. The trial Court acceded to the request, and further directed that the case should be tried summarily as the case was triable as a summons case. This was certainly a wrong inter. pretation of the law. The case accordingly has been tried mmmarily by the trial Court suo motu under Section 260 (1)(a), Criminal P.C., and not at the instance of the prosecution Under Section 12 of Central Act, xxiv [24] of 1946. The trial thus was illegal, vide Jagannath v. Emperor A.I.R. (94) 1947 Oudh 93 : 48 Cr. L. J. 56 and Bhagwat Saran v. Rex A.I.R. (86) 1949 ALL. 84 : 49 Cr.L.J. 64l. It may further be mentioned here that in the present case the applicants have been prejudiced considerably for they have been deprived of their right of appeal as the case had been tried summarily. Had they been tried on the regular side and the same sentence of fine imposed, they would have had a right of appeal to the Court of Session.

6. In view of the findings arrived at above no useful purpose would be served in going through the merits of the case. The application for revision must be allowed and the conviction of the applicants set aside.

7. The application in revision accordingly is allowed, the order of the trial Court convicting the applicants is set aside and they are acquitted; the fine or fine3, if realized, be refunded; the cloth, forfeited or the sale-proceeds thereof be handed over to the applicants.


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