1. This is an appeal by the Government of Bengal against an order of acquittal dated 22-12-1945, passed by Mr. U.C. Sarkar, Magistrate, First Class, Barial. The acquittal was not on the merits but on the ground that the necessary sanction for the institution of the proceedings had not been obtained in accordance with law.
2. The facts of the case, briefly stated, are as follows : It appears that the respondent is the manager of a shop in the town of Barisal which is known as the Royal Stores. On 15-4-1945, the shop was searched and it is alleged that 7 Sarees, 1 Dhoti and 34 yards of Jangli Chhit were recovered from the shop. Thereupon the respondent was immediately placed under arrest under Rule 81(4), Defence of India Rules, and produced before the Magistrate on the same date. Thereafter, he was produced before the Magistrate on three other occasions, the last of which was on 25-5-1945, but even then the Police was unable to submit a charge-sheet and prayed for a further remand of the accused to custody. On 6-6-1945, a charge-sheet was at last submitted. On that charge-sheet there was some writing bearing the date, 3-6-1945, which is said to be the sanction granted by the District Magistrate, on that date, to the institution of the prosecution against the respondent.
3. It appears that thereafter the case went on being tried by stages in the course of which certain prosecution witnesses and certain defence witnesses were examined. On 12-12-1945, the hearing was concluded and the ease was adjourned for judgment. The judgment was delivered on 22nd of December following and it was in the following words.
The necessary sanction for the institution of this case was not duly obtained according to the law. In view of the decided cases on this point, including Basdeo Aggarwala v. Emperor , the accused is acquitted under Section 258. Merit of the case is not entered into.
As stated already, it is against this order that the present appeal is directed.
4. On behalf of the Crown, it was contended before us that the order passed by the learned Magistrate was erroneous in law inasmuch as a proper and valid sanction had in fact been obtained in the present case before the institution of the prosecution, as required by law.
5. The charges framed against the accused were under Rule 81(4), Defence of India Rules, read with Paras. 13(c) and 14(2), Cotton Cloth and Yarn Control Order, 1943. The provision for sanction is contained in para. 23 of the Control Order which reads thus:
No prosecution for the contravention of any of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government.
It was contended on behalf of the Crown that since sanction had been obtained from the District Magistrate before the submission of the charge-sheet, the requirement of Para. 23, Cotton Cloth and Yarn Control Order had been fully satisfied. This contention was based on the view that a prosecution could not be said to be instituted till a charge-sheet was submitted and what preceded the submission of the charge-sheet in the way of enquiries or investigation by the Police was no part of a prosecution properly so-called.
6. As has been seen, the learned Magistrate's order is rather cryptically expressed. He stated nothing more than that in his view the necessary sanction had not been duly obtained, but he did not state in what the irregularity consisted. But his reference to a decided case, namely 32 A.I.R. 16, by which was obviously meant the case in Basdeo Aggarwala v. Emperor suggests that he thought that in the present case the necessary sanction had not been obtained before the institution of the prosecution.
7. The question raised by the contention of the Crown opens up an interesting field of enquiry as to when the criminal prosecution can be said to be instituted, but having regard to another fact of the case to which I shall presently refer, it is unnecessary that we should examine the contention.
8. It cannot be doubted, and indeed the authorities are unanimous that in cases where the Legislature has provided for a sanction as a condition precedent to a criminal prosecution, such sanction must be strictly proved. All that was done in the present case in the way of proving the sanction was that a charge-sheet was placed before the Magistrate which, as I have stated, contains some writing in which someone, describing himself as an Additional Superintendent of Police, D.E.B. Barisal, forwards the case to the District Magistrate for his sanction to the prosecution; someone else, describing himself as 'I.P.', recommends that the prosecution maybe sanctioned; and some third person puts down the word 'sanctioned' above his signature which is followed by the words D.M. and by the date 3-6-45. If this piece of writing really embodies a sanction accorded by the District Magistrate on 3-6-1945, the other question as to-whether a sanction accorded on that date would meet the requirements of para. 23 of the Cottons Cloth and Yarn Control Order would undoubtedly arise. But no steps were taken by the prosecution to prove in a legal manner the sanction upon which they relied. No witness came to depose that the word 'sanction' had been affixed on the charge-sheet by the District Magistrate, nor was evidence of any other, kind given to prove the sanction. The position, therefore, was that the prosecution relied upon a piece of paper which purported to contain the sanction granted by the District Magistrate, but the sanction remained to be duly proved.
9. In view of this state of affairs with regard to the legal proof of the sanction, it seems to us that the question urged by the Crown in this appeal does not really arise. It cannot bet disputed for one moment that no prosecution can be entertained unless the necessary sanction has been legally proved. It follows that event assuming that the prosecution is right in saying that the purported sanction had in this case been obtained at the proper stage and that the Magistrate was wrong in holding that it had not been obtained at such stage, still the prosecution is bound to fail because the sanction itself had not been legally proved. So far as the Court was concerned the position, therefore, was that in law there was no sanction before the Court at all.
10. We are, therefore, of opinion that whatever the true legal position may be as regards the point of time at which a criminal prosecution may be said to be instituted and before which the necessary sanction must be obtained, under the provisions of the Cotton Cloth and Yarn Control Order, in the facts of the present case, the prosecution was bound to fail in any event for the simple reason that the sanction had not been legally proved. We were invited on behalf of the Crown to pronounce on the first question and then to give it an opportunity to prove the sanction now in a legal manner. We must decline to do so. It cannot be right to interfere with an order of acquittal for the purpose of enabling the Crown now to patch up the defects in the prosecution of its case and revive the prosecution which, on the facts, terminated in the only way in which it could have terminated. In our opinion, therefore, the appeal cannot succeed. The appeal is accordingly dismissed. The accused respondent will be discharged from his bail-bond.