Pramatha Nath Mandal And Anr. v. King-Emperor Opposite Party.

Lodge, J.:— This Rule was issued on the District Magistrate of Burdwan to show cause why convictions and sentences passed on the two Petitioners should not be set aside.

2. The material facts are not disputed. The Petitioner Chandibala Mandal is the licensed owner of a shop known as the Bharat Lakshmi Bastralaya at Burdwan, and the other Petitioner Pramatha Nath Mandal is the husband of Chandibala, and the manager of the shop. On March 2nd, 1945, a search was made of this shop and one piece of dhoti 9½ cubits in length, unusually narrow, bearing a textile mark of January, 1944, was found. A report was submitted against the Petitioner Pramatha Nath Mandal by the police and an application was made to the District Magistrate for sanction for his prosecution. The District Magistrate sanctioned the prosecution. Before the case was taken up for hearing an application was made to the District Magistrate for sanction for the prosecution of Chandibala Mandal also. The District Magistrate referred the matter to the Public Prosecutor for opinion and on reading the Public Prosecutor's report passed the following order:

“On the basis of the ruling referred to in the P.P's note the Court may toe moved for proceeding against the other accused person.”

3. Thereupon evidence was recorded and both the Petitioners were found guilty of contravening r. 14(2) of the Cotton Cloth and Yarn Control Order, 1943, and were sentenced under r. 81(4) of the Defence of India Rules, each to pay a fine of Rs. 25 and in default each to undergo rigorous imprisonment for one week. Under the same Rule the cloth (Ex. 1) was directed to be forfeited to His Majesty.

4. On behalf of the Petitioner Chandibala Mandal it is argued that there was no sanction for her prosecution as required by r. 23 of the Cotton Cloth and Yarn Control Order, 1943. Rule 23 reads:

“No prosecution for the contravention of any of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government.”

5. The power of granting sanction has been delegated by the Provincial Government to the District Magistrate. As pointed out above, originally there was a sanction to prosecute the Petitioner Pramatha Nath Mandal. There was then no sanction to prosecute the Petitioner Chandibala Mandal, and when an application was made to the District Magistrate, he did not decide that Chandibala Mandal ought to be prosecured. He directed that the prosecution should apply to the trying Magistrate for her prosecution on the strength of the previous sanction; he did this relying on a report of the public prosecutor, which report was based on the decision of this Court in Nitai Charan Ghosh v. Kshettra Nath Ganguli(1). The decision on which reliance was placed was a decision with regard to a prosecution for an offence of which a Magistrate was not entitled to take, cognizance under sec. 195 of the Code of Criminal Procedure without a complaint from a particular Court or official. The language of sec. 195 of the Code of Criminal Procedure is essentially different from the language of r. 23 of the Cotton Cloth and Yarn Control Order, 1943, and in our opinion the ruling of this Court referred to in the Public Prosecutor's note has no application to the facts of the present case. In view of the decision of the Federal Court in the case of Basdeo Agarwalla v. King-Emperor(2), it is clearly the duty of the sanctioning authority to consider in the case of each accused whether a prosecution should be instituted or not, and therefore it follows that prosecution must be sanctioned in respect of each accused person.

6. In this view, it is clear that there was no sanction for the prosecution of Chandibala Mandal and her prosecution was therefore without jurisdiction. Her conviction and sentence must be set aside, and the Rule must be made absolute so far as she is concerned.

7. So far as the other Petitioner Pramatha Nath Mandal is concerned, it is clear that an offence was committed, but as the learned Magistrate himself observed this was merely a technical offence because the cloth in question was unsaleable. It is difficult to understand why a prosecution was sanctioned and it is clearly a case in which the minimum sentence should be imposed. The conviction of Pramatha Nath Mandal must be maintained, but the sentence imposed upon him is altered to a sentence of fine of one anna only.

8. The order directing that the cloth (Ex. 1) he forfeited is also set aside.

9. It is optional under r. 81(4) for a Magistrate to forfeit a cloth in circumstances like the present. In our opinion the Magistrate should have exercised his discretion and refused to forfeit the cloth.

10. The Rule is made absolute in part only on the above lines so far as the Petitioner Pramatha Nath Mandal is concerned.

Derbyshire, C.J:— I agree.