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PETITIONER: ELECTRICAL MANUFACTURING CO. LTD.

       Vs.

RESPONDENT: D. D. BHARGAVA

DATE OF JUDGMENT: 30/08/1967

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. HIDAYATULLAH, M. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR  247            1968 SCR  (1) 394

ACT: Imports  & Exports (Control) Act, 1947 (18 of 1947),  ss.  5 and 6--Section 6 requiring complaint under s. 5 to be  filed by  authorised  officer  in  writing--Such  officer  whether required to apply his mind to the relevant materials  before filing  complaint--Principles relating to grant of  sanction whether applicable.

HEADNOTE: The  Deputy Chief Controller of Imports & Exports New  Delhi filed a complaint against the appellant under s. 5 read with s. 6 of the Imports & Exports (Control) Act, 1947 before the Magistrate  First  Class  Delhi.  In  the  witness  box  the complainant admitted that when he filed the complaint he had not  seen any of the documents referred to in the report  of the Special Police Establishment in connection with the case and had not verified personally all the detail* mentioned in the  report.  The appellant filed an application  requesting the  Magistrate  not to take cognizance of the case  as  the complaint  did not satisfy the requirements of s. 6  of  the Act.  The plea was rejected by the Magistrate, the  Sessions Judge and the High Court.  An appeal to this Court was filed by  special  leave.   It  was contended  on  behalf  of  the appellant that as in the case of sanction for prosecution of certain  offences, before a court can take cognizance of  an offence  punishable under s. 5 on the basis of  a  complaint under s. 6, the prosecution will have to establish that  the facts  constituting  the  offence, were  placed  before  the complainant,  and that the latter on a proper  consideration of these facts has filed the complaint. Held: (i) The principles applicable to cases requiring sanc- tion have no application to filing of complaints under s.  6 of the Act.  Section 6 only insists that the complaint is to be  in  writing  and  that it must  be  made-by  an  officer authorised in that behalf.  The limitation contained in s.6, is  only regarding the particular officer who could  file  a complaint  and, when once he satisfies  those  requirements, the  bar is removed to the taking of cognizance by a  court, on a complaint made in accordance with s. 6. [398F-G] In the present case the complaint had been made by an autho- rised  officer  in writing.  The requirements of s.  6  were

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therefore   satisfied  and  the  Magistrate   rightly   took cognizance of the offence. [399B-C] Gokulchand  Dwarkadas Morarka v. The King, L.R. 75 I.A.  30; Madan Mohan v. State of Uttar Pradesh, A.I.R. 1954 S.C. 637, 641 and Jaswant Singh v. State of Punjab, [1958] S.C.R. 762, 765, referred to. S.A.  Venkataraman v. The State, [1958] S.C.R.  1037,  1041, applied. Feroz  Din v. The State of West Bengal, [1960] 2 S.C.R  319, 330,distinguished.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 41  of 1967. Appeal  by special leave from the judgment and  order  dated November  21,  1966  of the Delhi  High  Court  in  Criminal Revision Application No. 273-D of 1965. A.   K.  Sen, Veda Vyasa, K. B. Mehta, and H. L. Anand,  for the appellant. H.   R. Khanna and R. N. Sachthey, for the respondent. 394 395 The Judgment of the Court was delivered by Vaidialingam, J. The sole point, which arises for considera- tion, in this appeal, by special leave, directed against the order  of the High Court of Delhi, dated November 21,  1966, is  about the validity of the complaint filed by the  Deputy Chief  Controller  of Imports and Exports,  New  Delhi,  the respondent herein, under s. 5 read with s. 6 of the  Imports &   Exports  (Control)  Act,  1947  (Act  XVIII   of   1947) (hereinafter referred to as the Act).  Section 6 of the Act, relating to cognizance of offences, is as follows:               "6.  No  Court shall take  cognizance  of  any               offence punishable under section 5 except upon               complaint  in  writing  made  by  an   officer               authorized  in  this  behalf  by  the  Central               Government by general or special order, and no               Court   inferior  to  that  of  a   Presidency               Magistrate or a Magistrate of the first  class               shall try any such offence.". The respondent filed a complaint, on December, 31, 1962, be- fore  the First Class Magistrate.  Delhi. alleging that  the appellants,  before  us,  and  four  others,  had  committed offences punishable under s. 120B, read with s. 420, I.P.C., and  s.  5 of the Act.  The complaint,  fairly  elaborately, sets  out  the  various matters  containing  allegations  of violations of the conditions of the import licences  granted to  the  appellants.  It may also be stated at  this  stage, that  the  Chief Commissioner, Delhi, by  his  order,  dated December  12, 1962, had given his consent to the  initiation of proceedings, in the prosecution of the appellant and four others, mentioned therein, under sub-s. (2) of s. 196A,  ’of the  Code  of  Criminal Procedure  (hereinafter  called  the Code), inasmuch as the complaint also involved an offence of criminal  conspiracy, under s. 120B, P.C., to commit a  non- cognizable offence.  So far as this consent is concerned, it is not the subject of any attack, before us. The  complainant was examined as P.W. 3. He has  stated,  in his  chief-examination,  that  he filed  the  complaint,  in question,  after  satisfying himself about the  prima  facie commission of the offences, mentioned in the complaint.   In cross-examination  he has referred to the fact that he  came to  know about the case when he received a report  from  the Special Police Establishment, at the end of September  1962.

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When a question was put, as to whether he complainant  would produce the said report, objection was raised, by the Public Prosecutor,  that the said report was only the opinion of  a police  officer,  and  was not  admissible,  in  law.   This objection   has   been  upheld  by  the   Magistrate.    The complainant  has further stated that he visited the  Special Police   Establishment  Office,  for  the  first  time,   in connection with the case, only in September or October 1963, whereas the complaint had been filed, on December 31,  1962. He  has  also  stated  that  he has  not  seen  any  of  the documents,  referred  to in the police report,  between  the date when he received the report, and the date when the com- plaint was filed.  He has further stated that, on receipt of summons 396 from the Court, he visited the Special Police  Establishment Office to see the documents, for satisfying himself that the complaint  which he had filed, was based on absolute  facts. His  further answers were to the effect that when  he  filed the complaint he had not verified personally all the details mentioned   in  the  police  report,  and  that  the   Chief Commissioner’s  permission,  to  initiate  proceedings,  had already  been  obtained, when he signed  the  complaint,  on December  29,  1962.  But, he has also stated  that  he  had asked  the Special Police Establishment, to draft  the  com- plaint. The  appellant tiled an application, on September 26,  1964, before  the Trial Magistrate, stating that, in view  of  the above  answers  given,  by the  complainant,  no  cognizance should be taken, on the basis of the complaint filed by  the respondent,  Shri Bhargava, the Deputy Chief  Controller  of Imports  and Exports.  According to the appellant, s.  6  of the  Act  is  mandatory in character and  enjoins  that  the entire facts and materials, connected with the  allegations, which  form  the subject of the charge or charges,  must  be placed before the competent authority, and the complaint  is to be initiated by the appropriate authority, only after due consideration  of  the  entire  materials.   In  this  case, according  to  the  appellant,  the  answers  given  by  the Officer,  as P.W.3, coupled with the non-production  of  the Special  Police  Establishment’s report, will  clearly  show that  the  facts constituting the offence  were  not  placed before  him; and it is also clear that the  complainant  has not  filed  the complaint, after  verifying  and  satisfying himself about the facts mentioned in the police report.   As to  what is contained in the police report, is a  matter  of pure  conjecture,  inasmuch  as it has  not  been  produced, before the Court. The Magistrate rejected this application, and his order  was also  confirmed, in revision, by the Additional  Sessions  , Judge, Delhi.  Aggrieved by these orders of the  Subordinate Courts,  the  appellant  moved the  Delhi  High  Court,  for redress.  The learned Judge, of the Delhi High Court, in his order,  under  appeal,  has  confirmed  the  orders  of  the Subordinate Courts. Mr. A.K. Sen, learned counsel for the appellants, has raised the  same  contentions. which did not find favour  with  the High  Court.  According to the learned counsel, s. 6 of  the Act is mandatory and, before a Court can take cognizance  of an offence; punishable under s. 5, the prosecution will have to  establish that the facts constituting the offence,  were placed  before  the  complainant and that,  after  a  proper consideration  of  those  facts,  the  complaint  has   been instituted-in this case, by P.W.3. Counsel also pointed  out that  the prosecution could have, very well, placed.  before

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the Court the report of the Special Police Establishment  to show that the necessary facts, which formed the basis of the complaint, were placed before the complainant; but, in  this case, the prosecution had declined to produce the report, as will be 397 seen  from  the objections raised by it.   Therefore,  under those  circumstances,  an inference will have  to  be  drawn against  the prosecution, and the normal presumption  should be  that  the  evidence which could be, but  had  not  been, produced  would, if produced; be unfavourable to the  person who  withholds it, which, in this case, is the  prosecution. Counsel also pointed out that, in this case, the High  Court has  proceeded on the basis that the filing of a  complaint, by  P.W.  3, is merely a mechanical act, which view  is  not justified,  in  law.   In fact, we  understood  Mr.  Sen  to contend that there is no distinction, in principle,  between provisions   in  statutes  providing  for  the   taking   of cognizance  of offences,, only on the previous  sanction  of any   particular   authority,  and   provisions   providing, simpliciter,  for a complaint being filed, by  a  particular person or officer. Mr.  H. R. Khanna, learned counsel for  the  respondent-com- plainant, has pointed out that the principles, enunciated by the  appellants’  counsel, do not apply to cases  where  the statute,  as  in  this  case,  simpliciter  provides  for  a complaint  being made, by the particular officer,  mentioned therein.   In such cases, counsel points out, the Court  has only  to  see  whether the person  or  authority,  mentioned therein,  has  initiated the proceedings, by filing  a  com- plaint,  in  the  manner,  referred  to  in  the  particular provision.   In this case, counsel points out, there  is  no controversy that the respondent is an officer, authorized by the  Central Government, to file complaints, under s.  5  of the Act. in  this connection, counsel referred us to the  provisions, contained  in the Code of Criminal Procedure, some of  which provide  for cognizance being taken, of offences, only on  a complaint  made by a person or officer,  mentioned  therein, and  in other cases, where taking cognizance of offences  is prohibited,  except  on a sanction given  by  an  authority, e.g.,  ss.  195, 197, 198, etc.  Having due  regard  to  the provisions  contained  in s. 6 of the Act,  counsel  pointed out,  there is no infirmity in the complaint, filed  by  the respondent. The  principle, that the burden of proving that  a  requisit sanction  has been obtained, rests on the  prosecution,  and that  such  burden  involves  proof  that  the   sanctioning authority  had given the sanction in reference to the  facts on  which  the proposed prosecution was to be  based,  facts which might appear on the fact of the sanction, or might  be proved  by extraneous evidence. is now well-settled, by  the decision of the Judicial Committee of the Privy Council,  in Gokulchand  Dwarkadas Morarka v. The King(1).  There,  their Lordships  were considering cl. 23 of the Cotton  Cloth  and Yarn (Control) Order, 1943, as amended, to the effect:               "No  prosecution for the contravention of  any               of  the  provisions  of this  Order  shall  be               instituted  without the, previous sanction  of               the Provincial Government (or of such (1)  L.R. 75 I.A. 30. SCI--12 398               officer of the Provincial Government not below               the   rank  of  District  Magistrate  as   the

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             Provincial   Government  may  by  general   or               special  order  in writing authorize  in  this               behalf)." The  Judicial Committee has held that in order to hold  that there is a compliance with the provisions of cl. 23, it must be  proved  that the sanction was given, in respect  of  the facts   constituting  the  offences  charged,  because   the sanction  to  prosecute  is  an  important  matter,  as   it constitutes a condition precedent to the institution of  the prosecution, and the Government have an absolute  discretion to grant or withhold that sanction.  The Judicial  Committee has   also  emphasized  that  the  Government  cannot   also adequately  discharge the obligation of deciding whether  to give  or withhold the sanction, without a knowledge  of  the facts  of  the  case,  as sanction has  to  be  given  to  a prosecution  for the contravention of any of the  provisions of the Order. These principles, laid down by the Judicial Committee,  have also  been approved, by decisions of this Court:  See  Madan Mohan  v. State of Uttar Pradesh(1); Jawsant Singh v.  State of Punjab(2); and Feroz Din v. The State of West  Bengal(3). In Jaswant Singh’s Case(2), this Court, dealing with a  case of  sanction, under the Prevention of Corruption Act,  1947, after  referring to the decision of the Judicial  Committee, has  observed that the sanction, under the said Act, is  not intended  to  be, nor is an automatic formality, and  it  is essential  that the provisions in regard to sanction  should be  observed with complete strictness, as the object of  the provision  for  sanction is that the authority,  giving  the sanction,  should  be  able to  consider,  for  itself,  the various  facts  alleged, before it comes to  the  conclusion that the prosecution, in the circumstances, be sanctioned or forbidden. We  are not inclined to accept the contentions of  Mr.  Sen, that  the  principles laid down in  these  decisions,  which relate to the question of sanction. have any application  to the filing of complaints, under s. 6 of the Act.  Section  6 only insists that the complaint is to be in writing and that it  must be made by an officer, authorised in  that  behalf. The complaint, in this case, has been made by the respondent in  writing, and that he is an authorised officer,  in  this behalf, has not been challenged.  The limitation,  contained in s. 6, is only regarding the particular officer who  could file   a  complaint  and,  when  once  he  satisfies   those requirements, the bar is removed to the taking of cognizance by a Court, on a complaint, made in accordance with s. 6. In this  connection,  it  is  desirable to  bear  in  mind  the observations  of this Court, made in S. A.  Venkataraman  v. The State(4).  After considering the scheme of    the  Code, this Court observed:               "In construing the provisions of a statute  it               is  essential  for  a  court,  in  the   first               instance, to give effect to the (1)  A.I.R. 1954 S.C. 637, 641. (2) [1958] S.C.R. 762, 765. (3)  [1960] 2 S.C.R. 319, 330. (4) [1958] S.C.R. 1037, 1041, 399               natural meaning of the words used therein,  if               those  words are clear enough.  It is only  in               the  case  of any ambiguity that  a  court  is               entitled  to  ascertain the intention  of  the               legislature  by construing the  provisions  of               the  statute  as  a  whole  and  taking   into               consideration    other   matters    and    the               circumstances  which led to the  enactment  of               the statute."

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Going  by the plain words, contained in s. 6 of the Act,  we are satisfied that the complaint, in this case, filed by the respondent,  can be considered to be in conformity with  the provisions, contained therein. But Mr. Sen relied upon the decision of this Court in  Feroz Din’s Case(1) in support of his argument that cases in which sanction is necessary, to enable a Court to take  cognizance of offences, and cases, in which a mere complaint, is to  be filed  by a public officer, without the requirement  of  any sanction,  have been treated on a par, and the  same  tests, for  finding out the legality of a complaint, in the  former class  of  cases, have been applied to the latter  class  of cases also.  It is therefore necessary to consider the exact scope  of that decision.  In that decision, this  Court  was considering a complaint, filed by a management, under ss. 24 and   27,  of  the  Industrial  Disputes  Act,  1947.    The management  company, in that case, filed a  complaint,  with the  sanction of the Government.  The  provision,  regarding sanction,  is  contained  in  s.  34(1)  of  the  Industrial Disputes Act, which is as follows:               "No  Court  shall  take  cognizance  ’of   any               offence punishable under this Act.......  save               on complaint made by or under the authority of               the appropriate Government.", One  of the contentions raised by the  appellants,  therein, based  upon  the  decision of  the  Judicial  Committee,  in Morarka’s  Case(2),  was  that the sanction,  given  by  the Government  of  West Bengal, to file the  complaint  against them,  was bad, as it had been granted without reference  to the  facts  constituting  the offence.   This  Court,  after referring, to the said decision, rejected the contention  of the  appellants  and held that the entire  facts,  connected with  the  offence, had been placed before  the  sanctioning authority,   and  the  Government  gave  the  sanction,   on consideration  of those facts, and that those  circumstances fully  satisfied  the requirements of ’prior  sanction’,  as laid down by the Judicial Committee.  It will be seen, by  a reference  to  s.  34(1) of  the  Industrial  Disputes  Act, extracted  above,  that  a complaint can  be  filed  by  the appropriate Government itself, or it can be filed, under the authority  of the appropriate Government.  In  the  decision before  this  Court,  the  Government  had  not  filed   the complaint,  but, an the other hand, the  management  company obtained  the sanction of the Government of West Bengal,  to file the complaint.  That is why this Court (1) [1960] 2 S.C.R. 319, 330. (2) L.R. 75 I.A. 30. 400 had  occasion  to  consider the  validity  of  the  sanction regarding which an attack was made by the appellants.   This Court,  in that case nevertheless, apply, if the  Government itself had filed the complaint, as it was entitled to, under s.  34(1).  Therefore, the observations made, in that  case, regarding  the  validity  of  sanction ,  will  have  to  be confined to the facts of that case. No such question arise, with regard to the matter before us. The  section, with which we are concerned, does not  contain any  such restriction, regarding the obtaining of  sanction, on  the  basis of which alone a complaint can be  filed,  to enable a Court to take cognizance of an offence. The  result  is,  the  view of  the  High  Court,  that  the complaint,  filed by the respondent, on December  31,  1962, satisfies the requirements of s. 6 of the Act, is  perfectly correct.  The appeal therefore fails, and is dismissed. G.C.                                  Appeal dismissed.

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