Judgment Case ID: 2262

Judgment:
iminal 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 section 5 read with section 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 section 120B	 read with section 420	 I.P.C.	 and section 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 section (2) of section 196A	 'of the Code of Criminal Procedure (hereinafter called the Code)	 inasmuch as the complaint also involved an offence of criminal conspiracy	 under section 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. 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	 section 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	 section 6 of the Act is mandatory and	 before a Court can take cognizance of an offence; punishable under section 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 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 section 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.	 sections 195	 197	 198	 etc. Having due regard to the provisions contained in section 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 vs 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 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 vs State of Uttar Pradesh(1); Jawsant Singh vs State of Punjab(2); and Feroz Din vs 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 section 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 section 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 section 6. In this connection	 it is desirable to bear in mind the observations of this Court	 made in section A. Venkataraman vs 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) ; 	 765. (3) ; 	 330. (4) 	 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. " Going by the plain words	 contained in section 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 sections 24 and 27	 of the . The management company	 in that case	 filed a complaint	 with the sanction of the Government. The provision	 regarding sanction	 is contained in section 34(1) of the 	 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 section 34(1) of the 	 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) ; 	 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 section 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 section 6 of the Act	 is perfectly correct. The appeal therefore fails	 and is dismissed. G.C. Appeal dismissed.

Summary:
The Deputy Chief Controller of Imports & Exports New Delhi filed a complaint against the appellant under section 5 read with section 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 section 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 section 5 on the basis of a complaint under section 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 section 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 section 6. [398F G] In the present case the complaint had been made by an autho rised officer in writing. The requirements of section 6 were therefore satisfied and the Magistrate rightly took cognizance of the offence. [399B C] Gokulchand Dwarkadas Morarka vs The King	 L.R. 75 I.A. 30; Madan Mohan vs State of Uttar Pradesh	 A.I.R. 1954 S.C. 637	 641 and Jaswant Singh vs State of Punjab	 ; 	 765	 referred to. S.A. Venkataraman vs The State	 	 1041	 applied. Feroz Din vs The State of West Bengal	 ; 	 330	distinguished.