Electrical Manufacturing Co. Ltd. Vs.
D. D. Bhargava  INSC 193 (30 August 1967)
30/08/1967 VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 247 1968 SCR (1) 394
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.
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 sanction 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 authorised
officer in writing. The requirements of s. 6 were 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,  S.C.R. 762,
765, referred to.
S.A. Venkataraman v. The State,  S.C.R.
1037, 1041, applied.
Feroz Din v. The State of West Bengal, 
2 S.C.R 319, 330,distinguished.
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 consideration, 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, before 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.
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
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 complaint 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 complaint.
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 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-complainant, 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 complaint, 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 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
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.
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)  S.C.R. 762, 765.
(3)  2 S.C.R. 319, 330. (4) 
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."
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
"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 other hand; the management company obtained the sanction of the
Government of West Bengal, to file the complaint. That is why this Court (1)
 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.