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Report No. 47

Chapter 11

Requirement as to Sanction or Complaint

11.1. Requirement as to sanction, complaint or other provisions.-

A study of the provisions1 restricting the power of the Court to take cognisance (or restricting the institution of a prosecution) in the major Acts with which this Report is concerned, shows that these provisions fall into the following broad classes:-

(a) Provisions requiring the sanction of a specified authority2.

(b) Provisions requiring the complaint of (or a complaint filed with the consent of) the specified authority3.

(c) Provisions requiring the "report" of a specified authority4.

(d) Provisions requiring that the Court shall not take cognizance or that a prosecution shall not be instituted except with the consent of specified authority (or substantially to the same effect)5.

[Within each category, the provisions differ in matters of detail; but we are, for the present, concerned with the broad categories].

1. See Chart-Para. 11.5, infra.

2. (a) Section 12, Central Excise Act, read with.the Customs Act.

(b) Section 23(3), Foreign Exchange Regulation Act.

(c) Section 280(2), Income-Tax Act.

(d) Section 137, Customs Act.

3. (a) Section 23(3)(a)(b), Foreign Exchange Regulation Act. (b) Section 97(1), Gold Control Act.

4. Section 11, Essential Commodities Act.

5. (a) Section 20, Prevention of Food Adulteration Act.

(b) Section 36(3), Wealth Tax Act.

(c) Section 279(1), Income-Tax Act.

11.2. Significance of difference as to various requirement for taking cognizance.-

Now, the question whether a particular provision falls in one or other of the above categories possesses some practical importance. In cases under category (a), the procedure for trial, once a valid sanction has been obtained, will depend on the manner in which cognizance is taken by the court,-i.e., whether the cognizance was taken on a Police Report or otherwise. The fact that a sanction is required before a prosecution can be instituted is of no consequence in this regard. On the other hand, in cases in category (b), since a complaint is required, the court obviously cannot take cognizance on a police report, and the procedure at the trial will necessarily be the more cumbersome one prescribed for cases instituted otherwise than on a police report.

11.3. Position where report of officer required-What is stated above regarding cases in category (a) applies to category (c) also, except that, where the officer who made the required 'report' is himself a police officer, the position could be different. When the report is of a police officer made after investigation, and the court takes cognizance thereon, then the procedure as for cases instituted on police report can be followed1.

1. (a) State v. Rugha, AIR 1970 Punj 502 (505);

(b) Satyadeo v. State, AIR 1970 Pat 161;

(c) State v. Munafica, AIR 1968 Born 311.

11.4. Position where prosecution required to be "at the instance" of a specified authority.-

In cases under category (d), the requirement is that the prosecution should be "at the instance of the specified authority". This is usually complied with by filing a complaint made with the approval of the specified authority1. Whether the wording rules out a report filed with sanction has not been decided.

As to the procedure that will govern the trial in cases under (d), the matter will depend on the manner of taking cognizance. But it should be noted that the manner of taking cognizance is subject to one important limitation-(1) In the case of a non-cognizable offence, the police cannot (without Magisterial orders) investigate, and cannot therefore give a report to the court. Hence cognizance by the court would have to be on a complaint. (2) In the case of a cognizable offence, cognizance can be on a complaint as well as on a police report2.

1. See Balia v. Rangachari, AIR 1969 SC 700 (701).

2. A Magistrate can take cognizance of an offence of his own, if vested with that power. But his is a rare case, and can be left out for the present purpose.

11.5. Chart showing previous requirement as to sanction or complaint.-

The following chart may be of use in this connection:-

Provision as to sanction or complaint and allied provisions in the major Acts.

Act

Section

Sanction or complaint required.

1. Central Excises and Salt Act, 1944.

No specific provision; but section 12 empowers the Central Government to apply the Customs Act.

See section column.
2. Foreign Exchange Regulation Act, 1947.

23(3)

(i) Complaint in writing of Director of Enforcement is required for offences under section 23(1).
(ii) Complaint inwriting of Director or authorised person required for offence under section 12(1A) or section 23F.
(iii) Previous sanction required for offence under section 19-I(2)
3. Prevention of Food Adulteration Act, 1954.

20

Consent of Central of State Government or a local authority or a person, authorised in this behalf by general or special order, required. [No prosecution shall be instituted except by or with written consent of the....]
4. Essential Commodities Act, 1955.

11

Report in writing of a public servant required, before a Court can take cognizance.
5. Wealth Tax Act, 1957.

36(3)

Commissioner, Wealth Tax for an offence under section 36(1), 36(2) or 36(2A). [A person shall not be proceeded against for an offence except at the instance of the Commissioner].
6. Income-Tax Act, 1961.

279(1)

Commissioner of Income tax for offences under sections 275A, 276A, 276B, 277 or 278. [A person shall not be proceeded against for an offence (under the specified sections) except at the instance of the Commissioner].

280(2)

Previous sanction of Central Government required for an offence under section 280(1).
7. Customs Act, 1962.

137

(a) Previous sanction of Collector of Customs required for offences under sections 132 to 135.
(b) Previous sanction of Customs Collector or of Central Government required for offence under section 136.
8. Gold Control Act, 1968.

97(1)

(i)Complaint in writing- of competent Gold Control officer required generally.
(ii) Complaint in writing made with previous sanction of Central Government required, if the offence was committed by a Gold Control Officer.

11.6. Problems of procedure created by provisions as to sanction.-

Provisions relating to sanction sometimes create problems of procedure. This will be discussed under the relevant Act1 wherever the point is of importance.

1. E.g. see as to Customs Act, paras. 15. 84 to 15.88, infra.

11.7. English practice as to sanction of prosecutions.-

It may not be out of place to refer to the English practice. The following is from a note published sometime ago in the Law Times1:-

"The Attorney-General (Sir Hartley Shawcross), went on to state in deciding whether or not to prosecute, the ultimate question was: Would a prosecution be in the public interest including in that phrase, of course, in the interests of justice? Usually it was merely a question of examining the evidence, since it was not in the public interest to put a man on trial whatever the suspicions when the evidence was insufficient to justify his conviction, or even to call upon him for an explanation. In some cases wider considerations were involved. For example it was not always in the public interest to go through the whole process of the criminal law if only a nominal penalty was likely to be imposed. Sometimes the considerations were wider still.

A prosecution might involve a question of public policy, or national, or sometimes international, concern. In such cases the Attorney-General had not to make up his mind as a party politician; he must in a quasi-judicial way consider the effect of prosecution upon the administration of law and of government in the abstract rather than in any party sense. In considering these matters he had the advice of the Director of Public Prosecutions and very often of Treasury counsel as well. He had to acquaint himself with all the relevant facts including the effect which a prosecution, if successful, would have upon public morale and order, and with any other considerations affecting public policy.

The one consideration which was altogether excluded was the repercussion of a given decision upon the Attorney-General's, or his party's or the Government's political fortunes. That was a consideration which never entered into account. Moreover, if the Attorney-General, the Director of Public Prosecutions, and the police all neglected their duties and did not prosecute where manifestly a prosecution should take place, there was a safeguard in that any private citizen could set the criminal law in motion."



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