# IM. HIDAYATULLAH v. BHARGAVA AND C. A. VAIDIALINGAM, JI.]

- **Citation:** [1968] 1 S.C.R. 394
- **Court:** Supreme Court of India
- **Decided:** 1967-08-30
- **Case number:** Criminal Appeal No. 41 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/im-hidayatullah-v-bhargava-and-c-a-vaidialingam-ji-4103
- **Pages:** 7

## Headnote

ELECTRICAL MANUFACTURING CO. Lm.
l'.
D. D. BHARGAVA
August 30, 1967
IM. HIDAYATULLAH, V. BHARGAVA AND C. A. VAIDIALINGAM, JI.]
Imports & Exports (Control) Act, 1947 (18 of 1947), ss. 5 and 6Section 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 withs. 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 Spec id Police Estabnshment in connection with the case and had not verified personally all the Cletail&
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 cert~in 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
batisfied 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
?aswant 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 Benoa!, (1960] 2 S.C.R 319, 330,
distinguished.
.

## Text

ELECTRICAL MANUFACTURING CO. Lm.
l'.
D. D. BHARGAVA
August 30, 1967
IM. HIDAYATULLAH, V. BHARGAVA AND C. A. VAIDIALINGAM, JI.]
Imports & Exports (Control) Act, 1947 (18 of 1947), ss. 5 and 6Section 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 withs. 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 Spec id Police Estabnshment in connection with the case and had not verified personally all the Cletail&
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 cert~in 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
batisfied 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
?aswant 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 Benoa!, (1960] 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 Delhj 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.
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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 (Contr\Jl) 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 appeJJant and four others. mentioned
therein, under sub-s. (2) of s. l 96A, of the Code of Criminal Procedure (hereinafter called the Code), inasmuch as the complaint
also involved an offence of criminal conspiracy, under s. 120B,
I.P.C., to commit a non-Cognizable offence. So fat as this consent
is d>nc_erned, 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
the 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 complaint was filed. He has further stated that. on receipt of summons
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SUPRllMB COURT REPORTS
[ 1968] i s.o.il.
from the Court, he visited the Spec1al Police Establishment Office
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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
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complaint, on December 29, 1962. But, he has also stated that he
had asked the Special Police Establishment, to draft the complaint.
The appellant 1iled an application, on September 26, 1964,
before the Trial Magistrate, stdtmg that, in view of the above answers given, by the complainant, no cognizance should be taken,
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_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 conD
sideration 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 conE
tained in the police report, is a matter of pure coonjecture,' 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 contenticms, 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
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ll:LJIO. JWltJJ'AO'ttJlllllG cio. ti, BBAJIGAVA (JTaidialingam, J.)
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 evi·
dence 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 bas 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 Jaw. 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 provi·
sions providing. simp/iciter, for a complaint being filed, by a par·
ticular person or officer.
Mr. H. R. Khanna, learned counsel for the respondent-<:<>mplainant, has pointed out that the principles, enunciated by the
appellants' counsel, do not apply to cases where the statute, as in
this case. simp!iciter provides for ii 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, con·
tained 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 requisite
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('). 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
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(1) L.R. 75 I.A. 30.
L/SliSCI-12
SUPBBKB OOUBT BBPORTS
[1968} 1 s.o.u.
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 prosecutioo 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('); Jawsant Singh v. State of Punjab(');
and Feroz Din v. The State of West Bengal('). In Jaswant Singh's
Case('), 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 com·
plaints, under s. 6 of the Act. Sedtion 6 only insists that the com·
plaint is to be in writing and that it must be made by an officet.
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. Venkaiaraman v. The State('). 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
-(i) 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.
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JILllC. IUNUllACTUBING co. v. BIWIGAV4 (Vaidialingam, J.) 399
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na.tural meaning of the words used therein, if those words
are clear enough. lt 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
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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(') 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 llf 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 Morarklis
Case('), 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 8een, by a reference ti> s. 34(1) of the Industrial Dispute~ 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 Governrnent. In the decision before this Court, the
Government had nbt filed the complaint, but, on 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.
L1SoSCI-12(•)
SUPRllKB COURT llBP01\T8
{1968] 1 s.o.a
had occasion to consider the validity of the sanction, regarding
which an attack was made by the appellants. This Court, in that
case, had no occasion to consider whether those principles, would,
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 arises, 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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