Rattan Lal S/o Ban Ram R/o Gandhinagar, Jammu. vs State

A case under section 6/13 of Hoarding and profiteering Ordinance against the petitioner is pending disposal in the court of the learned Judicial

Magistrate 1st. Class, Jammu. During the pendency of the case, an application was filed by the petitioner before the learned trial court contending

therein that since no valid sanction had been obtained by the prosecution, as contemplated by S. 14 of the Hoarding and Profiteering Ordinance,

the case against him deserved to be dismissed. That application was dismissed by the learned trial court and aggrieved the petitioner has come up

to this Court with a composite petition under section 439 Cr. P. C. and 561A Cr. P. C.

Mr. Nargotra, learned Counsel for the petitioner has argued that under section 14 of the Hoarding and Profiteering Ordinance it is laid down

that no prosecution shall be launched unless sanction has been obtained for that pinpose from the Superintendent of Police and since in the present

case sanction was accorded by the Addl. Superintendent of Police, there is no valid sanction in the eye of law. According to Mr. Nargotra, the

Govt. could not authorise any person, other than the one designated and prescribed in S. 14 of the Hoarding and Profiteering Ordinance, to

accord sanction for prosecution.

Mr. V. K. Gupta, the learned Assistant Advocate General has on the other hand submitted that the sanction granted by Shri Surjit Singh, Addl.

Superintendent of Police is valid and no exception can be taken to that sanction. Reliance in this connection has been placed on section 4 of the

Police Act and it is urged that if the powers of a Superintendent of Police can be exercised by his Juniors e. g. Asstt. Superintendent and Deputy

Superintendent of Police, there can be no objection to the exercise of power by an Addl. Superintendent of police who holds an equal rank to that

of the Superintendent of Police. It is asserted that in the present case S. Surjit Singh is a Superintendent of Police in his substantive capacity and as

such the sanction given by him in valid.

I have given my careful consideration to the respective contentions raised at the bar. The operative part of the order of sanction of prosecution

reads as follows.

Now therefore, I Surjeet Singh, Additional Supdtt. of Police, Jammu in exercise of the powers vested in me by virtue of section 14 of the said

Ordinance hereby accord sanction to the prosecution of the above said accused in the court of competent jurisdiction.

Section 14 of the Hoarding and Profiteering Ordinance reads as under :

No prosecution for any offence punishable under this Ordinance shall be instituted except with the previous sanction.........

of the controller, if the offence is investigated by the Control Department of the Superintendent of Police, if investigated by the police................

Under section 4 of the Police Act, 1983, it is provided that the words' Superintendent and Superintendent of Police would include any Asstt.

Supdtt. or other person appointed by General or Special order of the Government to perform all or any of the duties of a Superintendent of Police

under the Police Act in any district or part of a district. This definition which is only inclusive and not exhaustive in any event deals with only the

performance of duties of Superintendent of Police, Asstt. Superintendent of Police and others under the ""Police Act'. The words under this Act as

occurring in S. 4 of Police Act are of much significance. Even if an Addl. Superintendent of Police is, by implication, empowered to discharge the

duties of Superintendent of Police, he can do so only under 'Police Act' and not under other statutes The Hoarding and Profiteering Ordinance

specifically lays down that the power of granting sanction for prosecution vests in a Superintendent of Police and to that extent the 'Superintendent

of Police' of the concerned district is a 'person designate' and without any express provisions his powers under the Hoarding and Profiteering

Ordinance cannot be delegated. From a perusal of the record made available by the learned Assistant Advocate General I find that S. Surjit Singh

is a Superintendent of Police. However he was not posted to Jammu as a Superintendent ofPelice. The transfer order Home 530 (Police) 1973

dated 30101973, provides S. Surjit Singh Superintendent of Police awaiting orders of adjustment/posting be posted as Addl. Superintendent of

Police. Jammu vide Shri S. S. Ali which clearly shows that he was not posted as a 'Superintendent of Police'. The learned Assistant Advocate

General has not brought to my notice any notification or order of Government whereby the powers to grant sanction under section 14 of Hoarding

and Profiteering Ordinance were either delegated to or conferred upon S. Surjeet Singh Addl. Superintendent of Police nor any such order or

notification which provides that the duties of Superintendent of Police under the Hoarding and Profiteering Ordinance can be exercised by an Addl.

Superintendent of Police.

It is not denied that in Jammu; in addition to an additional Superintendent of Police there was also a 'Superintendent of Police' at the relevant

time. ""Where a Statute expressly provides that sanction for prosecution is to be given by a particular officer and in a particular manner, it is only the

sanction given by such an officer and in the prescribed manner which would be regarded as valid and not the sanction accorded by any other

officer whosoever he may be unless expressly authorised. Even if the Additional Superintendent of Police may discharge the functions of the

Superintendent of Police, yet, for the purpose of Hoarding and Profiteering Ordinance he is not recognised as an authority who can grant sanction

for prosecution."" In view of what I have said above the observations of the trial Judge to the effect that the sanction given by an Addl.

Superintendent of Police is equivale to that given by the Superintendent of Police in view of S. 4 of the Police Act to my mind are erroneous. In

Criminal cases where penalities are stringent and liberty of citizens is involved, it is incumbent on the prosecution to proceed in the manner laid

down under law and not to invent any ether procedure. Since the Hoarding and Profiteering Ordinance prescribes that sanction for prosecution

must be given by the Superintendent of Police, the absence of sanction from the Superintendent of Police would render the prosecution as

unauthorised. The learned trial court should have, under the circumstances dismissed the complaint.

After giving my consideration to the entire ease, I am of the opinion, that the sanction granted by S. Surjeet Singh, Addl. Superintendent of

Police for the prosecution of the petitioner under section 6/13 Hoarding and Profiteering Ordinance is invalid, and consequently the complaint, filed

in the court of Learned Judicial Magistrate First Class, Jammu, for which a valid sanction for prosecution by the Superintendent of police is a

prerequisite must be dismissed as incompetent.

It shall, however, be open to the state Government, if so advised, to obtain proper sanction and proceed in accordance with law. This however

should not be treated as any expression of opinion on the merits of the ease.