P (PLP)

ORDER.‑

Fateh Muhammad alias Hakam Din was convicted under section 3 of the Hoarding and Black Market Act (Act No: XXIX of 1948) read with section 7 of the Essential Supplies Act, 1946, and Article 4 of the Essential Articles Restricted Acquisition Order of 1948 by Mr. Iqbal Ahmad, Magistrate of the First Class, Sialkot, and an appeal presented by him to the Court of Session having been dismissed, he has come up in revision to this Court. One of the points praised by the learned counsel for the petitioner is that the sanction to prosecute the petitioner under section 3 of the Hoarding and Black Market Act was not valid and, therefore, the conviction cannot stand. The sanction to prosecute was given by the Additional District Magistrate of Sialkot as all Additional District Magistrates in the Province had been authorized by Notification No. 37‑HG.‑49/51428, dated the 18th August 1949 (published at page 359 of Part I of the West Punjab Gazette, dated the 26th of August 1949) to grant sanction for prosecution. Subsection (2) of section '12 of Act XXIX of 1948 under which the notification was issued reads as follows:‑

"(2) The Government may by order direct that in case of trials other than trials before a special judge the powers con ferred upon it by subsection (1) shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercised by District Magistrates." By subsection (1) of section 2 of Act XXIX of 1948, a Provincial Government can issue a notification under section 12 of the Act, but the point raised by the learned counsel for the petitioner is that subsection (2) of section 12, authorizes the conferment of powers. only on District Magistrates and Additional District Magistrates could not be authorized to exercise those powers. The learned counsel for the Crown relies on section‑ 10 of the Code of Criminal Procedure under which the Provincial Government can authorize an Additional District Magistrate to exercise all powers of the District Magistrate under the Code of Criminal Procedure or under any other law for the time being in force. There is, however, an authority of the Nagpur High Court reported as Prabhulal Habra vs. Emperor (I. L. R. 1944 Nag. 114), which lays down that the expression "airy other law" occurring in subsection (2) of section 10 of the Code of Criminal Procedure does not include executive orders but only legislative enactments. If the decision in I. L. R. 1944 Nag. 114 is correct, Additional District Magistrates could not be authorized to exercise the powers given to the District Magistrates by the Government acting under subsection (2) of section 12 of Act XXIX of 1948 and the fact that the Additional District Magistrates and the District Magistrates were given powers by tile same notification will make no difference. In case it is held that the Additional District Magistrates could not be authorized to grant sanction for prosecution the proceedings of the Magistrate who tried the petitioner will be without jurisdiction and the petitioner entitled to acquittal. The point raised is of some importance as it is likely to affect the decision of a large number of cases in which sanction to prosecute has been granted by Additional District Magistrates acting under the notification of the Government and I would, therefore, refer the matter for decision by a larger Bench. The papers will be laid before my Lord the Chief Justice for orders. This revision was referred to a Division Bench because of the legal question involved in it. Fateh Muhammad petitioner was convicted under section 3 of the Hoarding and Black Supplies Act (XXIX of 1948) read with section 7 of the Essential Supplies Act, 1946, .and section 4 of the Essential Articles Restricted Acquisition Order of 1948. His appeal from conviction having been dismissed, he applied for revision, and in the course of arguments before the learned Single judge, the point was raised by the learned counsel for the petitioner that the sanction on the basis of which prosecution of the petitioner had been instituted was invalid having been given not by the District Magistrate, but by the Additional District Magistrate. The provisions relating to sanction are to be found in section 12 of the Hoarding and Black Market Act which is as follows:‑ "‑(1) No Court shall take cognizance of any offence of hoarding or dealing in the black market except upon a complaint in writing by or under the written authority of the Government. (2) The Government may by order direct that in case of trials other than trials before a Special judge the powers conferred upon it by subsection (1) shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercised by District Magistrates". By Notification No. 37‑H.G.‑49/51428, dated the 18th August, 1949 issued under subsection (2) of section 12 of the Hoarding and Black Market Act, all District Magistrates and Additional District Magistrates in the Province were authorised to lay complaints of all offences under that Act with the exception of a few specified offences. Under section 10 of the Code of Criminal Procedure a Provincial Government can authorise an Additional District Magistrate to exercise all the powers of a District Magistrate under that Code or under any other law for the time being in force. The point sought to be made by the learned counsel for the petitioner is that no notification under section 10 of the Code of Criminal Procedure was ever issued by the Provincial Government and that the expression "any other law" in subsection (2) of section 10 of that Code is not meant to include an executive order, and in support of this contention he relies on a decision of the Nagpur High Court in Prabhulal Kabra v. Emperor A. I. R. 1944 Nag. 114, a case under the Defence of India Act in which it was held that by a notification under section 10 of the Code of Criminal Procedure the powers of the Central Government and the Provincial Government, which under subsection (S) of section 2 of that Act had been delegated to the District Magistrates, could not be conferred on Additional District Magistrates. In the present case, the notification authorising the Additional District Magistrates to lodge complaint, tinder the Act of 1948 was issued under subsection (2) of section 12 of the Act. That notification does not refer to section 10 of the. Code of Criminal Procedure as its authority. If Government had first issued a notification under subsection (2) of section 12 of the Act of 1948 empowering all District Magistrates to lodge complaints and by a subsequent notification under section 10 of the Code of Criminal Procedure, District Magistrates' powers lead been conferred on Additional District Magistrates, no possible objection could have been taken to the procedure or to the Additional District Magistrates' power to lodge complaints under that Act, because in that case it could rightly have been said that when the notification investing the Additional District Magistrate:, with the power to lodge complaints was issued, the District Magistrates already possessed such powers under "any other law for the time being in force", and that these powers could validly be conferred on the Additional District Magistrates. The question is whether the position becomes different when in place of two separate notifications, one under section 12 of the Act of 1948 and another under section 10 of the Code of Criminal Procedure, only one notification is issued under section 12 of the Act of 1948 authorising the District Magistrates as `well as the Additional District Magistrates to lodge complaints. I should answer this question in the negative because the notification will be taken to assume the Provincial Government's powers under section 10 of the Code of Criminal Procedure and it will he construed as if the District Magistrates had first been empowered under section 12a of the Act of 1948 and simultaneously with, or subsequently, to it tire powers of the District Magistrates in that matter had been conferred on the Additional District Magistrates. The notification in the present case is susceptible only of that interpretation Government knew that if District Magistrates were empowered under section 12, the Additional District Magistrates could then be similarly empowered under section 10 of the Code of Criminal Procedure. I cannot imagine that Government while issuing the notification should not have known that under section 12 of the Act of 1948 the power to lay complaints could only be conferred on the District Magistrates and not on the Additional District Magistrates. Apparently they considered two notifications, under section 12 of the Act of 1948 and the other under section 10 of the Code of Criminal Procedure, unnecessary and thought that only one notification without any specific reference to section 10 of the Code would do. That being the position, when this prosecution was instituted, the power to lodge complaints had already been conferred on the District Magistrates and the District Magistrates' powers had also been declared to be exercisable by the Additional District Magistrates. I do not think the principle of Prabhulal Kabra v. Emperor in any way has the effect of rendering the above notification in valid or inoperative. In that case a distinction was drawn between an executive order and legislative enactments, rules, regulations or orders which have the force of law. The provisions relating to the power to lodge complaints, whether contained in a statute or in the rules under a statute, are "law for the time being in force" within the meaning of subsection (2) of section 10 of the Code of Criminal Procedure and are not merely executive orders. Prabhulla Karba v. Emperor itself draws a distinction between executive orders on the one hand and legislative enactments, rules, regula tions and orders which have the force of law, on the other, and recognizes that while the power to issue orders under the former category cannot be delegated to Additional District Magistrates, the powers conferred by the latter can be so delegated under section 10 of the Code of Criminal Procedure. When the District Magistrate, on his being empowered under subsection (5) of sec tion 2 of the Defence of India Act, exercises powers under Rule 26 of the Defence of India Rules, he acts is a persona designata, with the result that neither he himself nor the 'authority delegating its functions under Rule 26 to him can further delegate these powers to an Additional District Magistrate or any other funct ionary under the general law inasmuch as the Defence of India Act and the Rules thereunder are exhaustive of the mode in which and the persons on whom, such authority can be conferred. It' is in the sense that orders under Rule 26 of the Defence of India Rules have been described in Prabulal Kabra v. Emperor I. L. R. 1944 Nag. 114, as merely executive order which can only be made by the authority specified therein. Those Rules and the Act under which they are made, define the persons on whose satisfac tion alone orders under Rule 26 can be made and therefore by necessary implication exclude general rules governing delegation of District Magistrates' powers to Additional District Magistrates. That being the position, the present case is not governed by the decision in Prabhulal Kabra v. Emperor and the complaint was rightly lodged by the Additional District Magistrate. The revision petition is dismissed. K. M. A Petition dismissed.