Judgement Appeal (No. 99 of 1946), by special leave, from a judgment and order of the High Court (September 5, 1946) setting aside the acquittal of the appellant of an offence under cl. 18, sub-cl. 2, of the Cotton Cloth and Yarn (Control) Order, 1943, by the judgment and order of the City Magistrate of Sholapur (August 21, 1945), and sentencing the appellant to undergo rigorous imprisonment for one month and to pay a fine of Rs. 1550. The following facts are taken from the judgment of the Judicial Committee. The facts giving rise to the prosecution of the appellant were stated in a written report made by Mr. Mulik, Sub-Inspector of Police, Food Control, Sholapur, to the Sub-Inspector of Police, Sholapur, on January 24, 1945. The report was in the following terms " I, Raghunath Santaji " Mulik, Sub-Inspector of Police, Food Control, Sholapur, "give in writing as follows Having got information that " there were cloth without Textile mark and grain hoarded "in the bungalow situate at Motibag belonging to the Old "Mill at Sholapur, Mr. Yasin Ansar Bhai, the Inspector of " Police, took search of the said bungalow on the date the "4th August 1944 ; but as it drew dark, the search of the "outhouse pertaining to the said bungalow remained to be "taken. Therefore, the rooms of the said outhouse were "sealed. On the date the 5th August, 1944, the Inspector of "Police ordered me to take search of the said outhouse. " In pursuance thereof I took search of the said outhouse, "In the same, Dhoti pairs 196 (measuring 1,903% yards) "with a name in the borders ; Dhoti pairs 426 (measuring "3,804% yards) with no name in the borders ; Patals (Sarees) 25 " (measuring 125 yards) ; and muslin pieces 3, (measuring) "60 yards in all, 5,892 yards of cloth without Textile "mark were found. All that has been seized after making a " Panchanama. Mr. Gokulchand Dwarkadas Morarka is the "agent of the Sholapur Old Mill. Whenever he comes to "Sholapur, he puts up in the bungalow situated at Motibag. "Mr. All that has been seized after making a " Panchanama. Mr. Gokulchand Dwarkadas Morarka is the "agent of the Sholapur Old Mill. Whenever he comes to "Sholapur, he puts up in the bungalow situated at Motibag. "Mr. Gokulchand Dwarkadas has purchased from the said "mill by oral order the aforesaid cloth between the dates the "2nd December, 1942, and 15th March, 1943, for his own use ; "and all that cloth has been taken and kept in the said "bungalow on the date the 2nd August, 1943. "As Mr. Gokulchand Dwarkadas Morarka has been staying "at Malad, I went to Malad and took search of his house. "Whatever clothes of daily wear were found in the same, "were sufficient (for use) to him and the members of his " family. Accordingly, a Panchanama of the clothes in his " house was made. " As Mr. Gokulchand Dwarkadas Morarka has kept with "him cloth in excess of what was necessary, I have a complaint "against him on behalf of the Government according to "clause 18 (2.) of the Cotton Cloth and Yarn (Control) Order " (of) 1943." Clause 23 of the Cotton Cloth and Yarn (Control) Order, as amended, provided that " 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 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)." On January 5, 1945, sanction to the prosecution of the appellant was given by Order of the Government of Bombay in the following terms "SANCTION TO PROSECUTE. "(Signed) H. N. G. "Cotton Cloth and Yarn (Control) "Order, 1943. "Contravention of the Provisions "Prosecutions for— "Government of Bombay. "Finance Department (Supply). "Resolution No. 518. "Bombay Castle, 5th January, 1945. "Endorsement from the District Magistrate, Sholapur, "No. XIX/4500, dated the 8th November 1944. "Resolution —Government is pleased to accord sanction " under clause 23 of the Cotton Cloth and Yarn (Control) " Order, 1943, to the prosecution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of clause 18 (2.) " of the said order. " By order of the Governor of Bombay, " (Signed) " Deputy Secretary to Government, Bombay. "Resolution —Government is pleased to accord sanction " under clause 23 of the Cotton Cloth and Yarn (Control) " Order, 1943, to the prosecution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of clause 18 (2.) " of the said order. " By order of the Governor of Bombay, " (Signed) " Deputy Secretary to Government, Bombay. "To "The District Magistrate, Sholapur." That sanction specified the appellant as the person to be prosecuted and the clause of the order which he was alleged to have contravened, but did not specify the acts of the appellant alleged to constitute such contravention. The question which arose for decision on this appeal was whether that sanction, read with the evidence adduced at the trial, constituted a due compliance with the provisions of cl. 23 of the Order. The trial magistrate held that the sanction was sufficient, but acquitted the accused on the merits of the case. On appeal by the Government of Bombay against that acquittal the High Court (Sen and Gajendragadkar JJ.) convicted the appellant as already stated. 1947. Dec. 1, 2. Sir Valentine Holmes K.C., Umrigar and E. B. Ghasvala for the appellant. It has been held in the courts in India in a number of cases that where there is a provision of such a kind as cl. 23 here in question it is for the prosecution to prove to the satisfaction of the court that a sanction has been given in respect of the facts which are alleged to constitute the offence of the person charged. In this case the High Court, while apparently accepting those two principles, have held, wrongly, it is submitted, that the prosecution had proved that the sanction was in fact in this case given in accordance with those principles, i.e., in respect of the particular facts with which the appellant was charged. The view the High Court took, that the sanctioning authority has only to establish a prima facie case, is not the view which has been taken by the Federal Court. [Reference was made to Emperor v. J. C. DSouza (( 1946) Bom. L. Rptr. 754.) ; King-Emperor v. Mahendra Balkrishna Shah (Cr. App. No. 548 of 1945 (Bom.) (Unreported).); and King-Emperor v. Allarakha (Cr. App. [Reference was made to Emperor v. J. C. DSouza (( 1946) Bom. L. Rptr. 754.) ; King-Emperor v. Mahendra Balkrishna Shah (Cr. App. No. 548 of 1945 (Bom.) (Unreported).); and King-Emperor v. Allarakha (Cr. App. No. 3 of 1946 (Bom.) (Unreported).) ; the last of which indicates that the omission of evidence can be supplied in the High Court.] All those cases stood un-appealed by the Crown. Of the Federal Court cases, Basdeo Agarwalla v. Emperor ([ 1945] F.C.R. 93.) is not on exactly the same point, but on whether sanction was obtained before the institution of the prosecution, while Raghubar Singh v. Emperor (( 1944) A. I. R. (F. C.) 25, 27.) deals with a very similar provision to cl. 23 here. There are cases in the High Courts which are only affirmations of the principle Emperor v. Madhav Laxman (( 1918) I.L.R. 43 B. 147.), there does not appear to be any suggestion in that case that the facts were not before the sanctioning authority ; what was said was that the sanctioning authority had delegated his functions. These sanctions are dealt with meticulous care in India. A very exhaustive search of the authorities in India, both in regard to clauses such as cl. 23 and in relation to sanctions under the Criminal Procedure Code, has been made, and none has been found which contradicts in any way the established propositions cited above. It is important that the sanctioning authority should apply its mind to the facts of the particular case and should not leave it to anybody else to do so. There was no evidence here that sanction had been given for the prosecution of the appellant in respect of the acts which formed the subject-matter of the charge. Megaw for the respondent. There are three propositions which I shall seek to establish. First, there was evidence in this case on which the courts in India were entitled to hold as a fat that the sanction produced related to the particular facts on which this prosecution was founded. Secondly, in any event, where the sanction is produced which authorizes the prosecution of a particular person for a contravention of a particular provision of the law, cl. 23 of the Order is prima facie complied with even though the sanction does not specify the particular facts on which the prosecution is based. Thirdly, if the sanction under cl. Secondly, in any event, where the sanction is produced which authorizes the prosecution of a particular person for a contravention of a particular provision of the law, cl. 23 of the Order is prima facie complied with even though the sanction does not specify the particular facts on which the prosecution is based. Thirdly, if the sanction under cl. 23 properly should specify the particulars of the offence in respect of which the accused is to be tried, then failure to specify such particulars is at most an irregularity curable under s. 537 of the Code of Criminal Procedure unless the absence of the particulars has in fact occasioned a miscarriage of justice. The above propositions are inevitably to some extent overlapping, but if any one of them is right this appeal must fail. With regard to the first proposition, illustration (e) to s. 114 of the Indian Evidence Act, 1872, enables the courts in India to presume that judicial and official acts have been regularly performed, and it is submitted that the courts were entitled to presume that the facts on which the sanction was based were the same as those on which the prosecution was founded, because otherwise the official acts in relation to the production of the sanction would not have been regularly performed. On the second proposition —that the sanction is sufficient though it does not specify the particular facts on which it is founded—if the argument for the appellant is right, when a court is trying an accused person for an offence for which sanction is required the trial court must compare the facts which are proved by the prosecutions evidence line by line with the facts on which the sanction is founded, and that, I say, is an impossible burden on the trial court where the decision goes to jurisdiction. It is unreasonable so to construe this particular clause of the order. Further, there is nothing in cl. 23 which recognizes that the sanction granted should specify the particular facts on which it is founded. The sanction is something which is to raise the bar to a prosecution taking place ; it is something which has to be done before the prosecution can start, and should not be regarded as something which should contain all the evidence. 23 which recognizes that the sanction granted should specify the particular facts on which it is founded. The sanction is something which is to raise the bar to a prosecution taking place ; it is something which has to be done before the prosecution can start, and should not be regarded as something which should contain all the evidence. Such a sanction is prima facie good even though the prosecution has to prove by further evidence, if the accused challenges the prima facie assumption, that the sanction relates to the particular facts. In that event the onus will shift across. The next limb of the argument—still on the second proposition—requires consideration of s. 197 of the Criminal Procedure Code. The sanction under that section would be perfectly valid if it merely authorized the prosecution of a particular person without specifying the offence or offences. The sanctioning authority is not bound even to specify the offence. The use of the word " offence" is significant, and, it is submitted, means no more than a statement of the particular section of the Indian Penal Code, as distinct from particulars of the offence, with the result that in s. 197 the sanction is expressed to be a sanction for an offence, with the inference that the actual sanction does not need to specify the particulars. In the present case, if the Government chooses to do so it can make the sanction a general one. The following authorities all relate to the sanction provisions of the Code of Criminal Procedure itself Imperatrix v. Lakshman Sakharam and Others (( 1877) I.L.R. 2 B. 481, 486, 488.) ; Queen-Empress v. Bal Gangadhar Tilak (( 1897) I.L.R. 22 B. 112, 123.)—in that case the consent did not specify the particular articles ; In re Kalagava Bapiah (( 1904) I. L. R. 27 M. 54, 57.) is very similar to the present case, and appears never to have been expressly disapproved. Nothing could be wider than the words used in Emperor v. Madhav Laxman (I.L.R. 43 B. 147.). The decision in Raghubar Singh v. Emperor (( 1944) A.I.R. (F.C.) 25.) was no more than that the sanction must state the technical offence, " offence" being used there in the sense in which it has been argued above. Nothing could be wider than the words used in Emperor v. Madhav Laxman (I.L.R. 43 B. 147.). The decision in Raghubar Singh v. Emperor (( 1944) A.I.R. (F.C.) 25.) was no more than that the sanction must state the technical offence, " offence" being used there in the sense in which it has been argued above. Further, under the Criminal Procedure Code the charge on which the prosecution proceeds does not necessarily contain any particulars at all ; ss. 225, 535 ; and it cannot therefore be an essential element in the sanction which is required to found jurisdiction. Matthen v. District Magistrate of Trivandrum (( 1939) L.R. 66 I.A. 222, 229, 239.) is of some relevance as to the meaning which has been submitted of " offence "— offences are specified by certain sections, just as in the present case the ^sanction is in respect of an offence under cl. 18, sub-cl. 2. With regard to the third proposition, it is submitted that between the opposing contentions of the appellant and the respondent there can be a half-way house, and that a document which purports to be a sanction to prosecute a particular person for a particular offence is a sanction, and goes to jurisdiction, though it is an irregular sanction—in other words, the absence of evidence goes not to jurisdiction but to the irregularity ; and the irregularity was cured by the evidence as to the circumstances in which the sanction was given. Sir Valentine Holmes K.C. replied, and commented on the authorities cited for the respondent. 1948. Jan. 13. The judgment of their Lordships was delivered by Sir John Beaumont, who stated the facts set out above and continued For the purposes of the present appeal it will be assumed that the facts stated in the Sub-Inspectors report were proved and constituted an offence under cl. 18, sub-cl. 2, of the Cotton Cloth and Yarn (Control) Order, 1943. On the question as to the sufficiency of the sanction the High Court noticed two previous decisions of such court, Criminal Appeal Nos. 18, sub-cl. 2, of the Cotton Cloth and Yarn (Control) Order, 1943. On the question as to the sufficiency of the sanction the High Court noticed two previous decisions of such court, Criminal Appeal Nos. 535 of 1945 and 548 of 1945, by which it had been held that the burden of proving that the requisite sanction had been obtained rested on the prosecution, and that such burden involved 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 face of the sanction, or might be proved by extraneous evidence. The court accepted this view of the law, but held that in the case of the appellant it had been proved that the facts on which the prosecution was proposed to be based had been before the sanctioning authority when the sanction was given. The view of the court on this question appears from the following passage in the judgment of the court " The Sub-Inspector who attached the cloth has sworn " that on the 8th September, 1944, he submitted a report to " the District Superintendent of Police asking for sanction to "prosecute the accused under cl. 18 (2.) of the Cotton Cloth "and Yarn (Control) Order, 1943. Subsequently, the matter " was forwarded to the District Magistrate and the resolution "granting sanction itself refers to the endorsement of the "District Magistrate, Sholapur, No. XIX/4500, dated " 8th November, 1944. It is true that in his cross-examination " the Sub-Inspector admitted that he had not got a copy " of the aforesaid endorsement made by the District Magistrate, "but his evidence would show that the said endorsement " was made in reference to the report which the Sub-Inspector "had forwarded to the District Superintendent of Police as " already stated." This view of the facts is not supported by the evidence on record. There is no evidence to show that the report of the Sub-Inspector to the District Superintendent of Police, which was not put in evidence, was forwarded to the District Magistrate, nor is there any evidence as to the contents of the endorsement of the District Magistrate referred to in the sanction, which endorsement also was not put in evidence. There is no evidence to show that the report of the Sub-Inspector to the District Superintendent of Police, which was not put in evidence, was forwarded to the District Magistrate, nor is there any evidence as to the contents of the endorsement of the District Magistrate referred to in the sanction, which endorsement also was not put in evidence. The prosecution was in a position either to produce or to account for the absence of the report made to the District Superintendent of Police and the endorsement of the District Magistrate referred to in the sanction, and to call any necessary oral evidence to supplement the documents and show what were the facts on which the sanction was given. Their Lordships see no justification for drawing inferences in favour of the prosecution on matters on which they withheld evidence under their control. Under s. 114 of the Evidence Act, illustration (g), the normal presumption is that evidence which could be, and is not, produced would, if produced, be unfavourable to the person who withholds it. On this state of the evidence the respondent has argued that the view which has prevailed in the High Court of Bombay is wrong and that a sanction which names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened is a sufficient compliance with cl. 23 of the said Order. In their Lordships view, to comply with the provisions of cl. 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance, it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of cl. 23. Under that clause sanction has to be given to a prosecution for the contravention of any of the provisions of the Order. A person could not be charged merely with the breach of a particular provision of the Order ; he must be charged with the commission of certain acts which constitute a breach, and it is to that prosecution—that is, for having done acts which constitute a breach of the Order—that the sanction is required. In the present case there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the Order, and the sanction is invalid. Mr. Megaw, for the respondent, has suggested that this view of the law would involve in every case that the court would be bound to see that the case proved corresponded exactly with the case for which sanction had been given. But this is not so. The giving of sanction confers jurisdiction on the court to try the case and the judge or magistrate having jurisdiction must try the case in the ordinary way under the Code of. Criminal Procedure. The charge need not follow the exact terms of the sanction, though it must not relate to an offence essentially different from that to which the sanction relates. Their Lordships were referred to certain decisions on the group of sections in the Code of Criminal Procedure, 195 to 199, relating to sanctions. Criminal Procedure. The charge need not follow the exact terms of the sanction, though it must not relate to an offence essentially different from that to which the sanction relates. Their Lordships were referred to certain decisions on the group of sections in the Code of Criminal Procedure, 195 to 199, relating to sanctions. These cases do not appear to lay down any principle inconsistent with the views expressed above, and as the sections of the Code are expressed in language different from that used in cl. 23 of the Cotton Cloth and Yarn (Control) Order, 1943, and are directed to different objects, ; no useful purpose would be served by an examination of the cases. It may foe observed that s. 230 of the Code provides that if the offence stated in a new or altered charge is one for the prosecution of which previous sanction is necessary the case shall not be proceeded with until such sanction is obtained "unless sanction has been already obtained for a prosecution " on the same facts as those on which the new or altered charge "is founded." The latter words indicate that the legislature contemplated that sanctions under the Code would be given in respect of the facts constituting the offence charged. It was argued by Mr. Megaw, though not very strenuously, that even if the sanction was defective the defect could be cured under the provisions of s. 537 of the Code of Criminal Procedure which provides, so far as material, that no finding, sentence or order passed by a court of competent jurisdiction shall be altered on reversed on account of any error, omission or irregularity in any proceedings before or during the trial, unless such error, omission or irregularity has, in fact, occasioned a failure of justice. It was not disputed that if the sanction was invalid the trial court was not a court of competent jurisdiction, but Mr. Megaw contends that there was in this case a sanction, and that the failure of the Crown to prove the facts on which the sanction was granted amounted to no more than an irregularity. Their Lordships are unable to accept this view. For the reasons above expressed the sanction given was hot such a sanction as was required by cl. 23 of the Cotton Cloth and Yarn (Control) Order, 1943, and was, therefore, not a valid sanction. Their Lordships are unable to accept this view. For the reasons above expressed the sanction given was hot such a sanction as was required by cl. 23 of the Cotton Cloth and Yarn (Control) Order, 1943, and was, therefore, not a valid sanction. A defect in the jurisdiction of the court can never be cured under s. 537. For these reasons their Lordships will humbly advise His Majesty that this appeal fee allowed, that the order of the High Court of Judicature at Bombay, dated September 5, 1946, be set aside and the order, dated August 21, 1945, of the City Magistrate of Sholapur acquitting the accused and ordering the property before the court to be returned to the person concerned from whom it was attached, be restored. PRACTICE NOTE PETITION—STAY OF CRIMINAL PROCEEDINGS, After a decision of the High Court at Madras in civil proceed ings to the effect that the present petitioners had contravened the provisions of the Cotton Cloth and Yarn (Control) Order, 1945, they were granted special leave to appeal to His Majesty in Council against the High Courts decision. Thereafter criminal proceedings were instituted against the petitioners for the alleged contravention of the Order. The same point —.as to the true interpretation of the word " delivery" in cl. 18b (1) (b) of the Order—had to be determined both in the criminal proceedings and by the Privy Council on the appeal from the High Court decision, and the contest was between the same parties. On an application by the petitioners asking the Additional District Magistrate to stay the criminal proceedings pending the determination of the question by the Privy Council, he adjourned the hearing of the case to enable the petitioners to obtain an order for stay from the High Court at Madras. The High Court, dismissing the petition, referred the petitioners to His Majesty in Council, to whom they now applied, for a stay of the criminal proceedings. LORD UTHWATT, delivering the decision of the Board, said In this case the Board is of opinion that it is within the discretion of the Additional District Magistrate to adjourn the proceedings before him. In the circumstances, the Board proposes humbly to advise His Majesty that the proceedings be adjourned until the Additional District Magistrate otherwise orders. Present Lord Uthwatt, Lord du Parcq, Lord Normand, Lord Oaksey and Sir Madhavan Nair.