Judgement Appeal (No. 30 of 1948), by special leave, against two judgments of the High Court (June 17, 1947) setting aside two orders of the court of the Presidency Magistrate, 6th Additional Court (September 16, 1946), whereby two prosecutions of the appellant for the offences of hoarding and profiteering under the Hoarding and Profiteering Prevention Ordinance, 1943 (hereinafter called " the Ordinance ") were held to be barred by reason of the provisions of s. 403 of the Code of Criminal Procedure, since in the view of the magistrate the accused had been previously tried and acquitted on exactly similar charges and facts by a court of competent jurisdiction. The following facts and statutory provisions are taken from the judgment of the Judicial Committee. The appellant was the sole proprietor of Messrs. Alladin Dhanji, dealers in crockery, glassware, and cultery, in Bombay. He was charged in the court of the Presidency Magistrate, 6th Additional Court, under s. 13, sub-s. 1, read with s. 5 of the Ordinance with the offence of hoarding. He was also separately charged in the said court, under s. 13, sub-s. 1, read with s. 6 of the Ordinance with the offence of profiteering. He pleaded not guilty to both charges. Section 14 of the Ordinance was in the following terms—" No prosecution for any offence " punishable under this Ordinance shall be instituted except " with the previous sanction of the Central or the Provincial " Government, or of an officer not below the rank in a " Presidency town of a deputy Commissioner of Police, or " elsewhere of a District Magistrate empowered by the Central " or the Provincial Government to grant such sanction." Sanction to the appellants prosecution had been granted before the institution thereof by C. C. Desai, Controller-General of Civil Supplies, who was authorized to give such sanction by virtue of a notification of the Government of India duly published. The separate hearing of the two charges against the appellant proceeded in the normal manner under the Code of Criminal Procedure ; evidence for the prosecution was called, and on October 1, 1945, charges were framed ; subsequently further evidence was called for the prosecution and some of the witnesses were recalled for cross-examination, and the case was adjourned to December 17, 1945. On that date Mr. On that date Mr. Khandalawalla, counsel for the prosecution, made a statement which the learned magistrate took down in the following words " In view of the High Court decision in Re visional Application " No. 191 of 1945, as this court is not competent to try this " offence, he does not wish to tender the witnesses already " examined for further cross-examination nor to lead any " further evidence.” Thereupon the magistrate recorded an order in the following terms “Mr. Mullicks evidence is " deleted. Accused acquitted for reasons to be recorded " separately” on the same day, the learned magistrate recorded his reasons for the orders of acquittal in identical terms on the two charges. After referring to the statement of Mr. Khandalawalla and the order made on it, the learned magistrate continued " On a perusal of the said decision, " however, I find that the filing of this charge sheet by the " prosecution itself is invalid in law, because the sanction " is signed by the Controller-General under a Notification of the " Government of India, and the said Notification does not " state that the various officers therein mentioned are not " below the rank of a District Magistrate. Thus it is the " incompetence of the prosecution to proceed against the " accused without sanction as provided for in law. As, “however, the invalidity of the sanction invalidates the prosecution in court, the accused was acquitted." In addition to his orders of acquittal the learned magistrate on the same day passed two orders under s. 517 of the Code of Criminal Procedure, directing that the cutlery, glass, and other articles belonging to the appellant, which had been marked as exhibits in the case, should be returned to him. The Government of Bombay did not appeal against the two orders of the learned magistrate acquitting the appellant, but against his further orders made under s. 517 of the Code of Criminal Procedure the Government filed two appeals, and on April 16, 1946, the High Court in such appeals directed that the property should be handed over to the Chief Presidency Magistrate, and that the orders of the learned magistrate disposing of the property under s. 517 should be set aside. On April 10, 1946, fresh sanctions to prosecute the appellant were obtained from the Government of Bombay, and on April 13 fresh prosecutions were instituted against the appellant for the same offences and on the same facts as in the former prosecutions. On September 16, 1946, the learned magistrate acquitted the appellant, holding that the fresh prosecutions were barred under s. 403 of the Code of Criminal Procedure. The Government of Bombay appealed against those orders of acquittal and, on June 17, 1947, the High Court of Bombay allowed the appeals, set aside the orders of the learned magistrate acquitting the accused, and directed that the case should be sent to the Chief Presidency Magistrate who was directed to send the case to any magistrate other than the magistrate who had made the orders of acquittal, for disposal according to law. Section 403 of the Code of Criminal Procedure, so far as relevant, was in these terms— " (1.) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted " of such offence shall, while conviction or acquittal remains " in force, not be liable to be tried again for the same offence, " nor on the same facts for any other offence for which a " different charge from the one made against him might have " been made under s. 236, or for which he might have been " convicted under s. 237." " (4.) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal " or conviction, be subsequently charged with, and tried for, " any other offence constituted by the same acts which he may " have committed if the court by which he was first tried was " not competent to try the offence with which he is subsequently charged." “Explanation The dismissal of a complaint, the stopping " of proceedings under s. 249, the discharge of the accused " or any entry made upon a charge under s. 273, is not an " acquittal for the purposes of this section. 1949. April 4, 5. W. W. K. Page K.C. and Handoo for the appellant. What the High Court decided in Re visional Application No. 191 of 1945 was that the prosecution must prove that the sanction is given by a competent authority. 1949. April 4, 5. W. W. K. Page K.C. and Handoo for the appellant. What the High Court decided in Re visional Application No. 191 of 1945 was that the prosecution must prove that the sanction is given by a competent authority. But the abandonment of the prosecution by the Crown in this case was based on the opinion of prosecuting counsel as to the competency of the court, not on a finding of the court as to the invalidity of the sanction. The prosecution may have considered that it would be difficult to establish in fact that the Controller-General was an officer of a rank not below that of a District Magistrate, but that fact is not established by the unilateral action of the prosecution. It is a question to be decided by the court. Without proof of the insufficiency of the sanction in the first prosecution the question of the jurisdiction of the court cannot arise, and the fact of the performance of the condition imposed by s. 14 of the Ordinance, or its non-performance, canonly be decided by the court in which the prosecution is instituted. Owing to the course adopted by the prosecution in not first establishing, or endeavouring to establish, the validity of the sanction, the appellant was put on his trial. Evidence was led on which the court considered that a charge should be framed; the charge was accordingly framed ; the appellant pleaded to it, and further evidence was led and the witnesses for the prosecution in part cross-examined. Undoubtedly the appellant was in jeopardy of conviction. If at that stage the prosecution had proceeded to call evidence to prove that a valid sanction had been obtained, it might well be that the court would have held the sanction to be valid and might on the evidence have found the appellant guilty and convicted him and, on appeal, the High Court might have taken the same view. Up to that point, when the prosecution withdrew, there was no fact proved which established the illegality of the prosecution. The court remained a court competent to try the appellant, and had jurisdiction to take the consequential step of dismissing the case. In the circumstances of the present case, the provisions of s. 403, sub-s. 1, of the Criminal Procedure Code are applicable, and the second prosecution is barred. The court remained a court competent to try the appellant, and had jurisdiction to take the consequential step of dismissing the case. In the circumstances of the present case, the provisions of s. 403, sub-s. 1, of the Criminal Procedure Code are applicable, and the second prosecution is barred. The words of s. 403, sub-s. 1, are " tried by a court of competent jurisdiction/ not " tried "by a court having jurisdiction." As to the jurisdiction of the magistrates court to entertain the prosecution and to acquit the appellant, the prosecution relied on a decision of the Federal Court, Basdeo Agarwalla v. King-Emperor ([ 1945] F. C. R. 93.), which, it is submitted, is clearly distinguishable. So, also, is Gokulchand Dwarkadas Morarka v. The King (( 1948) L.R. 75 I A. 30.), but it is to be observed, first, that in that case the appellant did not dispute that if the sanction was invalid the trial court was not a court of competent jurisdiction and, secondly, that the question of the validity of the sanction was in issue and was finally decided by the Board. In the present case that question has not been tried. There is no evidence establishing the invalidity of the sanction. If this case falls within the terms of sub-s. 1 of s. 403 of the Code then there is a statutory bar to the second prosecution of the appellant. Lastly, if this case does not come within s. 403, sub-s. 1, it is submitted that the principle underlying the maxim nemo debet bis vexari pro eadem causa is applicable, and that, in the circumstances of this case it would be contrary to the principles of natural justice that the appellant should, in the presence of a final order of acquittal, be again prosecuted for the same offence and on the same facts. An appeal by the Government lay against that order of acquittal. It preferred no appeal, and it allowed that remedy to become barred by limitation art. 157 of the Indian Limitation Act. It might well be that, had such an appeal been presented, the High Court would have upheld the acquittal. It is con trary to any conception of justice that the appellant should again be put in jeopardy in a second prosecution. 157 of the Indian Limitation Act. It might well be that, had such an appeal been presented, the High Court would have upheld the acquittal. It is con trary to any conception of justice that the appellant should again be put in jeopardy in a second prosecution. [Reference was made to Emperor v. Chinna Kaliappa Gounden (( 1905) I.L..R. 29 M.126, 137.), Emperor v. Anant Narayan (( 1944) 47 Bom. L. Rptr. 138, 141.), Rex v. Simpson (5), and Rex v. Bates ([ 1914] 1 K. B. 66. 964.).] Tucker K.C. and Jayakar for the respondent. The funda mental defect in the argument for the appellant dealing with s. 403 lies in his construction of the words "court of competent jurisdiction/ Section 403 really sets out in statutory language what is the common law of England, and therefore authorities on the question of what is meant by " court of " competent jurisdiction " are available. A court of competent jurisdiction must have jurisdiction to do two things, first, to hear the case at all, and secondly, validly to determine it. There are a number of different grounds on which a court may be without jurisdiction—ambit of area; irregularity in the course of the conduct of the trial which takes away its jurisdiction; there may be conditions precedent to be satisfied, as in the present case, in which there must be a prior sanction before the court can proceed to hear and determine. The argument for the appellant is that this original magistrate was a court of competent jurisdiction because in general he has jurisdiction to hear this class of offence. No one denied that, but in connexion with a particular charge against a particular person where that person sets up autre fois acquit or autre fois convict he must establish that the court trying him had the jurisdiction to hear his case and either to convict or acquit him. Agarwalla s case ([ 1945] F. C. R. 93.) is an illustration of the condition precedent. There are other Indian cases in which, under s. 195 of the Criminal Procedure Code, proceedings have to be begun in a particular manner before the court can hear and determine a case. It is the same in England Rex v. Bates ([ 1911] 1 K. B. 964.). There are other Indian cases in which, under s. 195 of the Criminal Procedure Code, proceedings have to be begun in a particular manner before the court can hear and determine a case. It is the same in England Rex v. Bates ([ 1911] 1 K. B. 964.). To prove autre fois acquit the accused must prove that the first trial was held, and that he was acquitted by a court competent to convict him—that is the principle Rex v. Bowman ((1834) 6 C& P.337.) ; Rex v. Mar sham ([ 1912] 2 K. B. 362.). Those two cases are not only illustrations of the way in which the jurisdiction may be lost during the course of the hearing, but also are authorities for the proposition that there is no need, in order to repel a plea of autre fois acquit or autre fois convict, to be able to say that the original proceedings have been in fact quashed or reversed. The matter is one to be decided when the accused comes up again for trial—it has to be decided then and there whether the first acquittal or conviction was a valid one, irrespective of whether proceedings by way of appeal have been taken or not. Crane v; Director of Public Prosecutions ([ 1921] 2 A. C. 299, 332-5.) is another illustration and another affirmation of the principle that before a former conviction or acquittal can be relied on it must be shown that the trial court had power to convict or acquit. Rex v. Simpson ([ 1914] 1 K. B. 66.) has no application in the present case, in which, as in Morarkas case ([ 1948] L. R. 75 1. A. 30.), the necessity for the proper sanction was vital for the jurisdiction of the court trying the offence. The appellant complains that no one in the first trial, least of all the prosecution, took the trouble to prove that there was a valid sanction, and he is apparently trying to raise some form of estoppel. A. 30.), the necessity for the proper sanction was vital for the jurisdiction of the court trying the offence. The appellant complains that no one in the first trial, least of all the prosecution, took the trouble to prove that there was a valid sanction, and he is apparently trying to raise some form of estoppel. Not having proved, as he suggests that the prosecutor could have proved, that the sanction was valid, the prosecutor ought now to be put in the position as though he had proved it, so as to make the proceedings valid, or the prosecutor is estopped from denying that they were, and this enabled the appellant to have the foundation for his plea of autre fois acquit. That argument is fallacious, as the prosecutor cannot waive the power of the court to deal with this matter ; he cannot waive the necessity for producing a proper sanction ; he cannot give the court jurisdiction by estoppel—by his being estopped from doing something ; he cannot even give the court jurisdiction by consenting that it shall have jurisdiction. Even consent to waive a condition precedent to the jurisdiction of the court will not give the court jurisdiction if the condition precedent is not in fact complied with. As was said in Raleigh Investment Co., Ld. v. Governor-General in Council (( 1947) L. R. 74 I. A. 50, 61.), " jurisdiction " cannot be given by consent." No one is estopped at any time from raising a point as to jurisdiction. So, when the second court comes to try the plea of autre fois acquit, it is for that court to decide then and there whether the original proceedings were valid or not. [Reference was made to Rex v. Shoreditch Assessment Committee. Ex parte Morgan ([ 1910] 2 K. B. 859, 880.).] To succeed in this case the appellant has to show that the decision of the High Court itself in Revisional Application No. 191 of 1945 was wrong. It was clearly right, and has been affirmed by the High Court in the present case. That is a complete answer to the appellants case here. W. W. K. Page K.C. replied. May 30. It was clearly right, and has been affirmed by the High Court in the present case. That is a complete answer to the appellants case here. W. W. K. Page K.C. replied. May 30. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT, who said that the real question before the Board was whether in the circumstances of the case the plea of autre fois acquit was open to the appellant, and that question in essence depended on whether the earlier prosecution was before a court of competent jurisdiction. [His Lordship then stated the facts set out above and continued ] It is clear from this statement (supra) of the learned magistrate before whom the first prosecution came that he had read the decision of the High Court in Revisional Application No. 191 of 1945 and on the strength of that decision reached the conclusion that the prosecution was incompetent. The decision of the High Court in that case was that in order to establish the validity of a sanction under s. 14 of the Ordinance it was essential for the prosecution to prove that the officer who signed the sanction was not below the rank of a District Magistrate. The court did not base its opinion as to the invalidity of the sanction on the omission from the Notification of a statement that the officers referred to therein were not below the rank of a District Magistrate, as the learned magistrate seems to have thought. The present case arises in a Presidency town, so that, if this decision of the High Court be correct, the prosecution had to prove that the Controller-General of Civil Supplies who gave the sanction was not below the rank of a Deputy Commissioner of Police. As the Controller is not in the same cadre as a District Magistrate or a Deputy Commissioner of Police, the reluctance of the Crown to undertake the task of establishing the comparative status of these officers is understandable. The view which the High Court in the present case took was that the previous decision of the High Court in Revision Application 191 of 1945 was correct, from which it followed that no valid sanction for the first prosecution of the appellant had been obtained. The view which the High Court in the present case took was that the previous decision of the High Court in Revision Application 191 of 1945 was correct, from which it followed that no valid sanction for the first prosecution of the appellant had been obtained. Following the decision of the Federal Court in Basdeo Agarwalla v. King-Emperor ([ 1945] F. C. R. 93.), which was based on a clause in another Ordinance expressed in language similar to that used in s. 14 of the present Ordinance, the court held the earlier prosecution of the appellant to have been wholly null and void, and that accordingly the appellant had not been previously tried by a court of competent jurisdiction within s. 403. Before this Board the correctness of the decision of the High Court in Revision Application 191 of 1945 has not been challenged, and their Lordships feel no doubt that the decision was correct, and that, as it was not proved that the officer who granted the sanction in the earlier prosecutions was not below the rank of a Deputy Commissioner of Police, those prosecutions were without valid sanction. Mr. Page, for the appellant, urged various grounds against the decision under appeal. His first contention was that the expressions “court of competent jurisdiction" in s. 403, sub-s. 1, and “court .... not competent to try the offence “in s. 403, sub-s. 4, refer to a court competent to try the class of cases in which the particular offence falls, and do not involve that the court must be competent to try the particular case. In their Lordships view this argument is quite untenable. The whole basis of s. 403, sub-s. 1, is that the first trial should have been before a court competent to hear and determine the case and to record a verdict of conviction or acquittal. If the court was not so competent it is irrelevant that it would have been competent to try other cases of the same class, or, indeed, the case against the particular accused in different circumstances, for example, if a sanction had been obtained. This case fell under s. 403, sub-s. 1, and the terms of s. 403, sub-s. 4, do not call for discussion. The next contention urged was that the learned magistrate did not adjudicate on the validity of the sanction. This case fell under s. 403, sub-s. 1, and the terms of s. 403, sub-s. 4, do not call for discussion. The next contention urged was that the learned magistrate did not adjudicate on the validity of the sanction. The argument was that the trial had proceeded to the point at which much of the prosecution evidence had been given and the magistrate had framed a charge; that at that stage counsel for the prosecution refused to attempt to prove that a proper sanction had been given or to call further evidence, and that in the circumstances the learned magistrate had no option but to acquit the accused under s. 258 of the Code of Criminal Procedure. This is the view of the matter which commended itself to the learned magistrate and induced him to hold that s. 403 was a bar to the second prosecution. This contention might have had some force in it if it were supported by the facts, if, that is, the magistrate acquitted the accused because he thought the prosecution had failed to prove their case, and if he was not asked to decide, and did not decide, on the validity of the sanction. But this is not what happened. It is clear, as already noted, that the learned magistrate himself considered the decision in Criminal Revision Application 191 of 1945 and came to the conclusion, on the basis of that decision, that the sanction was bad, and the prosecution incompetent. This conclusion was clearly right, whether or not the magistrate correctly appreciated the grounds on which the decision of the High Court was based. Having reached that conclusion the learned magistrate ought to have discharged the accused on the ground that he had no jurisdiction to try him. The orders of acquittal were passed without jurisdiction, and could only operate as orders of discharge. The next contention was that the failure to obtain a sanction at the most prevented the valid institution of a prosecution, but did not affect the competency of the court to hear and determine a prosecution which in fact was brought before it. This suggested distinction between the validity of the prosecution and the competence of the court was pressed strenuously by Mr. Page, but seems to rest on no foundation. This suggested distinction between the validity of the prosecution and the competence of the court was pressed strenuously by Mr. Page, but seems to rest on no foundation. A court cannot be competent to hear and determine a prosecution the institution df which is prohibited by law, and s. 14 prohibits the institution of a prosecution in the absence of a proper sanction. The learned magistrate was no doubt competent to decide whether he had jurisdiction to entertain the prosecution and for that purpose to determine whether a valid sanction had been given, but as soon as he decided that no valid sanction had been given the court became incompetent to proceed with the matter. Their Lordships agree with the view expressed by the Federal Court in Agarwallas case ([ 1945] F. C R. 93.) that a prosecution launched without a valid sanction is a nullity. The next contention was that as the orders of acquittal passed by the learned magistrate in the first prosecution were not appealed from they became binding on the expiration of the period limited for appeal by art. 157 of the Limitation Act. This is merely to regard another aspect of the same problem. If the orders of acquittal were passed by a court of competent jurisdiction, though wrongly, they would be binding unless set aside in appeal. But if the orders were a nullity there was nothing to appeal against. It may well be that the Government, if embarrassed by the orders of acquittal, might have applied to the High Court to quash them, and in this connexion reference may be made to the decision of the House of Lords in Crane v. Director of Public Prosecutions ([ 1921] 2 A; C. 299.). But the omission of Government to take such a step, which was not incumbent could not convert an order made without jurisdiction into an order passed by a court of competent jurisdiction. Some emphasis was laid on the conduct of the Government of Bombay in appealing against the orders passed by the learned magistrate under s. 517 of the Code of Criminal Procedure. It may be that the High Court ought not to have entertained such appeals, but no question as to the validity of the orders made in these appeals is before the Board. It was rightly conceded by Mr. It may be that the High Court ought not to have entertained such appeals, but no question as to the validity of the orders made in these appeals is before the Board. It was rightly conceded by Mr. Page that the action of the Government of Bombay in appealing against the orders made by the magistrate under s. 517 could not operate by way of estoppel to confer jurisdiction on the magistrate which he did not otherwise possess. The last point urged by Mr. Page was that even if the case did not fall within the terms of s. 403 of the Code of Criminal Procedure the appellant could none the less rely on the common law rule that no man should be placed twice in jeopardy. But this argument again depends on whether the earlier orders of acquittal were valid. Under the common law a plea of autre fois acquit or autre fois convict can only be raised where the first trial was before a court competent to pass a valid order of acquittal or conviction. (Rex v. Bowman (6 C. & P. 337.), Rex v. Bates ([ 1911] 1 K. B. 964.), Rex v. Mar sham ([ 1912] 2 K. B. 362.).) It is true, as pointed out by Mr. Page, that those cases are cases in which there had been a conviction at the earlier trial, but their Lordships see no distinction for the present purpose between a conviction and an acquittal. Unless the earlier trial was a lawful one which might have resulted in a conviction, the accused was never in jeopardy. The case of Rex v. Simpson ([ 1914] 1 K. B. 66.), on which Mr. Page relied, is distinguishable because the first order on which the plea of autre fois acquit was based was held by a majority of the court to be voidable, and not void. This argument therefore fails on the facts, and it is not necessary for their Lordships to consider whether s. 403 of the Code of Criminal Procedure constitutes a complete code in India on the subject of autre fois acquit and autre fois convict, or whether in a proper case the common law can be called in aid to supplement the provisions of the section. For these reasons their Lordships will humbly advise His Majesty that this appeal be dismissed.