JASWANTRAY MANILAL AKHANEY Vs. STATE OF BOMBAY
LAWS(BOM)-1954-9-1
HIGH COURT OF BOMBAY
Decided on September 10,1954

JASWANTRAY MANILAL AKHANEY Appellant
VERSUS
STATE OF BOMBAY Respondents


Referred Judgements :-

EMPEROR V. ANANT NARAYAN [REFERRED TO]
YUSOFALLI NOORBHOY V. KING [REFERRED TO]
EMPEROR VS. YUSOFALLI NOORBHAI [REFERRED TO]


JUDGEMENT

- (1.)THIS criminal application raises a question under section 403 (1) of the Code of Criminal Procedure. In order to appreciate the question raised, it is necessary to mention facts relevant to the determination of the question.
(2.)THE applicant was a director of an insurance company which will, for brevity's sake, be called the "union Life Insurance Company. " On March 31, 1949, the applicant made a return, as required by section 28 of the Insurance Act, 1938. It appears that an administrator took charge of the affairs of this company, he having been appointed by the Central Government. If the return made is a false return, the consequence is to be found in section 104 of the Act, which provides that "whoever, in any return, report, certificate, balance-sheet or other document, required by or for the purposes of any of the provisions of this Act, wilfully makes a statement false in any material particular, knowing it to be false, shall be punishable" as mentioned in that section. There was a recommendation made that the applicant should be prosecuted under section 104. Now, in the case of prosecution by or at the instance of the Controller, no sanction of the Advocate-General is necessary. But where the proceedings are to be started not at the instance of the Controller but at the instance of an administrator, then section 107 (1), so far as material, provides that :
"except where proceedings are instituted by the Controller no proceedings under this Act against an insurer or any director, manager or other officer of an insurer or any person who is liable under sub-section (2) of section 41 shall be instituted by any person unless he has previous thereto obtained the sanction of the Advocate-General of the State where the principal place of business in the States of such insurer is situate to the institution of such proceedings. . . . "

(3.)INASMUCH as the proceedings were to be started by the administrator, sanction of the Advocate-General was applied for and was obtained on May 23, 1951, and pursuant to this sanction, a complaint was filed against the applicant on May 26, 1951, under section 104. That case was tried by Mr. M. J. Gordhandas presiding over the 19th Court, Bombay, and on March 12, 1953, the learned Magistrate made an order in favour of the applicant, holding that the applicant was entitled to an acquittal principally and upon the only ground that the sanction for the prosecution of the applicant was bad in law.


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