Holding

Section 149(3) mandates a prior hearing only for offences under Section 147(1)(c) where the State Government grants sanction, and not for offences under Section 147(1)(d) where the Registrar grants sanction.

Summary

The State of Gujarat filed a criminal appeal against Dilipbhai Nathjibhai Patel challenging a High Court order that a prior hearing was required before granting sanction for prosecution under Section 147(1)(d) of the Gujarat Cooperative Societies Act. The appellant had obtained sanction from the District Registrar as mandated by Section 149(3) and proceeded with prosecution for breach of Section 71 of the Act. The High Court held that the sanction provision required a hearing for all offences, directing that the complaint be stayed until such hearing was held. The Supreme Court examined the language of Section 149(3) and held that the requirement of a prior hearing applies only to offences under Section 147(1)(c), where the sanctioning authority is the State Government, and not to offences under Section 147(1)(d) where the Registrar is the sanctioning authority. The Court also reiterated that courts cannot rewrite or fill gaps in legislation. Consequently, the appeal was allowed and the High Court’s direction was set aside.

Issues considered

Whether Section 149(3) of the Gujarat Cooperative Societies Act requires a prior hearing before granting sanction for prosecution under Section 147(1)(d).
Whether the requirement of a prior hearing applies to offences where the Registrar, not the State Government, is the sanctioning authority.
Whether a court may interpret or amend defective statutory language to impose a hearing requirement.

Legislation cited

Code of Criminal Procedure, 1973s. 482
Gujarat Cooperative Societies Act, 1961s. 147(c), s. 147(d), s. 149(3), s. 71
Indian Penal Code, 1860

Subjects

cooperative societiessanction for prosecutionprior hearingstatutory interpretationGujarat Cooperative Societies ActSection 149(3)Section 147criminal procedure

Judgment

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A THE STATE OF GUJARAT AND ORS.
v.
DILIPBHAI NATHJIBHAI PATEL

MARCH 3, 1998

B •.• .[M.K. MUKHERJEE AND K.T. THO!v1AS, JJ.]

Cooperative Societies :

Gujarat Cooperative Societies Act, 1961-Sections 71, 147(c) & (d)
C and 149(3)-Hearing before giving sanction for prosecution as provided
under Section 149(3).:._Held, applicable ·only in case_ of proposed under
Section 147(3)(c) and not otherwise-High Court erred in holding the said
provision applicable to the grant of sanction for prosecution. under Section
147(3)(d). -

D Interpretation of Statute-Interpretation of defective phrasing of an
Act-Held, Court cannot aid the legislature's defective phrasing ·of an Act
nor can it add, or amend and by construction make up deficienci~ which
are left there.

Appellant No. 2 had lodged a prosecution against the respondents
E under Section 147(1)(d) ~r the Gujarat Cooperative Socieites Act for
committing breach of Section 71 of the Act after obtaining sanction of the
District Registrar as required under Section 149(3) of the Act. The
respondents challenged ·the prosecution by way of filing a petltion before the
High Court under Section 482 Cr PC. The High Court allowed ihe petition
F by observing that a sanction under Section 149(3) for prosecution under
Section 147(l)(d) could 'not be given without giving the party c~ncerned a
prior hearing. Hence the Appeal.

Allowing the appeal, this Co_urt

G HELD: I.I. For lodging prosecution for an offence under the Gujarat· -
Cooperative. Societies Act, previous sanction is essentiaL In respect of offences
under Section 147(l)(c) the sanctioning authority is the State Government;
for all other offences it is the Registrar. When the words "such sanction
shall not be given" appearing at the beginning of the second part are in
juxtaposition with the words "by an officer authorised in this behalf by the
H State Government by a general or special order" at the end, it is manifest
56

..
STATE OF GUJARAT v. D.N. PATEL [M.K. MUKHERJEE, J.] 57
that hearing is to be given only if a sanction for prosecution under Section A
'1· 147(l)(c) is contemplated and not otherwise. When there is no reference to
the Resgistrar at all in the latter part of the section such sanction appearing
therein must refer to a sanction which is required to be given by the State
Government. [58-F-G; 59-C!

1.2. The matter may be viewed from the other angle also. If the words B
"such sanction" are to refer also to the offences for which the Registrar is
the sanctioning authority it will lead to an absurd situation in that a duly
authorised officer of the State Government will hear the parties on the
question of grant of sanction on its behalf, but the decision to grant sanction
will rest on the Registrar. (60-B] C
2. In interpreting a statute the Court cannot aid the legislature's
defective phrasing of an Act nor can it add or amend and by construction
make up deficiencies which are left there. [59-D]

Union of India v. Deoki Nandan Aggarwal, [1991) 3 SCR 873, relied D
on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No,
258 of 1998.

From the Judgment and Order dated of the 9.7.97 Gujarat High E
Court in Crl. M.A. No. 3269 of 1997.

Yashank P. Ahdyaru, ·Mr. Anu Sawhney and Ms. H. Wahi for the
Appellants.

Aseem Mehrotra and A.P. Medh for the Respondents.
F
The Judgment of the Court was delivered by

M.K. MuKHERJEE, J. Leave granted.

The appellant no. 2 a District Co-operative Officer of Vadodara has
lodged a prosecution against the two respondents under Section 147(1) (d) G
--~ of the Gujarat Cooperative Societies Act, 1961 ('Act' for short) for committing
breach of Section 71 of the Act after obtaining sanction of the district
Registrar as required under Section 149 (3) thereof. The prosecution is also
for certain offences under the Indian Penal Code. Aggrieved thereby the
respondents moved the High Court by filing a petition under Section 482 Cr. H
58 SUPREME COURT REPORTS [1998) 2 S.C.R.

A P.C. In disposing of the petition the High Court observed that a sanction
under Section 149(3) for prosecution under Section 147(1)(d) cannot be given
without giving the party concerned a prior hearing. Since, admittedly, the
respondents were not given such hearing, the High Court directed that the
complaint relating to the above offence shall not proceed till notice to the
respondents were given and sanction was accorded after hearing them.
B However, it clarified, the complaint for the remaining offences shall, in no way
be affected by its order and shall be proceeded with in accordance with law.
The direction of the High Court so far as it relates to the prosecution under ~
the Act is under cha!lenge in this appeal. ~
C To appreciate the reasoning of the High Court for issuing the impugned
direction it will be necessary to reproduce Section 149(3) of the Act. It reads
as under:

"149 Cognizance of offlences -

(I) xxx xxx xxx xxx
D
(2) xxx xxx xxx

(3) No prosecution under this Act shall be lodged, except with the
previous sanction of the State Government in the case of an offence
under clause (c) of sub-section (I) of section 147, and of the Registrar
E in the case of any other offence under this Act. Such sanction shall
not be given, except after hearing the party concerned, by an officer
authorised in this behalf by the State Government by a general or
special order."

From a plain reading of the first part of the above sub-section it is manifest
F that for lodging prosecution for an offence under the Act previous sanction
is essential. While for the offence under Section 147(1)(c) the sanctioning
authority is the State Government for all other offences it is the Registrar.
When the words "such sanction shall not be given" appearing at the beginning
of the second part is read in juxtaposition with the words "by an officer
G authorised in this behalf by the State Government by a general or special
order" at the end, it is also manifest that hearing is to be given only if a
sanction for prosecution under Section 147(1) (c) is contemplated and not
otherwise.

From the impugned order of the High Court we find that when the above
H contention was raised before it on behalf of the respondents therein (the
.~(

STATE OF GUJARATv. D.N. PATEL [¥K MUKHERJEE, J.] 59
appellants before us), the High Court observed that the words "such sanction A
.. f shall not be given" are to be interpreted in the context of the provisions made
for the sanction in connection with two different categories of offences and
when so interpreted it would necessarily mean that sanction required to be
given either by the Registrar or by the State must be preceded by a notice
to and hearing of the parties concerned. The High Court, however, did not B
spell out, either in interpreting the section or issuing the impugned direction
... who was to give the notice and hear the parties in respect of the offences
for which the Registrar is the sanctioning authority. If the legislature intended
that in respect of the offences for which the sanctioning authority is the
Registrar a prior hearing is also required to be given by him then, after the
words "by an officer authorised in this behalf by the State Government by C
a general or special order", the words "or by the Registrar, as the case may
be" (or similar such words) would have been added. When there is no
reference to the Registrar at all in the latter part of the section such sanction
appearing therein must refer to a sanction which is required to be given by
the State Government. In interpreting a Statute the Court cannot aid the
-< legislature's defective phrasing of an Act nor can add or amend and, by D
construction make up deficiencies which are left there. In Union of India v.
Deoki Nandan Aggarwal, [1991] 3 SCR 873, this Court observed:-

"It is not the duty of the Court either to enlarge the scope of the
legislation or the intention of the legislature when the language of the E
provision is plain and unambiguous. The Court cannot rewrite, recast
or reframe the legislation for the very good reason that it has no
power to legislate. The power to legislate has not been conferred on
the Court. The Court cannot add words to a statute or read words into
it which are not there. Assuming there is a defect or an omission in
the words used by the legislature the Court could not go to its aid F
to correct or make up the deficiency. Court shall decide what the law
is and not what it should be. The Court of course adopts a construction
which will carry out the obvious intention of the legislature but could
not legislate itself. But to invoke judicial activism to set at naught
legislative judgment is subversive of the constitutional harmony and G
comity of instrumentalities."

(emphasis supplied)

In view of the law so laid down the above section cannot be interpreted to
mean that in respect of the offences for which the Registrar is the sanctioning H
60 ' SUPREME COURT REPORTS---- [199~} 2. S.C.R.

A aJthority a prior hearing is required to be given.

The matter can be viewed from the other angle also. If the words "such
sanction" is to refer also to offences for which the Registrar is the sanctioning
authority it will lead to an absurd situation, in that a duly authorised officer
of the State Government will hear the parties on the question of grant of
B sanction on its behalf, but the decision to grant sanction will rest on the
former. In 'any view of the matter, therefore, the interpretation given by the
High Court. and for that matter, the direction issued cannot be sustained.

We accordingly allow this appeal and quash the impugned direction.

C R.K.S. Appeal allowed.

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