Patna High Court
Latif Shah And Ors. vs State Of Bihar on 7 August, 1989
Equivalent citations: 1990(1)BLJR333
Author: Binodanand Singh
Bench: Binodanand Singh
JUDGMENT Binodanand Singh, J.
1. This application is under Section 482 of the Code of Criminal Procedure for quashing order, dated 23.12.1986 passed by the learned Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 129 of 1986.
2. Prosecution of the petitioners was initiated for offence under Sections 4(b) and 3 of the Explosive Substance Act and Bidupur P.S. Case No. 20 of 1982 was instituted. After submission of the charge-sheet and cognizance the case was committed to the court of session and the petitioners were put on trial before the learned Sessions Judge aforesaid.
3. By she impugned order at the stage of delivery of judgment the learned Sessions Judge perhaps detected that for trial under the aforesaid offence consent of the Central Government or the appropriate authority was essential under Section 7 of the Act. Section 7 of the Explosive Substance Act reads as follows:
No court shall proceed to trial of any parson for an offence against this Act except with the consent of the Central Government.
Perhaps the consent may be given by the appropriate authority under the delegated powers by the Central Government, By the impugned order which is under challenge the learned Sessions Judge after discussion this aspect of the matter came to the conclusion that no judgment as contemplated by Section 235 of the Code of Criminal Procedure can be given and hence no judgment shall be given. But in order that the party may not remain in lurch the learned trial court has made it dear in the impugned order that the prosecution can trice steps for fresh trial It has further been observed that the accused cannot be allowed to submit that they will have to go rigor of the trial for the second time because they will be supposed to be known of the impact of law, particularly when they have all along been represented by the lawyer and to turn around at the end of the trial with the submission that they are entitled to acquittal.
4. The learned Counsel appearing for the petitioners has submitted that the learned Sessions Judge has made above observation under mis-conception since the Act was there and Section 7 of the Explosive Substance 4ct was also incorporated therein. At the very beginning of the trial it was the duty of either the prosecution or at least of the court to detect this defect in the trial.
5. For want of consent of the Central Government as required under Section 7 of the Explosive Substance Act the learned Sessions Judge has no jurisdiction to proceed with the trial. The prosecution and the trial court themselves out of their ignorance of law had brought this critical situation for which the petitioners cannot be allowed to suffer.
6. The offences are alleged to have been committed as tar back as in the year 1982. Charges were framed by the trial court on 26.4.1985 and the impugned order was passed on 23.12.1986. Now we are in the midst of iy89. There does not appear any fault on the part of the petitioners. Since it was not their duty to correct the mistake being committed by either the prosecution or the court the petitioners were entitled to take benefit of that. By the impugned order tin; learned trial court has virtually tried to fill up the lacuna in the prosecution case nod has given the opportunity to the prosecution to rectify the select committed by it which does not appear just and proper. Above all this long period for which the petitioners have to face rigors of prosecution including the trial it will not be desirable to again give opportunity to the prosecution to put them on trial after obtaining consent. Besides this if is also not certain whether consent will be granted or not. Consent will not be granted that possibility also cannot be ruled out. So the petitioners cannot be kept under the mental torture for an indefinite period.
7. From the prosecution case it further appears that the allegations were that the two petitioners were manufacturing bombs, Their defence was that they were preparing crackers for killing the jackals which unfortunately and accidentally exploded and caused serious injury to the petitioners themselves. The information has received very minor injury. In this view of the matter also it also does not appear desirable that the petitioners should again lie retried if the prosecution takes step even for retrial of the petitioner. In the case of R.P. Kapur v. State of Punjab some of the categories of the case where the inherent jurisdiction to quash the proceedings can and should be exercised have been stated but No. (1) is that where it manifestly appears that there is a legal bar against the institution or continuance of the criminal prosecution in respect of the offence alleged, Absence of the requisite sanction may, for instance furnish cases tinder this category.
8. On the point of prosecution and trial of the accused in the case of State of U.P. v. Kapil Deo Shukla , the Supreme Court has observed in para 14. We are not prepared to keep persons w ho are on trial for their lives under indefinite suspense because trial Judges omit to do their duty. Justice is not one-sides, it has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detection of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go. In para 15 it has further been observed that. It is a matter of some regret that on such a view, the respondent against whom serious charges of a public nature stand, should not be proceeded with. But against that there is equally the fact that long lapse of time and the impossibility of supplying him copies of police statements and other relevant documents is likely to end in the trial on being fair and just in these circumstances, we have come to the conclusion that it is neither expedient nor in the larger interest of justice that the trial with all the aforesaid possible deficiencies should be allowed to proceed. In any event, this is, in our view, not a case where this Court should interfere with the orders of the High Court in as appeal under Article 136 of the Constitution."
9. In the aforesaid case the judgment of the High Court was upheld by which the High Court of U.P. had quashed the prosecution of the petitioner on the grounds as stated above. In this case it is quite obvious that prosecution did not take any step to obtain the consents of the Central. Government or the appropriate authority till the same was pointed out by tie defence at the time of delivering the judgment. It was not the duty of the accused to rectify the defect of the prosecution and the learned Sessions Judge was not justified to give the opportunity to the prosecution to fill up the lacuna in the prosecution case.
10. In view of the lapse of long time since the institution of the case and the passing of the order which has been impugned in this application, this application is allowed. The impugned order is hereby quashed and the observation made by the learned Sessions Judge that the prosecution may proceed with the trial after obtaining consent of the appropriate authority will have no legal force.