Jharkhand High Court
Prasadi Mahto @ Talo Mahto And Taleshwar ... vs The State Of Jharkhand on 15 February, 2007
Equivalent citations: 2007(2)BLJR1138
JUDGMENT D.K. Sinha, J.
Page 1138
1. The petitioners have invoked the inherent jurisdiction under Section 482 of the Code of Criminal Procedure for quashment of the impugned order dated 27.9.2005, whereby cognizance of the offence has been taken under Sections 3/4/5 of Explosive Substance Act (hereinafter referred to as the Act) by the Chief Judicial Magistrate, Hazaribagh and further quashment of the entire criminal proceeding of the petitioners in S.T. No. 469 of 2005 arising out of Bishnugarh P.S. case No. 56 of 2005 corresponding to G.R. No. 2500 of 2005 now pending in the court of Addl. Sessions Judge, F.T.C. No. VI Hazaribagh.
2. The prosecution story lies in a narrow compass. The informant, Officer In-charge of Bishnugarh Police station, presented a written statement before the Chief Judicial Magistrate, Hazaribagh narrating therein that pursuant to the Page 1139 telephonic massage received from the Superintendent of Police, Hazaribagh on 29.7.2005 that the M.C.C. extremists were to observe the 'Martyr Week' and in this connection it was informed that they might attack on the police party, he along with the police force of CRPF, 72-G Company proceeded towards the village of Taleshwar Mahto and conducted search of several houses including the house of the petitioner, Taleshwar Mahto from where huge quantity of incriminating articles including prohibited literatures were recovered. In course of search and seizure Taleshwar Mahto was arrested and he disclosed that the seized articles were brought and dumped by the Area Commander of M.C.C. Raju Mahto. He further confessed that some of the incriminating articles were kept with his brother and father at village Semarbera. Upon such discloser the house of his father Prasadi Mahto (Petitioner No. 1) and brother Dular Chand Mahto was searched at village Semarbera on the same day and huge quantity of explosives including 12 Gelatine, branded as explosive 25 M * 125 G, Indian Explosive Limited Gomia 829112 Power GEL 801 were recovered and seizure list was prepared in presence of independent witnesses. The case was instituted under Section 144 of the IPC, Sections 3/4/5 of Explosive Substance Act as well as under Section 17 of the C.L.A. Act against all the three accused persons including the petitioners.
3. Mr. P.P.N. Roy, the learned Sr. Counsel submitted that the petitioners along with Dular Chand Mahto were put on Trial after framing of charge under Sections 3/4 of the Explosive Substance Act as also under Section 144 of Indian Penal Code. Two seizure witnesses were produced in course of trial but were unfavourable to the prosecution.
4. Advancing his arguments Mr. Roy submitted that the trial of the petitioners for the charge under Sections 3 and 4 of the Explosive Substance Act is not sustainable for want of sanction by the competent authority as defined under Section 7 of the Act, 1908. Even taking cognizance of the alleged offence by the C.J.M. is misuse of the process of court and accordingly, the Additional Sessions Judge (trial court) has got no jurisdiction to proceed with the trial against the petitioners.
5. Mr. Roy relied upon a decision reported in 1998 (2) East Cr. Cases 986 (Pat) in which the Single Bench of the Patna High Court in Dilip Mandal v. State of Bihar observed:
It appears that at time of framing charge, this petition was raised before the trial court and the trial court refused the prayer made on behalf of the petitioner. On perusal of the materials on record, it appears that no sanction has been accorded by the Central Government as required by Section 7 of the Act, for prosecution of the petitioner for offence under Section 3/5 of the Act. From perusal of Annexure 1, it is manifestly clear that the prosecution of the petitioner for the alleged offence under the Explosive Substance Act has been sanctioned by the District Magistrate, Sahebganj.
Section 7 of the Act contemplates that no Court can proceed to the trial of any person for an offence against this Act except with the consent of the Central Government.
The learned Counsel appearing on behalf of the State submitted that there is no sanction duly granted by the Central Government for the trial of the petitioner Page 1140 and only on the basis of sanction accorded by the District Magistrate, trial has proceeded. From the materials on record ex facie, it appears that there is want of sanction in terms of Section 7 of the Act, and the trial of the petitioner, in my opinion, therefore, is not sustainable in law.
6. On the other hand, a counter affidavit has been filed on behalf of the opposite party- State of Jharkhand stating interalia that after seizure of explosive materials it was kept in "Malkhana" and when the expert was available the seized explosive substances were produced before him on 11.11.2006 and after obtaining the expert opinion requisition was sent to the District Magistrate for obtaining his consent and the same was obtained on 12.11.2006 under Section 7 of the Explosive Substance Act. The learned A.P.P. submitted that the delay in obtaining consent under Section 7 of the Act was neither intentional nor deliberate but only due to unavoidable circumstances. The sanction was submitted in the trial court on 22.11.2006 for the prosecution of the petitioners and another.
7. Mr. P.P.N. Roy, the learned Senior counsel by way of reply submitted that the sanction letter was submitted after examination of two prosecution (seizure) witnesses and prosecution of the petitioners upon such sanction letter of the District Magistrate for the offence under Sections 3 and 4 of the Explosive Substance Act shall be deemed no sanction and the trial of the petitioners therefore, would be miscarriage of justice.
8. Having regard to the facts and circumstances of the case, admittedly, the consent, as defined under Section 7 of the Act is a pre-condition for the prosecution of an accused under the Explosive Substance Act. In the instant case the sanction has been filed after examination of two prosecution witnesses before the trial court.
9. Section 7 of the Explosive Substance Act 1908 puts restriction on trial of offences and to quote:
No court shall proceed to the trial of any person for an offence against the Act except with the consent of the District Magistrate.
The word 'Central government' in the said section has been substituted by the District Magistrate, with reference to Act 54 of 2001 w.e.f. 1.2.2002. Therefore, I find that the District Magistrate is a competent authority for according consent under Section 7 of the Explosive Substance Act for the prosecution of accused. In the instant case, though the trial of the petitioners has been preceded but in the meantime the consent of the competent authority under Section 7 of the Explosive Substance Act has been produced before the trial court. The Section 7 of the Act speaks 'no court shall proceed to the trial of any person' which puts embargo upon the trial court and for want of consent as required under law before proceeding, the trial of the accused would be irregular and shall stand vitiated. But in the instant case irregularity has been cured by filing the consent of the District Magistrate in the trial court. The delay in filing consent has been satisfactorily explained by the prosecution. Similarly, there is no legal bar under Section 7 of the Act in taking cognizance of the offence under Sections 3 and 4 of the Act. The irregularity by putting the petitioners on trial without consent of the District Magistrate has been regularized by filing the consent letter in course of trial.
Page 1141
10. I, therefore, find no longer illegality or irregularity in the prosecution of the petitioners for the charge under Sections 3 and 4 of the Explosive substance Act for which they have been put on trial.
11. There being no merit, the petition filed for the petitioners under Section 482 of the Code of Criminal Procedure stands dismissed.