Patna High Court - Orders
Manoj Sah @ Manoj Prasad vs State Of Bihar on 9 January, 2009
Author: Navin Sinha
Bench: Navin Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.43641 of 2007
MANOJ SAH @ MANOJ PRASAD
Versus
STATE OF BIHAR
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For the Petitioner : M/s Uma Kant Shukla with Shakti
Suman Kumar Advocates
For the State : Mr Matloob Rab, APP
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5. 09.01.2009Heard leaned Counsel for the petitioner and the learned Counsel for the State.
Gobindganj PS Case No. 91 of 2000 was registered against the petitioner on 3.8.2000 under Sections 323, 341, 353 and 307/34 of the Penal Code and Sections 3, 4 & 5 of the Explosive Substances Act. The allegations were that he threw a bomb which did not explode. He was apprehended with another bomb in his pocket, which exploded, causing his jeans to tear, leading to a smell of gun powder. The Police after investigation submitted chargesheet under Sections 323, 341 and 353 of the Penal Code only. Cognizance was taken and the matter went to trial.
The prosecution failed to examine any witness. Despite best efforts of the Court to procure attendance of the prosecution witnesses no one turned up to adduce evidence. The petitioner denied the allegations. The petitioner was then acquitted in G.R. Case No. 1494 of 2000 corresponding to Tr.No.460 of 2004 by a judgement and order dated 30.9.2004 of the Chief Judicial Magistrate, East Champaran, Motihari as the chargesheeted offences were all triable by a Magistrate. Though charge sheet was submitted under Sections 323, 341 2 and 353 of the Penal Code the investigation was purported to be kept pending.
Subsequently, the Police filed an application on 27.4.2007 for forwarding the records of Gobindganj PS Case No. 91 of 2000 to the competent court for further trial in view of a supplementary charge sheet dated 10.1.2005 under Section 307 of the Penal Code and Sections 3, 4 & 5 of the Explosive Substances Act, based on a forensic report and sanction orders of the District Magistrate. Section 300(4) of the Code of Criminal Procedure was sought to be invoked for the purpose.
Counsel for the State sought to defend the order by urging that subsequently the police had submitted additional chargesheet under Section 307 of the Penal Code and Sections 3, 4 & 5 of the Explosive Substances Act based on the forensic report and the sanction order under the latter Act.
Section 300 (4) of the Code of Criminal Procedure relevant for the present discussion reads as follows:-
"A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and trial 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."
The FIR does not allege injuries to any one. No charge sheet was therefore submitted under Section 307 of the Penal Code. The explosion of a bomb would have had its own 3 evidence for submission of chargesheet. This would have been distinct from the supplemental and/or additional evidence of a forensic report or the legal requirement of a sanction.
The submission of a partial chargesheet by the police in the facts was only a ruse to keep a demaclese sword hanging over the head of the petitioner to be dropped at the whim of the police for harassment.
The petitioner has been acquitted after facing trial. The apathy of the police is writ large in the acquittal order.
Peculiar are the ways of Police in submitting incomplete chargesheet even when the allegations are straight forward and limited with no complicated materials for investigation. The First Information Report does not allege injuries to any person. The Police therefore did not consider it a case to be under Section 307 of the Penal Code. In absence of any charge under Section 307 of the Penal Code it cannot be said that the petitioner was not tried by a court competent to do so. There is no material on record for invocation of the said provision subsequent to the submission of the earlier chargesheet.
If a bomb explodes, quite apart from the issue of a forensic report with regard to quality of the bomb, the splinters constitute evidence by themselves for submission of charge sheet. The issue of sanction under the Explosives Act is connected to the cognizance and has no bearing on the submission of a charge sheet. If no charge sheet was originally submitted under the Explosive Substances Act, it cannot be contended that the mere grant of sanction by the District 4 Magistrate subsequently furnishes a ground to urge that the petitioner could not be tried by the Magistrate under the Explosive Substances Act and therefore the proceedings could be re-opened under Section 300 ( 4 ) Cr.P.C. based on subsequent materials retrieved during further investigation.
If a bomb explodes in the pocket of a person, the consequences shall be much more than mere burning of a hole in the pocket and slight singeing of hair. This does not appeal to the normal human mind.
The Court is satisfied that the Police is only attempting to over come the order of acquittal by taking advantage of the demaclese sword kept hanging by them on the head of the petitioner by submitting partial chargesheet under the Magistrate triable Sections even while seeking to keep the investigation pending. The conduct of the Police in submitting supplementary chargesheet five years later after the occurrence of a manner presently alleged is an event which speaks for itself.
Based on the aforesaid discussion this Court finds that there is no justification to grant any leverage to the prosecution more particularly considering the conduct of the prosecution leading to acquittal of the petitioner, to allow the present prosecution to continue under Section 307 of the Penal Code and the Explosive Substances Act.
The order dated 14.6.2007 is set aside. The application stands allowed.
Snkumar/-
(Navin Sinha,J.)