Madhya Pradesh High Court
Raju Adivasi vs The State Of Madhya Pradesh on 21 March, 2016
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cr.R.No.2797/2015
Raju Adivasi and other
Vs.
The State of M.P.
Present:
Hon'ble Shri Justice C.V. Sirpurkar
Shri Akhil Singh, counsel for the applicants.
Shri Amit Pandey, Panel Lawyer for the respondent/State.
_______________________________________________________
ORDER
(21/03/2016)
1. This criminal revision has been filed on behalf of the accused persons Raju Adivasi and Ramkishore challenging the order dated 28.9.2015 passed by the Court of Additional Sessions, Nagod, District Satna, in Session Trial No.128/2015, whereby learned Additional Sessions Judge had dismissed the application filed on behalf of the accused persons under Sections 227 and 228 of the Code of Criminal Procedure and had framed multi-headed charges against them under Sections 33 (1) (b) and Section 41 read with Section 42 of the Indian Forest Act, 1927 and Sections 4 and 5 of the Explosive Substances Act, 1908 (hereinafter referred to in this order as âthe Actâ).
2. The petitioners/accused persons have restricted their challenge to framing of charge under Sections 4 and 5 of the Act. Framing of charge against the accused persons under the Act has been assailed solely on the ground that the prosecution has failed to comply with provisions of Section 7 thereof and; therefore, learned trial Judge grievously erred in framing charge thereunder. Inviting attention of the Court to the judgment rendered by the Supreme Court in the case of Anil Kumar Vs. M.K. Ayappa, (2013) 10 SCC 705, learned counsel for the petitioner has contended that admittedly the consent of the District Magistrate as envisaged by the Section 7 of the Act, was not filed along with the charge-sheet. It was not filed even till the matter was committed to the Court of Session. When the trial Court proceeded to consider framing of charge on 7.8.2015, it was noticed that the letter of consent is not annexed to the final report. Thereafter, the Public Prosecutor procured and filed the letter of consent along with an application and subsequently the letter was taken on record. Learned counsel for the petitioners/accused persons submitted that filing of the letter of consent just before consideration of the charge, does not fulfill the requirement of Section 7 of the Act and; therefore, the charge under Sections 4 and 5 of the Act, as framed against the accused persons is not sustainable in the eye of law. Hence, it has been prayed that the charge under aforesaid provisions be quashed.
3. Learned panel lawyer for the respondent State on the other hand has supported the order framing charge under the provisions of Explosive Substances Act, 1908.
4. On perusal of the record and due consideration of rival contentions, the Court is of the view that this criminal revision must fail for the reasons hereinafter stated.
5. It is not in dispute before this Court that the letter of consent issued by the District Magistrate, Satna, was not filed along with the final report. The criminal case was committed to the Court of Session without such consent. The consent was granted on 13.8.2015 and on the same day, it was filed along with an application, before the Additional Sessions Judge. The charge in the case was considered and framed on 28.9.2015. Thus, it is also not in dispute that the consent had been granted by the District Magistrate before consideration and framing of charge.
6. Section 7 of the Act reads as hereunder:
7. Restriction on trial of offences.âNo Court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate.
7. A plain reading of aforesaid provision makes it abundantly clear that the restriction is placed on the power of the Court to proceed to the trial of any person for an offence under the Act without the consent of the District Magistrate. No such restriction is placed upon the power of the Court to take cognizance of any such offence. Thus, a Judicial Magistrate is not precluded from receiving the final report in a case involving offences under the Act and commit the case for trial to the Court of Sessions. Now, the question that arises for consideration is when does the trial actually commence?
8. A five Bench of the Supreme Court in the case of Hardeep Singh Vs. State of Punjab, AIR 2014 SC 1400 has held that:
â35. In view of the above, the law can be summarized to the effect that as 'trial' means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the 'trial' commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken.â Emphasis supplied.
9. In view of aforesaid definitive pronouncement of a five Bench of the Supreme Court, it is luminously clear that the trial commences only at the stage of framing of the charge and not when cognizance is taken. As such, in a case involving offences under the Explosive Substances Act, the Court may proceed up to the stage of framing of charge without consent from the District Magistrate; however, the Court cannot consider and frame charge without such consent being granted and placed on the record of the case.
10. In this view of the matter, the reliance upon the case of Anil Kumar (supra), is misplaced. In that case, the Supreme Court had held that where jurisdiction is exercised on a complaint filed in terms of Sections 156(3) or 200 of the Cr.P.C., the Magistrate is required to apply his mind and in such a case, the Special Judge/Magistrate cannot refer to the matter under Section 156 (3) of the Cr.P.C. for investigation against a Public Servant without a valid sanction order under Section 19 (1) of the Prevention of Corruption Act, 1988.
11. Section 19 (1) of the Prevention of Corruption Act, 1988 is reproduced herein below for ready reference:
19. Previous sanction necessary for prosecution.â(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013.
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
12. It may be noted that under sub-section 1 of Section 19 (1) of the Prevention of Corruption Act, 1988, the embargo is placed upon taking cognizance of an offence and not on proceeding to the trial. Thus, sub- section (1) of Section 19 of the Prevention of Corruption Act, 1988, is not pari materia with Section 7 of the Explosive Substances Act, 1908. As such, the principle of law laid down by the Apex Court in the case of Anil Kumar (supra) does not, in any manner, advance the cause of the petitioner.
13. The second objection that has been halfheartedly taken in this regard is that the learned Additional Sessions Judge had no jurisdiction to receive any document just before framing of charge. All documents for the prosecution are required to be filed along with the final report.
14. A co-ordinate Bench of this Court in the case of Raju Vs. State of Madhya Pradesh, 2002 Cr.L.J 2367 has held that:
âUnder these provisions the learned trial Court had ample power and discretion to interfere and control conduction of trial properly, effectively and in manner as prescribed by law. While conducting the trial Court is not required to sit as a silent spectator or umpire but to take active part well within the boundaries of law. In the present case so many important documents were not got proved though filed along with charge sheet, so many important documents as pointed hereinabove, were not filed which all could be important and relevant for the just decision of a trial, and the same could be got proved and directed to be produced by trial Court under S. 165 of Evidence Act and 311 of Cr. P.C.
15. Thus, the second objection has no force and is accordingly rejected. No other ground has been raised.
16. On the basis of foregoing discussion, this Court is of the view that learned Additional Sessions Judge committed no illegality, irregularity or impropriety in framing charge against the accused persons/petitioners under the provisions of Explosive Substances Act, 1908.
17. Thus, no interference by this Court under revisionary jurisdiction is warranted.
18. Consequently, this criminal revision is dismissed.
(C V SIRPURKAR) JUDGE