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1998 DIGILAW 433 (MP)

Bhupendra Singh v. State of M. P.

1998-05-21

S.S.JHA

body1998
JUDGMENT In this revision short question is involved whether petitioner's prosecution for an offence under sections 4 and 5 of Explosive Substances Act, 1908 (hereinafter referred to as the' Act') is permissible without the consent provided under section 7 of the Act. Section 7 of the Act provides that no Court shall proceed to the trial of any person for an offence against this Act except with the consent of Central Government. Learned counsel for the petitioner submitted that in the present case consent is given by Additional District Magistrate, therefore, prosecution of the petitioner is barred. The petitioner cannot be prosecuted without appropriate consent of Central Government. Learned counsel for State has filed a notification of the Central Government, whereby powers of the Central Government under section 7 of the Act have been delegated to all the District Magistrates of the State of Madhya Pradesh. The notification is dated 2nd December, 1978. However, in the present case, sanction is given by Additional District Magistrate. The only question is whether the Additional District Magistrate can exercise the powers of section 7, which have been conferred upon District Magistrate. Counsel for the State submitted that 'District Magistrate' would mean Additional District Magistrate. He invited attention to the definition in section 4 (c) of the Explosives Act, 1884. Section 4 (c) is reproduced below :- "4. Definitions -- In this Act, unless the context otherwise requires -- (a) **************** (b) **************** (c) "District Magistrate", in relation to any area for which a Commissioner of Police has been appointed, means the ~ommissioner of Police thereof and includes - (a) any such Deputy Commissioner of Police, exercising jurisdiction over the whole or any part of such area, as may be specified by the State Government in this behalf in relation to such area or part; and (b) an Additional District Magistrate;" Reading of this section is clear. Hers the word "District Magistrate" in relation to area for which a Commissioner of Police is appointed, is defined. However, in District Gwalior Commissioner of Police is not appointed. In these circumstances, the definition in section 4 (c) is not attracted in the present case. Learned counsel for the State then invited attention to notification dated 24th April, 1995, issued by State of Madhya Pradesh, whereby Additional District Magistrate have been directed to perform functions of District Magistrates. However, in District Gwalior Commissioner of Police is not appointed. In these circumstances, the definition in section 4 (c) is not attracted in the present case. Learned counsel for the State then invited attention to notification dated 24th April, 1995, issued by State of Madhya Pradesh, whereby Additional District Magistrate have been directed to perform functions of District Magistrates. This notification dated 24th April, 1995 is an administrative order, whereby Additional District Magistrate is directed to perform functions of District Magistrate under the provisions of the Code of Criminal Procedure. The notification is issued under sub-section (2) of section 20 of the Code of Criminal Procedure. Therefore, the notification will not be applicable in respect of acts of District Magistrate under the Act. Even otherwise the powers of the Central Government delegated to District Magistrate cannot be sub-delegated. In view of aforesaid discussion, Additional District Magistrate is not empowered to grant consent for prosecution under section 7 of the Act. Therefore, in the absence of consent the Court cannot proceed to the trial of the petitioner unless appropriate consent is filed in the Court. The revision succeeds and is allowed and the proceedings in the trial Court are quashed. However, the respondent is free to initiate proceeding against the petitioner after valid consent.