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Jharkhand High Court · body

2003 DIGILAW 214 (JHR)

Basudeo Kasera v. State of Jharkhand

2003-02-14

D.N.PRASAD

body2003
Order This application has been filed under section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") for quashing the order dated 3.7.2001 whereby and whereunder the Chief Judicial Magistrate, Hazaribagh took cognizance of the offence under sections 25(1-B) and 27 of the Arms Act and under sections 3, 4 and 5 of the Explosive Substance Act in connection with Ichak P.S. Case No. 111 of 1988 corresponding to G.R. No. 2997 of 1988. 2. The short facts giving rise to this application is that one first information report was lodged by the Officer-in-Charge of Ichak Police station stating therein that on 19.11.1988 at about 6 A.M., the informant along with the other police officials proceeded to Village Baryatu to arrest one Meghnath Kasera, an accused in Ichak P.S. Case No. 167 of 1988 and Barhi P.S. Case No. 167 of 1988. When they reached to the house of the accused, accused Meghnath Kashera and his elder brother were trying to flee, away and on chase, they were hiding behind the bush and thereafter Meghnath Kashera started firing from his pistol. The raiding party also fired. It is further alleged that from the possession of Meghnath Kashera, the informant seized pistol, live cartridge and also one live bomb and, accordingly,' first information report was lodged under sections 307, 353/34 of the Indian Penal Code, Section 25(1-8) and 27 of the Arms Act and Section 4/5 of the Explosive Substance Act. 3. The police investigated into the case and submitted charge sheet finding prima facie case. The learned Chief Judicial Magistrate after perusing the record/ case diary and-finding prima facie case, took cognizance of the offence by order dated 29.6.1989 under sections 353 and 307/34 of the Indian Penal Code. The police subsequently filed supplementary diary finding prima facie case under the Arms Act and the Explosive Substance Act and thereafter cognizance was taken by the order impugned for the said offences. 4. Mr. The police subsequently filed supplementary diary finding prima facie case under the Arms Act and the Explosive Substance Act and thereafter cognizance was taken by the order impugned for the said offences. 4. Mr. A.K. Singh, learned counsel appearing on behalf of the petitioner submitted that the learned court below committed error in taking cognizance of the offences against the petitioner after a lapse of thirteen years as well as the police submitted the sanction order which is not in accordance with law as there would have been a consent of the Central Government for giving sanction in respect of the offences under the Explosive Substance Act, but in the instant case, there is no such consent of the Central Government as required under section 7 of the Explosive Substance Act. It is also submitted that there is a restriction against a proceeding to the trial on any person in respect of the offences under the Explosive Substance Act without consent having been made by an officer not below the rank of a secretary to the Government which is lacking in the instant case and, as such, the court below committed error in taking cognizance which is fit to be quashed. 5. On the other hand the learned Additional Public Prosecutor appearing on behalf of the State contended before me that there is no illegality in the order impugned as the learned court below rightly took cognizance of the offences under the Indian Penal Code after finding prima facie case and also under the Arms Act. It is further submitted that Section 7 of the Explosive Substance Act deals with about the trial of the offences and the said matter can be looked into and considered at the time of trial of the case and, as such, the learned court below rightly took cognizance of the offences against the accused petitioner. 6. From going through the record, it is apparent that there was firing at the relevant time and charge sheet was also submitted under sections 353 and 307/34 of the Indian Penal Code. The firearm was also recovered from the possession of the petitioner at the relevant time. Sanction for prosecution under the Arms Act and the Explosive Substance Act has already been accorded by the District Magistrate, Hazaribagh. 7. The firearm was also recovered from the possession of the petitioner at the relevant time. Sanction for prosecution under the Arms Act and the Explosive Substance Act has already been accorded by the District Magistrate, Hazaribagh. 7. Section 7 of the Explosive Substance Act is against the proceeding to the trial of any person and not against taking of cognizance. It is well settled that trial does not commence at the stage of taking cognizance rather it will start after framing of charge. So that stage has not yet come for raising such question and the petitioner will be at liberty to raise all the matter at the time of trial itself for invoking the provision of section 7 of the Explosive Substance Act. It is only at the stage of trial, the Trial court will be required to examine whether consent has been duly granted by the State Government or not for the offence under the Explosive Substance Act. 8. It is true that cognizance has been taken after much delay of the occurrence but for the sale ground, the whole prosecution case cannot be thrown away when apparently the occurrence took place and the petitioner was apprehended with firearm. Moreover the cognizance of the offences under the Indian Penal Code was already taken as back as in the year 1989. Thus there appears that the court below has rightly took cognizance of the offence after finding prima facie case which does not require to be interferred with at this stage. 9. In the result I do not find any merit in this application, which is accordingly dismissed.