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2006 DIGILAW 987 (JHR)

Basudeo Kasera v. State of Jharkhand

2006-08-01

D.K.SINHA

body2006
JUDGMENT D.K Sinha, J.- The petitioner has preferred this Cr. Revision for setting aside the order dated 13.4.2005 passed by the Additional Sessions Judge, F.T.C.-8, Hazaribagh in Sessions Trial No. 98/2002 whereby and whereunder the petition under Section 227 Cr.P.C. of the petitioner for his discharge was rejected. 2. The petitioner had earlier preferred Cr.M.P. No. 4758 of 2001 against the order of taking cognizance dated 3.7.2001 which was dismissed. 3. The brief fact of the case is that the Officer-in-charge of Ichak Police Station on 19.11.1988 recorded his self-statement narrating that he with the police party had proceeded to Village Kariyatpur to arrest one Maghnath Kasera who was wanted in Ichak RS. Cases No. 99/86 & 101/88 and in Barhi R.S. Case No. 167/88. When he with "the police party arrived near the house of Meghnath Kasera, he with his brother (Petitioner) started fleeing at the sight of the police party and hide himself behind the tall grass and fired on the police party. The Sub-Inspector of Police narrowly escaped from his shot and in counter firing, Meghnath Kasera sustained bullet shot injury whereas the other accused made their good escape except the petitioner. On the search a pistol with live cartridges and one live bomb were recovered from near him to which a seizure list was prepared. The police after investigation submitted charge-sheet and the cognizance of the offence was taken on 29.6.89 against the petitioner under Sections 353/307/34 I.RC. Since Meghnath Kasera succumbed his injuries which he had sustained, his case stood abated and another accused Naresh Saw was shown absconder. The petitioner was arrested by the police on 19.11.88 with Meghnath Kasera and from the jail he had filed a complaint case No. 7/89 against the police officers in the Court and after enquiry cognizance of the offence was taken against the Police Officers including against the informant Officer-in-Charge, Rakesh Mohan Sinha in various Sections including under Sections 302/120B I.RC. 4. Learned Counsel submitted that though the earlier charge-sheet was submitted in the year 1988 against the petitioner under various Sections of the I.R.C. but the District Magistrate, Hazaribagh accorded sanction on 19.2.2001 for the prosecution of the petitioner under Section 25(1-B)A/27 Arms Act as also under Section 3/4/5 of the Explosive Substances Act with another accused Naresh Saw (Annexure-3). 4. Learned Counsel submitted that though the earlier charge-sheet was submitted in the year 1988 against the petitioner under various Sections of the I.R.C. but the District Magistrate, Hazaribagh accorded sanction on 19.2.2001 for the prosecution of the petitioner under Section 25(1-B)A/27 Arms Act as also under Section 3/4/5 of the Explosive Substances Act with another accused Naresh Saw (Annexure-3). On the basis of the sanction order, aforesaid, the police submitted supplementary charge-sheet and accordingly C.J.M. took cognizance of the said offence on 3.7.2001 against the petitioner Basudeo Kasera and one Naresh Kasera which is not sustainable either in law or on facts. The learned Counsel further submitted that there was no sanction of the Central Government for proceeding against the petitioner under Explosive Substances Act as required under Section i" of the Explosive Substances Act. The District Magistrate is not competent to accord sanction and that too after 12 years. In the instant case no overt act has been attributed against the petitioner to make out any offence either under I.P.C. or under Arms Act or under Explosive Substances Act. The cognizance order of the C.J.M.. Hazaribagh was drawn without application of his judicial mind and under mechanical manner which is unsustainable. It is nowhere alleged that any firearm or explosive substance was recovered from the possession of the petitioner and the recovery of the entire incriminating material were from the possession of Meghnath Kasera who succumbed his injuries against which in complaint case brought about by the petitioner, cognizance of offence has been taken against the police officers under Section 302 and allied Sections of the I.PC. 5. I have gone through the order impugned dated 13.4.05 passed by the Additional Sessions Judge, F.T.C.-8, Hazaribagh in Sessions Trial No. 98/2002 wherein the learned court observe, "There are material on the record that some firearms and bombs were recovered from the spot from where this petitioner was also arrested. The Police has brought on record some material to show that this petitioner was also in joint and conscious possession of firearms and explosive substance." 6. The allegation against the petitioner is that he was the brother of the principal accused Meghnath Kasera and that he was also arrested with Meghnath Kasera who sustained gun shot injuries and later on succumbed. The allegation against the petitioner is that he was the brother of the principal accused Meghnath Kasera and that he was also arrested with Meghnath Kasera who sustained gun shot injuries and later on succumbed. It was prima facie found on the basis of the case diary by the court below that the petitioner was present with Meghnath Kasera at the spot when there was exchange of fire and that fire• arms as well as explosive substance were recovered from their conscious possession to which seizure lists were prepared. 7. I have gone through Annexure-3, which is the sanction order of the District Magistrate, Hazaribagh dated 18.2.2001 on the basis of which cognizance of the of• fence was taken by the C.J.M. under various Sections of Arms Act as well as Explosive Substances Act. From the careful perusal of the Annexure-3 specially the concluding paragraph of the sanction order, a translated version is being reproduced hereunder, "Hence in the exercise of Section 39 of the Arms Act, I accord sanction for prosecution against the aforesaid accused (Basudeo Kasera @ Basu Saw & Naresh Saw) under Section 25 (1-8) A/27 Arms Act as also under Section 3/ 4/5 of the Explosive Substances Act." 8. The District Magistrate though has expressed his satisfaction upon the perusal of the F.I.R., supervision note and report of the Forensic Science Laboratory to accord sanction for prosecution against the accused on the report of Superintendent of Police, Hazaribagh as well as his recommendation but it appears that the Sanctioning Authority (District Magistrate) did not apply his mind as well as prudence while according sanction under Section 39 of the Arms Act for prosecution of the petitioner in both the Acts under Arms Act as well as under Explosive Substances Act which is unsustainable. 9. In the facts and circumstances, sanction accorded as under Sections 3/4/5 of the Explosive Substances Act in the exercise of the jurisdiction under Section 39 of the Arms Act goes to show that the sanction has been accorded in mechanical manner without perusal of the provisions of law and therefore, the sanction accorded for the prosecution of the petitioner under Sections 3/4/5 of the Explosive Substances Act is unsustainable and therefore, prosecution under those section of the petitioner is not maintainable. 10. In the result. the order impugned dated 13.4.05 passed by the Additional Sessions Judge. E.T.C.-8. 10. In the result. the order impugned dated 13.4.05 passed by the Additional Sessions Judge. E.T.C.-8. Hazaribagh in Sessions Trial No. 98/02 is set aside and the Court is directed to pass a fresh order in accordance with law. 11. With the above observation this petition is allowed.