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2014 DIGILAW 321 (CHH)

State of Chhattisgarh v. Harish Kumar Vishwakarma

2014-08-25

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. The State of Chhattisgarh has preferred this revision under Section 397/401 of the Code of Criminal Procedure (for short 'the Code') questioning the impugned order dated 31.10.2011 passed by 1st Additional Sessions Judge, Bilaspur in Sessions Trial No. 131/2011 discharging respondent/accused from the charges under Sections 3 & 4 of the Explosive Substances Act, 1908 (henceforth the 'Act, 1908'). Facts of the case, in brief, are as under:-- 1.1 That, the respondent was charge-sheeted for the commission of offences under Sections 3 & 4 of the Act, 1908 on the allegation that on 17.06.2011 the Investigating Officer raided the stone crusher site namely Balbam Crusher Udhyog at village Khaira and found the respondent carrying a bag in hand, containing Detonators, Fuse Wires, Ammonium Nitrate and Kerosene etc. and after due-investigation Crime No. 274/11 was registered against the respondent and after consent of the Additional District Magistrate, Bilaspur under Section 7 of the Act, 1908 charge-sheet was filed before the jurisdictional criminal court. 1.2 Respondent filed an application under Section 227 of the Code of Criminal Procedure at the time of framing charge stating inter alia that cognizance of offences under Sections 3 & 4 of the Act, 1908 cannot be taken without the consent of Central Government and the Central Government has delegated the power by notification dated 14.05.1997 to the State Government and the State Government in turn has authorized the District Magistrate to exercise the power and, therefore, consent granted under Section 7 of the Act, 1908 by Additional District Magistrate is per se illegal as he was not authorized and competent to accord the consent and it is only the District. Magistrate, who is authorized to grant consent under Section 7 of the Act. 1.3 Upon hearing learned counsel appearing for the parties, learned Sessions Judge, by its impugned order dated 31.10.2011, allowed the application and held that Central Government is the authority, who grant consent under Section 7 of the Act and the Central Government had delegated that power to the District Magistrate, thus the consent granted by the Additional District Magistrate is bad in law. Against this order, State of Chhattisgarh has preferred this revision questioning the order impugned. 2. Against this order, State of Chhattisgarh has preferred this revision questioning the order impugned. 2. Shri Prasun Bhaduri, learned counsel appearing for the applicant would submit that the impugned order passed by the learned Sessions Judge is apparently contrary to the facts and law available on record. He would further submit that Section 7 of the Act, 1908 has been amended by the Explosive Sub-stances (Amendment.) Act, 2001 w.e.f. 11.02.2001 and now the power has directly conferred to the District Magistrate under Section 7 of the Act, 1908 and by virtue of power contained in Section 20(2) of the Code of Criminal Procedure, Additional District Magistrate is also entitled to exercise power of District Magistrate and, as such, the power exercised by the Additional District Magistrate granting consent for trial of the offences under the Act of 1908 cannot be questioned as without authority of and, as such, the impugned order deserves to be set aside. 3. Opposing the submissions made by Shri Prasun Bhaduri, learned counsel appearing for the State, Shri P.K. Tulsyan, learned counsel for the respondent would submit that the order passed by the learned Sessions Judge is strictly in accordance with and no interference is called for in the impugned order passed by the learned Sessions Judge discharging the respondent/accused of the charges under Sections 3 & 4 of the Act, 1908 and, therefore, the revision deserves to be dismissed. 4. I have heard learned counsel appearing for the parties and perused the rival submissions made therein and perused the record of the order impugned with utmost circumspection. 5. In order to fully and appropriately understand the dispute it would be proper to notice un-amended and amended Section 7 of the Act, 1908. 6. Section 7 of the unamended Act, 1908 provides as under:-- "7. Restriction on trial of offences.--No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the Central Government." 7. Explosive Substances Act, 1908 was amended by the Explosive Substances (Amendment) Act, 2001 w.e.f. 11.12.2001. After amendment Section 7 of the Act reads as under:-- "7. Restriction on trial of offences.--No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate." 8. Explosive Substances Act, 1908 was amended by the Explosive Substances (Amendment) Act, 2001 w.e.f. 11.12.2001. After amendment Section 7 of the Act reads as under:-- "7. Restriction on trial of offences.--No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate." 8. The Supreme Court in case of State of Tamil Nadu v. Sivarasan alias Raghu alias Sivaras, JT 1996 (10) SC 141, while dealing with effect of Section 7 of the Act, 1908, has observed as under:-- "Section 7 doesn't require a sanction, but only consent for prosecuting for offence under the Explosive Substances Act. The object; of using the word "consent" instead of "sanction" in Section 7 is to have a purely subjective appreciation of the matter, before giving the necessary consent." 9. The aforesaid amendment came into force with effect from 11.12.2001. 10. Thus, the crystallized legal position is that with effect from 11.12.2001, the Central Government has ceased to be the authority under Section 7 of the Act, 2001 to accord consent under Section 7 of the Act and from that day the District Magistrate, who is designated authority to accord consent for trial of offences under Sections 3 & 4 of the Act, 1908. 11. In State of M.R. v. Bhupendra Singh, AIR 2000 SC 679 their Lordships of Supreme Court has held that under Section 7 of the Act consent of the Central Government is necessary and the Central Government has delegated its power to the District Magistrate and, therefore, the State Government cannot further delegate it to the Additional District Magistrate. 12. Turning back to the facts of the present case, it appears that date of occurrence of crime is 17.06.2011 and obviously the amended provision of Section 7 of the Act had already came into force with effect from 11.12.2001 and thus, the same would apply in the instant case. The learned Sessions Judge did not notice the amended Section 7 of the Act and having noticed un-amended Section 7 of the Act, in which, the Central Government was empowered and delegated power to the District Magistrate to grant consent under Section 7 of the Act and relying upon the decision of Bhupendra Singh, ( AIR 2000 SC 679 ) (supra) held that that consent granted by the Additional District Magistrate is unauthorized and unsustainable in law. 13. 13. Learned Sessions Judge has failed to notice that Section 7 of the Act which stood amended with effect from 11.12.2001 making the District Magistrate as designated Authority to grant consent under Section 7 of the Act. The Learned Sessions Judge has failed to consider whether, in light of Section 20(2) of the Code the Additional District Magistrate can exercise the power under Section 7 of the Act. 14. The Supreme Court in case of Central Talkies Ltd., Kanpur v. Dwarka Prasad, AIR 1961 SC 606 , has held that Additional District Magistrate empowered under Section 10(2), Cr.P.C. is entitled to exercise all power of District Magistrate under the Evidence Act, holding that District Magistrate is not "persona designata". It was held as under:-- "9. The argument that the District Magistrate was a persona designata cannot be accepted. Under the definition of "District Magistrate" the special authorization by the District Magistrate had the effect of creating officers exercising the power of a District Magistrate under the Eviction Act. To that extent, those officers would, on authorization, be equated to the District Magistrate. A persona designata is "a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. "(See Osborn's Concise Law Dictionary, 4th Edn., P. 253). In the words or Schwabe, C.J. in Parthasarathi. Naidu v. Koteswara Rao, ILR 47 Mad 369 : (AIR 1924 Mad 561) (FB), person designata are "person-selected to act in their private capacity and not in their capacity as Judges". The same consideration applies also to a well-known officer like, the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Eviction Act. The decision of Sapru, J. "in the Allahabad case, with respect, was erroneous." 15. The learned Sessions Judge has only relied upon the un-amended Section 7 of the Act, 1908 and came to the conclusion that exercise of jurisdiction under Section 7 of the Act by Additional District Judge is totally unauthorized. The decision of Sapru, J. "in the Allahabad case, with respect, was erroneous." 15. The learned Sessions Judge has only relied upon the un-amended Section 7 of the Act, 1908 and came to the conclusion that exercise of jurisdiction under Section 7 of the Act by Additional District Judge is totally unauthorized. Taking into consideration the fact that the impugned order was passed noticing the un-amended Section 7 of the Act, 1908, without considering the amended provision of Section 7 of the Act and without considering the fact as to whether by virtue of Section 20(2) of the Code; Additional District Magistrate can exercise the power under Section 7 of the Act, it would be expedient to set aside the impugned order and to direct the concerned Additional Sessions Judge to decide the application filed by respondent afresh in accordance with the amended provisions of Section 7 of the Explosive Substances Act, 1908 and keeping in view the principles laid down by the Supreme Court in case of Central Talkies Ltd., Kanpur, ( AIR 1961 SC 606 ) (supra) and the observations made hereinabove after affording due and proper opportunity of hearing to the parties within three months from the date of receipt of copy of this order. Accordingly, the criminal revision is allowed in part. The impugned order is set aside. The matter is remitted back to the Additional Sessions Judge, Bilaspur for hearing and disposal in accordance with law. Record of the court below be sent back forthwith. Parties are directed to appear before the said Court on 22.09.2014. Appeal Partly Allowed.