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2016 DIGILAW 573 (JHR)

Santosh Kumar v. State of Jharkhand

2016-04-06

RAVI NATH VERMA

body2016
ORDER : 1. Invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, the three petitioners have prayed to quash the entire criminal proceeding pending against the petitioners in connection with Jaridih P.S. No. 50 of 2013 including the order dated 28.04.2015 passed by the learned Judicial Magistrate, Bermo at Tenughat whereby and whereunder the cognizance of offence has been taken under Section 120-B of I.P.C. and also under Section 9(B)(b) of the Explosive Act and Section 5 of the Explosive Substance Act. 2. Bereft of unnecessary details of the allegations made in the F.I.R., the relevant part of the First Information Report, which is based on the self-statement of the Officer-in-charge of Jaridih Police Station, in short, is that on the basis of some confidential information, the police party reached near the line hotel of Ramgarh-Bokaro road and found one explosive van parked near the said hotel but seeing the police party, the driver fled away from there but one lady Kiran Devi and one Amar Munda were found sitting in the cabin of the said van. On inquiry, they disclosed the name of the driver as Ramesh Mahato, who fled away after seeing the police party and the van was found to be loaded with a huge quantity of explosive materials, the details of which are given in the first information report. The driver was anyhow apprehended and on inquiry, he disclosed that one Vijay Kumar is the owner of explosive van and, thereafter, the driver and owner were directed to produce the relevant documents and the seizure list of all the documents were also prepared in presence of Block Development Officer of Jaridih Block. The Proprietor of M/s. HiraLal Agency Pvt. Ltd. the owner Vijay Kumar of the explosive van bearing registration no. JH01-AA-4001, the owner of M/s. Verma Transport, Pakur and the owner of M/s. Thallaru Constructions, Pakur were made accused as certain documents relating to them were produced by the apprehended driver Ramesh Mahto but no relevant document was produced even after inquiry. 3. The police after investigation submitted the charge-sheet on 14.06.2013 against Ramesh Mahato, Amar Munda and Kiran Devi under Sections 120(B) of I.P.C. and 9 (B)(b) of Explosive Act and also under Section 5 of Explosive Substance Act keeping the investigation pending against other accused persons. Accordingly cognizance was taken. 3. The police after investigation submitted the charge-sheet on 14.06.2013 against Ramesh Mahato, Amar Munda and Kiran Devi under Sections 120(B) of I.P.C. and 9 (B)(b) of Explosive Act and also under Section 5 of Explosive Substance Act keeping the investigation pending against other accused persons. Accordingly cognizance was taken. Subsequently on 31.03.2015, the police submitted a supplementary charge-sheet against the owner of M/s. Verma Transport, owner of M/s. Thallaru Constructions, the Proprietor of M/s. HiraLal Agency Pvt. Ltd. namely Santosh Kumar, the owner of explosive van namely Vijay Kumar and one Vasudeo Mahto under the same sections in which earlier charge-sheet was submitted and the court vide order dated 28.04.2015 accepting the earlier order of cognizance proceeded against the accused persons of the supplementary charge sheet also including the petitioners. Being aggrieved by the order taking cognizance and the continuation of the criminal proceeding, the present writ has been preferred. 4. Learned counsel Mr. Gautam Kumar appearing for the petitioners while assailing the continuation of the criminal proceeding as well as the order taking cognizance of offence as bad in law and perverse, seriously contended that the court below while passing the order of cognizance in consonance with the earlier order taking cognizance failed to apply its judicial mind and in a mechanical manner without assigning any cogent reason proceeded in the case. It was also submitted that it is a settled principle that the court while exercising some judicial discretion has to apply his mind to the facts and materials before him. Learned counsel further contended that all the relevant documents including the original challan of the detonators and the explosive substances were produced before the Investigating Officer and also before the informant of the case but without verifying those documents, this false and fabricated case has been lodged though the detonators were bonafidely purchased with valid licence of M/s. HiraLal Agency Pvt. Ltd. of which the petitioner nos. 1 and 2 are the owners. 1 and 2 are the owners. It was also submitted that the explosive substances and detonators were sent to the licensee M/s. Verma Transports and M/s. Thallaru Constructions, the sub-contractors, who were authorised and both the explosives and detonators were separately loaded in two different explosive vans but as there was a major breakdown in the van loaded with explosive substances, those explosive substances were subsequently transferred in the present van, which was seized by the police and none of the ingredients responsible to constitute the offence of criminal conspiracy as alleged under Section 120-B of the Indian Penal Code is available on record. Relying on an unreported judgment passed on 26.02.2013 in Cr. M.P. No. 2532 of 2013 and also a judgment passed in the case Kamal Sheikh & Anr. Vs. State of Jharkhand, 2013 (2) JBCJ 234 (HC), learned counsel submitted that the Court has held that detonators will never fall within the category of “explosive substances” rather it would be “explosives” only and the detonator itself never causes an explosion rather it is a device used to trigger an explosive substance and the device has been kept in the category of explosive as defined under Section 4(d) of the Explosive Act. 5. Contrary to the aforesaid submissions, the learned counsel representing the State submitted that the court below after examining the allegations and the evidences available on the record took cognizance of offence and at this initial stage, there is no scope for interference in view of the settled law. 6. Before I enter into the veils of submissions of the learned counsels, a reference of the case Vinod Raghuvanshi Vs. Ajay Arora and Others, 2013 (10) SCC 581 is necessary wherein the Hon'ble Supreme Court in paragraphs 30 and 31 has held as follows: “30. It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not “kill a stillborn child” and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither can the court embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence nor should the court judge the probability, reliability or genuineness of the allegations made therein. More so, the charge-sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 Cr.PC. So, the order passed even by the High Court or this Court is subject to the order which would be passed by the trial court at a later stage.” 31. In view of the above, we do not see any cogent reason to interfere with the impugned complaint or orders impugned herein. The appeal is devoid of any merit and is accordingly dismissed.” 7. In the ratio decided by the Hon'ble Supreme court, it is not open even to this Court to quash the entire criminal proceeding including the order taking cognizance and the High Court would not ordinarily embark upon an inquiry whether the evidence in question is reliable or not. Undoubtedly, judicial process should not be an instrument of oppression or needless harassment and the court should be circumspect and judicious in exercising the jurisdiction but it is equally true that while considering the case for quashing of the criminal proceeding, the court should not kill a stillborn child. At this stage, the court has to see the prima facie evidence available on record as collected by the police during investigation and the court is not even concerned with the fine niceties of the defence of the petitioners from the annexures enclosed with the writ application rather the court is primarily concerned with the allegations taken as a whole whether they constitute an offence or not and the fact that the continuation of the criminal proceeding would amount to an abuse of the process of the court leading to injustice. On perusal of the order impugned taking cognizance, it appears that the court below has looked into the charge-sheet and the evidence collected during investigation. Even then, I have examined the seizure list enclosed with the F.I.R. and find that more than 200 packets of explosives (STAR GEL, STAR PRIME, ORICA EXCEL NON-ELECTRIC DETONATORS) have been seized and it clearly substantiates that the explosives and explosive substance, which includes detonators, were seized by the informant. The word “explosive substance” as defined under Section 2(a) includes any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be issued or adapted for causing, or aiding in causing any explosion in or with any explosive substance. Similarly, Section 2 (b) “special category explosive substance” includes Research Development Explosive (RDX), Penta Erythritol, Tetra Nitrate (PEN), TNT, Low Temperature Plastic Explosive (LTPE), composition exploding, Tri Nitro Toluene and other similar type of explosives and a combination thereof and remote control devices causing explosion and any other substance and a combination thereof. 8. Apparently, a huge quantity of explosives were seized by the police and at the initial stage of investigation, if there is strong suspicion, which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of guilt of the accused, which is to be drawn at the initial stage, is only for the purpose of deciding prima facie case whether the court should proceed with the trial or not. The court below in the order impugned after discussions has rightly taken the cognizance of offence. It is well settled that the evidences are not to be weighed and appreciated in the same as is done at the trial. Hence, I see no good reason to interfere in the order impugned. 9. The writ application is, accordingly, dismissed.