REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 719 OF 2012
[Arising out of Special Leave Petition (Cri.) No.3989 of 2011]
DEEPAK KHINCHI … APPELLANT
Versus
STATE OF RAJASTHAN … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by grant of special leave, is directed against judgment
and order dated 24/01/2011 passed by the High Court of Rajasthan at
Jodhpur. By the impugned judgment, learned Single Judge dismissed
Criminal Revision Petition No.853 of 2010 filed by the appellant
challenging order of Addl. Sessions Judge (Fast Track), Chittorgarh
allowing application submitted by the prosecution under Section 311 of the
Code of Criminal Procedure, 1973 (for short, “the Code”) and directing that
trial should proceed against the appellant for offences under Sections 3,
4, 5 and 6 of the Explosive Substances Act, 1908.
3. Before, we turn to the facts of the case, it is necessary to have a
look at Section 7 of the Explosive Substances Act, 1908 (for short, “the
said Act”), as the controversy revolves round the ‘consent to prosecute’
contemplated therein. It reads thus:
“Section 7: No court shall proceed to the trial of any person
for an offence against this Act except with the consent of the
Central Government.”
It must be stated here that by Act 54 of 2001, Section 7 was amended
and the words ‘Central Government’ were substituted by the words ‘District
Magistrate’.
4. The appellant claims to be a trader registered under the provisions
of the Rajasthan Sales Tax Act, 1994. According to him, he deals in
Kerosene, lubricants, paints, varnish, thinner, petroleum products and has
a license for the storage of solvents, petrochemicals and raw materials
used for the purpose of blasting for mining, roads and other end uses. The
prosecution alleges that on 2/5/2006 at about 6.40 p.m. a fire broke out in
the shop/store of the appellant situated at Gandhinagar Vistar Yojana,
Chittorgarh, Rajasthan due to which many children, women and men were burnt
alive. The SHO, Reserve Center, Chittorgarh, upon receiving telephonic
information from an unknown caller, visited the spot and registered the
First Information Report against three persons under Sections 285, 286,
323, 324, 304 of the Indian Penal Code (for short, “the IPC” ) as well as
under Sections 3, 4, 5 and 6 of the said Act. The appellant was arrayed as
accused 1. Upon completion of the investigation, charge sheet was filed
before the learned CJM, Chittorgarh under Sections 285, 286, 323, 324 and
304 of the IPC as well as under Sections 3, 4, 5 and 6 of the said Act. In
respect of the offences under the provisions of the said Act, no consent of
the competent authority was taken.
5. After committal of the case before the Sessions Court, the case was
registered as Sessions Case No.53 of 2006. After the arguments on charge
were heard on 7/8/2007, the Sessions Court directed the prosecution, in the
interest of justice, to file a reply, inter alia, stating why mandatory
permission under Section 7 of the said Act was not taken and indicating the
correct legal position in that behalf. The case was posted for hearing on
22/8/2007. Though opportunity was given, Addl. Public Prosecutor did not
file any reply nor did he submit any written arguments. He prayed that
another opportunity be given to him to file reply. In the interest of
justice, learned Sessions Judge adjourned the case. On 10/9/2007, an
application was moved by the Addl. Public Prosecutor stating that he had
written a letter to the SHO through the Superintendent of Police but no
reply has been received so far. The case was, therefore, posted for hearing
on 12/9/2007. Even on 12/9/2007, the sanction was not produced. Arguments
of parties were heard and on 13/9/2007, learned Sessions Judge discharged
the appellant of the offences under the said Act. While discharging the
appellant of the said offences, learned Sessions Judge noted that though
the hearing was repeatedly postponed, Addl. Public Prosecutor failed to
produce the sanction and state the correct legal position. The question
whether if a sanction is produced in future, the appellant could be tried
for offences under the said Act was kept open by him. He sought for an
explanation from the District Magistrate, Chittorgarh why sanction was not
obtained though 14 persons had died and a number of persons had received
severe burn injuries in the disastrous fire accident. Learned Sessions
Judge also called for an explanation as to why the Chief Secretary, State
of Rajasthan should not be informed about the unhappy state of affairs due
to which he was constrained to discharge the appellant of the offences
under the said Act. Learned Sessions Judge, however, noted that it was his
prima facie view that the appellant had not taken adequate care while
conducting his business of storing and marketing of inflammable substances.
He further noted that prima facie, it was evident that carelessness of the
appellant led to the fire in his shop killing 14 persons and injuring many.
He, therefore, directed that charge for the offences under Sections 285,
286 and 304 of the IPC be framed against the appellant on the next date of
hearing of the case. It is pertinent to note that the appellant challenged
order dated 13/9/2007 before learned Single Judge of the Rajasthan High
Court. The said petition was dismissed.
6. On 3/4/2008, the SHO, Reserve Centre, Kotwali moved an application
through the Addl. Public Prosecutor along with sanction letter issued on
1/4/2008 by the District Magistrate, Chittorgarh. On 15/5/2010, learned
Sessions Judge rejected the application on the ground that sanction to
prosecute the appellant under Sections 3, 4, 5 and 6 has been granted by
the District Magistrate, however, it is not under Section 7 of the said
Act. A copy of the sanction order is annexed to the appeal memo at Ex-P/6.
It would be advantageous to produce the relevant portion of the said
sanction order.
“From the investigation of the case it has been revealed that the
accused while acting negligently and in violation of the rules of the
license kept in his shop in residential area highly inflammable
substance solvent with the knowledge that it could at any time cause
heavy loss to life and property but then also he committed this act
due to which the explosion took place and the incident happened and
damage has been caused to life and property.
Therefore, against the accused Deepak Khichi S/o Madan Lal
Khichi R/o Gandhi Nagar Chittorgarh prima facie the case under section
3, 4, 5, 6 of the Explosive Substance Act, 1908 is found to have been
proved due to which under section 7 of the Explosive Substance Act,
1908 the sanction for prosecution upon the filing of the challan
before a competent court is granted.”
It is surprising that in a serious case like this, the prosecution
should not challenge order dated 15/5/2010 passed by learned Sessions
Judge.
7. The prosecution again submitted an application purported to be under
Section 311 of the Code along with sanction dated 1/6/2010 issued by the
District Magistrate, Chittorgarh. As stated hereinabove, the said
application was allowed by learned Sessions Judge on 16/11/2010. By the
impugned order passed by the Rajasthan High Court the order passed by
learned Sessions Judge was upheld. Hence, the present appeal.
8. We have heard learned counsel for the parties, at some length.
Counsel for the appellant submitted that the courts below erred in allowing
the application filed by the prosecution after a delay of about three
years. He submitted that it was not open to the prosecution to make
repeated attempts to get sanction from the competent authority. Counsel
submitted that by passing order under Section 311 of the Code, the trial
court has subjected the appellant to the ordeal of a trial for the offences
under the said Act after a period of three years. This has resulted in
miscarriage of justice. Counsel submitted that since the prosecution had
deliberately delayed obtaining sanction, it cannot be now allowed to fill
in the lacuna. Such a course will result in abuse of process of court. In
support of his submissions, counsel relied on the judgments of this court
in Rajendra Prasad v. Narcotic Cell[1] and State of Himachal Pradesh v.
Nishant Sareen[2].
9. The explosion which took place in the appellant’s shop resulted in
death of 14 persons. Several persons were severely injured. Seriousness
of the occurrence can hardly be disputed. Learned Sessions Judge has
framed charges against the appellant for offences under the IPC because in
his prima facie opinion, there is enough material against the appellant to
bring home the said charges. It is unfortunate that so far as offences
under the said Act are concerned, there should be so much inaction
bordering on callousness on the part of the prosecution. Learned Sessions
Judge has in his order expressed despair about the prosecution’s conduct.
He had called for an explanation but the explanation does not appear to
have come. We express our extreme displeasure about this approach of the
prosecution. We wonder whether as desired by learned Sessions Judge, the
inaction of the prosecution was conveyed to the Chief Secretary.
Ultimately, learned Sessions Judge had to discharge the appellant of the
said charges because there was no sanction.
10. As stated hereinabove, on 1/4/2008 sanction was issued by the
District Magistrate, Chittorgarh, but the application made by the
prosecution for framing charge against the appellant under the said Act was
rejected by learned Sessions Judge. We are prima facie satisfied that the
letter of the District Magistrate, Chittorgarh issued on 1/4/2008 gave good
and valid consent as envisaged under Section 7 of the Act for trial of the
appellant for offences under the said Act and the learned Sessions Judge
was in error in rejecting the consent letter by his order dated 15/5/2010.
The proper course for the prosecution was to challenge that order and have
it set aside by the High Court. Instead of taking that course, a fresh
sanction was issued by the District Magistrate, Chittorgarh on 1/6/2008.
The prosecution then filed an application under Section 311 of the Code.
It was prayed that sanction issued under Section 7 of the said Act by the
District Magistrate be taken on record and the appellant be tried for
offences under Sections 3, 4, 5 and 6 of the said Act. Learned Sessions
Judge while granting the said application, relied on the judgment of
Rajasthan High Court, Jaipur Bench in Ramjani & Ors. v. State of
Rajasthan[3] wherein it was held that where sanction under Section 7 of the
said Act is not obtained, the prosecution will have to be quashed but it
would be open to the prosecution to start the prosecution afresh after
obtaining sanction from the competent authority. The High Court upheld
this order.
11. Before dealing with the submissions of learned counsel, we shall
refer to the judgments on which reliance is placed by learned counsel for
the appellant. In Rajendra Prasad, this court explained when a court can
exercise its power of recalling or re-summoning witnesses. While repelling
the contention raised by counsel for the appellant therein that power under
Section 311 of the Code was being exercised to fill in the lacuna, this
court observed that a lacuna in the prosecution must be understood as the
inherent weakness or a latent wedge in the matrix of the prosecution case.
The advantage of it should normally go to the accused in the trial of the
case, but an oversight in the management of the prosecution cannot be
treated as irreparable lacuna. This court clarified that no party in a
trial can be foreclosed from correcting errors and if proper evidence was
not adduced or a relevant material was not brought on record due to any
inadvertence, the court should be magnanimous in permitting such mistakes
to be rectified. This court observed that after all, function of the
criminal court is administration of criminal justice and not to count
errors committed by the parties or to find out and declare who among the
parties performed better. In our opinion, the appellant cannot draw any
support from this judgment because it arose out of a totally different
facts scenario. If at all the observations of this court quoted by us
would help the prosecution rather than the appellant. No question of
sanction was involved in that case. The prosecution and defence had closed
their evidence and thereafter at the instance of the prosecution, two of
the witnesses who had already been examined, were summoned for the purposes
of proving certain documents for prosecution. In the circumstances, the
question arose whether by making application under Section 311 of the Code,
the prosecution was trying to fill in the lacuna. In our opinion, Rajendra
Prasad has no application to the present case. We do not want to express
any opinion as to whether in this case, the application was made rightly
under Section 311 of the Code by the prosecution. We find that, in
substance, the application filed by the prosecution was for tendering the
consent/sanction of the District Magistrate, on record and requesting the
court to start trial against the appellant for the offences punishable
under the said Act. Learned Sessions Judge granted the said application.
12. In Nishant Sareen, the respondent therein was caught red-handed
accepting bribe from the complainant. Sanction was sought by the Vigilance
Department under Section 19 of the Prevention of Corruption Act, 1988 to
prosecute the respondent. The Principal Secretary (Health) found no
justification in granting sanction to prosecute the respondent. Sanction
was refused. Thereafter, Vigilance Department took up the matter again
with the Principal Secretary (Health) for grant of sanction. The matter
was reconsidered. Though no fresh material was available for further
consideration, the competent authority granted sanction to prosecute the
respondent. It is in these circumstances that this court observed that
sanction to prosecute a public servant on review could be granted only when
fresh materials have been collected by the investigating agency subsequent
to earlier order. Reconsideration can be done by the sanctioning authority
in the light of the fresh material, prayer for sanction having been once
refused. This case also can have no application to the facts of the
present case. Here, initially prosecution did show lackadaisical approach
in obtaining sanction. But, at no point of time, sanction was refused. On
1/4/2008, the District Magistrate granted sanction but learned Sessions
Judge rejected the application. Looking to the seriousness of the matter,
that order ought to have been challenged by the prosecution but it was not
challenged. Thereafter, the District Magistrate again granted sanction.
Learned Sessions Judge took that sanction on record and directed the trial
to proceed against the appellant for offences under Sections 3, 4, 5 and 6
of the said Act. The High Court affirmed the view taken by learned
Sessions Judge. To these facts, judgment in Nishant Sareen, where sanction
was refused earlier by the Principal Secretary (Health) and was granted on
the same material later on, can have no application.
13. In this connection, we may usefully refer to the judgment of this
court in State of Goa v. Babu Thomas[4]. In that case, the respondent
therein was employed as Joint Manager in Goa Shipyard Limited, a Government
of India Undertaking under the Ministry of Defence. He was arrested by the
CID, Anti-Corruption Bureau of Goa Police on the charge that he demanded
and accepted illegal gratification from an attorney of M/s. Tirumalla
Services in order to show favour for settlement of wages, bills/arrears
certification of pending bills and to show favour in the day-to-day affairs
concerning the said contractor. The first sanction to prosecute the
respondent was issued by an incompetent authority. The second sanction
issued retrospectively after the cognizance was taken was also by an
incompetent authority. This court held that when Special Judge took
cognizance, there was no sanction under the law authorizing him to take
cognizance. This was a fundamental error which invalidated the cognizance
as being without jurisdiction. However, having regard to the gravity of
the allegations leveled against the respondent, this court permitted the
competent authority to issue a fresh sanction order and proceed afresh
against the respondent from the stage of taking cognizance of the offence.
It is pertinent to note that the offence therein was committed on
14/9/1994. Looking to the seriousness of the offence, this court permitted
the competent authority to issue fresh sanction order after about 10 years.
We have no hesitation in drawing support from this judgment. The offence
in this case is equally grave. At no stage, sanction was refused by the
competent authority. It is not the case of the appellant that sanction is
granted by the authority, which is not competent. It is true that the
proceedings are sought to be initiated under the said Act against the
appellant after three years. But, in the facts of this case, where 14
innocent persons lost their lives and several persons were severely injured
due to the blast which took place in the appellant’s shop, three years
period cannot be termed as delay. It is also the duty of the court to see
that perpetrators of crime are tried and convicted if offences are proved
against them. We are not inclined to accept the specious argument advanced
by learned counsel for the appellant that the lapse of three years has
caused prejudice to the accused. The case will be conducted in accordance
with the law and the appellant will have enough opportunity to prove his
innocence. Besides, equally dear to us are the victim’s rights.
14. It is true that learned Sessions Judge has, by his order dated
13/9/2007 discharged the appellant of the charges under Sections 3, 4, 5
and 6 of the said Act because there was no sanction. But, the prosecution
has now obtained sanction. The Sessions Judge has accepted the sanction
and has directed that the trial should be started against the appellant for
offences under Sections 3, 4, 5 and 6 of the said Act, as well. The order
of the Sessions Judge is affirmed by the impugned order passed by the High
Court. In view of the legal position as discussed above, and in the facts
of the case, as narrated above, we see no reason to interfere in the matter
and we direct the trial court to frame additional charges against the
appellant under Sections 3, 4, 5 and 6 of the said Act and to proceed with
the trial. Needless to say that the stay of further proceedings granted by
this court on 5/7/2011 shall stand vacated.
15. Appeal is disposed of in the aforestated terms.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
APRIL 30, 2012.
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[1] (1999) 6 SCC 110
[2] (2010) 14 SCC 527
[3] 1993 Cr.L.R. (Raj.) 179
[4] (2005) 8 SCC 130
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