Balram Dixit v. State of U.P. & Ors

#1. Heard Shri Ankit Agarwal, learned counsel for the applicant and learned A.G.A. for the State-respondents.

#2. This application has been filed for quashing the impugned order dated 31.5.2022 as well as the order dated 3.6.2022 passed by the learned Session Judge/Special Judge (E.C. Act), Fatehpur in Session Trial No. 196 of 2011 (State of U.P. Vs. Balram Dixit) arising out of case crime no. 153 of 2007 under Section 4/5 of the Explosive Substance Act and under Section 3/7 of the Essential Commodities Act, P.S. Chandpur, District Fatehpur.

#3. The FIR bearing case crime no. 153 of 2007 was lodged naming the applicant in respect of offences under Explosive Substances Act, 1908 and the Essential Commodities Act, 1955.

#4. It is stated that a chargesheet was filed against the applicant whereupon Magistrate took the cognizance and summoned the applicant. By the order dated 23.8.2011, the Additional Sessions Judge framed two charges against the applicant, one under Section 4/5/9 of the Explosive Substances Act, 1908 and the other under Section 3/7 of the Essential Commodities Act, 1955. Apparently, the applicant filed an application that he ought to be tried under the provisions of Explosives Act, 1884 and not under the provisions of the Explosive Substances Act, 1908, which application was rejected by the court below by means of the order dated 6.8.2021. Challenging that order, an Application U/S 482 No. 16721 of 2021 was filed by the applicant which were dismissed on 14.12.2021, after noticing the argument of the learned counsel for the applicant therein that the trial court had taken cognizance of the offence without there being any valid sanction. This Court had observed that the applicant may appear and raise all those contentions before the trial court which was to consider the same. Accordingly, the application dated 16.4.2022 was filed by the applicant which is on record as Annexure No. 5 to the affidavit. By the order dated 13.5.2022, the court below held that there are sufficient grounds for altering the charges against the applicant to Section 4/5 of the Explosive Substances Act, 1908 and Section 3/7 of the Essential Commodities Act, 1955. Thereafter, as has been stated in paragraph no. 20 of the affidavit, the applicant moved an application before the court that necessary sanction be obtained by the competent authority first before proceeding with the matter. However, by means of the impugned order dated 3.6.2022, the application of the applicant was rejected and while rejecting the application, the court below has held that cognizance had already been taken by the appropriate Court and the court has jurisdiction under the provisions of the Explosive Substances Act, 1908 and the Essential Commodities Act and since the matter is pending for a long time for hearing, therefore, the application filed by the applicant (that pertained to the jurisdiction of the court below) can be decided at the time of final disposal of the case.

#5. The argument of the learned counsel for the applicant is that given the provisions of Section 11 of the Essential Commodities Act and Section 7 of the Explosive Substances Act, 1908, there is a restriction on the court from taking cognizance of any offence and from proceeding with the trial of any person for any offence under the Act, respectively. It is contended that the issue of jurisdiction goes to the root of the matter and unless the issue regarding jurisdiction is decided by the court, it cannot proceed with the matter.

#6. Learned A.G.A. has opposed the application stating that as it evident from the impugned orders passed by the court below, the case is pending for a long time and when the case is being listed for final hearing at that stage, the issue of jurisdiction is sought to be raised by the applicant which is nothing but an attempt to delay the decision in the trial. It has further been contended that the Sessions Court has adjudged its jurisdiction by referring the jurisdiction held by it under the Explosive Substances Act, 1908 and the Essential Commodities Act.

#7. At the outset, the relevant provisions of Section 11 of the Essential Commodities Act and Section 7 of the Explosive Substances Act, 1908 are being considered which are as follows: Section 11 of the Essential Commodities Act (as per U.P. Amendment)- "11. Cognizance of offences.- No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by order of, or under the authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf or any person aggrieved or any recognised consumer association, whether such person is a member of that association or not. [Explanation.- For the purposes of this section and section 12-AA, "recognised consumer association" means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force.]" Section 7 of the Explosive Substances Act, 1908- "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. Therefore, a bare reading of Section 11 of the Essential Commodities Act reveals that it places restriction on any court from taking cognizance of any offence punishable under the Act except on a report in writing of the facts constituting such offence made under the authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf or any person aggrieved or any recognised consumer association, whether such person is a member of that association or not, that is to say, that where an objection regarding cognizance of offence is raised, the court ought to first decide the same before proceeding further.

#9. Under Section 7 of the Explosive Substances Act, 1908, there is a clear restriction which bars the court from proceeding with the trial of any person for an offence under the Act except with the consent of the District magistrate, that is to say, the court below is enjoined to record whether the consent of the District Magistrate is available on record before proceeding with the trial of the case. The impugned order dated 3.6.2022 does not reveal any discussion by the trail court with regard to the aforesaid issue. A clear finding is to be recorded by the court below given the terms of Section 11 of the Essential Commodities Act and Section 7 of the Explosive Substances Act, 1908. Where the consent is available, the court may proceed with the trial.

#10. Though, a plea has been raised by the learned counsel that the court below also ought to keep in mind the provision of sub- section (5) of Section 216 of the Cr.P.C. while deciding the issue of sanction under Section 7 of the Explosive Substances Act, 1908, however, that argument has no merit. As is evident from a reading of Section 7 of the Explosive Substances Act, only a consent of the District Magistrate is required and not sanction. This aspect was considered at length by the Apex Court in the Case of State of Tamil Nadu Vs. Sivarasan reported in (1997) 1 SCC 682 as follows: "28. With respect to the finding regarding sanction we are of the opinion that the learned Sessions Judge was not right in treating it as not legal and valid. Section 7 does not require a sanction but only consent for prosecuting a person for an 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. To prove the consent the prosecution had examined PW 52 Balachandran who was then acting as the PA of the District Collector. He has deposed about the requisition sent by the investigating officer and the reports and other documents sent along with it and consideration of the same by the District Collector before giving his consent. In his cross- examination he stated that he had not noticed in the relevant file statements of witnesses. Relying upon this answer given by the witness the learned Sessions Judge held that in absence of such statements the District Collector cannot be said to have applied his mind properly to the facts of the case before granting the sanction. From the evidence of the witness and the copy of the proceedings of the Collector it appears that the Inspector of Police had sent his report regarding the evidence collected by him together with a copy of the FIR, the reports of the Forensic Department and other connected record. Thus, the Mahazars under which the "explosive substances" recovered and seized by the police from different accused were placed before the Collector and on consideration of all that material the Collector had given his consent. We do not think that for obtaining consent of the Collector for prosecuting the accused for the offence punishable under the Explosive Substances Act it was necessary for the investigating officer to submit the statements of witnesses also, who had deposed about the movements of the accused and their activity of manufacturing bombs and grenades. We, therefore, hold that the consent given by the Collector was quite legal and valid."

#11. For the reasons aforesaid, this application succeeds and is partly allowed. The impugned order dated 3.6.2022 passed in Sessions Trial No. 196 of 2011 is set aside. The court below is directed to decide the issue of jurisdiction expeditiously and preferably within a month from the date of communication of this order. Further, thereafter, the trial court shall endeavour to conclude the trial expeditiously and preferably within a period of six months.

#12. Registrar Compliance shall communicate this order to the court below. Order Date :- 29.6.2022 A. V. Singh (Jayant Banerji, J.) SINGH Reason: Location: High Court of Judicature at Allahabad