DEEPAK KHINCHI Vs STATE OF RAJASTHAN
Bench: AFTAB ALAM,RANJANA PRAKASH DESAI
Case number: Crl.A. No.-000719-000719 / 2012
Diary number: 13574 / 2011
Advocates: ARUNA GUPTA Vs
MILIND KUMAR
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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
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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’.
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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,
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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
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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
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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
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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.”
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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
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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
1 (1999) 6 SCC 110 2 (2010) 14 SCC 527
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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
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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 3 1993 Cr.L.R. (Raj.) 179
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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
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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
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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
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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
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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 4 (2005) 8 SCC 130
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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
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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
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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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