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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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