2012 (5) TMI 60 - SC - Indian Laws

Delay in Consent to prosecute - offences under Sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908. - consent of central government for prosecution under Section 7 of the Explosive Substances Act, 1908 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. - Held that - in the facts of this case, where innocent persons lost their lives and several persons were severely injured due to the mishandling and ignorance of assessee which took place in the appellant s shop, three years period cannot be termed as delay against assessee.

Issues Involved:
1. Consent to Prosecute under Section 7 of the Explosive Substances Act, 1908.
2. Delay in Obtaining Sanction for Prosecution.
3. Validity of Sanction Orders.
4. Application of Section 311 of the Code of Criminal Procedure, 1973.
5. Prejudice to the Accused due to Delay.

Issue-wise Detailed Analysis:

1. Consent to Prosecute under Section 7 of the Explosive Substances Act, 1908:
The core issue revolves around the "consent to prosecute" as mandated by Section 7 of the Explosive Substances Act, 1908. The section states, "No court shall proceed to the trial of any person for an offence against this Act except with the consent of the Central Government." This was later amended to "District Magistrate." The appellant was charged under Sections 3, 4, 5, and 6 of the said Act without obtaining the necessary consent from the competent authority, leading to the initial discharge by the Sessions Judge.

2. Delay in Obtaining Sanction for Prosecution:
The prosecution's delay in obtaining the required sanction was a significant point of contention. The appellant argued that the delay of about three years in obtaining the sanction and the subsequent application under Section 311 of the Code resulted in a miscarriage of justice. The court noted that despite the seriousness of the incident, which resulted in the death of 14 persons and severe injuries to several others, the prosecution exhibited a lackadaisical approach in obtaining the necessary sanction.

3. Validity of Sanction Orders:
The validity of the sanction orders issued by the District Magistrate was scrutinized. The initial sanction dated 1/4/2008 was deemed valid, but the Sessions Judge erroneously rejected it. Instead of challenging this rejection, the prosecution obtained a fresh sanction on 1/6/2008. The court found that the initial sanction was good and valid under Section 7 of the Act, and the Sessions Judge should have accepted it. The proper course for the prosecution was to challenge the rejection order, which they failed to do.

4. Application of Section 311 of the Code of Criminal Procedure, 1973:
The prosecution filed an application under Section 311 of the Code to introduce the sanction letter and proceed with the trial for offences under the said Act. The Sessions Judge allowed this application, relying on the judgment in Ramjani and Ors. v. State of Rajasthan, which held that prosecution could be started afresh after obtaining the necessary sanction. The High Court upheld this decision. The court clarified that the application under Section 311 was essentially for tendering the consent/sanction of the District Magistrate on record and requesting the trial to proceed.

5. Prejudice to the Accused due to Delay:
The appellant argued that the three-year delay in obtaining the sanction caused prejudice and amounted to an abuse of the court process. However, the court rejected this argument, emphasizing the gravity of the offence and the need to ensure that perpetrators of such serious crimes are tried and convicted if found guilty. The court noted that the appellant would have ample opportunity to prove his innocence during the trial and that the victim's rights were equally important.

Conclusion:
The Supreme Court directed the trial court to frame additional charges against the appellant under Sections 3, 4, 5, and 6 of the Explosive Substances Act, 1908, and proceed with the trial. The stay of further proceedings granted earlier was vacated. The appeal was disposed of with these directions.

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