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TMI Blog2012 (5) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... and ignorance of assessee which took place in the appellant’s shop, three years period cannot be termed as delay – against assessee. - Criminal Appellate Jurisdiction Criminal Appeal No. 719 of 2012, - - - Dated:- 30-4-2012 - Aftab Alam, Ranjana Prakash Desai, JJ. JUDGEMENT 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued 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 and State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In that case, the respondent therein was employed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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