Section 7 of the Explosive Substances Act, 1908, does not bar taking cognizance of an offense but only prohibits the trial of the accused without the consent of the Central Government. Discharge is not equivalent to acquittal, and therefore, fresh hearing and order on the issue of framing charges for offenses under the Act are permissible.

1. - This is a challenge made by the petitioner Deepak Khinchi s/o Madan Lal Khinchi, r/o Gandhi Nagar, Chittorgarh against the order dated 16.11.2010 passed by the learned Addl. Sessions Judge (Fast Track) Chittorgarh, in Sessions Case No. 53/2006 (22/2006), by which the learned trial court allowed the application submitted by the prosecution under section 311 Cr.P.C. and by accepting the same he further ordered to frame charges against accused petitioner for offence under section 3 ,4 ,5, and 6 of the Explosive Substances Act, 1908 (hereinafter referred to as 'the Act of 1908'). The brief facts of the case are that a charge sheet against the present petitioner was filed by the Station House Officer, Police Station, Kotwali, Chittorgarh on 03.07.2006 for offences under section 285 ,286 ,323 ,324 , 304 IPC and section 3 ,4 ,5, and 6 of the Act of 1908, in the court of learned Addl. Chief Judicial Magistrate, Chittorgarh, who committed the case to the court of Sessions, from where it was transferred to the court of learned Addl. Sessions Judge, (Fast Track), Chittorgarh.

2. The learned Addl. Sessions Judge, (Fast Track), Chittorgarh, vide order dated 13.09.2007 discharged the petitioner from offences under section 3,4,5 and 6 of the Act of 1908 for want of requisite consent of the Central Government, which is mandatory as per the provisions of section 7 of the Act of 1908. An application was submitted by the prosecution on 03.04.2008, along with the sanction letter issued on 01.04.2008 by the District Magistrate, Chittorgarh for proceeding under the provisions of the Act of 1908 and the learned trial court rejected that application also on 15.05.2010 on the ground that the sanction to prosecute has not been granted in accordance with the provisions, as contemplated under section 7 of the Act of 1908. The prosecution again submitted the sanction dated 01.06.10 issued by the District Magistrate, Chittorgarh issuing consent to prosecute the petitioner for the offence under section 3 ,4 ,5, and 6 of the Act of 1908 along with an application under section 311 Cr.P.C., which was allowed by the learned trial court by the impugned order.

3. Aggrieved by the above order, the petitioner has challenged the legality and propriety of the order dated 16.11.2010.

4. The learned counsel for the petitioner contended that the order of the learned trial court was totally contrary to the established principles of law and thus it cannot be sustained. He contended that by way of such an application the sanction for the prosecution cannot be taken on record directly in the trial court, without there being any report under section 173(8) Cr.P.C., because the order of allowing such an application amounts to filling up the lacuna left by the prosecution and once the petitioner was discharged for the offence under the Act of 1908, he cannot be again put to trial for the same offence and re-adjudication on the same point is permissible as maxim res judicata various per accipiter .

5. The learned Public Prosecutor defended the order of the learned trial court and made me to visit through the provisions of section 7 of the Act of 1908, which reads as under :

"No court shall proceed to the trial of any person for an offence against this Act except with the consent of the Central Government."

6. Thus, section 7 of the Act of 1908 does not bar taking of cognisance but simply prohibits trial against the accused. The trial commends only on framing of charge. Therefore, it was not necessary for the investigating Officer or the prosecution, to file an additional application under section 173(8) Cr.P.C. and such an application could be filed at the trial stage because at the most the trial conducted upto the date of submission of the consent of the Central Government stands vitiated and a fresh trial would take place. The language of section 7 of the Act of 1908 does not bar the process of taking cognisance against any person. Discharge cannot attract provisions