The main legal point established in the judgment is that the change of forum as part of procedural law would have retrospective operation, and the offence being a scheduled offence as on the date of constitution of the Special Court should be heard by the Special Court.

JUDGMENT :

Manish Mathur, J.

1. Heard Mr. Sameer Kalia, learned counsel for petitioner, Mr. Shiv Nath Tilhari, learned Additional Government Advocate for opposite party no.1 and Mr. Shishir Jain, learned counsel for opposite parties no.2 to 4.

2. In view of order being proposed to be passed, notices to opposite party no.5 stand dispensed with.

3. At the very outset, it may be indicated that no counter affidavit has been filed by the opposite parties till date but since dispute pertains only to applicability of law without the facts being disputed as such, the matter is being decided in absence of the counter affidavit with consent of learned counsel for parties.

4. Petition has been filed seeking a writ in the nature of prohibition to restrain further proceeding in Case Crime No.561 of 2012, State Versus Virendra Sharma and others under Section 4/5 Explosive Substances Act, 1908 registered in Police Station-Kotwali Mahoba, District Mahoba bearing case no.2796 of 2012 which is pending before opposite party no.4 i.e. the Chief Judicial Magistrate, District Mahoba. Further prayer for direction pertaining to transmittance of records to the court of competent jurisdiction at Lucknow has also been sought.

5. Learned counsel for petitioner submits that the petitioner is conducting the business of stone crushing and as such was validly and legally permitted and entitled to conduct blasting operations in the area of his validly executed mining lease issued by the State Government. It is submitted for the said purpose, stocks of explosive were required to be kept by the petitioner.

6. It is submitted that an FIR bearing Case Crime No.561 of 2012, under Section 4/5 of Explosive Substances Act, 1908 was registered against the petitioner and three others in Police Station Kotwali Mahoba, District Mahoba on the basis of recovery memo prepared by the Station House Officer. The allegation made in the first information report was that upon information being received from the Police Informer pertaining to a cashe of explosive being kept in the premises of one Shree Chandra Mauli Bhardwaj without due permission and its likely misuse in the Forthcoming Assembly Election, 2012, certain recovery was made as a result of search conducted by the police. It is submitted that the first information report was lodged on 11.02.2012 whereafter charge-sheet was submitted on 15.06.2012 and cognizance was taken by the Chief Judicial Magistrate on 24.07.2012.

7. Learned counsel for petitioner submits that at the time of lodging of FIR and cognizance being taken by the court concerned, the Explosive Act was not included in the schedule to the National Investigation Agency Act, 2008 but during pendency of trial, the Explosive Act, 1908 was inserted in the National Investigation Agency Act by means of National Investigation Agency (Amendment) Act, 2019 (16 of 2019) with effect from 02nd August 2019. It is further submitted that subsequently vide notification dated 20.04.2021, the State Government with concurrence of the High Court designated the IIIrd Senior Most Court of District and Sessions Judge, Lucknow as Special Court having territorial jurisdiction over entire State of Uttar Pradesh for the trial of all offences as specified in the schedule appended to the National Investigation Agency Act, 2008 (hereinafter referred Act of 2008).

8. In terms of aforesaid, it has been submitted that once the Explosive Act, 1908 was inserted into the schedule of the Act of 2008 and Special Court has been constituted vide notification dated 20.4.2021, petitioner's trial and records are required to transmitted to the Special Court in terms of Section 13 read with Section 22(4) of the Act, 2008.

9. Learned counsel for petitioner has further elaborated that change of forum during pendency of trial pertains to procedural aspect and is therefore retrospective in nature. As such, even though the offence is said to have taken place prior to insertion of Explosive Act into the schedule of Act