IMPORTANT POINT
Looking to the graveness of the offence, three years time taken in granting sanction cannot be termed as delay.

JUDGMENT

(Smt.) Ranjana Prakash Desai, J.-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. 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’.

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, 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 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 Ac