Alakh Kumar @ Alakh Das Gupta vs State of M.P.

R.C. Mishra, J.—This is a petition, u/s 482 of the Code of Criminal Procedure (for short ''the Code''), for quashing of the

(i) order-dated 23.7.2011, passed by First Additional Sessions Judge, Sagar in Sessions Trial No. 714/10, rejecting his application u/s 177 of the Code.

(ii) order-dated 3.11.2011, charging him with the offences punishable under Sections 420, 467, 468, 471 read with 120B and 201 read with 34 of the IPC and 9-B and 9-C of the Explosives Act, 1884 and under Sections 4 and 6 of the Explosive Substances Act, 1908.

(iii) entire proceedings ending in the trial, so far as they relate to him.

In that case, cognizance of the aforesaid offences was taken by JMFC, Sagar upon a charge-sheet presented against as many as 11 persons including the petitioner. The Magistrate, after observing the procedure prescribed, committed the case to the Court of Session for trial.

The charge-sheet was filed after due investigation into the FIR, leading to registration of Crime No. 161/10 at P.S. Baheria Distt Sagar for the offence punishable u/s 9-B of the Explosives Act, 1884 and the FIR was scribed on 13.7.2010 by ASI Sanjay Singh in the light of the fact-finding report submitted by SDO (P), Rahatgarh to Superintendent of Police, Sagar after due inquiry into the complaint relating to involvement of M/s. Ganesh Explosives, a proprietary firm owned by Devendra Singh Thakur and having its Magazine, as defined in Rule 31 of the Explosives Rules, 2008, at Village Pipra Distt, Sagar, in an illicit trade of explosives.

Relevant recitals of the charge-sheet may be summarized as under -

On verification of the information relating to despatch of consignments of explosives by Rajasthan Explosives and Chemical Limited, Dholpur in trucks bearing registration nos. RJ-09-G-4343, RJ-06-G-0373, RJ-06-G-4976, RJ-06-G-1535, RJ-06-G-4053, for being delivered at Magazine of M/s. Ganesh Explosives, Pipra Distt. Sagar, B.M. Dwivedi, Officer-in-charge of the police station, found that-

(a) the Magazine, that was transferred to Jai Kishan Ashwani, a resident of Biaora Distt. Rajgarh and the proprietor of M/s. B.M. Traders under a deed of partnership executed on 22.7.2009, had remained closed for the last two years.

(b) The explosive licences issued by the Chief Controller of Explosives in favour of-

(i) M/s. B.M. Traders and bearing nos. E/HQ/MP/21/ 245 (E-35786) and E/HQ/MP/21/244 (E-35774) were valid upto 31.3.2015.

(ii) M/s. Ganesh Explosives and bearing nos. E/HQ/ MP/21/166 (E-6254) and E/HQ/MP/21/167 (E-6255) had expired on 31.3.2010.

Accordingly, the case u/s 9-B of the Explosives Act, 1884 was registered against Jai Kishan. The investigation revealed-

(a) A criminal conspiracy was hatched to obtain explosives on the basis of the licences issued in favour of M/s. Ganesh Explosives (since expired) and to secure illegal gains by selling the explosives to persons apparently indulged in unlawful activities.

(b) In pursuance of the conspiracy, Jai Kishan, by way of letter dated 1.5.2010, while misrepresenting that Ganesh Explosives, being the sister concern of B.M. Traders, was having a valid licence in force, requested the General Manager, Gulf Oil Corporation Limited (GOCL), Udaipur to supply the explosives for Ganesh Explosives also despite the fact that the application for renewal of the licences granted to Ganesh Explosives, filed by him only, had already been rejected on 27.4.2010. Thereafter, he was able to obtain 60 truck loads of explosives in the name of M/s. Ganesh Explosives [58 from Rajasthan Explosives and Chemical Ltd (RBCL), Dholpur Rajasthan and 2 from Bharat Explosives Ltd. (BEL), Lalitpur] and transport the same to various destinations during the period from 17.4.2010 to the date of registration of the case.

(c) At the relevant point of time, the petitioner, basically a Deputy Manager of Gulf Oil Corporation Limited (GOCL), was posted as Factory Manager of Bharat Explosives Ltd., Lalitpur (U.P.). Before him, on 4,5,2010 and 7.5.2010, Jai Kishan had submitted two forms of indents (R.E. 11 under Rules 50 and 77 of the Rules), one in the name of Ganesh Explosives and other in the name of B.M. Traders for supply of the quantities of explosives. He had rendered necessary assistance in furtherance of the object of the conspiracy by issuing passes in the Form R.E. 12 (under Rules 47 and 50 of the Rules) whereunder Jai Kishan was able to get the explosives supplied to both the firms, transported in the trucks, bearing registration nos. RJ-06-G-5346 and UP-93-T-1167, for being delivered at Pipra and Biaora respectively even without-

(i) informing the Superintendent of Police, Sagar as well as Rajgarh, as required by Sub-Rule 3(b) of Rule 47 and

(ii) observing the procedure prescribed in Rule 77 of the Rules strictly

and

overlooking that-

(a) the licences granted to M/s. Ganesh Explosives had already expired and

(b) in the corresponding documents, Jai Kishan had described himself to be the occupier of the Ganesh explosives whereas the original licence was individual in nature.

While reiterating the grounds projected in the petition, learned counsel for the petitioner has contended that continuance of proceedings against him is an abuse of process of the Court whereas learned Govt. Advocate has submitted that none of the grounds raised necessitates any interference with a legitimate prosecution of the petitioner.

For the sake of convenience, rival contentions may be dealt with under the following heads-

TERRITORIAL JURISDICTION

Admittedly, the proceedings were first commenced in the Court at Sagar where the charge sheet for the above-mentioned offences was presented on 18.11.2010 and thereafter, on 5.5.2011, the another charge sheet, bearing number 138, was filed before CJM, Lalitpur (U.P.) against the petitioner and co-accused Jai Kishan & Devendra Singh for the offences punishable under Sections 420, 406, 467, 468, 471 and 120-B of the IPC, 3 and 5 of the Explosives Substances Act, 1908 and Section 9-B of the Explosives Act, 1884. In such a situation, as explained in State of Madhya Pradesh Vs. Bahadur Singh and Others, , this Court has jurisdiction to decide the question as regards place of trial in view of clause (b) of Section 186 of the Code.

Learned counsel for the petitioner is of the view that the Court at Sagar had no jurisdiction to try this case as all the offending acts, described in the charge sheet, were allegedly committed by him at Lalitpur (U.P.). Placing reliance on decision of single Judge of Allahabad High Court in Hira Lal Chaudhary and Others Vs. State, , he has urged that the case against the petitioner deserves interference under the inherent powers as there would be want of jurisdiction of the Court of trial. In that case, criminal proceedings initiated under Sections 406, 408 and 409 read with Ss. 34 and 109 and 420 of the IPC in the Court of Judicial Magistrate, Bareilly were quashed while holding that on one hand, the Bareilly Court had no jurisdiction to entertain the complaint in respect of the offence of criminal breach of trust and on the other, it would not be in the public interest to allow a prolonged trial in respect of the charge of cheating for a purely civil claim.

However, the present case is one of conspiracy to commit offences including those punishable under the Explosives Act, 1884 and the other charges are based on and have reference to, the several illegal acts committed by one or more of the conspirators in pursuance of the conspiracy. Further, one of the passes said to have been issued by the petitioner related to the consignment of explosives to be delivered at the Magazine of M/s. Ganesh Explosives at Pipra (owned by Devendra Singh, one of the main conspirators) within the territorial jurisdiction of the Court at Sagar and therefore, the fact that the consignment did not reach the destination was of no consequence. The Apex Court in State of Punjab Vs. Nohar Chand, though in a different context, has observed -

Section 179 (of the Code) provides that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. Section 180 provides that where an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, the first-mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done

This apart, by virtue of clause (d) of Section 223 of the Code, the persons arraigned in the charge sheet as accused of different offences committed in the course of same transaction may be charged together and clause (b) of Section 184 of the Code provides that such offences may be tried by any Court competent to try any of the offences.

Thus, viewed from any angle, the order overruling objection as to territorial jurisdiction does not require interference.

PLEA OF DOUBLE JEOPARDY

As explained by the Constitution Benches in -

(i) S.A. Venkataraman Vs. The Union of India (UOI) and Another, in order to attract the provisions of Article 20(2) of the Constitution, there must have been both prosecution and punishment in respect of the same offence.

(ii) The State of Bombay Vs. S.L. Apte and Another, the rule of double jeopardy applies only when both complaints relate to same offence.

Adverting to the facts of the case, it may be observed that the charge sheet filed against the petitioner in the Court at Lalitpur is based on an altogether different set of allegations suggesting that the petitioner, while managing the affairs of M/s. BEL, that had already been closed in the year 2006 and whose licence had already expired on March, 2009, as an officer of M/s. GOCL, had been involved in an illegal manufacture and transportation of the explosives. This apart, the bail order passed by Shri S.S. Gupta, In-charge Sessions Judge, Lalitpur reflects that although consent of the District Magistrate, as contemplated in Section 7 of the Explosive Substances Act, 1908 for prosecution of the applicant in respect of the offences punishable under Sections 3 & 5 of the Act, was accorded yet, the investigating officer had not preferred to arraign him as an accused of the offences in the charge sheet and the case was committed to the Court of Session for trial in view of the fact that co-accused stood charge sheeted for these offences.

In the light of the factual scenario, as highlighted above, learned ASJ did not commit any error in rejecting the plea of double of jeopardy.

FRAMING OF CHARGES

Learned counsel for the petitioner has urged that the order framing charges reflects complete non-application of mind in view of the following facts-

(i) In the letter dated 6.8.2010 displayed on the official website of PESO, the licences issued in favour of M/s. Ganesh Explosives were shown as valid and operational.

(ii) Even assuming for the sake of arguments that on 4.5.2010 and 7.5.2010, M/s. Ganesh Explosives did not have a valid licence, no offence would be made out as the quantity of explosives covered by the passes issued by the petitioner were much less than the quantity permissible under the licences granted to M/s. B.M. Traders.

(iii) There was no material even to infer or suspect that the petitioner was involved in the conspiracy to commit the offences relating to 60 truck-loads of explosives.

(iv) The petitioner has been charged with entering into criminal conspiracy with himself also.

However, direct evidence, being extremely rare, criminal conspiracy can be proved by the circumstantial evidence, In-fact because of the difficulties in having direct evidence of criminal conspiracy once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then, anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to Section 10 of the Evidence Act, relevant for proving both conspiracy and the offences committed pursuant thereto ( Noor Mohammad Mohd. Yusuf Momin Vs. The State of Maharashtra, referred to).

The Court at the stage of framing charge exercises a limited jurisdiction. In R.S. Nayak Vs. A.R. Antulay and Another, the Supreme Court, after analyzing the terminology used in Sections 227 and 228, relatable to sessions trial, Sections 239 and 240 concerning trial of warrant cases and 245(1) and (2) relatable to summons cases, proceeded to hold that despite the differences, there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima facie case is to be applied. As explained in Union of India (UOI) Vs. Prafulla Kumar Samal and Another, the test of determining a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. Accordingly, at that stage, the Court need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects of the matter. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any.

Thus, it requires no restatement that even a strong suspicion leading to presumption as to possibility as against certainty makes out a case for framing of charge. The trial Judge is required to record reasons only if he decides to discharge the accused ( Kanti Bhadra Shah and Another Vs. The State of West Bengal, This apart, the purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial ( Mohan Singh Vs. State of Bihar, , referred to).

Obviously, the error in charge resulting in inclusion of name of the petitioner in the array of his co-conspirators has not, in any way, misled him. Needless to say that the anomaly may be removed by the trial Judge himself at any subsequent stage of the case. Moreover, as observed by the Constitution Bench in Willie (William) Slaney Vs. The State of Madhya Pradesh,

In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand;

and further that...

where the charge is rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable, in such a situation, the absence of a charge under one or other or the various heads of criminal liability for the offence cannot be said to be fatal by itself

For these reasons, the order framing charges deserves to be affirmed as well merited.

Inherent powers, u/s 482 of the Code, are to be exercised ex debito justitiae to prevent abuse of the process of Court but not to stifle a legitimate prosecution, when the issue involved, whether factual or legal, can not be decided without sufficient material. Accordingly, no interference under the inherent powers is called for. The petition, therefore, stands, dismissed. However, nothing contained herein shall be construed as any expression of opinion on the merits of the case. It shall still be open to the petitioner to raise all such pleas as are available under law.