KAILASH CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner is aggrieved by the order dated 05.04.2010 passed by the learned Additional District & Sessions Judge, Fast Track No.1, Jaipur District, Jaipur whereby the learned Judge has remanded the case back to the Additional Chief Judicial Magistrate, Jaipur District and has directed him to frame charges against the petitioner under Sections 5, 6/9B of the Explosive Act, 1884 (the Act of 1884, for short)

(2.) THE brief facts of the case are that on 26.05.2007, one Jagdish Prasad, ASI, lodged a written report at Police Station, Kalwar, Jaipur for offences under Sections 3, 4 and 5 of the Explosive Substances Act, 1908 (hereinafter referred to as the Act of 1908) against the petitioner. On 05.07.2007, after due investigation, the police submitted a charge-sheet against the petitioner under Section 5 of the Act of 1908 before the Court of Additional Civil Judge (Junior Division) and Judicial Magistrate No.2), Jaipur District, Jaipur. After examining the prosecution witnesses as well as defence witnesses, during the course of final argument, an objection was raised by the petitioner; he claimed that since the offence under Section 5(1)(b) of the Act of 1908 was punishable with life imprisonment, therefore, the Magistrate did not have jurisdiction to try the case. In fact, the case should have been committed to the Sessions Judge, Jaipur District, Jaipur. Accepting the said contention, the learned Magistrate committed the case to the Sessions Judge under Section 323 Cr.P.C. On 16.03.2010, the learned Judge transferred the case to the Additional District & Sessions Judge No.1, Jaipur District, Jaipur. Before the learned Additional District Judge, it was contended by the petitioner that, in fact, the entire trial was vitiated. For, according to Section 7 of the Act of 1908, no trial can be proceeded without the consent of the District Collector. In the present case, since no consent of the District Collector was taken by the prosecution agency, the trial could not have even proceeded. Impressed by the said contention, the learned ADJ has directed the Magistrate to frame the charge against the petitioner under Sections 5, 6/9B of the Act of 1884 and remanded the case to the learned Magistrate. Since the petitioner is aggrieved by the said order dated 05.04.2010, he has approached this Court.

(3.) THE contention that the testimonies should be considered is also unacceptable as the case of Gurmeet Singh Bagga (supra) dealt with consideration of the record of the case as gathered by the investigating agency during the process of investigation. THErefore, the contention that the testimonies recorded by the learned trial Court should also be considered, is without any basis.