Dhrub Kumar vs The State of Bihar

R.N. Lal, J.—This petition is directed against the order of the learned Chief Judicial Magistrate, Patna, in Gardanibagh P.S. case No. 151 of 1984, dated 27.6.84 by which the learned Chief Judicial Magistrate had taken cognizance against the petitioner under sections 121(A), 123(B), 109 and 426 of the Indian Penal Code and 6 of the Explosive Substance Act. On 30th March, 1984 one Martin Tirki, Inspector of Police-cum-Officer-in-Charge was on duty inside the Bihar Vidhan Sabha which was in session at about 12.15 P.M. Martin Tirki heard a sound of explosion, rushed inside the hall of the House and found Assistant Sub-Inspector of Police, Ganesh Prasad interrogating one man, namely, Arbind Kumar Singh, who had allegedly thrown the bomb inside the House. Arbind Kumar Singh had got access to the public gallery on the basis of a pass issued by one Shri Ramji Singh, M.L.A. Congress (I). Shri Arbind Kumar Singh described himself as Vice President of the District Committee of Rashtriya Sanjay Manch, Arrah. He had shouted several slogans from that gallery while the House was in session. He disclosed that he had done so to frighten the Government to decentralise the capital and to bring change in the social order. It was further stated by him that he had done it as decided by a meeting held in Arrah. The Hon''ble Speaker of the Bihar Vidhan Sabha convicted him for Contempt of House and forwarded him to the Police for prosecuting him under the other provisions of the criminal law in usual way. The Police submitted charge-sheet against the petitioner and thereafter cognizance was taken as referred to above.

Learned counsel for the petitioner submitted that the decision to throw a bomb within the House of Bihar Vidhan Sabha, while in session, had been taken at a meeting held in Arrah in which the petitioner was present but there is nothing to show that he had spoken anything or was a party to that decision. As such it cannot be said that he acted according to the decision of that meeting. It was further alleged that for a prosecution u/s 6 of the Explosive Substance Act, 1908, consent of the Central Government is a necessity u/s 7 of the said Explosive Substance Act 1908 which leads as follows: --

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.

As regards other offences the learned counsel relied on section 196 of the Code of Criminal Procedure which is as follows:--

Section 196(1) No court shall take cognizance of--

(a) any offence punishable under chapter VI or u/s 153A, section 153B, section 295A or section 505 of the Indian Penal Code, or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in section 108A of the Indian Penal Code, except with the previous sanction of the Central Government or of the State Government.

(2) No court shall take cognizance of the offence of any criminal conspiracy punishable u/s 120B of the Indian Penal Code, other than a criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceeding;.

Provided that where the criminal conspiracy is one to which the. provisions of section 195 apply, no such consent shall be necessary.

So according to him the prosecution for the offences under sections 121A and 120B of the Indian Penal Code no court can take cognizance without the previous sanction of the Central or the State Government. Apparently according to the learned counsel no sanction had been obtained by the prosecution from the State Government in this regard Learned counsel further added that cognizance in this case had been taken on 27.6.1984. The city Superintendent of Police, Patna, had sent a letter vide memo No. 3062 dated 12.7.84 to the learned Chief Judicial Magistrate, Patna, not to take cognizance under sections 120B and 121A of the Indian Penal Code because sanction was not obtained from the Government. But the cognizance had already been taken by the learned Chief Judicial Magistrate earlier and so no attention was paid to this letter. Learned counsel argued that in the absence of sanction, the impugned order is not according to law.

Learned counsel for the State argued that the Hon''ble Speaker of the Bihar Vidhan Sabha had ordered that Arbind Kumar Singh be dealt with for his criminal action according to general law and while ordering so the Hon''ble Speaker had given consent for the prosecution of the petitioner. As regards sanction u/s 7 of the Indian Explosive Substance Act, he was unable to improve upon the position as depicted by the learned counsel for the petitioner. He was unable to deny the letter written by the City Superintendent of Police, Patna, to the learned Chief Judicial Magistrate, Patna in which it was stated that no sanction had been taken for prosecution of the offence under sections 120B and 121A of the Indian Penal Code and no cognizance be taken regarding them.

In view of section 7 of the Indian Explosive Substance Act, no consent of the Central Government had been obtained for this prosecution. As such no cognizance could have been taken u/s 6 of the said Explosive Substance Act. As regards sanction under sections 121A and 120B of the Indian Penal Code apparently no sanction of the State Government was obtained. A such this part of the order also cannot be held to be sustainable in law as clearly laid down u/s 196 of the Code of Criminal Procedure referred to above.

Now the remaining section is section 426 of the Indian Penal Code under which cognizance had been also taken and there is no law requiring sanction for the prosecution under this section nor any law could be shown by any of the parties in this regard to me. In other words, the cognizance u/s 426 or 109 of the Indian Penal Code cannot be assailed under any Act.

In the facts and circumstances discussed above I find that cognizance taken for the offence under sections 120B and 121A of the Indian Penal Code as also u/s 6 of the Explosive Substance Act are not sustainable in law and must be quashed. The cognizance u/s 426 or 109 of the Indian Penal Code is legal and the trial may continue with regard to that. The petitioner may place his case before the learned Chief Judicial Magistrate who will pass necessary orders after hearing him in the matter. In the result this petition is dismissed with modification as indicated above.