IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7375 of 1998 Md. Shami Ahmad, Son of Md. Suleman, Resident of Village- Narkatia, P.S. Hathauri, District Muzaffarpur. -------- Petitioner Versus 1. The State of Bihar. 2. Anwarul Haque, Son of Israil Haque, Resident of Village- Narkatia, P.S. Hathauri, District Muzaffarpur. --------- Opposite Parties ----------- 5 20.8.2009 Heard Mr. Vindhyakeshri Kumar, learned senior counsel appearing on behalf of the petitioner and the counsel for the State. Despite service of notice, no one however appears on behalf of the complainant opposite party no.2. While there may not be much for the learned counsel of the petitioner to contend on the question of delay or entertaining of the second complaint petition on the same facts, inasmuch as, the earlier police case filed by the opposite party no.2 on being declared to be false, he had already filed a protest petition which got dismissed for default on 27.4.1994 and only thereafter, the present complaint case was filed wherein the impugned order taking cognizance came to be passed under Section 3/4 of Explosive Substance Act and that too after examining complainant on solemn affirmation and holding enquiry under Section 202 Cr.P.C. This Court would not find any error in adopting such procedure inasmuch as it is by now well settled that where a complaint is dismissed for default, restoration does not lie since fresh complaint can be filed. Reference in this connection may be made to the judgment of Apex Court in the case of Major General A.S. Gauraya and another Vs. S.N. Thakur and another reported in A.I.R. 1986 S.C. 1440 and also in the case of Jatinder Singh Vs. Ranjit Kaur reported in 2001 Cr.L.J. 1015 (S.C.) . Mr. Singh, however, would then urge that in terms of Section 7 of the Explosive Substance Act, the trial against the petitioner cannot proceed unless there is consent of the Central Government. In this context, he has relied on a judgment of this Court in the case of Jagat Narayan Upadhaya Vs. The State of Bihar reported in 1993(1) BLJ 473. In the opinion of this Court, learned counsel for the petitioner seems to be correct, inasmuch as, there is an express mandate of legislature in terms of Section 7 of the Explosive Substance Act that no trial for any offence under the Act shall proceed unless there be a consent of the Central Government. The petitioner has, in fact, taken a specific point in this respect in paragraph no.9 of the application asserting that there was no consent available at least on the date of filing of the complaint petition by the complainant-opposite party no.2 or even the date on which cognizance was taken. In the opinion of this Court the impugned order taking cognizance however cannot be faulted even on this score inasmuch unlike the scope of Section 197 of the Code of Criminal procedure barring taking of cognizance in absence of prior sanction, Section 7 only bars proceeding/trial in absence of consent of the Central Government. As a matter of fact this very aspect was clarified by this court in the case of Jagat Narayan Upadhyay (supra) in the following words : - “It was contended before me that Section 7 of the Explosive Substance Act provides that no court shall proceed to the trial of any person for an offence against the Act except with the consent of the Central Government. Learned Counsel for the petitioner stated that the President of India in exercise of his power under Article 258 of the Constitution, has delegated the power to grant consent to the State Government. He however, submits that the consent given by the District Magistrate is not consent given by the State Government. According to me the consent is required to be given by the State Government must be either expressed in the name of the Governor, or must atleast be given by an officer not below the rank of Secretary to the Government, to whom the power may have been delegated under the Rules of Executive Business framed under Article 166 of the Constitution. It will be apparent from Section 7 of the act that the restriction is against proceeding to the trial on any person, and not against taking of cognizance, or making any further inquiry in the matter. It is well settled that the trial does not commence at the stage of taking of cognizance, and commitment proceeding is also in the nature of an inquiry. The bar, therefore, will apply only when a court proceeds to tray the accused person without the consent of the State Government. That stage have not yet been reached, and therefore, such an objection must be raised by the petitioner before the sessions court by whom alone the offence is triable. It is only at that stage that the trial court will be required to examine whether consent has been duly granted by the State Government for the trial of the petitioner.” In the present case also the proceedings of the trial has not commenced. Infact from the records of Court below it would appear that after the impugned order taking cognizance was passed on 7.10.1997 the further proceedings has remained stayed in view of the interim order passed by this Court while admitting this application on 9.4.1988. Ofcourse of the ordersheet of the Court below of the connected complaint case from 26.4.1994 to 18.5.1998 (till the date original records were sent to this court) does not contain any order of the appropriate Government according consent to the prosecution of the petitioner in terms of Section 7 of the Act, but this Court is not aware as to whether such consent has been accorded subsequently by the State Government. In that view of the matter this Court following the ratio of the earlier judgment of this Court in the case of Jagat Narayan Upadhyay (supra) would only hold that there is no infirmity in the impugned order taking cognizance. The petitioner however will be at liberty to raise this objection before the trial court at the stage of framing charge by filing a petition for discharge and the court below would/consider and decide the same by looking into whether consent has been duly granted by the State Government for the trial of the petitioner. It is however made clear that if the court below would find that such consent in terms of Section 7 of Explosive Substance Act has not been given by the State Government even till the date of passing an order on discharge petition, the learned magistrate will discharge the petitioner inasmuch as in such event the further continuance of proceeding for trial of the petitioner relating to an alleged offence of the year 1985 would definitely amount to an abuse of the process of the Court. With the aforementioned observations and direction, this application is finally disposed of. Let the original records of the Court below be transmitted back forthwith. Rsh (Mihir Kumar Jha, J.)