State Of R vs Bhagwan Das Agrawal & Ors

3. The facts and circumstances giving rise to the present appeal are that in respect of alleged unauthorized and illegal supply of explosives by M/s. Rajasthan Explosives and Chemicals Ltd., Dholpur (for short, “RECL”), in which respondent No. 1 herein Bhagwan Das Agrawal was Managing Director, to M/s. Ganesh Explosives, Sagar during the period from 17.4.2010 to 29.6.2010 in contravention of the Explosives Act, a case at Police Station Baheria, District Sagar was registered on 13.7.2010 as FIR/Crime No. 161/2010. The police after due investigation filed charge- sheet on 18.11.2010 for offences punishable under Sections 420, 467, 468, 471, 120-B, 201 and 34 of the Indian Penal Code (for short, ‘IPC’) and Sections 9B, 9C of the Explosives Substances Act, 1884 and Sections 4 and 6 of the Explosive Substances Act, 1908 in the Court of concerned Judicial Magistrate, First Class, Sagar against 11 persons including four persons from RECL viz. respondent No. 1 herein (Managing Director), K. Edward Kelly (Director, Operations), Vinod Kumar Garg (Chief Manager, Marketing) and Rakesh Kumar Agrawal (Manager, Marketing). The array of accused persons, inter alia, included Devendra Singh Thakur, Jai Kishan Ashwani, Rajendra Choubey, Gopal Shakyawar, Shiv Charan Heda, Deepa Heda and Alakh Das Gupta. After filing of the charge-sheet, the Magistrate took cognizance of the offences. Similar charge-sheet under Sections 420, 467, 468, 471, 120-B, 201/34, IPC read with Sections 9B and 9C of the Explosives Substances Act, 1884 and Sections 4, 5 and 6 of the Explosive Substances Act, 1908 was filed after investigation into another FIR lodged at Police Station Chanderi, District Ashok Nagar as FIR/ Crime No. 310/2010 on 26.8.2010 for the supply of explosives during the period from 1.4.2010 to 30.6.2010 by RECL to another firm M/s. Sangam Explosives, Halanpur in Chanderi, District Ashok Nagar. This charge-sheet was filed in the Court of concerned Judicial Magistrate, First Class, Chanderi against 8 persons including four from RECL viz. respondent No. 1 herein (Managing Director), K. Edward Kelly (Director, Operations), Vinod Kumar Garg (Chief Manager, Marketing) and Rakesh Kumar Agrawal (Manager, Marketing). The array of accused persons, inter alia, included Rajendra Kumar Choubey, Anil Dhupad, Shiv Charan Heda and Jai Kishan Ashwani. In this case too, the Magistrate took cognizance of the offences on 25.11.2010. Subsequently on 5.9.2010, in respect of supplies made by RECL during the period from 1.4.2010 to 5.9.2010 to M/s. Ganesh Explosives, Sagar and to M/s. Sangam Explosives, Chanderi, third FIR on the report submitted by a Committee constituted to investigate into a news published in the newspaper regarding disappearance of trucks carrying explosives was lodged at Police Station Dholpur as FIR/Crime No. 427/2010 and the police after due investigation filed charge-sheet on 4.12.2010 against 16 persons for offences under Section 420, 465, 467, 468, 471, 120-B, IPC read with Sections 5, 9B and 9C of the Explosives Substances Act, 1884 and Sections 5 and 6 of the Explosive Substances Act, 1908 in the Court of Chief Judicial Magistrate, Dholpur, Rajasthan including the four office bearers of RECL viz. respondent No. 1 herein (Managing Director), K. Edward Kelly (Director, Operations), Vinod Kumar Garg (Chief Manager, Marketing) and Rakesh Kumar Agrawal (Manager, Marketing). The array of accused persons, inter alia included Shiv Charan Heda, Rajendra Kumar Choubey, Jai Kishan, Ashwani (also arrayed as acused in Sagar and Chanderi Courts) and Jagdish Soni, Uday Lal Kabra, Lalit Gangwani, Girdhar Bhai, Arvind, Sunil, Damji Bhai, Jitender Taank & Chimman Lal. The Magistrate took congnizance of the offences on 4.12.2010. It is thus clear that the charge-sheets were filed for the same offences against the officers (four in No.) of RECL as also the concerned persons of M/s. Ganesh Explosives and M/s. Sangam Explosives with the only difference that first FIR at Baheria was for supply made to M/s. Ganesh Explosives, second FIR at Chanderi for supply made to M/s. Sangam Explosives and the third FIR at Dholpur for supplies made both to M/s. Ganesh Explosives and M/s. Sangam Explosives. The final outcome was that for the same offences, cognizance came to be taken by the courts at Sagar, Chanderi and Dholpur.

4. As per FIR/Crime No. 161 of 2010, 60 trucks of explosive material outbound from RECL, Dholpur to M/s. Ganesh Explosives, P.S. Baheria (M.P.) actually reached (i) M/s. Ajay Explosive, Ahmadnagar (Maharashtra) (ii) M/s. B.M. Traders, Bywara (M.P.), and

(iii) M/s. B.M. Traders, Bhilwara (Rajasthan). FIR/Crime No. 310 of 2010 recorded that 103 trucks of explosive material outbound from RECL, Dholpur to M/s. Sangam Explosives at P.S. Chanderi (M.P.) actually reached (i) M/s. B.M. Traders, Bywara (M.P.) and (ii) M/s. Ajay Traders, Bhilwara (Rajasthan). As per FIR/Crime No. 427/2010, M/s. RECL, Dholpur sold explosive material illegally to (i) M/s. Ganesh Explosives, Sagar (M.P.) and (ii) M/s. Sangam Explosives, Ashok Nagar (M.P.) after the expiry of their licences. The same never reached the destinations and were diverted in their middle to Bhilwara (Raj.), Bywara (M.P.) etc. The explosives were also sold for terrorist activities which stood revealed from FIR No.130/2010 P.S. Karol Bagh, New Delhi.

5. It was alleged in the petition filed by respondent No. 1 herein before the High Court that RECL was incorporated as a private limited company in 1980; the factory of RECL at Dholpur, Rajasthan got commissioned in 1981 & since then regular production of explosives has been taking place there; and RECL was making regular supplies amongst other dealers to M/s. Ganesh Explosives as also to M/s. Sangam Explosives. It was alleged that what was investigated and charge-sheeted by the police of P.S. Baheria and P.S. Chanderi was put together and re-investigated by the P.S. Dholpur. It was further alleged that when cognizance of selfsame offence is taken by more than one court, then in such circumstances Section 186 Cr.P.C. comes into play in order to cap such situation and as the first court happened to be the Court of Judicial Magistrate, First Class, Sagar, M.P. to have initiated proceedings by taking congnizance of the offence upon submission of charge- sheet by the police of P.S. Baheria in FIR/Crime No. 161/2010, that court being the court in whose appellate criminal jurisdiction the proceedings first commenced was the court vested with the requisite jurisdiction under Section 186 Cr.P.C. to decide and make a declaration. It was alleged that the sum and substance of the allegations in the cases registered at P.S. Baheria, P.S. Chanderi and P.S. Dholpur happen to be identical, relating to the same occurrence/same transaction as also the same offence i.e. illegal supply of explosives contrary to the Explosives Rules by RECL to M/s. Ganesh Explosives and M/s. Sangam Explosives. Accordingly, prayer was made to declare the criminal proceedings in the Court of Chief Judicial Magistrate, Dholpur being violative of Section 186(b) Cr.P.C. and to discontinue the same.

7. In the special leave petition, the appellant-State of Rajasthan has contended that in connivance with respondent No. 1 herein 103 trucks of explosives were delivered to the Magazines of M/s. Ajay Explosives which belongs to Shiv Charan Heda and 60 trucks of explosives to M/s. B.M. Traders which belongs to Deepa Heda, both relatives of Jai Kishan Ashwani. It is alleged that the magazines of M/s. Ganesh Explosives and M/s. Sangam Explosives are not operational since many years and with the forged documentation in the name of said firms the explosives were purchased by M/s. Ajay Explosives and M/s. B.M. Traders and the explosives were then sold to some unknown persons which are serious threat to the security of the nation and one such example is the registration of FIR in Crime No. 130/2010 P.S. Karol Bagh under Sections 4 and 5 of the Explosive Substances Act in which the accused Loknath Pant, a resident of Nepal was arrested and in whose custody 498 non- electronic detonator and 29.12 meter fuse wire were recovered and in the packing of the cartons it was revealed that the said explosives were from RECL, Dholpur. It is contended that the High Court has erred in law and fact by discontinuing the proceedings at Dholpur (Rajasthan) because cause of action arose within the jurisdiction of court at Dholpur and the territorial jurisdiction of a court regarding criminal offence is to be decided on the basis of place of occurrence of the incident and not on the basis of where complaint was filed. It is further alleged in the special leave petition that even the Committee comprising Sub-Divisional Magistrate, Deputy Superintendent of Police and General Manager of District Industrial Centre in its report submitted to the Superintendent of Police, Dholpur has stated that the manufacturing licence of RECL was valid till 31.3.2010 and the said company sold the explosive material to M/s. Ganesh Explosives and M/s. Sangam Explosives from the month of April 2010 till June 2010 illegally when their licences too had expired and RECL has sold the material in excess to the stipulated quantity mentioned in the licence. It was found by the Committee that there was no receipt/proof with RECL whether the trucks reached the destinations or not and further RECL had violated the Explosive Rules. It is alleged that the payments in lieu of sold explosive materials were made through the Demand Drafts of ICICI Bank, Yes Bank, Axis Bank and Indusland Bank situated at Rajkot and the payment was being made through the agents of Ganga Enterprises, Sidhnath Enterprises, Govind Kripa Enterprises, Thakkar Enterprises, Bhagwati Enterprises and Jyoti Enterprises, Rajkot. These agents used to prepare the demand drafts in the name of RECL and give to one Jagdish Soni (an accused in FIR No.427/10 at Dholpur) who used to pass on the demand drafts to Shiv Charan Heda (an accused in all the FIRs). These six agents, who had been arrested on 22.12.2010 by Dholpur Police Station upon a supplementary charge-sheet being filed and have not been arrayed as accused in the proceedings pending in the courts at Sagar and Chanderi (Madhya Pradesh), have been impleaded as respondent Nos. 3 to 8 in the present proceedings. It is lastly alleged that the respondent could not have filed the second petition because he along with other office bearers of RECL has withdrawn the first petition seeking quashing of proceedings in Crime No. 161/2010 registered at P.S. Baheria on the ground that they were already facing trial in Crime No. 427/2010 registered by the Dholpur Police on the same set of charges and no liberty was granted by the High Court to file a fresh petition.

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15. Offence means any act or omission made punishable by law. The fountain head of all the three cases may be at Dholpur from where truck loaded with explosives moved to different destinations but from that it cannot be said that the acts and omissions which constitute the offence are the same. Same offence, in our opinion, would mean that acts and omissions which constitute the offence are one and the same. Except the allegation that the explosives were loaded at Dholpur, the mode and manner in which the offence was committed at different places are not the same. As such, in our opinion, the provision of Section 186 of the Code is not attracted in the facts of the present case. Hence, the High court erred in passing the impugned order.

16. In the facts and circumstances of the case, we are of the considered opinion that the impugned order passed by the High Court is to be set aside. Consequently, the appeal preferred by the State of Rajasthan is allowed and the appeal preferred by the accused stands disposed of.