- (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.
The learned counsel for the petitioner has contended that the trial could not have proceeded before the learned Magistrate as the punishment prescribed as that of life. Therefore, the case should have been committed to the Sessions Court. Moreover, since the consent was not taken from the District Collector as required by Section 7 of the Act of 1808, the trial could not have been initiated. Further, while upholding the contention of the petitioner, the learned Judged has erred in directing the learned Additional Chief Judicial Magistrate to frame the charges for specific offences under the Act of 1884. According to the learned counsel, such a direction cannot be given by the superior court as it hampers the discretion of the subordinate court. Lastly, according to him, the testimony that has already been recorded by the learned Magistrate should be considered before a charge can be framed. According to the learned counsel, Section 227 uses the words record of the case and the documents submitted therewith. Thus, according to him the testimonies which were recorded by the learned trial Court form part of record of the case. Therefore, the said testimonies should also be taken into account before framing the charges. In order to buttress this contention, the learned counsel has relied upon the case of Gurmeet Singh Bagga V/s. State of Rajsthan & Anr. [2010 (1) RCC (Raj) 261].

Heard the learned counsel for the petitioner and perused the impugned order.

The first two contentions raised by the learned counsel for the petitioner are superfluous. For, accepting this contention that the trial could not be conducted by the Magistrate, vide order dated 10.02.2006, the case was already committed to the Sessions Court. Therefore, the learned counsel is not justified in again re-asserting that the trial should not have been tried by the Magistrate. Moreover, the contention of the learned counsel for the petitioner has already accepted by the learned Additional District Judge that the trial could not have been initiated without the consent of the District Magistrate. Therefore, the same argument cannot be raised before this Court as the argument has already been accepted and acted upon by the learned Additional District Judge.

It is indeed trite to state that the Courts are free to re-frame charge for a lesser offence. Therefore, the remanding of the case back to the learned Additional Chief Judicial Magistrate cannot be faulted with. However, the learned Additional Chief Judicial Magistrate cannot be directed to frame charge for a particular offence. At best, the learned Sessions Judge should have directed the learned Additional Chief Judicial Magistrate to frame charge strictly in accordance with law and leave it to his discretion as to which offences, if any, are made out.

(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.
However, for reasons stated above, this Court modifies the order dated 05.04.2010 to the limited extent that the learned Additional Chief Judicial Magistrate is directed to go through the evidence gathered by the investigating agency and submitted in the form of charge-sheet, and to re-frame the charges strictly in accordance with law.

With these observations, this petition is partly allowed.