Allahabad High Court
Dileep vs State Of U.P. on 6 April, 2018
Equivalent citations: 2018 (4) ALJ 620, (2018) 190 ALLINDCAS 719 (ALL) (2018) 104 ALLCRIC 744, (2018) 104 ALLCRIC 744
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 28 Case :- CRIMINAL REVISION No. - 356 of 2004 Revisionist :- Dileep Opposite Party :- State Of U.P. Counsel for Revisionist :- Anil Kumar Pandey,Arvind Kumar Verma Counsel for Opposite Party :- Govt.Advocate Hon'ble Abdul Moin,J.
1. Heard learned counsel for the revisionist and Sri Dharmendra Singh, learned AGA for the State.
2. The present revision has been preferred against the judgment dated 14.07.2004 passed by learned Additional District and Sessions Judge, Court no. 32, Barabanki in Criminal Appeal No.-46 of 2003; Dilip Vs. State of U.P. as well as the judgment and order dated 24.09.2003 passed by the learned Trial Court which had convicted the accused under Sections 25/27 of the Arms Act, 1959 with one year imprisonment and fine to the tune of Rs. 1,000.
3. The case set forth by the prosecution is that on 12.08.1995, a minor boy Jitendra Kumar aged about 14 years had come to the house of Smt. Dropadi and returned back on 13.08.1995. On 15.08.1995 at about 9 A.M, it was noticed that the licensed pistol of Smt. Dropadi was missing. Suspicion was raised on Sri Jitendra Kumar of having taken the same. Upon reaching the house of Jitendra, it was informed by Jitendra that Dilip, the revisionist herein, had taken the pistol from Jitendra on 12.08.1995 itself when both of them had gone to the village. For this purpose, Dilip had promised to give Rs. 20,000/- to Jitendra. Upon a complaint, the police arrested Jitendra and Dilip and questioned them. Dilip indicated that he had taken the weapon and had hidden it at and upon his pointing out the place, the weapon was recovered.
4. Dilip was challaned under the provisions of Sections 25/27 of the Arms Act, 1959 (hereinafter referred to as " Act, 1959). The case proceeded against the revisionist Dilip and after examination of the witnesses etc, the learned Trial Court found the case as proved against the revisionist Dilip apart from a few minor inconsistencies and consequently, the revisionist upon being found guilty was given simple imprisonment of one year and fine to the tune of Rs. 1,000/- under the provisions of Section 25 (1B) of Act, 1959 through judgment and order dated 24.09.2003.
5. Being aggrieved against the said judgment, the revisionist preferred criminal appeal no. 46 of 2003 Inre; Dilip Vs. State of U.P, and the learned appellate Court vide judgment and order dated 14.07.2004 affirmed the judgment of the learned Trial Court with the modification that instead of conviction under Section 25/27 of the Act, 1959, the same was converted into a conviction under Section 3/25 of the Act, 1959.
6. Being aggrieved against the both judgments, the present revision has been preferred.
7. At the very outset, learned counsel for the revisionist has prayed that he may be given the benefit of Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as " Act, 1958).
8. An objection has been taken by the learned AGA that as the Act, 1959 is a special Act and the punishment prescribed is a minimum imprisonment of one year, consequently the benefit of the 1958 Act cannot be given to the revisionist.
9. Once the said preliminary objection has been taken, this Court would have to examine the provisions of the Act, 1959 vis-a-vis the provisions of the Act, 1958.
10. For the sake of convenience, Section 25 of the Act, 1959 is reproduced as under:-
(1) Whoever--
(a) manufacturers, sells, transfers, converts, repairs, tests, or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearms or converts an imitation firearm into a firearm in contravention of section 6,
(c) 2[*****]
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, Shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
3[(1A)Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
(1AA) Whoever manufactures, sells, transfers, converts, repairs, tests or proves or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for file and shall also be liable to fine.] 4[(1AAA)]Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24Bcarries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than 4[three years, but which may extend to seven years] shall also be liable to fine.
(1B) Whoever--
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession of carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub- section (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section;
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) brings into, or take out of, India, any arm or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21;
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account of the making of copies of entries there from or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept;
shall be punishable with imprisonment for a term which shall not be less than [one year] but which may extend to three years and shall also be liable to fine;
Provided that the Court may for any adequate and special reason to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year [(1C)Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation-For the purposes of this sub-section, "disturbed area" means any area declared to be disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any area specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section(1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
[(3) Whoever sells or transfers any firearm, ammunition or other arms--
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty five days from the date of giving such information to such district magistrate or the officer in charge of the police station.
in contravention of the provisions of clause (a) or clause (b) of the proviso to sub section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both].
(4) Whoever fails to deliver-up a license when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the license of fails to surrender a license to the appropriate authority under sub- section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both."
11. So far as the conviction of the revisionist is concerned, the same was done, as already indicated above, under the provision of Section 25 (1B) of the Act, 1959 which provides for a punishment of not less than one year but which may extend to three years and also liable to fine. In this regard learned AGA has placed reliance on the judgment of the Hon'ble Supreme Court in the case of State through S.P, New Delhi. Vs. Ratan Lal Arora reported in (2004) 4 SCC pg 590 which dealt with a case in which the High Court had granted the benefit of the Act, 1958 to a person who had been found guilty under the provisions of Prevention of Corruption Act, 1988 (hereinafter referred to as Act, 1988) and the Act itself prescribed for a minimum sentence of one year to contend that once Section 25 (1B) of the Act,1959 prescribes for a minimum sentence of one year then the accused shall not be entitled to get the benefit of the Act, 1958. In this regard, he has referred to the observations made by the Hon'ble Supreme Court which are quoted here under:-
" 12. That apart Section 7 as well as Section 13 of the Act provide for a minimum sentence of six months and one year respectively in addition to the maximum sentences as well as imposition of fine. Section 28 further stipulates that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. In the case of Superintendent Central Excise, Bangalore v. Bahubali,(AIR 1979 SC 1271), while dealing with Rule 126-P (2)(ii) of the Defence of India Rules which prescribed a minimum sentence and Section 43 of the Defence of India Act, 1962 almost similar to the purport enshrined in Section 28 of the Act in the context of a claim for granting relief under the Probation Act, this Court observed that in cases where a specific enactment, enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused. Unlike, the provisions contained in Section 5(2) proviso of the Old Act providing for imposition of a sentence lesser than the minimum sentence of one year therein for any "special reasons" to be recorded in writing, the Act did not carry any such power to enable the Court concerned to show any leniency below the minimum sentence stipulated. Consequently, the learned Single Judge in the High Court committed a grave error in law in extending the benefit of probation even under the Code."
12. When the learned counsel for the revisionist was confronted with the said preliminary objection, Sri Prabhu Ranjan Tripathi, Advocate who was present in Court and offered to assist the Court on the said point. Sri Tripathi contends that as a proviso has been given in the said section namely Section 25 (1B) which gives a discretion to the Court, for adequate and special reasons to be recorded in the judgment, for imposing a sentence of imprisonment for a term of less than one year as such, by placing reliance on a judgment of the Hon'ble Supreme Court in the case of Mohd. Hashim Vs. State of U.P and others reported in (2017) 2 SCC pg 198, he contends that because the Act, 1959 and the section under which the revisionist was visited with the imprisonment term of one year also contains a proviso giving the discretion to the Court to award a lesser sentence, consequently the revisionist can be accorded the benefit of the Act, 1958. Special emphasis has been placed on paragraphs 19 and 24 of the judgment in the case of Mohd. Hashim (supra).
13. For the sake of convenience, paragraphs 19 and 24 are reproduced as under:-
"19. Learned Counsel would submit that the legislature has stipulated for imposition of sentence of imprisonment for a term which shall not be less than six months and the proviso only states that sentence can be reduced for a term of less than six months and, therefore, it has to be construed as minimum sentence. The said submission does not impress us in view of the authorities in Arvind Mohan Sinha (supra) and Ratan Lal Arora (supra). We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognized and accepted for the PO Act."
"25. At this juncture, learned Counsel for the Respondents would submit that no arguments on merits were advanced before the appellate court except seeking release under the Po Act. We have made it clear that there is no minimum sentence, and hence, the provisions of the PO Act would apply. We have also opined that the court has to be guided by the provisions of the PO Act and the precedents of this Court. Regard being had to the facts and circumstances in entirety, we are also inclined to accept the submission of the learned Counsel for the Respondents that it will be open for them to raise all points before the appellate court on merits including seeking release under the PO Act."
14. Consequently when the fact and situation as has arisen in the instant revision is seen in the context of the law laid down by the Hon'ble Supreme Court in the case of Mohd. Hashim (supra) what this Court finds is that the Hon'ble Supreme Court has categorically laid down that when the legislature has prescribed a minimum sentence without discretion, the same cannot be reduced by the Courts inasmuch as the imposition of minimum sentence is mandatory and leaves no discretion to a Court of law to reduce it. However, when the legislation prescribes a minimum sentence but at the same time grants discretion to the Court to either award a lesser sentence or not to award a sentence, then such discretion would entail the statute not prescribing a minimum sentence and consequently the benefit of Section 4 of the Act, 1958 can be extended to the convict for reasons to be recorded.
15. In the instant case, learned counsel for the revisionist has contended by filing an affidavit dated 29.03.2018 that the incident is of the year 1995 i.e about 23 years old and the revisionist then was a young man aged about 18-19 years of age. Subsequent to the said incident, the revisionist has not committed any criminal offence and his conduct is very respectful with the other people in the society. It has also been contended that the revisionist has also undertaken in the said affidavit for being good and polite and respectful with all citizens in future also and an undertaking not to commit any offence in future has also been given.
16. Consequently, taking into consideration the long period having lapsed since the date of incident and the youth of the revisionist at the time of the incident, this Court grants the benefit of Section 4 of the Act, 1958 to the revisionist.
17. Consequently, the revision is partly allowed . The revisionist is extended the benefit of Section 4 of Act, 1958. Instead of sentencing the accused-revisionist for one year imprisonment, the accused-revisionist is released on probation. The accused-revisionist shall file personal bond to the tune of Rs. 20,000 that he shall keep peace in the society and shall not commit any such offence in future. This bond shall be for one year. In case of breach of the said condition, the accused will subject himself to undergo the sentence before the Trial Court as per law. The said bond shall be filed within a period of two months from today. The revisionist who is in jail in pursuance to the order dated 12.01.2018 as passed by this Court shall be released immediately on the receipt of a certified copy of this judgment in case he is not wanted in any other case.
18. Lower Court record be sent back to the lower Court for necessary compliance.
19. This Court also records the assistance given to the Court by Sri Prabhu Ranjan Tripathi, Advocate.
Order Date :- 6.4.2018 Pachhere/-
(Abdul Moin, J.)