Patna High Court
Faujdari Mistry And Ors. vs State Of Bihar on 19 April, 2002
Equivalent citations: 2002CRILJ4821
JUDGMENT Indu Prabha Singh, J.
1. This appeal is directed against the judgment and order dated 17-4-1990 passed by Shri Harideo Prasad, 1st Additional Sessions Judge, Hilsa (Nalanda) in S.T. No. 242/89 by which the learned Court had convicted all the four appellants under Section 25(1)(A) of the Arms Act, 1959 and sentenced them to undergo rigorous imprisonment for 5 years each. The appellants were further convicted under Section 25(1)(AA) of the Arms Act and sentenced them to undergo rigorous imprisonment for 10 years each. Further the appellants have been convicted under Section 26 of this Act and have been sentenced to undergo rigorous imprisonment for one year each. The sentences have been ordered to run concurrently.
2. It appears that on 18-2-1989 Shri Ajit Kumar, the Officer Incharge of Khodaganj Police Station in the District of Nalanda had searched the residential premises of the appellants situated at Village Imadpur in connection with Khudaganj P. S. Case No. 6/89 under Section 395 of the Indian Penal Code. On receiving this information the informant (P. W. 1) who happens to be the Officer Incharge of this police station entered this information in Station Diary Entry No. 355/89 dated 18-2-1989 and proceeded to the house of the appellants. On search he could find out large number of equipments and articles for the manufacture of fire arms in the house of the appellants which has been described by him in Fardbeyan (Ext. 1). At the time of this search the appellants had fled away from their houses and the search could not be conducted in their presence. On completing the investigation the charge sheet under various sections of the Arms Act was submitted. The cognizance of the offence was taken by the learned A.C.J.M. Shri Hardeo Prasad on 29-4-1989 and on finding that the alleged offences were triable by the Court of Session he committed the case to the Court of Session. By the order dated 30-5-89 the learned Sessions Judge again transferred the case for trial to Shri Harideo Prasad in his capacity as Assistant Sessions Judge. Accordingly, Shri Harideo Prasad as assistant Sessions Judge and not as A.C.J.M. tried the appellants and convicted them in the manner indicated above.
3. In this appeal the appellants have contended that the judgment of the trial Court is erroneous in law and against the evidence on the record. The conviction of the appellants is based on conjecture and surmises. Though no independent search and seizure witness could be examined in this case still the learned trial Court proceeded to convict the appellants only on the basis of the testimony of the Police Officers. No copy of the seizure list was given to the appellants or their family members in violation of the mandatory provisions of Section 100 of the Code of Criminal Procedure, 1973 (in short 'the Code'). The prosecution evidence suffers from material contradictions. Independent and competent witnesses have not been examined in this case. The mandatory provisions of Section 360 of the Code and the relevant provisions of Probation of Offenders Act have not been complied with. On these grounds it has been contended that the judgment of conviction of the learned Court below be set aside and the appellants be acquitted.
4. The first contention raised on behalf of the appellants is that the allegation against them were triable by a Magistrate of the 1st Class and, therefore, the case could not have been committed to the Court of Sessions. This takes me to the various sentences prescribed for the offences for which the charges have been framed. So far as Section 25(1)(AA) is concerned it is punishable with not less than 7 years rigorous imprisonment which may extend to imprisonment for life. Section 25(1)(A) is punishable rigorous imprisonment for 5 years which may extend to 10 years. From these two sections it would appear that the punishment prescribed under them takes the case out the jurisdiction of a Magistrate or even the Chief Judicial Magistrate. The commitment order has been passed by the A.C.J.M. Shri Harideo Prasad. According to Section 29 of the Code a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or imprisonment for life or imprisonment for a term exceeding 7 years. In the present case since the offence under Section 25(1)(AA) is punishable with rigorous imprisonment for not less than 7 years which may extend to imprisonment for life it is clear that this offence is not triable by a Magistrate or even by the Chief Judicial Magistrate. Similarly Section 26(2) and Section 26(3) also prescribes punishment of rigorous imprisonment which may extend to 10 years. The charge under this section has also been framed in this case. In this connection reference may be made to First Schedule II of the Code which prescribes the classification of offence under laws other than Indian Penal Code. According to it if the offence is punishable with death, imprisonment for life or imprisonment for more than 7 years it is triable by the Court of Sessions. The offences under the Arms Act will fall under this classification. It is thus clear that the present case was not triable by a Magistrate and it has rightly been committed to the Court of Session by the learned A.C.J.M.
5. From the record, however, it appears that the order of commitment was passed by Shri Harideo Prasad, A.C.J.M., Hilsa as will appear from the order sheet dated 4-5-1989 passed by the learned Sessions Judge. However, the learned Sessions Judge again transferred this case for trial to the same Judicial Officer, namely, Shri Harideo Prasad who was also functioning there as Assistant Sessions Judge. The case was accordingly tried by him though earlier as a Addl. Chief Judicial Magistrate he had passed the commitment order. I think this should have been avoided because it is against the settled principle of law that the same Officer should not pass the order of commitment as well as the judgment in the case. The learned Sessions Judge should have taken precaution to avoid this situation and he could have transferred the case to some other competent Court, though no illegality appears to have been committed in this regard it appears to be against the judicial propriety.
6. On behalf of the appellants it has been seriously contended before me that the raiding party consisting of only the Police Officers could not have searched the residential premises of the appellants without any search warrant issued by a Magistrate as per Section 94 of the Code. In this connection my attention has also been drawn to Section 100 of the Code according to which the search warrant has to be produced before the inmates of the house by the police authority at the time of the search. In this connection. I will firstly refer to Section 37 of the Arms Act which runs as follows :-
37. Arrests and searches.- Save as otherwise provided in this Act;-
(a) all arrests and searches made under this Act or under any rules made hereunder shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating respectively to arrests and searches made under the Code.
xxxxxxx xxxx xxx xxxx From this section it becomes clear that for this purpose procedue prescribed in the Code will have to be followed. This takes me to the provisions of the Code relating to search and seizure. In this connection I will firstly refer to Section 94 of the Code which authorises a Magistrate to issue the search warrant authorising any Police Officer to enter into a place and to search the same in the manner specified in the warrant. Next relevant section is Section 100 of the Code which runs as follows :-
100. Persons in charge of closed place to allow search.- (1) Whenever any place liable to search or inspection under this Chapter is closed any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant and on production of the warrant, allow him free ingress thereto and afford all reasonable facilities for a search therein.
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7. From the aforesaid provisions of law it becomes clear that even under the Arms Act a search by Police Officer cannot be conducted without a search warrant issued for the purpose by a Magistrate of the 1st Class or by the District Magistrate or the S.D.M. Not only this the raiding party has to produce the warrant before the person residing in the premises before conducting the search. These appears to be the mandatory provisions of law.
8. In the present case it is not in dispute that no search warrant has been issued in the terms of Section 94 of the Code. As a matter of fact the police had raided the residential premises of the appellants without any search warrant. As such no search war -rant could have been produced before the person residing in the premises. According to the case of the prosecution on seeing the police party the appellants had fled away. However, P.W. 1 who is the informant himself has admitted that female inmates of the house were present at the time of the search. As a matter of fact according to him he handed over copy of the seizure list to one of the female inmates who fled away without granting any receipt for the same. It is really surprising that in presence of so many police personnel a female inmate of the house could flee away in the manner alleged. On behalf of the appellants it has been submitted that no copy of the seizure list was ever given to any member of their family. The circumstances of this case also indicate in that direction. P. W. 2 has admitted in his evidence that the Chaukidar and Dafadar were present at the time of the search. Their signatures do not appear on the search and seizure list. It is really surprising why police failed to produce them as witnesses when they were present at the time of search and seizure. So far as the identity of the lady who is alleged to have fled away with the copy of the seizure list is concerned the police has failed to provide the same. Even if she had fled away with the copy of the seizure list her identity could have been alleged by the police. This has not been done. Under the circumstances it has been contended that actually no search or seizure had taken place in the residential houses of the appellants and they have been falsely implicated in this case.
9. From the prosecution case it appears that before the proceeding to conduct the search and seizure P.W. 1 had entered the information about the looted articles being kept in the house of the appellants in S. D. Entry No. 355/89 dated 18-2-89. This has not been brought on the record. Moreover as per the prosecution case if this raid was conducted for the recovery of the articles looted in a case under Section 395 of the Indian Penal Code the procedure as prescribed under Sections 94 and 100 of the Code must have been followed by the raiding party. This has not been done. In the raid instead of finding any article looted in the dacoity the police party could find the necessary apparatus to manufacture arms. Even then the mandatory provisions of Sections 95 and 100 of the Code should have been followed. This has not been done. P. W. 1 has himself admitted that he is an accused in a case under Sections 363, 364 and 506 of the Indian Penal Code. Moreover my attention has also been drawn to Section 12 of the Police Act, 1861 according to which before conducting the search the searching party must themselves submit to be searched by the witnesses or the accused or by the occupants of the premises. The law requires that this provision must be complied with in all cases. In the present case it appears that this has not been done.
10. My attention has also been drawn to various contradiction in the evidence of the P.Ws. which will throw doubt on the case of the prosecution. According to P.W. 1 the search and seizure list was prepared by P.W. 12, R. P. Yadav. This has been contradicted by P.W. 2 himself and has stated that it was P.W. 1 who had prepared the seizure and seizure list. According to P.W. 1 those articles were taken out by him and P.W. 12, P.W. 7 has contradicted him by saying that he had also taken out some of the articles. P.W. 2 has stated that it was the Chaukidar who had taken out the articles contained in the bag. Thus, the prosecution evidence on record also does not inspire confidence. It is important to note here that according to P.W. 2 the Chaukidar and Dafadar were present at the time of search and seizure. They have not been examined in this case for the reason best known to the prosecution. P.W. 8 Parmeshwar is a search list witness. In his cross-examination, however, he has admitted that his signature on the search list was obtained at the house of one Banbari Pandey where the police party was taking breakfast. So far as P.W. 9 is concerned he has denied that any search was held in his presence. It, thus, appears that the prosecution evidence on the point of search and seizure is also far from satisfactory.
11. From the detailed discussions made above it becomes perfectly clear to me that this appeal is fit to be allowed and the judgment of conviction cannot be sustained.
12. In the result, the appeal is allowed, and judgment and conviction of the learned Court below is set aside. The appellants are acquitted of the charges framed against them. They are directed to be set at liberty.