Karnataka High Court
Khadir Sab @ Kadeer Magare vs State By Vidhya Nagar on 16 December, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
CRL.P. NO.6173 OF 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16 TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.6173 OF 2020
BETWEEN:
KHADIR SAB @ KADEER MAGARE
S/O MAHMAD SAB
AGED ABOUT 39 YEARS
OCC: BSF SOLDIER
R/AT NO. 01, BATTALION
ALFA COMPANY, FAJAL GHA TALUK
PROJPUR DISTRICT
PANJAB STATE - 144 701.
PERMANENT R/O
NANDYALA VILLAGE, BOLACHIKKALAKI POST,
VIJAPUR TALUK AND DISTRICT - 586 101.
...PETITIONER
(BY SRI. S. G. RAJENDRA REDDY, ADVOCATE)
AND:
STATE BY VIDHYA NAGAR
POLICE STATION
DAVANAGERE, REP. BY S.P.P.
HIGH COURT BUILDING
BENGALURU - 560 001.
....RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C,
PRAYING TO QUASH THE CHARGE SHEET AND ENTIRE
PROCEEDINGS IN S.C.NO.41 OF 2019 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 25(1)(A) OF THE ARMS ACT,
PENDING IN THE FILE OF THE PRL. DISTRICT AND SESSIONS
JUDGE, DAVANAGERE.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
CRL.P. NO.6173 OF 2020
2
ORDER
1. The petitioner is before this Court seeking for quashing of the charge sheet and entire proceedings in S.C.No.41/2019 for the offence punishable under Section 25(1)(A) of the Arms Act, 1959 now pending on the file of Principal District and Sessions Judge, Davanagere.
2. On 25.04.2010 when the staff of Vidyanagara Police Station was on patrolling duty at about 12.30 p.m., near Shamnur Cross, they noticed one person carrying a plastic cover who tried to run away, when he was apprehended and enquired with, the said person told that the plastic cover carried by him contains cloths. However, suspecting the story of said person, the person was requested to open the plastic cover. The same revealed one pistol and eight live bullets.
CRL.P. NO.6173 OF 2020 3
3. On further enquiry, he informed that he was working as soldier in BSF with No.90009686, Battalion No.51, Punjab State. The police thereafter enquired with him whether he possess a licence for the said fire arm towards which he replied in negative and he informed that he was carrying it to sell it to a third party. In view thereof, FIR was registered and he was taken into custody for investigation. Post investigation, a charge sheet was filed charging the petitioner for the offence punishable under Section 25(1)(A) of the Arms Act.
4. Sri.S.G.Rajendra Reddy, learned counsel for the petitioner would submit that for any prosecution under the Arms Act, necessarily prior sanction of the District Magistrate has to be obtained in terms of Section 39 of the Arms Act, 1959. He further submits that without such sanction, no prosecution would have been initiated.
CRL.P. NO.6173 OF 2020 4 Admittedly, in the present case, no sanction has been obtained. Hence, the prosecution against the petitioner is required to be quashed. In support of the above submission, he relies on the following decisions:
4.1. Gunwantlal v. State of Madhya Pradesh ., reported in (1972) 2 SCC 194
6. Once we hold that the charge is not defective, it cannot be said that it travels beyond the sanction accorded by the District Magistrate under Section 39 of the Arms Act as both of them are in similar terms in that the sanction also refers to the appellant having been allegedly found in possession of and having under his control one revolver without a valid licence at Neemuch police station on September 17, 1966. The decision of the Privy Council in Golak Chand case is inapplicable to the facts and circumstances of this case. What the Privy Council was considering was a prosecution under clause 18(2) of the Cotton Cloth and Yarn Control Order, 1943 for which sanction to prosecute under clause 23 was required. The sanction did not set out the facts constituting the offence nor did the prosecution prove by extraneous evidence that the necessary facts required for granting sanction were placed before the sanctioning authority. The sanction merely mentioned the names of the persons to be charged and the provision of the Control Order under which they were to be prosecuted. It appears that cases under Section 195 of the Criminal Procedure Code were cited before the Board, which, however, as observed by The Lordships do not lay down any principle inconsistent with the views expressed by them and as the sections of the Code are expressed in language different from that used in clause 23 of the Control Order and are directed to different CRL.P. NO.6173 OF 2020 5 objects, it was thought that no useful purpose will be served by an examination of those cases. This Court held in Madan Mohan v. State of Uttar Pradesh following the Privy Council case in Golak Chand that where facts do not appear on the face of the latter sanctioning prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. Under the Arms Act all that is required for sanction under Section 39 is, that the person to be prosecuted was found to be in possession of the firearm, the date or dates on which he was so found in possession and the possession of the firearm was without a valid licence. As all the elements are contained in the sanction in this case, it is not an illegal sanction nor can it be said that the charge travels beyond that sanction.
4.2. Sukhlal And Anr. vs State Of Madhya Pradesh reported in 1998 Cri.L.J. 1366
7. I have already shown above that the requirements of the law regarding recovery of weapons have not been fulfilled and the evidence is also not worth reliance. The accused persons have been prosecuted under Section 25 Arms Act as well. Section 39 of the Arms Act provides that previous sanction of the District Magistrate is necessary for the prosecution against any person in respect of any offence under Section 3. Section 3 provides for licence for acquisition and possession of firearms and ammunition. Thus, unless there is a previous sanction of the District Magistrate a person cannot be prosecuted in respect of any offence under Section 3. Section 25 provides for an offence relating to possession on carrying any prohibited arms or prohibited ammunition in contravention of Section 3. There are other provisions as well to which we are not concerned as in the present case the prosecution has claimed that the accused persons were in possession of arms and ammunition without any licence. Thus, sanction was necessary and in the absence of sanction the accused persons could not be prosecuted at all in spite of the fact that they CRL.P. NO.6173 OF 2020 6 were in possession of any unlicenced arm though that fact has not been proved in the case in hand.
Learned presiding officer, ought to have known the provisions of Section 39 Arms Act. It is unfortunate that without looking to this provision and without caring to marshall the evidence properly and going to the fact that requirements, of law have not been fulfilled, he held the accused guilty of the offence punishable under Section 25, Arms Act. In the present case nothing has been said by any witness whatsover that sanction was obtained for the prosecution Under Section 25. I may point out here that sanction is not' a mere formality. It has to be proved that it was granted by the authority after applying his mind. It must be shown that the firearm or weapon with respect to which sanction was prayed was actually taken to the authority concerned and after looking to if the relevant papers, understanding and after applying his mind sanction was granted. In this case, there is complete absence of the sanction. The accused could not, therefore, be convicted at all. 4.3. Shankar Narayan Bhadolkar v. State of Maharashtra, reported in (2005) 9 SCC 71
37. So far as the other convictions are concerned, the conclusions of the trial court and the High Court do not warrant any interference. For the conviction under Section 201 it has been established beyond even a shadow of doubt that the dead body was carried in a gunny bag. It was discovered on the basis of the discovery statement in terms of Section 27 of the Indian Evidence Act, 1872 (in short "the Evidence Act") which is also relevant. The conviction is well merited. So far as offence under Section 25(1-A) of the Arms Act is concerned, the admitted position being that the gun belonged to the son of the appellant, and that he had no licence to hold the gun, the evidence has clearly made out the offence. The District Magistrate, Kolhapur had accorded sanction under Section 39 of the Arms Act for the prosecution. Therefore, the conviction under Section 25(1-A) is also well merited. Custodial sentence of 8 years CRL.P. NO.6173 OF 2020 7 would meet the ends of justice. The appeal is allowed to the extent indicated above. 4.4. Mohinder Singh v. State of Haryana, reported in (1996) 11 SCC 369
6. The other appeal filed by Harjinder Singh against his conviction under Section 25 of the Arms Act, 1959 read with Section 6 of TADA for unlawful possession of the revolver has got to be allowed for the simple reason that the prosecution did not prove that sanction as required under Section 39 thereof was accorded for prosecuting him for the above offence.
5. By relying on the aforesaid decisions, he submits that it is mandatory that sanction under Section 39 of the Arms Act is required to be obtained.
6. Per contra, Sri.K.Nageshwarappa, learned HCGP submits that no sanction was required for offence under Section 25(1)(A) of the Arms Act. Sanction is required only in respect of offence under Section 25(1)(B). The decision in Shankar Narayan Bhadolkar's case (supra) is not applicable to the present facts situation. That was a decision rendered post conviction CRL.P. NO.6173 OF 2020 8 whereas in the present facts, the matter is still under investigation.
7. Heard Sri.S.G.Rajendra Reddy, learned counsel for the petitioner and Sri.K.Nageshwarappa, learned HCGP for the respondent and perused papers.
8. The questions that would arise for determination by this Court are:
8.1. Whether in all cases where the accused is charged under Section 25 of the Arms Act, 1959, sanction is required prior to initiation of prosecution?
8.2. Whether in the present case, there was sanction required for prosecution of the petitioner?
8.3. What order?
9. Point No.1: Whether in all cases where the accused is charged under Section 25 of the Arms CRL.P. NO.6173 OF 2020 9 Act, 1959, sanction is required prior to initiation of prosecution?
9.1. Sri.S.G.Rajendra Reddy, learned counsel for the petitioner has vehemently contended that in all cases, sanction is required. In this regard, he relied on the aforesaid decisions.
9.2. The decision rendered by the Hon'ble Apex Court in Gunwantlal vs. State of Madhya Pradesh reported in (1972) 2 SCC 194 relates to an offence relating to possession of a revolver without a valid licence and therefore, it was held that sanction was required.
9.3. The decision of Hon'ble Apex Court in Shankar Narayan Bhadolkar v. State of Maharashtra reported in (2005) 9 SCC 71 only referred to the charges under Section 25(1)(A) of the Arms Act in passing CRL.P. NO.6173 OF 2020 10 wherein the Hon'ble Apex Court held that there was no licence to hold the gun but sanction was obtained by the District Magistrate, Kolhapur. The Apex Court held that the charges have been proved. The Hon'ble Apex Court in the said decision did not opine or discuss as regards the requirement of surety under Section 39 for an offence under Section 25(1)(A) but only placed on record the sanction accorded in respect thereof.
9.4. The Hon'ble Apex Court in Mohinder Singh v. State of Haryana , reported in (1996) 11 SCC 369 dealt with an offence under Section 25 of the Arms Act, 1959 read with Section 6 of TADA as regards the unlawful possession and quashed the proceedings since there was no sanction. In the said decision it is not clear as to whether it was CRL.P. NO.6173 OF 2020 11 an offence under Section 25(1)(A) or 25(1)(B).
9.5. In the decision rendered by Madhya Pradesh High Court in the case of Sukhlal And Anr. vs State Of Madhya Pradesh reported in 1998 Crl.L.J. 1366, the offence was again relating to possession of an arm resulting in an offence under Section 3 of the Arms Act and therefore, the said Court held that sanction is required.
9.6. In the present facts and circumstances, the allegation against the petitioner is that he was in possession of prohibited arm with an intention to sell the same. The said offence does come under Section 3 of the Arms Act, 1959 but comes within the purview of Section 7 of the Arms Act. The said Sections 3 and 7, 39 are reproduced hereunder for easy reference:
CRL.P. NO.6173 OF 2020 12 Section 3: Licence for acquisition and possession of firearms and ammunition:
(1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:
Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.
(2) Notwithstanding anything contained in sub-
section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms:
Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983 (25 of 1983), may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section.
(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.
(4) The provisions of sub-sections (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to sub-section (2) as they apply in relation to the CRL.P. NO.6173 OF 2020 13 deposit of any arm or ammunition under sub-
section (1) of that section.] The power and jurisdiction of the licensing authority to initiate 'cancellation of licence' proceedings has ben vested with the A.D.M.; Lakhan Singh v. Commissioner, Jhansi Division, Jhansi, AIR 1984 All 122.
Section 7: Prohibition of acquisition or possession, or of manufacture or sale of prohibited arms or prohibited ammunition:
No person shall:-
(a) acquire, have in his possession or carry; or
(b) [use, manufacture] sell, transfer, convert, repair, test or prove; or
(c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof; any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf.
Section 39: Previous sanction of the district magistrate necessary in certain cases:
No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate.
9.7. In terms of Section 39 of Arms Act, sanction is required only in respect of an offence under Section 3 of the Act that is only regarding possession of the Arm. No CRL.P. NO.6173 OF 2020 14 such sanction is required as contemplated in respect of an offence under Section 7 of the Act where prohibited arm is in possession and/or the same is proposed to be sold.
9.8. None of the decisions cited by Sri.Rajendra Reddy, learned counsel for the petitioner cover the aspect of an offence under Section 7 of the Arms Act. Thus, those decisions are not applicable to the present facts situation.
9.9. I am of the considered opinion therefore that only in the event of offences charged under Section 25(1B)(a) which refers to Section 39 of the Arms Act prior sanction of the District Magistrate is required. Such sanction is not required for other offences charged under Section 25. Hence, I answer Point No.1 by holding that in all CRL.P. NO.6173 OF 2020 15 cases where the accused is charged under Section 25 of the Arms Act, 1959, sanction is not required prior to initiation of prosecution.
10. Point No.2: Whether in the present case, there was sanction required for prosecution of the petitioner?
10.1. In view of the above reasoning, the facts of the present case being that the petitioner was carrying a prohibited arm viz., pistol with eight bullets with an intention to sell, I am of the considered opinion that the same is not an offence under Section 3 but comes under the mischief of Section 7 and charged under Section 25(1)(A) of the Arms Act. Therefore, in the present case, no such prior sanction by the District Magistrate was/is required.
CRL.P. NO.6173 OF 2020 16
11. Point No.3: What Order:
11.1. In view thereof, I find no reason to interfere with the prosecution of the petitioner for offences under Section 25(1)(A) of the Arms Act, 1959 relating to a contravention of Section 7 of the Arms Act.
11.2. Hence, the petition is dismissed.
12. In view of dismissal of the petition, I.A.No.1/2020 does not survive for consideration and therefore is dismissed.
Sd/-
JUDGE Prs*