Allahabad High Court
State Of U.P. vs Gayur And Others on 5 August, 2019
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 06.02.2019
Delivered on 05.08.2019
Court No. - 34
Case :- GOVERNMENT APPEAL No. - 6077 of 2007
Appellant :- State Of U.P.
Respondent :- Gayur And Others
Counsel for Appellant :- Govt.Advocate
Counsel for Respondent :- P.S.Pundir
Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. This Government Appeal under Section 378 Cr.P.C. has been filed by State of Uttar Pradesh against the judgment and order dated 18.05.2017 passed by Sri C.K. Kulshreshtha, Additional District and Sessions Judge, Court No.7, Muzaffar Nagar is Session Trial Nos.820 of 2000, 821 of 2000 and 819 of 2000, insofar as it relates to the acquittal of accused-respondents (1) Gayur, (2) Mustkeem, (3) Sardar Ali, (4) Mohd. Waris @ Raja and (5) Ashfaq @ Nanhe.
2. Accused-respondent 5 Ashfaq @ Nanhe has been acquitted of the offence under Section 27 Arms Act, 1959.
3. By the impugned judgment and order, accused-respondents 4 and 5 Mohd. Waris @ Raja and Ashfaq @ Nanhey have been acquitted of the charges under Section 3 of Explosive Substances Act, 1908 in Sessions Trial No.821 of 2000 and under Section 3 of Passport Act, 1967. Accused-respondents (1) Gayur, (2) Mustkeem and (3) Sardar Ali have been acquitted of charges under Sections 121, 121-A, 122 and 123 IPC.
4. By the impugned judgment and order, accused-respondents 4 and 5 Mohd. Waris @ Raja and Ashfaq @ Nanhey have been convicted under Sections 121, 121-A, 122 and 123 IPC and each of them has been sentenced under Section 121 IPC to undergo life imprisonment along-with fine of Rs.1,00,000/- each. In the event of default in payment of fine they have to undergo further imprisonment of one year. Both respondents have further been sentenced to ten years imprisonment and a fine of Rs.10,000/- each under Section 121-A IPC. In default of payment of fine they have to suffer ten months additional imprisonment. They have been further sentenced to ten years imprisonment and fine of Rs.10,000/- under Section 122 IPC. In the event of default of payment of fine they shall undergo ten months additional imprisonment. They have been sentenced to seven years imprisonment under Section 123 IPC along-with fine of Rs.7,000/- each, and in default of payment of fine, provision for seven months additional imprisonment was made. Further under Section 13 and 14 of Foreigners Act, 1946, both respondents have been sentenced to three years imprisonment and a fine of Rs.3,000/- each, and in case of default in payment of fine they have to undergo further three months additional imprisonment.
5. Accused-respondent 4 Ashfaq @ Nanhey has been convicted and sentenced under Section 25, Arms Act, 1959 to undergo two years imprisonment along-with fine of Rs.2,000/-. In case of default in payment of fine he has to undergo two months additional imprisonment.
6. All the sentences of accused respondents have been ordered to run concurrently.
7. For the sake of convenience, and ready reference, conviction and sentences awarded to respective accused-respondents as well as acquittal under different sections may be shown in the form of chart as under:-
S.No. Appeal Name of Accused-respondents Sessions Trial Nos.
Tried U/S Acquittal / Sentenced Imposed 1 Government Appeal No.6077 Gayur 820/2000 121, 121-A, 122 & 123 IPC Acquitted 2 Mustaqeem 820/2000 121, 121-A, 122 & 123 IPC Acquitted 3 Sardar Ali 820/2000 121, 121-A, 122 & 123 IPC Acquitted 4 Mohd. Waris @ Raja 820/2000 3 Passport Act Acquitted 121, 121-A, 122 & 123 IPC Convicted and Sentenced 821/2000 3 Explosive Act Acquitted 5 Ashfaq @ Nanhey 819/2000 27 Arms Act Acquitted 25 Arms Act Convicted and Sentenced 820/2000 121, 121-A, 122 & 123 IPC Convicted and Sentenced
8. The factual matrix of the case emanating from First Information Report (hereinafter referred to as "FIR") and evidence available on record is as under :-
9. On 31.03.2000 at about 02:30 PM, a written report Ex.Ka-1 was lodged at Police Station Kandhla, District Muzaffar Nagar by PW-4 Sri J.K. Tomar, Station Officer (hereinafter referred to as "SO") Kandhla, stating that on 31.03.2000 at about 11:30 AM, he had received a telephonic message from Senior Superintendent of Police (hereinafter referred to as "SSP") Muzaffar Nagar, whereby, SO was required to go to the house of accused-respondent Ashfaq @ Nanhey S/o Rasheed, R/o Village Jaula under Police Cirlce Burhana, District Muzaffar Nagar and verify, whether or not any Foreigner was residing there, since an information had been received from Inspector of Local Intelligence Unit (hereinafter referred to as "LIU") that activities of a person was found suspicious who seemed to be member of one of the Terrorist Organization, sponsored by Inter-Services Intelligence (hereinafter referred to as "ISI") Pakistan. Concerned LIU Inspector Sri Achal Kumar was also instructed to reach Khandla Police Station. Thereafter PW-4 Sri J.K. Tomar along-with Sub Inspector (hereinafter referred to as "SI") PW-1 Sri Amit Singh, PW-2 SI Yogendra Singh, SI Bhagat Singh Bist, Constable Satpal Singh, Constable Haroon Ali, Constable Ajit Singh, Constable Ajay Dutt Sharma, Constable Naveen, Constable Vinay Kumar and LIU Inspector PW-3 Achal Kumar reached the house of accused-respondent-5 Ashfaq @ Nanhey, where they found two persons, one of whom disclosed his identity as Ashfaq @ Nanhey, R/o Village Jaula and another revealed his name as Ash Mohd. @ Raja S/o Alauddin, R/o Village Jaula. When he (Ash Mohd.) was enquired of his relation with Ashfaq @ Nanhey and as to how he came over there, he got perplexed and could tell nothing. When inquiry was made from other villagers, they told that the said person did not belong to their Village Jaula. When he was again interrogated, he disclosed his name as Waris S/o Firozuddin R/o Village Barkatpur, Police Station Sadar, Gujara Wala, Pakistan. Accused-respondent-5 Ashfaq @ Nanhey told Police that Waris was tempting him with money and pressurizing for preparing forged Passport. On being satisfied that these two persons are indulged in Anti India activities, both were arrested on the charge of waging or attempting to wage war, conspiracy for war against India, residing in India without Passport, concealment of such accused with intent to facilitate design to wage war. At the spot, recovery memo of arrest was prepared by SI Bhagat Singh on the dictation of SO, J.K. Tomar. Thereafter aforesaid two accused-respondents were brought to Police Station and lodged in lockup. On being interrogated, they admitted in their possession foreign made hand grenades, pistols etc.
10. On the basis of said written report Ex.Ka-1, three cases, (1) case crime no.106 of 2000, under Section 121, 121-A, 122 and 123 IPC; (2) case crime no.107 of 2000, under Section 3 of Passport Act, 1967, and (3) case crime no.108 of 2000, under Section 14 of Foreigners Act, 1946 were lodged against both accused-respondents 4 and 5 and chik FIR Ex.Ka-11 was prepared at Police Station by PW-6 Chhote Lal Yadav. On interrogation, accused-respondent Mohd. Waris @ Raja took the police party to the house of respondent-5 Mohd. Ashfaq @ Nanhey and on pointing out by Mohd. Waris @ Raja, four pieces of live hand grenades kept in a polythin were recovered from beneath the heap of bricks kept on the roof of the house. Out of hand grenades recovered, on one hand grenade "P.O.F. 71 T.M.T." was written and one other hand grenade was also similar but 100 was written in English thereon. Outer surface of aforesaid two hand grenades were divided into four parts by red paint. Two hand grenades were with green colour plastic and on the cover / lid letters "ARGES 046/83 U/P" and on body "ARGES HD GS" was written. All the four recovered hand grenades were found live. Accused-respondent Ashfaq @ Nanhey also took out two pistols of 32 bore from beneath the pillow lying on the bed of the room, situated on the roof, and handed over the same to police. Both the pistols were English Make 32 bore, and on left side of one pistol "CAL 30 MOURSER MADE A.S. CHINA BY NORINCO" was written. The second pistol of 32 bore contained magazine and on the bottom side of magazine "9652" was written. After keeping the recovered hand grenades inside sand in a bucket, recovery memos were prepared.
11. On 01.04.2000, PW-4 SO J.K. Tomar was on routine checking and gasht (patrolling) near the grove of one Athar S/o Maulvi Tahir situated on Burhana Road, when all of sudden, a Scooter with high speed appeared coming from Khandla side and when it was stopped, the person (subsequently known as Sardar Ali) sitting on rear seat took out a pistol and aimed at Police party. However, his pistol was snatched but the driver and accused Sardar Ali succeeded in escaping. The pistol had a safety catch with trigger for firing. Pistol contained particulars as "63305 COLT-SPT FAMEG CO HART FORACT. USI PATENTED APR-21897, DEC 23, 1903". When magazine was opened, six cartridges were found therein, on the bottom whereof "GEVELOT 9MM-1" was written. Pistol and magazine were sealed and recovery memo was prepared in respect thereof. Thereafter FIR was lodged against respondent-3 Sardar Ali as case crime no.116 of 2000, under Sections 25/27 Arms Act, 1959 and chik FIR Ex.Ka-7 was prepared.
12. In the night between 31.03.2000 / 01.04.2000 during course of search of co-accused of the crime, PW-4 J.K. Tomar along with police personnel went to the house of Rajveer of Village Mazra under Police Cirlce Burhana. When he (Rajveer) saw Police party, he tried to flee away but caught. On search being conducted one revolver of 38 bore made in U.K. whereon "WEBLY and SCOUT 1380" was written, recovered. Besides six cartridges were also recovered from him. On further interrogation, he said that the said arms were given to him by accused-respondent-5 Ashfaq @ Nanhey. Said revolver was sealed and recovery memo in respect thereof was prepared. FIR was lodged and chik FIR Ex.Ka-4 was prepared in respect thereof at case crime no.111 of 2000, under Sections 25/27 Arms Act against co-accused Rajveer.
13. During course of search operation, on 01.04.2000 Police party reached Village Dhaula in search of Gayur, accused, and raided his house. When Gayur was being chased, Police party saw four persons sitting on a cot in open field, who tried to flee away seeing the Police, but Police party caught hold of them and on search, one country made pistol of 315 bore, was recovered from Gayur; one country made pistol of 315 bore was recovered from co-accused Islam and likewise from other two co-accused Sayeed Hasan and Mustaqeen also one country made pistol of 315 bore was recovered from each of them. Recovery memos were prepared in respect of recovered arms and four FIRs were lodged under Sections 25/27 Arms Act against accused persons, namely, Gayur respondent-1, Islam, Sayeed Hasan and Mustaqeen respondent-2 and registered as case crime nos.112 of 2000, 113 of 2000, 114 of 2000 and 115 of 2000 respectively. Composite chik report of the FIRs against these accused persons is Ex.Ka-5.
14. After conclusion of investigation and obtaining requisite sanction from District Magistrate, Muzaffar Nagar to launch prosecution against accused-respondents along-with other co-accused under Explosive Substances Act, 1908 and Arms Act,1959, Police submitted five charge sheets in the Court of Chief Judicial Magistrate (hereinafter referred to as "CJM"), Muzaffar Nagar in June, 2000. Charge sheet Ex.Ka-21 was submitted against the accused-respondents Gayur, Mustaqeem, Sardar Ali, Waris @ Raja and Ashfaq @ Nanhey, under Sections 121, 121-A, 122 and 123 IPC, cognizance whereof was taken by CJM, Muzaffar Nagar on 09.06.2000. Charge sheet Ex.Ka-22 was submitted against accused-respondents 4 and 5, Mohd. Waris @ Raja and Ashfaq @ Nanhey under Section 3 Passport Act, 1967 and cognizance was taken by CJM, Muzaffar Nagar on 09.06.2000. Charge sheet Ex.Ka-23 was submitted against Mohd. Waris @ Raja and Ashfaq @ Nanhey under Section 14 of Foreigners Act, 1946, cognizance whereof was taken by CJM, Muzaffar Nagar on 09.06.2000. Charge-sheet Ex.Ka-24 was submitted before CJM, Muzaffar Nagar against accused-respondent-4 Mohd. Waris @ Raja under Section 3 of Explosive Substances Act, 1908, cognizance whereof was taken by CJM on 03.06.2000 and Charge sheet Ex.Ka-25 was submitted against accused-respondent Ashfaq @ Nahey under Section 25/27 Arms Act, 1959, cognizance whereof was taken by CJM, Muzaffar Nagar on 03.06.2000.
15. Case, being exclusively triable by Court of Sessions, was committed to Sessions Court by CJM, Muzaffar Nagar vide order dated 13.09.2000. Sessions Trial Nos. 820 of 2000 and 819 of 2000 came up for hearing before learned Additional District and Sessions Judge / FTC No. 1, Muzaffar Nagar. In Sessions Trial No.820 of 2000. accused-respondents Mohd. Waris @ Raja and Ashfaq @ Nanhey along-with other other co-accused Mustaqeem, Sardar Ali and Gayur were charged on 30.07.2001 as under:-
^^eSa] f'ko 'kadj yky vij ftyk tt] ,Q-Vh-lh-la0 1 eq0 uxj vki eks0 okfjl mQZ jktk] v'kQkd mQZ uUgk] eqLrdhe ljnkj vyh ,oe~ x;;wj ij fuEufyf[kr vkjksi yxkrk gwW izFke%& ;g fd fnukad 31-3-2000 dks le; djhc 12-30 cts ceqdke ?kVukLFky xzke tkSyk Fkkuk dka/kyk ftyk eqt¶Qjuxj esa vkius Hkkjr ljdkj ds fo:} ;q) djuk ;k ;q) djus dk iz;Ru djuk rFkk ;q) djus dk nq"izsj.k fd;kA bl izdkj vkius /kkjk 121 Hkk-n-l- ds v/khu n.MUkh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA f}rh;%& ;g fd mijksDr fnukad le; o LFkku ij vkius jkT; ds fo:} dfri; vijk/kks dks djus ds fy;s "kM;U= jpkA bl izdkj vkius /kkjk 121 d Hkk-n-l- ds v/khu n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA r`rh;%& ;g fd mijksDr fnukad] le; o LFkku ij vkius Hkkjr ljdkj ds fo:} ;q) djus ds vk'k; ls vk;q/k vkfn laxzg fd;kA bl izdkj vkius /kkjk 122 Hkk-n-l- ds v/khu n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA prqFkZ%& ;g fd mijksDr fnukad] le; o LFkku ij vkius ;q) djus dh ifjdYiuk dks lqdj cukus ds vk'k; ls fNIkk;k vkSj bl izdkj vkius ,slk vijk/k fd;k tks Hkkjrh; n.M lafgrk dh /kkjk 123 ds v/khu n.Muh; vijk/k gS vkSj bl U;k;ky; ds izlaKku esa gSA ,rn}kjk funsZ'k nsrk gwW fd mijksDr vkjksiksa dk fopkj.k bl U;k;ky; }kjk fd;k tk;sA^^ "I Shiv Shanker Lal, Additional District Judge (FTC No.1), Muzaffar Nagar charge you Mohd. Waris @ Raja, Ashfaq @Nanhey, Mustaqeem, Sardar Ali and Gayur as follows:
Firstly, that you all waged or attempted to wage war or abetted waging of war against Government of India on 21.03.2000 at about 12:30 PM at Village Jaula, Police Station Kandla, Distirct Muzaffar Nagar. Thus you have committed an offence punishable under Section 121 IPC and within the cognizance of this Court.
Secondly, that on the aforesaid date, time and place you conspired to commit certain offence against the State and thereby committed an offence punishable under Section 121-A IPC which is within the cognizance of this Court.
Thirdly, on the aforesaid date, time and place you collected arms etc. with intention of waging war against the Government of India. Thereby you committed an offence punishable under Section 122 IPC which is within cognizance of this Court.
Fourthly, on the aforesaid date, time and place you concealed the existence of a design to wage war against Government of India and intended to facilitate the waging of such war and thereby you have committed an offence punishalble under Section 123 IPC and within the cognizance of this Court.
I hereby direct you to be tried for the aforesaid charge of this Court."
(English Translation by Court)
16. Accused-respondent Mohd. Waris @ Raja was charged under Sections 13 and 14 of Foreigners Act, 1964 on 26.02.2002 :-
"I, Yad Ram, Additional Sessions Judge (F.T.C. No.1), Muzaffar Nagar do hereby charge you Warish as follows:
That you prior to 31.03.2000 at some time and place entered into the territory of Union of India unauthorizedly without any valid Passport and had not informed any authority about your entry and stay in India and also not got yourself registered as citizen of India and you thereby committed an offence punishable under Sections 13 and 14 of Foreigners Act and within the cognizance of this Court of Sessions.
And I hereby direct that you be tried by this Court on the said charge."
17. Trial Court also framed charge against accused-respondent Mohd. Waris @ Raja under Section 3 of Passport Act, 1967 on 26.02.2002 as under:-
"I, Yad Ram, Additional Sessions Judge (F.T.C. No.1), Muzaffar Nagar do hereby charge you Warish as follows:
That you prior to 31.03.2000 at 12:30 PM at the house of Ashfaq alias Nanha situated in Village Jola within the circle of P.S. Budhana, District Muzaffar Nagar failed to produce your Passport or travel document for inspection by the police, being a Pakistani citizen and you thereby committed an offence punishable under Section 3 of Passport Act and within the cognizance of this Court of Sessions.
And I hereby direct that you be tried by this Court on the said charge."
18. Accused-respondent Ashfaq @ Nanhey was charged for the offence under Sections 13 and 14 of Foreigners Act, 1946 on 26.02.2002 as under:-
"I, Yad Ram, Additional Sessions Judge, Muzaffar Nagar do hereby charge you Ashfaq alias Nanha as follows:
That you on 31.03.2000 at 12:30 PM and some time prior to it knowingly gave an assistance to Warish a Pakistani National intentionally to hide his arrest and concealed his presence, who entered into the territory of Union of India without valid documents / Passport into your house situated in Village Jola within the circle of P.S. Budhana, District Muzaffar Nagar and you thereby committed an offence punishable under Section 13 read with 14 of Foreigners Act and within the cognizance of this Court of Sessions.
And I hereby direct that you be tried by this Court on the said charge."
19. In Session Trial No.719 of 2000, accused-respondent Ashfaq @ Nanhey was charged under Section 25/27 of Arms Act, 1959 on 30.07.2001 as under:-
^^eSa] f'ko 'kadj yky] vij ftyk tt@,Q-Vh-lh-la-1] eq0 uxj vki v'kQkd ij fuEufyf[kr vkjksi yxkrk gwW ;g fd fnukad 31-3-2000 dks le; djhc 22-30 cts ceqdke xzke tkSyk Fkkuk dka/kyk ftyk eqt¶Qjuxj esa vkidks iqfyl }kjk fxj¶rkj fd;k x;k vkSj vkidh fu'kkunsgh ls nks vnn fiLVy vaxzsth eSxthu lfgr ftlesa ikWp ikWp dkjrwl thfor Fks uEcjh cjken fd;s x;sA ftldk vkids ikl dksbZ oS/k ykblsal ugha FkkA bl izdkj vkius /kkjk 25@27 'kL= vf/kfu;e ds v/khu n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA ,Rkn}kjk funsZ'k nsrk gwa fd mijksDr vkjksi dk fopkj.k bl U;k;ky; }kjk fd;k tkosA^^ "I Shiv Shanker Lal, Additional District Judge (FTC No.1), Muzaffar Nagar charge you Ashfaq as follows:
That on 31.03.2000 at about 22:30 hours you were arrested by the Police in Village Jaula, Police Station Khandla, District Muzaffar Nagar and on your pointing out, two pistols (English) with magazines containing five live cartridges, each, for which you had no valid licence. Thus you have committed an offence punishable under Section 25/27 Arms Act which is within the cognizance of this Court.
I hereby direct you to be tried for the aforesaid charge of this Court."
(English Translation by Court)
20. All the aforesaid accused persons denied the charges and claimed to be tried.
21. At this point, it is worth mention that aforesaid charges framed by Trial Court are tagged and available on the original record of Session Trial No.820 of 2000 at pages no. 15 to 19 which also includes charge framed in Session Trial No.819 of 2000 against Ashfaq. Though in the description of array of parties in the impugned judgment dated 18.05.2007, mention of Sessions Trial No.821 of 2000 against Mohd. Waris @ Raja under Section 3 of Explosive Substances Act, 1908 has been made but original charge framed by Trial Court in this respect, in case crime no.109 of 2000 is not available on record nor record of Sessions Trial No. 821 of 2000 has been tagged with original record, whereas charge framed in another Sessions Trial No.819 of 2000 is placed in the file of Session Trial No.820 of 2000 and also available with paper book.
22. In support of its case, prosecution examined as many as eight witnesses. PW-1 SI Amrit Singh had accompanied raiding party to the house of Ashfaq @ Nanhey. PW-2 SI Yogendra Singh, PW-3 LIU Inspector Achal Kumar and PW-4 SI J.K. Tomar, all were members of Police party who raided the house of Ashfaq @ Nanhey on 31.03.2000 consequent upon intimation having been received from SSP Muzaffar Nagar that at his house a Foreigner was residing. They are also the witnesses of recovery of arms, ammunitions and arrest of accused persons. PW-5 Sri Hridesh Kumar CO had also participated in interrogation and visited the spot etc. PW-6 Chotey Lal Yadav, Head Moharrir had lodged FIRs and proved chik report Ex.Ka-8 and corresponding entry in the GD at report Nos.21 and 22 being Ex.Ka-9 and Ex.Ka-10. After arrest of Waris and Ashfaq on the report of PW-4 J.K. Tomar, case crime no.106 of 2000 under Sections 121, 121-A, 122 and 123 IPC and case crime no. 108 of 2000 under Sections 14 of Foreigners Act was registered by him. He has proved chik FIR Ex.Ka-11 and corresponding entry in General Diary (hereinafter referred to as "GD"), Ex.Ka-12. He also proved copy of GD Ex.Ka-2 which gives details with respect to query made by PW-5 CO Hridesh Kumar from accused Waris and Ashfaq. PW-6 has also proved chik FIR Ex.Ka-13 in case crime no.109 of 2000 under Section 3 of Explosive Substances Act and case crime no.110 of 2000 under Section 25/27 Arms Act. He has proved GD entry Ex.Ka-14 with respect to articles recovered from Waris and Ashfaq. PW-7 SI Om Pal Singh, In-charge Bomb Disposal Squad who had defused the hand grenades. PW-8 SI Ganeshi Lal is Investigating Officer (hereinafter referred to as "IO") who had submitted charge sheets Ex.Ka- 21 to 25 in the Court of CJM, Muzaffar Nagar against the accused persons.
23. After conclusion of prosecution evidence, accused-respondents were examined under Section 313 Cr.P.C. Accused-respondent Mohd. Waris @ Raja had denied charges levelled against him and stated prosecution story to be false. He has further stated that he had come to India on Passport and had gone to police Station Kandhla where they (Police) had torned his Passport. No recovery had been made from him. He had also money with him but Police has not shown the same. Accused Gayur Khan has stated to be implicated falsely and that the prosecution story is false and no recovery was made from him. Accused Mustaqeen and Sardar Ali have also claimed prosecution story to be false and to have been implicated falsely. Accused-respondent-5 Ashfaq had stated that prosecution story is false and he has no relation in Pakistan; he does not know Mohd. Waris @ Raja nor had been arrested from his house and he had been implicated falsely in connivance with the then Pradhan Munna.
24. One Abdul Haq DW-1 has been examined at the instance of the Court. He was Assistant Record Keeper in Police Office, Muzzafar Nagar. He has proved weeding register in which at serial no.23, page no.36, Police Station, Kandala, is entered and has stated that the relevant GD dated 30.03.2000 and 01.04.2000 had been weeded out. He has deposed that on every five years, GD, Case Diary (hereinafter referred to as "CD") registers are weeded out.
25. After hearing Counsel for parties, Trial Court has recorded verdict of conviction against accused-respondents 4 and 5 in the manner indicated in the beginning of this judgment. Other co-accused Gayur, Mustaqeen and Sardar Ali were acquitted of the charges under Sections 121, 121-A, 122 and 123 IPC.
26. Feeling dissatisfied with the impugned judgment and order of the Trial Court State has preferred this appeal insofar as it has acquitted accused-respondents 4 Mohd. Waris @ Raja of the charges under Sections 3 Passport Act, 1967 and 3 of Explosive Substances Act, 1908; accused-respondent 5 Ashfaq @ Nahey of the charge under Section 27 of Arms Act 1959 and against acquittal of respondents 1, 2 and 3 i.e. Gayur, Mustaqeem and Sardar Ali under Sections 121, 121-A, 122 and 123 IPC.
27. We have heard Sri Udit Chandra, learned A.G.A for State-appellant, Sri Pawan Singh Pundir, learned Counsel for respondents at length and have gone through the record carefully with the valuable assistance of learned Counsel for parties.
28. A preliminary objection was raised by learned Counsel appearing for accused-respondents that in this matter two appeals were preferred by Mohd. Waris @ Raja and Ashfaq @ Nanhey i.e. Jail Appeal No.8326 of 2007 and Criminal Appeal No.3779 of 2007 respectively, wherein conviction under Sections 121, 121-A, 122 and 123 IPC was challenged on the ground of non obtaining of sanction from the State or Central Government as required under Section 196 Cr.P.C. In the present case also, he submitted that since no sanction was obtained by prosecution to proceed against accused-respondents under Sections 121, 121-A, 122 and 123 IPC, therefore, very prosecution of against accused-respondents is vitiated in law and no interference with the judgement and order of Trial Court is called for so far as it has acquitted accused-respondents-1, 2 and 3.
29. Sri Udit Chandra, learned AGA submitted on this aspect that the issue is similar as involved in Jail Appeal No. 8326 of 2007 and Criminal Appeal No. 3729 of 2007 wherein we have already discussed the issue of sanction in detail. He admitted that in the present case, he is challenging acquittal of accused-respondents-1, 2 and 3 in respect of offences mentioned in Chapter-VI IPC. He also fairly admitted that no sanction as required under Section 196 Cr.P.C., was taken or granted by Competent Authority.
30. Acquittal of accused-respondents Gayur, Mustakeem and Sardar Ali for the offences under Sections 121, 121-A, 122, 123 IPC for want of prior sanction under Section 196 Cr.P.C. cannot be faulted and the judgment of Court below to this extent has to be confirmed though this reason has not been considered in the judgment in question but in the connected appeals i.e. Criminal Appeal No. 3779 of 2007 and Jail Appeal No. 8326 of 2007, this aspect has been considered for setting aside conviction of co-accused Mohd. Waris @ Raja and Ashfaq @ Nanhe and the same position will apply to accused respondents to Gayur, Mustakeem and Sardar Ali.
31. Since acquittal of accused-respondents-1, 2 and 3, for the reasons stated in our judgement in two appeals i.e. Jail Appeal No. 8326 of 2007 and Criminal Appeal No. 3729 of 2007 decided by this Court vide order of date si seuarely covered and has to be answered for the benefit of these appellants, this Government Appeal to this extent has to be dismissed.
32. Now, coming to acquittal of accused-respondents Mohd. Waris @ Raja and Ashfaq @ Nanhe under Section 3 of Explosive Substance Act, 1908 and Section 3 of Passport Act, 1967, we find that in paras 43 and 44 of the judgment, Trial Court found that in respect of offence under Passport Act, Section 15 requires sanction of Central Government which was not obtained and similarly for the offence under Section 3 of Explosive Substance Act sanction of Central Government was required under Section 7 which was not obtained and, therefore, two accused-respondents were acquitted from the offences under aforesaid Acts.
33. Learned AGA here also could not dispute that no such sanction was obtained though it was necessary hence, here also we find no reason to interfere with the judgment in question.
34. With regard to acquittal of Ashfaq @ Nanhe under Section 27 of Arms Act, 1959, learned AGA could not place anything before this Court to show that his acquittal from aforesaid offence is erroneous in any manner and in fact this aspect was not pressed at all.
35 In the result, the appeal lacks merit and is, accordingly, dismissed.
Order Date :- 05.08.2019 I.A.Siddiqui