Madras High Court
K.Sunil Karunakaran vs The Inspector Of Police on 9 January, 2023
Crl.OP.No.3384 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 24.11.2022
Pronounced on 09.01.2023
CORAM
THE HON'BLE Ms. JUSTICE R.N.MANJULA
Crl.O.P.No.3384 of 2021
and
Crl.MP.No.1963 of 2021
1.K.Sunil Karunakaran
2.K.Ramesh
3.K.Arul Kumar
4.Silambarasan
5.Boopalan
6.Gnanamoorthi
7.P.Thangaraj ... Petitioners
Vs.
The Inspector of Police,
Manavala Nagar Police Station,
Tiruvallur District. ... Respondent
Prayer:- This Criminal Revision Petition filed under Section 482 of
Cr.P.C., praying to call for records and to quash the FIR in Crime No.35 of
2020 on the file of the respondent against the petitioners.
For Petitioners : Mr.K.Mohanamurali
For Respondent : Mr. A.Damodaran
Additional Public Prosecutor
1/18
https://www.mhc.tn.gov.in/judis
Crl.OP.No.3384 of 2021
ORDER
This Criminal Original Petition has been preferred to call for records and to quash the FIR in Crime No.35 of 2020 on the file of the respondent against the petitioners.
2.The petitioners are accused 1,3.4, 5,6,7 & 8. The second accused is no more. The first information report has been registered by the Inspector of police, P5, Manavala Nagar Police Station, Tiruvallur. The avernments of the first information report would read as under:
2.1.On 2.2.2020 at about 5 am when the Inspector of police,P5, Manavala Nagar Police Station along with police party went to Valasaivetti Forest village for surveillance on getting a secret information, four persons out of eight persons at a farm were holding gun and bullets and with the help of torch light, they attempted to shoot birds and rabbits in the farm.
When the police party were about to catch them, they attempted to run away. However the police party caught hold of them and on enquiry, they came to know their names and details. They have been using licensed guns for hunting animals in violation of the terms of their gun license. When the police party caught hold of them and enquired, they came forward to give 2/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 confession and produced the materials possessed by them; 30-60 Sporting Rifle No-66108654 RFI in 2016-1 njhl;lhf;fs; & Compak victory-38 Nos, Sakthiman 39, RC 4-22 30-60 Winchester-21, Baschieri & Pellagri -13, Empaty Caterdge (Compak Victory – 12 Nos, Sakthiman -3, RC 4-27 – Total=42) & Head Focus Light-2 Battery-1 Focus Light-1, rpwpa gy;g;fs;/28. were seized on the basis of their confession through a seizure mahazar. As they had admitted their guilt they were arrested and their guns were seized and they were brought to the police station along with records. On the above report a case has been registered against the accused for the offences under Sections 27 Arms Act-1959 & Sec.51 of Wild Life Protection Act-1972 r/w 429 IPC.
3.Heard the submissions made by the learned counsel on either side and perused the materials available on record.
4.The learned counsel for the petitioners submitted that the first petitioner/A1 is the member of the Royal Pudukottai Sports Club and he is holding a valid gun license No.3/2017/SPR; he is a prominent shooter at State level and he has got lot of certificates to his credit; the second petitioner/third accused, who is also a member of the same club and he is 3/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 also having a valid gun license No.030/MT S10; he is also a champion in sports of shooting; the third petitioner is the local residents of Tiruvallur and he is in no way connected with the offences; just because he was holding the gun, he has been implicated in this case; the fourth petitioner is the driver who was driving the car belonged to the deceased second accused; since the car of the deceased second accused was sent for service, the said driver had driven the car of the fourth petitioner/fifth accused; the fifth petitioner/sixth accused and the sixth petitioner /seventh accused have only accompanied the first petitioner; the seventh petitioner /eight accused is the driver of the car belonging to the third accused. The petitioners were travelling in two cars from Kancheepuram to Pudukottai after picking up the third petitioner/fourth accused on the way; only at that time the car was intercepted by the police party at the junction of the Manavalan Nagar bridge; they foisted a false case against the petitioners; the petitioners understand that it is an act of vengeance done by the rival group by influencing the police;
4.1.The petitioners who held the valid gun licences did not violate any of the conditions of the license; the petitioners have not shot any birds 4/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 and animals and it is apparent in the FIR itself; though the case has been registered as early as on 02.02.2020 no steps have been taken for nearly one year; the bullets seized by the police are the sports bullets, and they are well within the quota allocated to the first petitioner and the second petitioner; because of the FIR, the license given to the accused 1 and 2 were cancelled; the pistol/ revolver were not loaded at the time when the police intercepted or seized the same; the seized materials also include those objects that were not possessed by the petitioners; the FIR on the face of it does not make out any case as against the petitioners hence the FIR is liable to be quashed.
4.2. In support of the above contentions, the learned counsel for the petitioners relied on the following judgements:
Sl. Citations submitted by the petitioner's counsel Reported in No 1 Titty Alias George Kurian Vs.Deputy Range Forest (2021) 1 Supreme Court Officer Cases 812 2 Deomuni Sharma Vs. State of Jharkhand (2009) 16 Supreme Court Cases 80 3 Gulam Mustafa Malik Vs. State of Maharashtra and 2016 SCC OnLine Bom another 1577 4 State of Bihar Vs. Murad Ali Khan, Farukh Salaluddin 1988 (4) SCC 655 5 State of Hariyana Vs. Bhajanian 1992 SUPP(1)SCC335 5/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021
5. Per Contra, the learned Additional Public Prosecutor for the first respondent submitted that the petitioners on seeing the police tried to escape and their conduct was suspicious; the conditions of the gun license issued to the first and second accused have been violated and they had attempted to use the same for their personal gain; as per Section 9 of the Wild Life (Protection) Act-1972, no persons shall hunt any wild animal specified in Schedule I,II,III and IV except as provided under Sections 11 and 12 of the Act; as per Sec.11 of the Act, the chief wild life warden can be given permission to hunt wild life animal for any specified area for specific reasons stated therein; however, in the case in hand the petitioners did not obtain any permission; the petitioners are liable to be punished for the offence under Section 429 IPC which deals with mischief of killing or maiming of cattle's etc.; the killing and maiming animals is a loss and damage to the property of the State Government; the accused were in possession of the arms in the public place carrying the fire arms; Sec.36(3) of the Arms Rule prescribes that the arms that are licensed for the purpose of sports shooting shall be limited to practice and competition at the sports shooting clubs or at shooting ranges; the petitioners have used the arms in 6/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 the public places which is an act of disturbing public peace; hence the petition should be dismissed.
5.1.In respect of the above contention the learned Additional Public Prosecutor for the respondent police cited the following judgements:
Sl. Citations submitted by the learned Additional Reported in No Public Prosecutor for the first respondent 1 Naseerulah Vs. State 2013 SCC OnLine Mad 965 2 Keshub Mahindra Vs. State of MP (1996) Supreme Court Cases 129
6.The petitioners have been charged for the offences under Sections 27 Arms Act-1959 & Sec.51 of the Wild Life Protection Act-1972 and 429 IPC. It is to be noted that in Column No.12 of the FIR, there is no mention about Sec.429 IPC. In column No.2 of the FIR, Sec.429 IPC is also included. The informant is the Inspector of Police, who himself had caught hold of the petitioners and enquired them. The occurrence is said to have taken place at a farm near by to the Vallavetti Forest Village.
7.It is not disputed that two of the accused namely the first and second accused were holding valid gun licenses at the time of the occurrence for the guns they had. The third petitioner is not a stranger and 7/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 he had accompanied the first and second petitioner. The fourth petitioner/fifth accused and seventh petitioner /eighth accused were the drivers of the two cars in which the petitioners were travelling on the date of the occurrence. The fifth petitioner/6th accused and sixth petitioner/seventh accused had just accompanied the first and third petitioners who had the valid gun license.
8.Even according to the allegations there is no overtact as against the fifth and sixth petitioners/sixth and seventh accused respectively. So the case mainly spins around the accused 1 and 3. As stated already the petitioners 1 and 3 are members of the Royal Pudukottai Sports Club and they have lot of certificates and awards to their credit. The case of the prosecution is that at the time when the police party intercepted the petitioners they attempted to shoot the animals like birds and rabbits in the farm.
9.Admittedly, no used bullets have been seized from the place of occurrence. Neither dead animals like birds or rabbits which were said to have been shot by the petitioners 1 and 3 have not seized. In order to charge a person for the offence punishable under Section 51 of the Wild Life 8/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 (Protection) Act, there should be prima facie materials to show that a person has hunted any wild animals specified under Schedules I, II, III and IV of the Wild Life (protection) Act ,1972. Section 9 of the Wild Life (protection) Act ,1972 reads as under:
Section 9 in The Wild Life (Protection) Act, 1972 Sec.9. Prohibition of hunting.—No person shall hunt any wild animal specified in Schedules I, II, III and IV except as provided under section 11 and section 12.
10.Sections 11 and 12 of the Act speaks about hunting of wild animals and grant of permission for specific purpose like education, scientific research, etc., Nothing is available on record to establish the allegation that the accused 1 and 3 had attempted to shoot any animals as specified under schedule I, III and IV of the Act, except the alleged confession given by them.
11.When the FIR speaks about the attempt to shoot birds and rabbits, there should be some fundamental reason for coming to the said conclusion. The FIR reads that the said conclusion was arrived only on the confession given by the petitioners themselves. The officer who recorded the confession did not seek any help of any private person for making them to 9/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 stand as witnesses for confession.
12.Without the production of the dead animals like any birds or rabbits, I do not find a prima facie case against the petitioners that they had committed the offences defined under Section 9 of the Wild Life Act, so as to punish them for the offence under Sec.51 of the Act. If there is no such incident there is no basis to invoke Sec.429 IPC. Hence, the citations relied by the prosecution in the case of Naseerulah Vs. State [2013 SCC OnLine Mad 965] and in the case of Keshub Mahindra Vs. State of MP [(1996) Supreme Court Cases 129] will not be of any use to the case of the prosecution.
13.In fact in the case of Naseerulah (cited supra) speaks about passing orders of forfeiture of the animals in favour of the government, when it is proved before the Court that the animals have been exposed to cruelty by its owner. The facts of the case in hand is not related to the facts of the said case. And the other case reported in (1996) Supreme Court Cases 129 deals with the offence punishable under Section 429 IPC. As stated already when there is no seizure of any animal, there is no basis for the offence under Section 429 IPC.
10/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021
14.The remaining penal provision for which the petitioners have been charged would be under Section 27(1) of the Arms Act. For the sake of convenience, Sec. 21 of the Act is extracted is hereunder:
“Section 27 in Arms Act Sec.27. Punishment for using arms, etc.— (1) Whoever uses any arms or ammunition in contravention of section 5 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.
(2) Whoever uses 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 life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death..”
15. As per the above provisions for the purpose of charging a person for an offence under section 27 of the Act, it should be shown that any violation as prescribed under Section 5 of the Arms Act appears to have done. Section 5 of the Arms Act would reads as under:
“Section 5 in Arms Act 11/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021
5. Licence for manufacture, sale, etc., of arms and ammunition.— (1) No person shall—
(a) [use, manufacture], sell, transfer, convert, repair, test or prove, or
(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearms or any other arms of such class or description as may be prescribed or any ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
[(2) Notwithstanding anything contained in sub- section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act, or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition: Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be sold or transferred by any person unless—
(a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and
(b) a period of not less than forty-five days has expired after the giving of such information.]”
16.The one and only allegation made against the license holders of 12/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 the guns seized by the police is that the licensed guns of the petitioners 1 and 3, were used for personal gain like hunting animals. In order to show that there is any violation of the license, it should be prima facie shown that the license holder had used the guns without any license. It is not a case of the prosecution that the the license holders namely petitioners 1 and 3 had ever used, manufactured obtained, procured, sold, transferred, converted repaired, tested or proved, exposed or offered for sale or transferred, etc.
17.Admittedly, the petitioners 1 and 3 are sports persons and for their sports activities they hold valid licensed guns. The version of the prosecution is that the petitioners attempted to use the gun. The said opinion is seemed to be based on presumption. In the absence of seizure of any materials such as dead animals or used bullets, it is difficult to presume that a case under Section 27 of the Arms Act is made out. In this regard it is relevant to refer the judgement of the Hon'ble Supreme Court held in the case of Deomuni Sharma Vs.State of Jharkhand [(2009) 16 SCC 80] In para No.26, it is held as under:
“ 26.For inviting conviction under Section 27 of the Arms Act, it has to be proved that the fire arm has been used in contravention of Section 5 or Section 7 of the Arms Act.13/18
https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 Since it was a licensed gun, there was no question of Section 7 coming in. Insofar as Section 5 is concerned, we do not think that an act on the part of the accused in firing in the air to scare the aggressors would come within the mischief of Section 5(1) of the Arms Act. Therefore, the appellant is liable to be acquitted even of the offence under Section 27 of the Arms Act. ”
18.In the above case, the holder of the licensed gun had fired in the air for scaring away the aggressors and to scatter them. In the case in hand no fire had taken place. So without attracting the fundamental features of Section 5 of the Act, the petitioners cannot be charged for the offence under Section 27(1) of the Arms Act. The objects seized from the place of occurrence also do not have any relevance to the case of the prosecution.
19. In the oft quoted judgement of the Hon'ble Supreme Court in the State of Haryana and others Vs. Bhajan Lal and Others [ 1992 Supp(1) Supreme Court Cases 335] the following illustrated circumstances have been shown in order to invoke the powers of this Court for quashing the provision under Section 482 of Cr.P.C., and the relevant part is extracted hereunder:
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the 14/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with 15/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
20.In the case in hand except the confession given by the petitioners no other reliable materials have been produced. To make out a case against the petitioners under Section 5 of the Arms Act they must be found in possession of any hunted animals or birds. No doubt the petitioners 1 and 3 are valid license holders and the guns seized from them have got valid licenses. The bullets were also seemed to be not falling outside the quota provided to them for their usage. In the absence of any such materials it cannot be said that the petitioners 1 and 3 had fired their guns for hunting of any animals. Hence, it is not to proper to charge them for the offences under Sections 27 Arms Act-1959 & Sec.51 of Wild Life Protection Act-1972 r/w 429 IPC.
21.It has been mentioned already that as against the other petitioners no overact is shown and they had just accompanied the petitioners 1 and 3 in two cars. So the allegation made in the FIR only fall under the points 1,2,3 and 5 of the guidelines set out in State of Haryana and others Vs. Bhajan Lal and Others (cited supra).
16/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021
22.The FIR, on the face of it does not make out a case justifying the investigation. Hence, I do not find any reason to allow the investigation to be continued. In order to serve the ends of the justice, I feel it is appropriate to invoke the powers of this Court under Sec.482 Cr.PC to quash the proceedings.
Accordingly, this Criminal Original Petition is allowed and the proceedings of the FIR in Crime No.35 of 2020 on the file of the respondent police against the petitioners is quashed. Consequently, connected miscellaneous petition is closed.
09.01.2023 Index : Yes/No Internet : Yes/No Speaking/ Non Speaking.
Neutral citation: Yes/No Jrs 17/18 https://www.mhc.tn.gov.in/judis Crl.OP.No.3384 of 2021 R.N.MANJULA, J.
jrs To
1.The Inspector of Police, Manavala Nagar Police Station, Tiruvallur District.
2.The Public Prosecutor, Madras High Court.
Crl.O.P.No.3384 of 2021
and Crl.MP.No.1963 of 2021 09.01.2023 18/18 https://www.mhc.tn.gov.in/judis