Madhya Pradesh High Court
Sarabjeet Singh Mokha vs The State Of Madhya Pradesh on 25 June, 2018
HIGH COURT OF MADHYA PRADESH AT JABALPUR
(Sabarjeet Singh Mokha Vs State of M.P.)
M.Cr.C. No. 22826/2018
JABALPUR, DATED: 25/06/2018
Shri Pankaj Dubey, learned counsel for the petitioner.
Shri C.K.Mishra, learned Govt. Advocate for
respondent/State.
This petition under Section 482 of the Cr.P.C. has been filed to invoke the extra ordinary jurisdiction of this Court and to quash the order dated 08.02.2018, passed by the CJM, Jabalpur in crime case No.300/2018, whereby a closure report filed by the Police Station Civil Line Jabalpur in Crime No.351/2011 for offence under Section 30 of the Arms Act has been dis-allowed.
2. The factual matrix in brief is that, on 15.12.2011 the complainant Shri Ved Prakash Mishra, Deputy Director (Income Tax), Jabalpur had conducted raid in the house of the applicant Sarabjeet Singh Mokha. During this raid 12 bore gun was found. The petitioner could not produce the arms licence for possessing the gun. The Income Tax Authorities seized the gun sent it to the Police Station, Civil Lines, Jabalplur with a written complaint. Subsequently, during the investigation the petitioner produced the receipt of deposit of the renewal fee, for the renewal of the arms licence at the Collectrate Office, Jabalpur. The fee was accepted by the Office of the Collector, Jabalpur. Therefore, it has been found that no offence has been committed, hence the closure report has been filed before the Court of C.J.M., Jabalpur. The learned CJM, Jabalpur recorded the statement of complainant Shri Ved Prakash, who has deposed that on the raid on 15.12.2011 the gun was found in the house of the petitioner. The applicant could not produce the licence. Therefore, a written complaint made to Police Station, Civil Lines. Sub Inspector of the Police Station, Civil Line has deposed that, the Commissioner, Income Tax, informed that in the possession of Sabarjeet Singh Mokha, a 12 bore gun was found without licence, therefore, crime under Section 30 of the Arms Act was registered. It was later found that licence was issued to the applicant but the same was expired on 24.05.2011, yet licence was not renewed till 15.12.2011. However, subsequently Rs.1000/- renewal fees was deposited by the applicant in the office of the Collector, Jabalpur. As the renewal fees was accepted by the District Magistrate hence offence was not found to have been committed, therefore, the closure report was filed.
3. Learned CJM, Jabalpur, subsequently, examining the circumstances observed that licence was issued upto 24.05.2011 but even after six months of expiry of the licence, the same was not renewal. Therefore, the applicant was in possession of the gun unauthorizedly. Hence, held prima facie the offence under Section 21 of the Arms Act, which is punishable under Section 25(1-B) (h) of the Arms Act. Learned JMFC has taken cognizance of the offence. The petitioner has assailed the order on the ground that the licence was kept in the office of the petitioner at the time of the search and the gun was kept at the resident. Due to lapse the licence could not be renewed. The applicant has no criminal intention. The applicant has subsequently deposited the renewal fees and moved application for renewal of the licence.
4. The cognizance could not be taken without sanction of the prosecution, under Section 39 of the Arms Act, 1959. Referring to Section 39, learned counsel for the petitioner argued that no prosecution shall be instituted against the persons in respect of any offence under Section 3 without previous sanction of the District Magistrate.
5. Section 3 provides for the licence for possession of firearm and ammunition. Provision of Section 15 provides for renewal of licence. A licence under Section 3 unless revoked earlier continue in force for period of three years from the date on which it is granted. Sub Section 3 of Section 15 provides for renewal for licensing authority for reasons to be recorded in writing otherwise decides in any case, be renewable for the same period for which licence was originally granted and shall be so renewable from time to time.
6. On behalf of the respondent/State the application is opposed.
7. Perused the record and order impugned.
8. As per the allegation of the prosecution, the applicant was found with arm (gun) with licence but was not renewed. The possession of the gun without licence become punishable under the Arms Act. Section 21 of the Arms Act does not provide any separate sentence, it simply regulates possession of the arms and provides that when possession of arm became unlawful in consequence of expiry of the duration of the licence of suspension or revocation of the licence. The persons in possession of the arm shall without unnecessary delay deposit the same either with the officer incharge of the nearest police station or subject to such conditions as may be prescribed, deposit with a licensed dealer. The Arms Act and rules made about the carrying of firmarm punishable under Section 25 only when the sanction is granted by District Magistrate. The prosecution did not obtain any sanction from the District Magistrate and charge-sheeted the accused/respondent without it. The Court was of the view that Section 21 of the Arms Act simply regulates possession and provide that the licence of arm has expired. The arm will be deposited in the authorities mention in the section. This Section does not provide any punishment. The offence of possessing an arm without licence comes within Section 3 in the Arm Act which is punishable under Section 25 of the said Act for which sanction was necessary. The accused submitted papers before the Magistrate that he got the licence renewed w.e.f. dated 1.1.1997 to 31.12.2004. The Rajeshthan High Court found that the finding of the Magistrate that no offence is made out, do not call for any interference.
9. It is also seem that before proceedings to take cognizance for offence, the Court could have directed to obtain sanction for prosecution under Section 39 of the Arm Act. In the case of Ahmad Bin Salam and others Vs. State of Andhra Pradesh, reported as 2013(2) Andhra Law Digest (Criminal) 765, it has been held in similar case that lack of prior sanction under Section 39 of the Arm Act, the Court had no jurisdiction to take cognizance for want of prior sanction. Court is of the view that the case cannot proceed on the basis of the sanction obtained during pendency. It would thus be appropriate to set aside instant prosecution from the stage of cognizance.
10. In the case Ramakant Singh Vs. State of Bihar, reported as 1990(3) crimes 107 Patna, it is held that, where cognizance is taken without requisite sanction proceeding are liable to be quashed. In N.V.Subramanam Vs. State, 2002 CRLJ 3264 Andhra Pradesh the same has been followed.
11. It is made clear, that the Court has taken cognizance of the offence without prior sanction, therefore, the exercise would be futile and no use full purpose would be served by allowing the order to remain and to proceed with the case. Therefore, the order impugned is hereby quashed.
(Sushil Kumar Palo) Judge SM