Rajasthan High Court - Jodhpur
(Salman Khan vs . State Of Rajasthan) on 28 January, 2015
{1}
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
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:ORDER:
S.B. Criminal Misc. Petition No.131/2015 (Salman Khan Vs. State of Rajasthan) 28.01.2015 Hon'ble Mr. Justice Banwari Lal Sharma Mr. Mahesh Bora, Sr. Advocate with Mr. HM Saraswat and Mr. Arpit Mehta, for the petitioner.
Mr. Pankaj Avasthi, Public Prosecutor.
This miscellaneous petition has been filed against the order dated 14.01.2015 passed by the learned District & Sessions Judge, Jodhpur District dismissing the Criminal Revision Petition No.52/2014 preferred against the order dated 18.12.2014 passed by the learned Chief Judicial Magistrate, Jodhpur District in Criminal Case No.68/2011 whereby the application filed by the petitioner under Section 311 Cr.P.C. for calling Shri Dalbir Bharti, DCP Headquarter and District Magsitrate, Mumbai as defence witness was dismissed.
The brief facts of the case are that on 15.10.1998, one Shri Lalit Bora filed a report at P.S. Luni, Jodhpur against the petitioner stating that the petitioner hunted two black bucks by using illegal fire arms in the mid-night {2} of 1-2 October, 1998 at Village Kakani. On the basis of the above report, an FIR was registered against the petitioner for the offences under Sections 3/25 and 27 of the Arms Act. After investigation, charge-sheet was filed and charges were framed. After examination of 16 prosecution witnesses, the statements of petitioner-accused were recorded under Section 313 Cr.P.C. and after examination of one Berisal Singh (DW-1) as defence witness, the defence evidence was closed and the matter was fixed for 16.12.2014 for final arguments, on that date, an application under Section 311 Cr.P.C. was moved on behalf of the petitioner before the learned trial court stating therein that on 29.09.1999, the licensing authority issued show cause notice to the petitioner to the effect as to why his Arm License No.MU-926/August/96 should not be cancelled to which the petitioner filed reply. It was submitted that as per the notice, the license of the petitioner was valid till 29.09.1999 and was in force. Thus, it was prayed that the said authority, viz., Shri Dalbir Bharti, DCP, Police HQ and District Magistrate, Mumbai be called as defence witness. The said application was dismissed and revision petition was also dismissed. Hence, this miscellaneous petition.
{3} I have heard the learned counsel for the petitioner and the learned Public Prosecutor.
Learned counsel for the petitioner submits that the charges against the petitioner are that he kept in possession and used unlicensed fire arms, therefore, to prove that the license was effective on the date of offence, it is necessary in the interest of justice that notice issued by the licensing authority be proved before the learned trial court after calling Shri Dalbir Bharti, DCP, Police HQ and District Magistrate, Mumbai. Both the learned courts below have wrongly dismissed the application. In absence of examination of the said witness, it is not possible for the petitioner to defend himself. Therefore, this miscellaneous petition may be allowed.
In the alternative, the learned counsel for the petitioner submits that if the prosecution admits the genuineness of the notice and the trial court considers the same during final arguments, then this miscellaneous petition may be decided accordingly.
The learned Public Prosecutor opposed this miscellaneous petition and submitted that so far as the genuineness of notice is concerned, he does not dispute it {4} and also submitted that if the trial court considers the notice during final arguments with the provisions of the Arms Act and the Arms Rules, then State has no objection and the miscellaneous petition may be decided accordingly.
Having considered the above, since the notice was said to be issued in the year 1999 and the matter is pending since 2000 and after a lape of about 15 years, the address of the said witness Shri Dalbir Bharti was given of the place when he was posted at the time of issuing notice in the year 1999, therefore, a prudent person can take a clear notice that the officer, who was posted before 16 years on the above post, may not be continuing on the same post and it seems that the whereabouts of that witness is even not known or traced by the petitioner himself and allowing the application for calling such a witness on the given address will be futile exercise. Hence, both the courts below have rightly dismissed the application under section 311 Cr.P.C., which does not require any interference by this court.
But, since the learned Public Prosecutor did not dispute the genuineness of the notice issued by the DCP, Police HQ and District Magistrate, Mumbai and it relates to {5} the license of the petitioner-accused and the offence is related to the arm license itself and the learned Public Prosecutor also did not dispute for considering the same at the time of final arguments, therefore, without calling the witness, the trial court may, after marking the notice as exhibit, as its genuineness was not disputed, consider it at the time of final arguments. However, it is made clear that it is the domain of the learned trial court to decide, after considering the notice, that whether on the date of offence the license was in force or not without prejudice by this court.
This miscellaneous petition stands disposed of accordingly.
[Banwari Lal Sharma],J.
/skm/ I.No.107