Jammu & Kashmir High Court
State Of J And K vs Shabir Ahmad Dar on 24 April, 2003
Equivalent citations: 2003CRILJ3367, 2003(2)JKJ723
JUDGMENT Y.P. Nargotra, J.
1. By the charge sheet filed before the Ld. Judicial Magistrate Srinagar the accused/respondent was alleged to have committed the offences under Section 3/25 of Indian Arms Act, on the allegations that in a Special Operation one pistol and Magzine which are prohibited arms and cannot be possessed without a licence, were recovered from his possession.
2. Ld. Trial Magistrate took the cognizance upon the police report and tried the accused for the said offence. The prosecution had cited only three witnesses who were not produced, so the Ld. Trial Court closed the evidence of the prosecution and acquitted the accused in terms of the following order;
"Accused face trial for allegedly having committed offences punishable under Section 3/25 of Indian Arms Act. No prosecution witness is present today despite prosecution given last and final opportunity to produce the witnesses on 4.6.1999 and the case was adjourned for 28.6.1999. On 28.6.1999 also no prosecution witness was present and the case was posted for 7.7.1999. Today also no prosecution witness is present. The prosecution has not shown any explanation for not producing the witnesses. In the absence of any evidence much less incriminating one there is no need to record the statement of the accused in terms of Section 342, Cr.P.C. The result is that the prosecution has badly failed in proving its case against the accused and the case is hereby dismissed. The accused and the case is hereby dismissed. The accused is acquitted. File be consigned to records after due completion."
3. The State has come in appeal against the acquittal on the ground that the Ld. Trial Court was not justified in closing the evidence of the prosecution in the circumstances of the case. But before we go to the said question another important question is required to be determined. It is, whether the trial Magistrate possessed jurisdiction for trial of the case. The accused was charged for commission of the offence as contemplated by Section 3 of Indian Arms Act under Section 25 punishable. The relevant portions of Section 25 are being reproduced hereunder:
"25. Punishment of certain offences:.............................................
(1B) whoever:
(a) acquires, has in his possession or carries any firearm of ammunition in contravention of Section 3; or......................... shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine. Provided that the court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.
(1C) Notwithstanding anything contained in Sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area 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.
Explanation: -- For the purposes of this sub-section "disturbed area" means any area declared to be disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under Section 24A or Section 248.
(2)........................................
(3).........................................
(4)........................................."
4. The valley indisputably has already been declared as a disturbed area therefore maximum punishment for an offence under Section 3 punishable under Section 25(1-C) is imprisonment for a period of seven years and fine.
5. Schedule II of Criminal Procedure Code 1989 provides as follows :
TABLE 1 2 3 4 5 6 7 8 Sec. of Ranbir Penal Code Offence Whether the police may arrest without/ warrant or not.
Whether warrant or a summ-ons shall ordina-rily issue in the first instance.
Whether bailable or not.
Whether com-pound-able or not.
Punish-ment under the Ranbir Penal Code.
By what court triable.
OFFENCES AGAINST OTHER LAWS If punishable with death or imprisonment for 7 years, or upwards May arrest without warrant.
Warrant Not bailable Not compoundable Court of Session.
6. Thus under the above quoted schedule the offences which carry punishment of death or of imprisonment for seven years or upwards are triable by Court of sessions. Since the present case carries punishment of seven years, therefore the case exclusively triable by a Court of Session. Therefore the Judicial Magistrate Anantnag had no jurisdiction for trial of the case, involving the offences under Section 3 read with Section 25 of LA. Act. Ld. Trial Court should have noticed the said provision contained in the schedule and then committed the case for Trial to the Court of Session Judge, after following the procedure prescribed in Section 205D of the Criminal Procedure Code. The trial conducted and the judgment of acquittal recorded by the Ld. Judicial Magistrate Anantnag therefore, is held to be without jurisdiction and the same is as such set-aside and the case is remanded back to the Ld- Judicial Magistrate Anantnag for proceeding afresh with the case in the light of this judgment. LC for the respondent shall produce the accused before the Ld. Trial Court on 17.5.2003.