Karnataka High Court
Kolandaiswamy vs State By Kollegala Rural Police on 20 February, 2025
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NC: 2025:KHC:7647
CRL.RP No. 1019 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 1019 OF 2016
BETWEEN:
1. KOLANDAISWAMY S/O CHINNASWAMY
AGED ABOUT 40 YEARS
2. MURUGAN @ TAILOR MURUGAN
S/O SUBRAMANYA
AGED ABOUT 40 YEARS
3. GANESH S/O KANDASWAMY
AGED ABOUT 37 YEARS
ALL ARE RESIDING AT:
ALADAMARA DODDI, JAGERI VILLAGE
KOLLEGALA TALUK, CHAMARAJANAGAR DIST - 571 124.
...PETITIONERS
(BY SRI. C M JAGADEESH, ADVOCATE)
AND:
STATE BY KOLLEGALA RURAL POLICE
CHAMARAJANAGAR DISTRICT,
REPRESENTED BY PUBLIC PROSECUTOR,
Digitally signed STATE OF KARNATAKA, HIGH COURT BUILDING
by RENUKA BENGALURU - 560 001.
Location: HIGH ...RESPONDENT
COURT OF (BY SRI. K NAGESHWARAPPA, ADVOCATE)
KARNATAKA
THIS CRL.RP FILED U/S.397 CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND SENTENCE DATED 14.07.2016
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHAMARAJANAGARA IN CRL.A.NO.29/2015 AND CONFIRM THE
ORDER DATED 13.02.2015 PASSED BY THE PRINCIPAL CIVIL JUDE
AND J.M.F.C., KOLLEGAL IN C.C.NO.636/2009 FOR THE OFFENCE
U/S 3 AND 25 OF ARMS ACT AND ETC.,
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S RACHAIAH
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NC: 2025:KHC:7647
CRL.RP No. 1019 of 2016
ORAL ORDER
1. The petitioners are before this Court seeking to set aside the judgment of conviction and order on sentence dated 14.07.2016 passed in Crl.A No.29/2015 by the learned Principal District and Sessions Judge, Chamarajanagar, and confirm the order dated 13.02.2015 passed in C.C No.636/2009 by the Principal Civil Judge and JMFC, Kollegal for the offences under Sections 3 and 25 of the Arms Act and release the petitioners under Probation of Offenders Act.
2. The ranks of the parties would be considered henceforth as per their rankings in the Trial Court for convenience. Brief facts of the case:
3. It is the case of the prosecution that on 24.03.2009 at about 4.00 a.m., near Sattegala Handpost within the jurisdiction of the respondent-Police, the petitioners were proceeding on TVS Excel Scooter bearing registration No.KA-10-H-8211 and at the time of police checking, the first petitioner was found to be in possession of single barrel gun without valid license and -3- NC: 2025:KHC:7647 CRL.RP No. 1019 of 2016 the same was seized. Based on the complaint, the jurisdictional police have registered the case in Crime No.52/2009 for the aforesaid offences and after conducting the investigation, charge sheet was submitted.
4. To prove the case, the prosecution examined 10 witnesses as PWs.1 to 10 and got marked 11 documents as Exhibits P1 to P11. The Trial Court released the accused under the provision of Section 4 of the Probation of Offenders Act (for short 'P.O. Act'). Being aggrieved by the said order, the State has preferred an appeal before the Appellate Court. The Appellate Court set aside the said order and directed the accused Nos.1 to 3 to undergo simple imprisonment for one year and further directed accused Nos.1 to 3 to surrender before the Court in order to undergo the punishment. Being aggrieved by the same, they have preferred this revision petition.
5. Heard Sri.C.M.Jagadeesh, learned counsel for the petitioners and Sri.K.Nageshwarappa, learned High Court Government Pleader for the respondent - State. -4-
NC: 2025:KHC:7647 CRL.RP No. 1019 of 2016
6. It is the submission of the learned counsel for the petitioners that the Probation of Offenders Act passed by the Trial Court is relevant and appropriate. Section 4 of the Probation of Offenders Act is squarely applicable to the case on hand as the accused are first offenders.
7. It is further submitted that the order passed by the Appellate Court is erroneous and the reasons assigned therein in setting aside the said order are not in consonance with the provisions of Section 4 of the Probation of Offenders Act.
8. It is further submitted that the Appellate Court has misread the provision of Section 25 of the Arms Act and opined that there is a minimum sentence prescribed under the Act.
9. It is further submitted that as per averments of the case, the accused was carrying the single barrel gun without having a valid licence. The punishment prescribed for the said Act is Section 25(1B)(a) of the Arms Act. However, the charge framed by the Trial Court under Sections 3 and 25 of the Arms Act, which is contrary to -5- NC: 2025:KHC:7647 CRL.RP No. 1019 of 2016 the facts of the case. Therefore, the conviction cannot be sustained. Making such submissions, the learned counsel for the petitioner prays to allow the petition.
10. Per contra, the learned High Court Government Pleader vehemently opposed the same and he relied on the judgment of the Hon'ble Supreme Court in the case of 1 SHYAM LAL VERMA v. CENTRAL BUREAU OF INVESTIGATION .
11. It is further submitted that the said Act stipulates the minimum sentence. In such circumstances, the Court cannot invoke Section 4 of the Probation of Offenders Act. As such, he justified the order passed by the Appellate Court and also prayed to dismiss the petition.
12. Having heard the learned counsel for the respective parties and also perused the findings of the Appellate Court in not extending the benefit of Section 4 of the Probation of Offenders Act for the offences under Sections 3 and 25(1)(b) of the Arms Act, it is relevant to refer Sections 3 and 25(1)(b) of the Arms, which reads as under:
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(2014) 15 SCC 340 -6- NC: 2025:KHC:7647 CRL.RP No. 1019 of 2016 "3. Licence for acquisition and possession of firearms and ammunition.―1[(1)] No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:
Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.
[(2) Notwithstanding anything contained in sub- section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms:
Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983 (25 of 1983), may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section.
(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.-7-
NC: 2025:KHC:7647 CRL.RP No. 1019 of 2016 (4) The provisions of sub-sections (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to sub-section (2) as they apply in relation to the deposit of any arm or ammunition under sub-section (1) of that section.]
25. Punishment for certain offences.― [(1) Whoever--
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm in (or convert from any category of firearms mentioned in the Arms Rules, 2016 into any other category of firearms] in contravention of section 6;
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:
13. On careful reading of the above said provision, it makes it clear that there is no ambiguity in framing the charge on the facts of the case. As per the case of the prosecution, the accused was carrying a single barrel gun without having any valid licence. However, the Trial Court framed the charge for the offences under Sections 3 and 25 of the Arms Act. Under these circumstances, it is relevant to refer Section 464 of the Code of Criminal Procedure, which reads as under:-8-
NC: 2025:KHC:7647 CRL.RP No. 1019 of 2016 "464. Effect of omission to frame, or absence of, or error in, charge.--(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision, is of opinion that a failure of justice has in fact been occasioned, it may,--
(a) in the case of an omission to frame a charge, order that a charge be framed, and that the trial be recommended from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
14. On reading of the above said provision, it makes it clear that no findings, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed. -9-
NC: 2025:KHC:7647 CRL.RP No. 1019 of 2016
15. Be that as it may, on going through the facts of the case, the findings of the Trial Court in extending the benefit of the Probation of Offenders Act appears to be relevant for the reason that if the facts of the case is concerned, the charge should have been framed for the offences under Sections 3 and 25(1B)(a) of the Arms Act. Even assuming that the accused has committed the above said offences, the punishment prescribed for the above said offences is as follows:
"shall be punishable with imprisonment for a term which shall not be less than 2 [two years but which may extend to five years and shall also be liable to fine] 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 [two years]."
On reading of the punishment prescribed for the above said offences, it can be inferred that the minimum sentence can also be modified by imposing a lesser sentence by assigning valid reasons. Such being the
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NC: 2025:KHC:7647 CRL.RP No. 1019 of 2016 fact, not extending the benefit of the Probation of Offenders Act on the ground that when the statute prescribes minimum sentence, the benefit of the Probation of Offenders Act cannot be extended, in my considered view, is not appropriate and proper. Therefore, the order of Appellate Court needs to be set aside.
16. In the light of the observation made above, I proceed to pass the following:
ORDER
i) The Criminal Revision Petition is allowed.
ii) The judgment of conviction and order on sentence dated 14.07.2016 passed in Crl.A No.29/2015 by the Principal District and Sessions Judge, Chamarajanagar is set aside.
iii) The judgment of conviction dated 31.01.2015 and order on sentence dated 13.02.2015 passed in C.C. No.636/2009 by the Principal Civil Judge and JMFC, Kollegal is confirmed.
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NC: 2025:KHC:7647 CRL.RP No. 1019 of 2016
iv) The judgment of conviction passed by the Trial Court and implementation of Section 4 of Probation of Offenders Act is upheld.
v) The Registry is directed to send the records to the Trial Court along with a copy of this order forthwith.
Sd/-
(S RACHAIAH) JUDGE UN List No.: 1 Sl No.: 19