Muzaffar Shah v. Emperor — 1947 DIGILAW 195 (CAL)

JUDGMENT 1. This is an appeal against an order of conviction and sentence u/s 19(f) read with Section 19A of the Indian Arms Act made at a trial held at the Criminal Sessions of this Court. The accused was charged on two counts: (i) in respect of possession of a revolver on November 25, 1946, u/s 19(f)/19A and (ii) in respect of possession at the same time of two cartridges u/s 19(f). The verdict of the jury was unanimous and the accused was sentenced to five years rigorous imprisonment on the count in respect of the revolver. 2. The prosecution case very briefly was that, acting on information, Inspector Jennings deputed Sub-Inspector Naresh Sarkar to act as a bogus purchaser of a revolver. The party went to Lower Chitpore Road in the evening of the 25th November. Naresh, Sarkar was introduced to the accused Muzaffar Shah by the informant in a narrow passage off the main road. He was shown the revolver by the accused and they bargained for the payment. Sarkar had Rs. 300 in marked notes with him. The accused wanted Rs. 350. Eventually the accused agreed to accept Rs. 300 which was paid over to him. Sarkar induced the accused to hold the revolver and to take it to his car. Thereupon, on a signal from Sarkar, Inspector Jennings with two Sub-Inspectors Das and Chatterji, who had been kept concealed nearby, came up and arrested the accused with the revolver and the cartridges. A search-list was prepared which was signed by two search witnesses. 3. The case was treated as one of possession u/s 19(f) and not as one of sale u/s 19(a), as it might have been and this has given rise to some difficulties. 4. The first point taken on behalf of the accused is that the proceedings in this case are bad in view of the failure to comply with the provisions of Section 29 of the Indian Arms Act. After the search the accused had been taken to the thana and was placed the Magistrate the following day, the 26th November. On the 1st December the Commissioner of Police gave a written order of sanction to the "prosecution" of the accused u/s 29 of the Indian Arms Act. A chalan in the case was eventually submitted on February 3, 1947. On the 1st December the Commissioner of Police gave a written order of sanction to the "prosecution" of the accused u/s 29 of the Indian Arms Act. A chalan in the case was eventually submitted on February 3, 1947. The question involved is at what point of time are proceedings "instituted" within the meaning of Section 29 of the Indian Arms Act. Ordinarily, it has always been assumed that the point of time referred to was when the prosecution was started by the submission of a chalan in the case on which the Court could take cognisance. No case has been brought to our notice in which any other view has been taken. The difficulty arises, however, from the terms of Section 30 of the Act, in which it is laid down that, where a search is to be made in the course of "any proceeding "instituted in respect of an offence punishable u/s 19, "Clause (f)," an officer of a certain rank must make the search. The phrase used in this section is exactly the same as that used in Section 29. It is now contended before us that, therefore, as the two phrases must have the same meaning in the two sections and as the phrase in Section 30 means that the "institution" of proceedings takes place sometime before the search is made, therefore, the ordinary interpretation so far followed u/s 29 is not correct. The proceedings in this case were instituted when Inspector Jennings, acting on information, set out to catch the accused with the revolver. 5. It is further argued, relying on the case of Basdeo Agarwalla v. King Emperor (1945) F.C.R. 93 that all proceedings in the absence of sanction are null and void and therefore, the whole proceedings including the trial are bad. 6. The only case brought to our notice in which the effect of Section 30 on the interpretation of Section 29 of the Arms Act is considered is the case of Emperor v. Kutru (1925) ILR 47 All. 575. There, the question was considered by Boys J., who held that the same meaning must, in the absence of any reason to the contrary, be given to the terms in Section 29 and in Section 30. 575. There, the question was considered by Boys J., who held that the same meaning must, in the absence of any reason to the contrary, be given to the terms in Section 29 and in Section 30. He then, argued that, as it was clear that the terms in Section 29 had reference to the actual institution of the proceedings in Court, the same meaning must be given to the words in Section 30. We find some difficulty in accepting this reasoning or the other reasons on which that view is based; for, to us it appears its effect is to make the provisions of Section 30 valueless. If Section 30 only applies in respect of searches made after proceedings have been instituted in the Court by a chalan being submitted, that is to say, after the investigation is ordinarily complete, then, in practice, it will have almost no application at all. In our opinion, it is clear that the object of Section 30 is to restrict the powers of the police in starting proceedings and searching for possession of arms thought to be held contrary to the provisions of the Arms Act and clearly it must relate to the earliest search by which the proceedings are "instituted." 7. In the case of Krishna Chandra Deb Vs. Rajendra Narayan Bhanj Deo and Another, AIR 1936 Patna 465 the point came up for consideration. There, the sanction was given after a search and also after the chalan had been submitted. It was contended tinder Section 29 of the Arms Act that the proceedings were bad, because the sanction had been received after the chalan had been submitted, but Fazul Ali J. held that the proceedings after receipt of the chalan were good. There was also a contention u/s 30 that the search was defective as it had not been held by a police-officer qualified under that section. The learned Judge dealt with this last question and held that the provisions of Section 30 had been disregarded, but he never discussed or realised that there was any difficulty in that the search certainly was conducted before the receipt of the sanction and of course before the chalan was submitted,--the point of time which he had taken in dealing with Section 29 as being the time of institution of the proceedings. He assumed contrary to the view in Emperor v. Kutru (supra) that Section 30 applied to the search and in effect assumed that the time of institution of proceedings u/s 29 was the date of submission of the chalan, while at the same time he assumed that, u/s 30, the time of initiation of the proceedings was at some earlier time prior to the search. 8. In the case of Ismail Khan v. Emperor (1927) 46 C.L.J. 35 Suhrawardy and Cammiade JJ. held that proceedings were instituted in Court when the accused was placed before it with the chalan. The accused in that case was arrested in Calcutta in somewhat similar circumstances to those in the present case on the evening of the 6th September. He was sent up with the chalan on the following day, but, in the meantime, the sanction of the Commissioner of Police had been obtained. No question as to the effect of Section 30 was considered. 9. In the case of King Emperor v. Ghulam Nabi (1927) ILR 6 Pat. 768 it was similarly held that "proceedings" in Section 29 means legal proceedings in Court and not searches or arrests and investigations made by the police in exercise of the powers conferred upon them by the Code of Criminal Procedure or any other law and reference was also made to the case of Emperor v. Kutra, referred to above. 10. Our opinion is that the same meaning must be given to the phrases in Section 29 and in Section 30, but that, in view of the terms of Section 30, there can be no doubt that the institution of the proceedings refers to the earlier stage when proceedings are started by the police in connection with the case, before they proceed to search, acting on information. 11. It remains to consider what is the effect where the sanction, as in the present case, has been given at a later stage. There are two questions: (i) the effect as regards the evidence of the search and (ii) the effect on the trial itself. In the case of Basdeo Agarwalla v. King Emperor, referred to above, the provisions considered were those of Clause 16 of the Drugs Control Order, 1943, to the effect that-- no prosecution for any contravention of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government. 12. In the case of Basdeo Agarwalla v. King Emperor, referred to above, the provisions considered were those of Clause 16 of the Drugs Control Order, 1943, to the effect that-- no prosecution for any contravention of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government. 12. The use of the word "prosecution" there left no ambiguity as to the point of time involved in that case. There, the accused had been sent up with a chalan on May 2, 1944 and the sanction was not received until the 16th May. It was held by the Federal Court that the delay was not merely a technical defect and that a sanction after a prosecution had been started being a very different thing from a sanction prior to prosecution, it must be held that-- The provisions of the clause requiring sanction should be observed with complete strictness and where prosecutions have been initiated without the requisite sanction, they should be regarded *as completely null and void and if sanction is subsequently given, the new proceedings should be commenced ab initio. Only so can the protection intended for the citizen be assured. 13. Now, if all the proceedings in the present case are to be held null and void for the absence of sanction prior to the search, it is obvious that the accused must escape altogether. In other words, in all cases u/s 19(f) of the Arms Act started without a prior sanction the accused will escape scot-free. In the case of Basdeo Agarwalla it was possible for the accused to be tried again on a prior sanction by institution of further proceedings completely b initio, but it is not possible to reinstitute a search, or to get the accused to commit the offence over again so that he may be duly caught and sent up. Therefore, the principle applied in that case, if applied here, would result in reductio ad absurdum. It may also be mentioned that there must arise many cases where the police may get information as to possession of arms where prompt action will be required and if they have to obtain the sanction of the District Magistrate or the Commissioner of Police, as the case may be, it will be impossible for them to act in time. It may also be mentioned that there must arise many cases where the police may get information as to possession of arms where prompt action will be required and if they have to obtain the sanction of the District Magistrate or the Commissioner of Police, as the case may be, it will be impossible for them to act in time. In such cases the only possible course the police can take will be to act promptly and obtain sanction subsequently, although thereby they may fail to follow strictly the provisions of Section 29 of the Indian Arms Act. An interpretation of the Act which in many cases will necessarily result in a complete failure of justice must be avoided unless it is absolutely necessary. We, therefore, think that the principle applied in Basdeo Agarwalla's case in respect of institution of a prosecution cannot be applied in the same way to institution of proceedings as referred to in Section 29 of the Arms Act as interpreted by us now. 14. The Federal Court stressed that it was not possible in Basdeo Agarwalla's case to sever the proceedings prior to May 24 from those that occurred on and after that date. In the present case, a clear severance is possible between the proceedings at the investigating stage and the proceedings in Court. The sanction here was received long before the chalan was sent up and before the Court had to take cognisance of the matter and we hold that all proceedings after February 3, 1947, were valid. 15. So far, therefore, the trial itself was concerned, this point is of no benefit to the accused. 16. So far as the matter of the effect of the want of prior sanction on the evidence of the search is concerned, the point was not raised at the trial and no mention, therefore, was made of it, but clearly the matter is of such a technical nature that the, absence of the sanction could not have affected the value given by the jury to the evidence of the search itself. It has been held in a number of cases, including some of those mentioned above, that it does not affect the actual admissibility of the evidence as to the search. 17. It has been held in a number of cases, including some of those mentioned above, that it does not affect the actual admissibility of the evidence as to the search. 17. The next point taken is that the search was bad, because it was not held by an officer duly qualified as required u/s 30 of the Arms Act. According to notification No. 10673P., dated November 12, 1914, all officers not below the rank of a Sub-Inspector have been empowered under that section. There is, therefore, nothing in this point. 18. The last point taken on behalf of the accused is that the learned Judge's directions in regard to the matter of the search list are defective. The search-witnesses, when called, did not support the prosecution to the extent of saying that they were actual witnesses of the finding of the revolver and cartridges on the accused. They came at a somewhat later stage while the accused was on the road. They were shown the articles and they signed the search-list. There was, therefore, no strict compliance with the provisions of Section 103 of the Code of Criminal Procedure as regards the search. Incidentally, from the nature of the circumstances, it was practically impossible to get independent search-witnesses prior to this transaction. So the police apparently did the next best thing by collecting search-witnesses after they got their offender. The learned Judge on this point said: In the course of argument, the learned advocate appearing for the accused has contended that the search-list (Ex. 2) is illegal because it was not witnessed by two independent witnesses as required by Section 103 of the Code of Criminal Procedure to which he drew your attention. Whether the two search-witnesses did or did not actually witness the search as the prosecution claim is a question of fact which you will decide, but I must point out that the provisions of Section 103 do not really apply to a search of the present nature, which strictly is a search under s, 51 of the Code and that section does not prescribe the preparation of a search-list. If therefore you are satisfied that there was a search of the accused its validity will not be nullified merely because you may not be satisfied that the two search-witnesses were present at the time. If therefore you are satisfied that there was a search of the accused its validity will not be nullified merely because you may not be satisfied that the two search-witnesses were present at the time. The real question is whether, quite apart from the search-list, the money and the cartridges were found with the accused as stated by the police witnesses and the driver Panja. 19. The question as to whether the evidence of the search was admissible or not was one entirely for the Judge. The question whether Section 103 of the Code of Criminal Procedure applied or Section 51 of the Code applied to the search was one for the Judge himself to decide and it was then for him to give the jury directions accordingly. Apparently, the Judge decided that this was a search under the provisions of Section 51 of the Code, but he certainly did not make it clear as to which section applied, in other words, whether there was any question of a legal defect in the search or not. Incidentally we may say that it seems doubtful whether Section 103 of the Code, in any case, had any application to the present matter in view of the fact that the search was made by the Calcutta police to whom the provisions of the Code of Criminal Procedure largely do not apply [Section 1(2)(a)]. Section 103 directly applies only to searches under Ch. VII of the Code of Criminal Procedure. It also applies to searches made u/s 165 of the Code by virtue of the terms of Sub-section 4 of that section. The provisions as to searches by the Calcutta police are to be found in the Calcutta Police Act itself. 20. The most that can be urged on behalf of the accused is that the learned Judge might have given some slightly greater emphasis to his caution as to the evidence of the search, if he had held clearly that Section 103 or Section 80(c) of the Calcutta Police Act applied to the search and that their terms had not been fully complied with. On the other hand, he certainly might very fairly have pointed out the practical difficulty of the police in a matter of this nature in going along already armed with independent witnesses to witness the capture of the present accused. On the other hand, he certainly might very fairly have pointed out the practical difficulty of the police in a matter of this nature in going along already armed with independent witnesses to witness the capture of the present accused. If the prosecution case is a true one, obviously they were angling very delicately for a very wily fish and it certainly was not an occasion at which loud noises should have been made by the angler. 21. In the circumstances, we think that the directions given by the learned Judge substantially did justice to the accused and such error as can be held to have been made by him in the matter cannot in any way have affected the jury's verdict. 22. The only other matter urged before us was the question of sentence. The learned Judge has given special reasons why he considered a severe sentence was necessary. It is true, circumstances in Calcutta have changed for the better since May last, when the sentence was passed, but we do not think that we should interfere with the sentence. 23. The result is that the appeal is dismissed.