State of Kerala v. P. Thomas — 1961 DIGILAW 424 (KER)

Judgment :- 1. This appeal is filed by the State against the order passed by the Sessions Judge of Kozhikode acquitting the accused who had been convicted by the Dist. Magistrate of Kozhikode for an offence under S.19(f) of the Indian Arms Act. 2. On 16-1-60 Pw-1 a Headconstable attached to Kodancherry police outpost proceeded for a prohibition raid. He searched the house of the accused and from inside the house an unlicensed gun M.O.1 was recovered. Pw. 2 was present at the time of the search and recovery and has attested Ex. P-1. The Sub Inspector after obtaining sanction from the Addl. Dist. Magistrate launched the prosecution against the accused. 3. The learned Dist. Magistrate accepted the evidence of Pw-1 regarding the recovery of the unlicensed gun and convicted the accused. In appeal the learned Sessions Judge was not prepared to accept the uncorroborated testimony of the Headconstable, Pw-2 having turned hostile. The learned judge found that the prosecution had not succeeded in proving that the accused had in his possession or under his control M.O.1. He also held that sanction for the prosecution was not given by a competent authority as contemplated under S.29 of the Arms Act and that the trial was hence bad. The conclusions of the learned Sessions Judge on both these points have been challenged in this appeal. 4. A valid sanction under S.29 of the Arms Act is an essential prerequisite for the initiation of the proceedings and proceedings initiated without such a sanction will vitiate the entire trial and the defect of jurisdiction cannot be cured under S.537 Crl. P.C. The argument raised by the learned counsel for the defence is that the Additional District Magistrate who had accorded sanction in this case cannot be considered as a Magistrate of the district who alone is authorised under S.29 to grant sanction and since such a person has not accorded sanction the whole trial is rendered illegal and the conviction and sentence cannot be maintained. 5. S.29 of the Arms Act reads as follows: "Where an offence punishable under S.19, clause (f) has been committed ... no proceedings shall be instituted against any person in respect of such offence without the previous sanction of the Magistrate of the district or, in a presidency town, of the Commissioner of Police." 6. 5. S.29 of the Arms Act reads as follows: "Where an offence punishable under S.19, clause (f) has been committed ... no proceedings shall be instituted against any person in respect of such offence without the previous sanction of the Magistrate of the district or, in a presidency town, of the Commissioner of Police." 6. We have now to see the provisions of S.10 of the Criminal Procedure Code. The relative portion of S.10, Crl. Procedure Code is as follows: "(1) In Every district outside the Presidency-towns the State Government shall appoint a Magistrate of the First Class, who shall be called the District Magistrate. (2) The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code, or under any other law for the time being in force, as the State Government may direct. xxx xxx xxx xxx S.10 (2) Cr. P. C., distinctly shows that the State Government may appoint any Magistrate of the first class to be an Additional District Magistrate who will have the power or any of the powers of the District Magistrate under the Crl. Procedure Code or under any other law for the time being in force as the State Government may direct. The Additional District Magistrate who granted sanction in this case has by notification been invested with all the powers as contemplated within the scope of Sub-section (2) of S.10. Such a person so appointed could, not only exercise the powers of the District Magistrate under the Criminal Procedure Code, but also under any other law for the time being in force. The Indian Arms Act is a law in force at the time and therefore the Additional District Magistrate invested with the powers of a District Magistrate under S.10 (2) could exercise the powers of the Dist. Magistrate under S.29 of the Arms Act to accord sanction for prosecution. 7. This question whether the Addl. District Magistrate could grant sanction had come up for consideration in The State v. Hussain Mirdha (AIR. 1960 Assam 45). In that case the sanction was accorded by the Additional District Magistrate and it was held that: "Arms Act comes within the range of expression "any other law" mentioned in S.10 (2) Cr. 7. This question whether the Addl. District Magistrate could grant sanction had come up for consideration in The State v. Hussain Mirdha (AIR. 1960 Assam 45). In that case the sanction was accorded by the Additional District Magistrate and it was held that: "Arms Act comes within the range of expression "any other law" mentioned in S.10 (2) Cr. P. C. Authorisation of the Additional District Magistrate under S.10 Cr. P.C., is therefore competent for the purpose of granting sanction under S.29 of the Arms Act. The District Magistrate is not a persona designata for the purpose of exercising that power." 8. Reference has been made in that decision to the unreported case in (Panchu Gopal Ghosh v. The King, Criminal Appeal 114/48) mentioned in AIR. 1955 NUC (Cal) 546 decided by Roxburgh and Blank, JJ., where it was held that sanction under S.29 of the Arms Act given by the Additional District Magistrate authorised under S.10 of the Criminal Procedure Code to exercise powers of the District Magistrate under any other law for the time being in force is a valid sanction, the District Magistrate authorised to give sanction not being a persona designata. 9. Another case to which reference may be made is the case in Abdur Rahiman v. Emperor (AIR. 1937 Mad. 637). There the point which arose for decision was whether an Additional District Magistrate could under S.10 (2) Cr. P. C., exercise the powers of the District Magistrate as conferred under S.8 of the Child Marriage Restraint Act XIX of 1929 to try a case under that Act. S.8 of that Act provides that notwithstanding anything contained in S.190 Criminal Procedure Code 1898, no court other than that of a Presidency Magistrate or a District Magistrate shall take cognizance of or try any offence under this Act. It was argued that no other Magistrate except the District Magistrate was competent to take up the case for trial. The contention was negatived and it was held: "Since in the above section there was mention only of S.190 Cr. It was argued that no other Magistrate except the District Magistrate was competent to take up the case for trial. The contention was negatived and it was held: "Since in the above section there was mention only of S.190 Cr. P. C., and not of S.10(2), the operation of this subsection was kept intact, which implied that an Additional District Magistrate so authorised could exercise the powers of the District Magistrate for the purpose of S.8, Child Marriage Restraint Act and the power of trial was not, confined to the District Magistrate alone." So under S.8 of that Act read with S.10 (2) Cr. P.C. the Additional District Magistrate who has been given all the powers of the District Magistrate is empowered to try the case under the Child Marriage Restraint Act. 10. Gyani Kartar Singh v. Rex (51 Crl. L.J. 771) is another case where the same question arose for consideration. There an order under S.4, Punjab Public Safety Act was passed by the Additional District Magistrate and for disobedience of that order the accused was convicted under S.19 of the Act. The contention raised was that the order could not have been issued by an Additional District Magistrate as the order under S. 4 could be issued either by the Provincial Government or the District Magistrate and it was held: "By virtue of S.10 (2), Cr. P. C., an Additional District Magistrate has powers to pass orders under S.4 of the Act." 11. Emperor v. Amar Singh (AIR. 1938 Lahore 796) is another case which could usefully be referred to. That was a case of tendering pardon to an approver. The head-note to the case is as follows: "The term "District Magistrate" in S.337 (1) includes an Additional District Magistrate empowered by the Local Government under S.10 (2) to exercise all the powers of a District Magistrate and a pardon tendered under S.337 (1) by such Additional District Magistrate without the sanction of the District Magistrate is not invalid. The Additional Magistrate in tendering such pardon, is not in any way affected by the Proviso to S.337 (1) and is in his own right empowered under the law to tender the pardon. The Additional Magistrate in tendering such pardon, is not in any way affected by the Proviso to S.337 (1) and is in his own right empowered under the law to tender the pardon. It was not the intention of the Legislature in using the definite article 'the' before the District Magistrate in S.337 to specify the District Magistrate appointed as such and not the Additional District Magistrate empowered as such." 12. The learned counsel appearing for the accused cited the decision in Thangjam v. Union Territory, Manipur (AIR. 1959 Manipur 15). In that case sanction under S.29 was accorded by the Additional District Magistrate. It was pointed out that the Additional District Magistrate who gave sanction did not have the powers of a District Magistrate for the purpose of S.29 of the Indian Arms' Act. The notification produced in court showed clearly that the sanctioning Additional District Magistrate was invested with the powers of a District Magistrate only under the Criminal Procedure Code and not under any other law, and it was on that ground that it was held that he could not exercise the powers of District Magistrate under S.29 of the Indian Arms Act. That decision has no application to the facts of this case as the Additional District Magistrate here had been invested with all the powers of a District Magistrate including that under any other law in force. 13. The learned counsel also cited the decision in Prabhulal Ramlal v. Emperor (AIR. 1944 Nag. 4) That case refers to the delegated powers and not to powers vested by virtue of legislative enactment. The head-note reads: "The word "Law" in "any other law" occurring in S.10 (2) of the Criminal Procedure Code is not meant to include an executive order but only legislative enactments, and rules, regulations or orders which have the force of law and consequently the District Magistrate, who acts for the Provincial Government under the powers conferred upon him by the Provincial Government by an executive order, cannot be regarded as acting under any "law" as such." Similarly in Mulchand v. Emperor (AIR. 1948 All. 281) for the same reasons it was held that the Addl. District Magistrate with powers under S.10 (2) could not exercise the powers of a District Magistrate. 14. 1948 All. 281) for the same reasons it was held that the Addl. District Magistrate with powers under S.10 (2) could not exercise the powers of a District Magistrate. 14. I may in this connection refer to a recent decision of the Supreme Court in Central Talkies Ltd. Kanpur v. Dwarka Prasad (AIR. 1961 S.C. 606). In that case their Lordships were considering the legality of a permission granted by the Additional District Magistrate under S.3 of the U.P. (Temporary) Control of Rent and Eviction Act-Act 3 of 1947 to file a suit for eviction of a tenant. The contention was that the suit was incompetent because, the permission of the District Magistrate as required by S. 3 had not been obtained. It was held: "An Additional District Magistrate who has been appointed as such by a notification under S.10 (2) Cr. P. C., whereunder he is invested with all the powers of the District Magistrate under that code as well as under any other law for the time being in force is competent to deal with an application under S.3 of the U. P. (Temporary) Control of Rent and Eviction Act for permission to file a civil suit, without special authorisation from the District Magistrate," The provision in S.10 (2) Cr. P.C. is a specific provision to the contrary within the meaning of S.1 (2) Cr. P. C., and therefore an Additional District Magistrate must be regarded as possessing the powers of the District Magistrate under any other law including the U.P. Act 3 of 1947." Their Lordships also held that a District Magistrate mentioned in S.3 of the U.P. Act is not a persona designata. 15. The finding of the learned Sessions Judge in this case that an Additional District Magistrate appointed under S.10(2) with all the powers of the District Magistrate, cannot be said to have been invested with jurisdiction to accord sanction for prosecution under the Indian Arms Act is, therefore, not correct. The sanction Ex.P3 accorded by the Additional District Magistrate is, therefore, proper and the proceedings have been validly instituted. 16. Now coming to the merits of the case the learned District Magistrate in spite of certain irregularities said to have been committed in the conduct of the search has chosen to believe the evidence of Pw-1 with regard to the recovery of the unlicensed gun from the house of the accused. 16. Now coming to the merits of the case the learned District Magistrate in spite of certain irregularities said to have been committed in the conduct of the search has chosen to believe the evidence of Pw-1 with regard to the recovery of the unlicensed gun from the house of the accused. The learned Sessions Judge, in appeal, rightly rejected the case put forward by the accused and disbelieved the witnesses examined in support of that case. The case set up by the accused is on the face of it absurd and fantastic. But in spite of this the learned judge held that the prosecution has not proved by reliable evidence that Pw.1 made a search of the accused's house and took into custody M. 0.1 from inside the house. In short the learned judge was of the view that it would be unsafe to act on the uncorroborated testimony of the Headconstable. 17. Whatever might have been the view that I myself would have taken on the evidence, I see no reason, sitting in appeal against the order of acquittal, to differ from the conclusions of the learned Sessions Judge. The fact that on examining the evidence the appellate court might have come to a different conclusion cannot justify its interference with an order of acquittal. It is only when there are substantial or compelling reasons to interfere with the conclusions of the judge that this court would interfere. This is a case where the prosecution could have led other evidence to corroborate the evidence of Pw-1, but they did not choose to do so. The benefit of doubt should, therefore, go to the accused and in an appeal against acquittal the appellate court must take into account the double presumption of innocence. For these reasons I feel that I would not be justified in interfering with the order of acquittal. The appeal filed by the State is dismissed. Dismissed.