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Allahabad High Court · body

1967 DIGILAW 378 (ALL)

Chandra Pal v. State of U. P.

1967-10-19

S.D.SINGH

body1967
ORDER S.D. Singh, J. - This application in revision arises out of a case u/s 25(1)(a) of the Indian Arms Act, 1959. The Applicant was found possessed of a country made pistol and some live cartridges and of course there was no licence for the same. He was convicted by the Sub Divisional Magistrate, Koil, and sentenced to six-months rigorous imprisonment and his appeal against his conviction was dismissed by the Additional Sessions Judge, Aligarh. 2. The only point raised during the hearing of this revision was that for a prosecution u/s 25(1)(a) of the Arms Act (54 of 1959) it was necessary for the prosecution to obtain the sanction of the District Magistrate u/s 39 of the aforesaid Act, which sanction had not been obtained and that, therefore, the prosecution and subsequent conviction was invalid. 3. What happened was that the Investigating Officer actually obtained the sanction but it was given by the Additional District Magistrate (E) and the point which arises for decision in this revision is whether an Additional District Magistrate was to be treated as District Magistrate for purposes of Section 39 and could consequently give the necessary sanction. 4. Reliance on behalf of the Applicant was placed on two decisions of this Court, Mani Shanker v. State 1967 AWR 633 and Jawahar v. State 1967 AWR 294 in which two Single Judges of this Court have taken the view which is now being put forward on behalf of the Applicant. The State counsel has, on the other hand, relied upon a Division Bench decision of the Bombay High Court, State v. Bhim Sha Chanbasappa Kore AIR 1962 Bombay 188 which is a case u/s 29 of the Arms Act (11 of 1878) but the point decided in the case is the same. 5. An Additional District Magistrate is appointed Under Sub-section (2) of Section 10 of the Code of Criminal Procedure and under that sub-section he "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". 5. An Additional District Magistrate is appointed Under Sub-section (2) of Section 10 of the Code of Criminal Procedure and under that sub-section he "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". It is clear, therefore, that unless the State Government has given any direction Under Sub-section (2) of Section 10 of the Code of Criminal Procedure an Additional District Magistrate cannot exercise any of the powers of the District Magistrate and if any directions have been given by the State Government, the Additional District Magistrate can exercise only such of the powers of the District Magistrate as may have been specified, by the State Government, unless the notification is such which entitles the Additional District Magistrate to exercise all the powers of the District Magistrate. 6. This has also been the view taken by Gyanendra Kumar, J. in Mani Shanker v. State (supra) and by Gangeshwar Prasad, J. in Jawahar v. State (supra). 7. No notification was relied upon on behalf of the State in support of the contention that the Additional District Magistrate, Aligarh, was authorised by the State Government to exercise any of the powers of the District Magistrate under any law for the time being in force, or, in any case, u/s 39 of the Arms Act, 54 of 1959, or even u/s 29 of the old Arms Act, 11 of 1878. Gyanendra Kumar, J. has referred to Rule 2(f) of the Arms Rules, 1962, under which the expression "District Magistrate" includes an Additional District Magistrate or any other officer specially empowered in this behalf by the Government of the State concerned. It may be urged that the expression "specially empowered in this behalf by the Government, of the State concerned" qualifies the expression "any other officer" and not the expression "Additional District Magistrate" in this rule and if this rule is interpreted in that manner, then for all purposes an Additional District Magistrate would be included in the definition of a "District Magistrate" it can then be said that an Additional District Magistrate could without any other authorization exercise the powers of a District Magistrate u/s 39 of the Arms Act aforesaid, but, as has been pointed out by the Division Bench of the Bombay High Court in State Vs. Bhimsha Chanbasappa Kore, AIR 1962 Bom 188 the provisions of the Arms Act, 11 of 1878, did not empower the Government to make a rule for the interpretation of the expression "District Magistrate" for purposes of the Act. The same view has been taken in this Court by Gangeshwar Prasad, J. in Jawahar v. State (supra). This was a case under the Arms Act, 54 of 1959, itself. The provision for making of the rules under the Act is the one contained in Section 44, and it was pointed out by him that the expression "District Magistrate" as used in Section 39 of the Act could not have the extended meaning which has been assigned to it by the definition given in Rule 2(f) of the rules. The definition of the expression "District Magistrate" as given in the aforesaid rule would be available for application only in the interpretation of the rules themselves and not that of the Act. In my opinion also, therefore, the Additional District Magistrate could not exercise the functions of the District Magistrate u/s 39 of the Arms Act of 1959 and any sanction given by him for the prosecution of the Applicant would be of no avail. 8. I may refer to some of the cases relied upon by the Learned Counsel appearing for the State in support of the view that the expression "District Magistrate" should include an Additional District Magistrate. In the Bombay case to which reference has already been made, State Vs. Bhimsha Chanbasappa Kore, AIR 1962 Bom 188 , Naik and Abhyankar, JJ. have taken the view that when an Additional District Magistrate is appointed Under Sub-section (2) of Section 10 of the Code of Criminal Procedure he would automatically have the power of a District Magistrate under the Code or under any other law, but no reference is made in the judgment to the words "as the State Government may direct" in Sub-section (2) of Section 10 of the Code of Criminal Procedure which expression makes a word of difference and gives Sub-section (2) of Section 10 a different meaning altogether. 9. In State of Uttar Pradesh Vs. 9. In State of Uttar Pradesh Vs. Ratan Shukla, AIR 1956 All 258 a Division Bench of this Court has taken the view that an Additional District Magistrate can exercise the powers of a District Magistrate u/s 160 of the UP Municipalities Act II of 1916, but it appears to have been assumed in that case that the notification by which the Additional District Magistrate was appointed empowered him to exercise either all the powers of the District Magistrate or at least those u/s 160 of the UP Municipalities Act. On p. 266 it is observed: "It was not alleged that he (the Additional District Magistrate) did not have all the powers of a District Magistrate and I proceed on the assumption that he had all the powers". This question, therefore, cannot even be said to have been decided in that case. 10. In State v. Hussain Mirdha AIR 1960 Ass 45 there is a specific mention that the Additional District Magistrate was authorised "to exercise such powers of the District Magistrate as came within the scope of Sub-section (2) of Section 10". 11. The last case relied upon on behalf of the State is the Supreme Court decision in Central Talkies Ltd. v. Dwarka Prasad 1964 AWR 238 SC which is a case under the UP (Temporary) Control of Rent and Eviction Act. Here also the powers of the District Magistrate were exercised by the Additional District Magistrate in giving sanction for the filing of a suit for ejectment u/s 3 of the aforesaid Act, but the exercise of these powers of the District Magistrate was under specific authorisation by the Government itself. The Additional District Magistrate was "to be the Additional District Magistrate of Kanpur district with jurisdiction extending over the whole of the said district and with all the powers of a District Magistrate under the said Code and under any other law for the time being in force." It is, therefore, clear that there was specific authorization by the State Government even in this case. None of the cases relied upon by the Learned Counsel for the State is of any help in the decision of this revision. 12. In view of what I have said earlier this application in revision is allowed. None of the cases relied upon by the Learned Counsel for the State is of any help in the decision of this revision. 12. In view of what I have said earlier this application in revision is allowed. The conviction of the Applicant u/s 25(1)(a) of the Arms Act 54 of 1959 and the award of six months' rigorous imprisonment thereunder are set aside. The Applicant is on bail. He need not surrender to his bail bonds which will stand cancelled.