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1987 DIGILAW 324 (PAT)

Amrendra Singh v. State of Bihar

1987-09-27

S.N.JHA

body1987
JUDGMENT : S.N. Jha, J.-This application has been filed for quashing an ORDER :dated 9.8.1981/10.8.1981, whereby cognizance has been taken against the petitioners under Section 25 (I-A), 26 and 34/ 26 of the Arms Act (in short 'Act'). 2. The facts relevant for the disposal of this application, in short, are that in the evening of 22.8.79 one Mahendra Kamat and Tapeshwar Kamat of village Tuniahi entered into the house of the petitioner for committing theft. They were detected by petitioner no. 1, who raised hullah on which the aforesaid two persons took to their heels and after hot chase those two persons were apprehended by petitioner no. 1 and other members of his family as well as the villagers. It is said that in course of chasing, petitioner no. 1 also received a Lathi injury on his head. On search a country made pistol was recovered from the possession of Mahendra Kamat and they were brought in that police station alongwith the said pistol. 3. On the written statement of petitioner no. 1, the police instituted a case under Section 457 and 380 of the Indian Penal Code (in short 'Penal Code') and under Section 25 (1-A) and 26 of the Act, against the aforesaid two persons. 4. During the course of investigation, the case was found to be false and on the statement of Mahendra Kamat a case was instituted against these two petitioners under Section 25(1-A) and 26 of the Act. It appears that the case was supervised by the Superintendent of Police personally and he directed the Investigating Officer and the Deputy Superintendent of Police to produce witnesses before him to make some querries, but no witnesses were produced before him. In the meantime Madhepura was separated and was made out a new independent district. The new Superintendent took the charge and the police after investigation submitted charge sheet, on the basis of which the cognizance was taken by the impugned ORDER :. 5. Mr. Pashupati Nath Jha, learned counsel appearing on behalf of the petitioners, has submitted that the cognizance under Section 25 (1-A) and 26 of the Act is illegal and fit to be quashed as no prosecution regarding an offence under Section 25 (1-A) and 26 of the Act can be instituted without the previous sanction of the District Magistrate under Section 39 of the Act. 6. 6. In ORDER :to appreciate the contention raised on behalf of the petitioners, it is necessary to examine some provisions of the Act. Section 39 of the Act, reads as follow : "No prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the District Magistrate:'' Section 3 (i) of the Act, lays down that : – "No person shall acquire, have in his possession, or carry any fire-arm 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......... " Section 25 (1-A) says that : "Whoever has in contravention of a notification issued under Sec. 24 A in his possession or in contravention of a notification issued under Sec. 24-B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than one year, but which may extend to five years and shall also be liable to fine." 7. Mr. Jha streneously argued that no prosecution can be instituted against any person regarding any such offence without previous sanction of the District Magistrate. According to him a proceeding started without sanction is null and void. The requisite sanction is a condition precedent for the institution of a proceeding in respect of an offence of this nature. 8. In the instant case the fardbeyan of the said Mahendra Kamat, on which the case was instituted, was recorded as far back as 24.8.1979 and cognizance was taken in the year 1981. Till then no sanction was received by the prosecution. It is admitted fact that no sanction was obtained by the prosecution tilt the date of cognizance. 9. The learned counsel appearing on behalf of the State submitted that sanction can be obtained even during the course of trial and for want of sanction, an ORDER :of cognizance may not be quashed by this Court. The point for consideration is whether the sanction is required before the institution of the case or it can also be obtained during the course of trial prior to the conclusion of the case. Section 39 of the Act has laid down that no prosecution can be instituted without the previous sanction of the District Magistrate. The point for consideration is whether the sanction is required before the institution of the case or it can also be obtained during the course of trial prior to the conclusion of the case. Section 39 of the Act has laid down that no prosecution can be instituted without the previous sanction of the District Magistrate. It is quite clear that the prosecution referred to in Section 39 of the Act must be a criminal case started before a criminal court for adjudication of the charge or the allegations made against a person on the basis of the evidence on oath and the said court must be authorised to take cognizance in accordance with law. The institution of a "prosecution", where the case is started by the police, can be by submission of a report in final form in accordance with section 173 of the Code and not before that. 10. In the instant case, the police submitted charge-sheet on the basis of which cognizance was taken. It was contended on behalf of the petitioners that the accord of sanction is not a mere formality. It has to be accorded or refused after applying judicial mind to the entire facts and circumstances of the case which can only be collected during the course of investigation by the investigating agency. It is, therefore, necessary that before taking cognizance, the sanction of the District Magistrate must be obtained in a case under section 25 (1-A) and 26 of the Act. 11. In this connection reference may be made to a division Bench decision in the case of Girija Suri v. Emperor (A. I. R. 1946 Patna 160). In the said case, the application was filed for setting aside the conviction on behalf of Girija Suri who had been convicted under section 19F of the Arms Act and sentenced to 18 months rigorous imprisonment. The charge against the petitioner was that he was found in possession of two revolvers, two cartridges and one empty revolver case without licence or lawful authority. The charge-sheet was submitted under section 19F of the Arms Act. On 12th July, 1944 an ORDER :was passed to this effect : – "Summon prosecution witnesses on receipt of District Magistrate's sanction." It appears that on 16.8.1944, the District Magistrate's sanction was received. A point was raised that conviction was bad because there was no previous sanction of the District Magistrate. On 12th July, 1944 an ORDER :was passed to this effect : – "Summon prosecution witnesses on receipt of District Magistrate's sanction." It appears that on 16.8.1944, the District Magistrate's sanction was received. A point was raised that conviction was bad because there was no previous sanction of the District Magistrate. Their Lordships while considering this question, held that proceedings against the accused were clearly instituted without the requisite previous Sanction under section 29 of the old Act, which was the corresponding section to section 39 of the Act and, therefore, it was null and void relying on a decision of the Fedral Court (A. I. R. 1945 F. C. 16). 12. In the aforesaid case, though sanction of the District Magistrate was, no doubt, received after cognizance on 16.8.1944 yet it was held that the prosecution was null and void for want of requisite sanction. Relying on this decision, I find that the prosecution against the petitioners without the previous sanction of the District Magistrate is illegal and fit to be quashed. In that view of the matter, I am unable to agree with the submissions of the learned State counsel that the sanction can also be obtained during the course of trial, because in the absence of sanction, the trial and the institution of the prosecution for an offence under section 25 (1-A) and 26 of the Act cannot be regarded as a mere technical defect. It is not an empty formality and should not be so regarded either by the police or by the Court. 13. Quite apart, the case was instituted as far back as 1979 and the cognizance was taken after two years in the year, 1981. Therefore, in view of the inordinate delay, the matter has become stale. Now the prosecution may also feel difficulty in substantiating the allegations against the petitioners after a lapse of so many years. In that view of the matter, in my opinion, the termination of the criminal proceedings in that way would secure the ends of justice. 14. For the reasons stated above, I allow this application and quash the impugned ORDER :.