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2009 DIGILAW 954 (KER)

Prakash v. State Of Kerala

2009-10-08

K.T.SANKARAN

body2009
Judgment : This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the first accused in Crime No.643 of 2009 of Vizhinjam Police Station. 2. The offences alleged against the accused persons are under Section 3 read with Section 25(1)(a) of the Arms Act and Sections 52A and 109 read with Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is the following: The police got information that one Kumar was making attempt to commit suicide since his wife started residing with the first accused, namely, Prakash, in a rented house. Kumar went to that house and requested for returning certain documents. The second accused, Saji Devi, who is the wife of Kumar, said that no document was with her. The children of Kumar said that the documents are kept in the almirah. Kumar inspected the almirah. At that time he found a country made revolver kept concealed in the almirah. Kumar gave information to the police. The police conducted a search. The prosecution alleges that accused Nos.1, 3 and 4 together took the house on rent from the land owner. It is also alleged that accused No.4 harboured the second accused. 4. Learned counsel for the petitioner submitted that even if all the allegations levelled against the petitioner by the prosecution are taken as true, no offence under Section 25 (1)(a) of the Arms Act would be made out. The counsel refers to the definition of "arms" in Section 2(c) and the definition of "firearms" in Section 2(e) of the Arms Act, 1959. It is submitted that there is no allegation that the petitioner has manufactured, sold, transferred, converted, repaired, tested or exposed or offered for sale or transfer or has possessed for sale, transfer, conversion, repair etc. any arms and ammunition in contravention of Section 5 and, therefore, Section 25(1A) is not attracted. 5. Learned Public Prosecutor submitted that the offence committed in the case is really under Section 25(1A) of the Arms Act. Section 25(1A) reads as follows: "25. Punishment for certain offences - (1) .... any arms and ammunition in contravention of Section 5 and, therefore, Section 25(1A) is not attracted. 5. Learned Public Prosecutor submitted that the offence committed in the case is really under Section 25(1A) of the Arms Act. Section 25(1A) reads as follows: "25. Punishment for certain offences - (1) .... (1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine." Section 7 of the Arms Act contains prohibition of acquisition or possession of prohibited arms except under the circumstances mentioned therein. 6. Mentioning a wrong provision of law in the First Information Report should not be a ground for rejecting the prosecution case. It should not also be a ground for granting anticipatory bail to the accused. The question is whether the allegations levelled against the accused would constitute an offence and if so, which section of the Arms Act is attracted. As rightly submitted by the learned Public Prosecutor, Section 25(1A) of the Arms Act would apply in the case. At any stage of the investigation of the case, the investigating officer could correct the error on account of mentioning erroneously a particular section of offence. Even after the charge sheet is filed, the court may alter or add to any charge at any time before judgment is pronounced, as provided in Section 216 of the Code of Criminal Procedure. Section 215 of the Code of Criminal Procedure provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. If this is the position of law in respect of an error in the charge, it is untenable to contend that an error in mentioning the section of offence in the FIR would cause prejudice to the accused and would entitle him to the grant of anticipatory bail. 7. If this is the position of law in respect of an error in the charge, it is untenable to contend that an error in mentioning the section of offence in the FIR would cause prejudice to the accused and would entitle him to the grant of anticipatory bail. 7. Taking into account the facts and circumstances of the case, I do not think that the petitioner is entitled to the discretionary remedy under Section 438 of the Code of Criminal Procedure. The allegations made against the petitioner are serious in nature. If the petitioner is granted anticipatory bail, it would seriously affect the smooth investigation of the case. Custodial interrogation may be required in the case. I do not think that I would be justified in exercising the discretionary jurisdiction under Section 438 of the Code of Criminal Procedure in favour of the petitioner. The Bail Application is accordingly dismissed.