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2010 DIGILAW 967 (MP)

Gurudev Singh @ Goga v. State of M. P.

2010-09-22

S.L.KOCHAR, S.R.WAGHMARE

body2010
ORDER S.L. Kochar, J. 1. The Order of the Court was delivered by S.L. Kochar, J.: ON 4/4/2008, both the Criminal Revisions were listed before the learned Single Judge for final arguments. Learned Counsel for applicants argued before the learned Single Judge that for conviction of the applicants under Section 25(1)(b) of the Indian Arms Act (for short "the Act"), sanction for prosecution of the applicants as per provision under Section 39 of the Act was necessary and at the time of according sanction by the sanctioning authority, arm in question was not produced by the Investigating Officer before the sanctioning authority, and sanctioning authority must satisfy itself that the instrument is such which is covered within the definition given in the Act. Learned Counsel for applicants placed reliance on the following judgments: 1. Raju Dubey v. State of MP 1998 (1) JLJ 236 2. Smt Jaswant Kaur and Anr. v. State of UP State of MP 1999 Cr. L.R (MP) 80. 3. Prabhu Dayal and Anr. v. State of MP 2002 Cr.L.R (MP) 192. 2. On the contrary, learned Counsel for State relying on the wording of Section 39 of the Act, submitted before the learned Single Judge that Section does not require the prosecuting agency to produce the instrument/offending arm before the sanctioning authority and observations made by learned Single Judge in the above referred cases are contrary to the provisions of law and in fact are putting unnecessary fetters on the power and authority of the sanctioning authority. Learned Counsel for State submitted before the learned Single Judge for referring the matter to the larger bench so that an authoritative pronouncement by larger bench occupy the field and leaves no scope for doubt or ambiguity on the point in question. The learned single Judge made the following reference: After going through the judgments and language employed in Section 39 of the Indian Arms Act, I am of the considered opinion that the three judgments referred to above need reconsideration by larger bench. 3. The matter was placed before the Hon'ble Chief Justice and that is how this reference was listed before this Division Bench for decision. 4. We have heard the learned Counsel for parties and also perused the record. 5. For deciding the controversy, it would be appropriate to extract Section 39 of the Act herein. 39. 3. The matter was placed before the Hon'ble Chief Justice and that is how this reference was listed before this Division Bench for decision. 4. We have heard the learned Counsel for parties and also perused the record. 5. For deciding the controversy, it would be appropriate to extract Section 39 of the Act herein. 39. Previous sanction of the District Magistrate necessary in certain cases.-No prosecution shall be instituted against any person in respect of any offence under Section 3, without the previous sanction of the District Magistrate. 6. Brief history of the Act No. XXI of 1869: This Act was brought into existence by British Government. It was made because of Mutiny in Army in the year 1857 because of which British Rulers stood horrified with it and decided to disarm the whole nation. The possession and carrying of arms was, except by licence, totally banned. The Rulers feared and distrusted the people as a whole lest history repeats itself. Mahatma Gandhi characterized it as the blackest act of the British Rule. With this Act, definition of "Arms" and "Ammunition" was widened covering practically every weapon of defence and offence. Act II of 1878 was also framed and possession without licence of all the weapons were banned. After independence, the instant Act of 1959 was brought into existence with aims and objects to possess firearm and other arms for self defence by law abiding citizens especially when terrorists, dacoit gangs and other anti social or anti national elements were using not only civilian weapons but also dangerous firearms for erpetrating heinous crimes against society and the State. 7. The Act of 1959 was amended by the Arms (amendment) Act 1985 (Act 39 of 1985) with Statement of Objects and Reasons as under: The Arms Act, 1959 regulates the acquisition, possession or carrying of and fire-arms ammunition and provides punishment for contravention of the provisions of the Act. There has been increased use of fire-arms, mostly unauthorised, by terrorists and others in committing violent acts. Such activities have been particularly noticed in 'disturbed areas' like Punjab and Chandigarh. The punishments provided for at present do not have a strong deterrent effect. There is, therefore, an increased need to provide for more stringent to curb unauthorised access to arms and ammunition and combat the growing menace of terrorism. Such activities have been particularly noticed in 'disturbed areas' like Punjab and Chandigarh. The punishments provided for at present do not have a strong deterrent effect. There is, therefore, an increased need to provide for more stringent to curb unauthorised access to arms and ammunition and combat the growing menace of terrorism. It is accordingly proposed to provide for very stringent punishment for illegal possession or carrying for arms in disturbed areas and for contraventions of Sub-section (I-B) of Section 25 of the Act in disturbed areas. It is also proposed to make the punishments for other contraventions of the said Sub-section (I-B) more stringent. 8. To achieve the Statement of Objects and Reasons, the law makers have thought it fit to provide Section 39 (ibid) to safe guard the innocent from the false and frivolous prosecution and not to level for the guilty. There are other statutes also; for illustration; Prevention of Corruption Act, Food Adulteration Act, Section 197 of the Code of Criminal Procedure providing provisions of sanction for prosecution by the competent authority and aims and objects of such provision is to safeguard the life and liberty of the citizens from false, frivolous and baseless prosecution due to inimical terms and on other so many reasons. 9. Right from the beginning, it is a matter of debate as to what would be the requirement for granting sanction and how sanctioning authority should consider the matter while granting sanction. It is a question of fact which differs from case to case as well as wording of the particular statute. While interpreting provisions of sanction, the Apex Court and almost all High Courts of the country have decided this issue. 10. In Gulabsingh v. State of MP 1987 MPLJ 81 , this High Court while taking into consideration the judgment rendered in Mohd. Rustam Oureshi's case 1986 CCJ (MP) 115, observed as under in para 18: In the decision in Mohammad Rustam Qureshi's case 1986 C.Cr.J. (M.P.) 115 several other decisions on the subject of sanction have been referred to. It relates to sanction under Section 6 of the Prevention of Corruption Act 1947. Rustam Oureshi's case 1986 CCJ (MP) 115, observed as under in para 18: In the decision in Mohammad Rustam Qureshi's case 1986 C.Cr.J. (M.P.) 115 several other decisions on the subject of sanction have been referred to. It relates to sanction under Section 6 of the Prevention of Corruption Act 1947. Observing that the intention behind the provision is to safeguard the innocent and not to provide a shield for the guilty it has been pointed out that the substance of the matter is that it has to be proved that the sanction was the result of application of mind to the evidence and the circumstances of the case. Therefore, unless the matter can be proved by other evidence, in the sanction itself reference must be made to facts. In order to indicate that the basic requirement of the application of mind by the sanctioning authority in the matter was met. Without a valid sanction the prosecution would be nullity and the trial without jurisdiction was liable to be quashed. 11. In case of Major Som Nath v. Union of India and another AIR 1971 SC 1910 , the Supreme Court has held that the prosecution is required to prove, the sanction to be valid that it was given in respect of facts constituting the offence with which the accused is proposed to be charged. It is also held that it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it, the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authority. 12. The Supreme Court in case of Gunwantlal v. State of MP AIR 1972 SC 1756 has held as under while considering Section 39 of the Act in para 6 (placitinun C): All that is required for sanction under Section 39 is, that the person to be prosecuted was found to be in possession of the firearm, the date or dates on which he was so found in possession and that the possession of the firearm was without a valid licence. Where all the elements were contained in the sanction it was not an illegal sanction nor could it be said that the charge travelled beyond that sanction. 13. Where all the elements were contained in the sanction it was not an illegal sanction nor could it be said that the charge travelled beyond that sanction. 13. It is clear from the above mentioned observations by the Supreme Court that sanctioning authority is required to see that accused was found to be in possession of the firearm, the date or dates on which he was found in possession without having valid license. For these facts, the physical production of the firearm/object before the sanctioning authority does not appears to be necessary and authority was also not required to look into it. 14. In case of Md. Rosen and Ors. v. The State 1984 (1) Crimes 838 , learned Single Judge has held that for prosecution of the accused under Section 25(a), if it was not mentioned in the sanction order that the materials gathered in the course of investigation against accused had been placed before the sanctioning authority and sanctioning authority had considered the materials before according sanction, the sanction had not duly been accorded after proper application of mind for prosecution in respect of the offence punishable under Arms Act. In this judgment, nowhere it is held that production or placing seized firearm or prohibited article was necessary before the sanctioning authority and sanctioning authority is under obligation to look into it. Placing of materials before the sanctioning authority and considering the same does not mean the seized article must be produced before the sanctioning authority. The sanctioning authority can apply its mind after going through the FIR, seizure memo, statements of the witnesses, expert report etc. On this basis, the authority can satisfy itself and would be able to accord sanction. In Section 39 (ibid) also nowhere it is mentioned that production of the seized firearm is necessary for granting sanction or as to how sanction should be granted by the authority. The authority while granting sanction should satisfy itself from the facts of each case whether prima-facie case for constituting an offence is made out or not. In case of Gokulchand Dwarkadas Morarka v. The King AIR 1948 PC 82, it is held that charge must be with respect to commission of an offence with reference to the facts of the case whether a prima facie case is made out against the accused. In case of Gokulchand Dwarkadas Morarka v. The King AIR 1948 PC 82, it is held that charge must be with respect to commission of an offence with reference to the facts of the case whether a prima facie case is made out against the accused. A sanction for prosecution should have substance to justify as to what provision had been contravened. 15. Sanction is a wholesome safeguard against false, frivolous and inexpedient prosecution and as such sanction should be accorded if prosecution is reasonable and in public interest. The sanction should disclose that the authority had applied its mind to the prima facie case of contravention of provisions of law, although minute details of the evidence is not obligatory to be gone into. While interpreting the provisions of Section 39, unnecessary embargo should not be put before authority who is required to grant sanction, 16. In case of Raju Dubey (supra), for the first time learned Single Judge of Gwalior Bench has held that unless the sanctioning authority looks itself the instrument in respect of which sanction is sought, he cannot be said to have any idea as to whether possession of the instrument was illegal or the instrument was actually recovered within the definition given in Section 2 and held that production of the instrument is mandatory. 17. We do not agree with this preposition. The authority can satisfy itself on the basis of seizure memo, expert report, statements of witnesses and other material. If production of instrument is made mandatory, then it can be said that sanctioning authority must operate it and see whether it is in working condition or not, therefore, in our view this is an unnecessary embargo for the authority to grant sanction. 18. If such view is correct, then in a case of disproportionate asset, at the time of granting sanction for prosecution punishable under the provisions of Prevention of Corruption Act, all the seized movable property is required to be produced before the sanctioning authority and for immovable property, authority must go on spot and verify the same with seizure memos and inventory available in the case diary. If production of articles for granting sanction before the authority is made mandatory for prosecution of a public servant for taking bribe, the currency notes and sealed bottles of sodium carbonate solution turning into pink colour when on notes phenolphthalein powder is used, must be required to be produced before the authority. Same can be the situation in case of granting sanction for prosecution under the provisions of Prevention of Food Adulteration Act as also granting sanction- for prosecution as per provision under Section 197 of the Code of Criminal Procedure It is clear from these illustrations that production of instrument, article or property is not practically possible, before the sanctioning authority. In the light of these facts, in our considered view, there is absolutely no logic for production of instrument/seized firearm before the sanctioning authority for grant of sanction. In sum and substance, sanction order must disclose reasonable application of mind by the sanctioning authority on the basis of the material facts available in the case to make out a prima facie case. 19. In view of the above, we answer the reference as under: that for grant of sanction under Section 39 of the Indian Arms Act before the sanctioning authority, for prosecution, production of seized instrument/firearm/arm/arms is/are not mandatory. 20. In the result, judgments rendered in case of Raju Dubey v. State of MP 1998 (1) JLJ 236, Smt. Jaswant Kaur and Anr. v. State of MP 1999 Cr.L.R. (MP) 80 and Prabhudayal and Anr. v. State of MP 2002 Cr.L.R. (MP) 192 are hereby overruled. Let these Revisions be placed before the learned Single Judge according to Roster for final decision. 21. Original order is placed in the record of Cr. Revision No. 1/2004 and a Copy where of be placed in the record of connected Cr. Revision No-56/2004. Order accordingly.