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2011 DIGILAW 250 (CHH)

KUNDAL RAM v. STATE OF C. G.

2011-07-27

SUNIL KUMAR SINHA

body2011
ORDER 1. This revision is directed against the judgment dated 19th April, 2001 passed in Criminal Appeal No. 139/99 by the Session Judge, Ambikapur (Sarguja), whereby the appeal filed by the applicant against the judgment & order dated 7.12.99 passed in Criminal Case No. 1034/97 by the Judicial Magistrate First Class, Ambikapur, by which the applicant was convicted U/S 25 (I-B) (b) of the Arms Act and sentenced to undergo R.I. for 1 year and to pay fine of Rs.100/-, was dismissed. 2. The case of the prosecution is that on 25.10.96 at about 4.00 p.m., S.H.O Lakhanpur, M.K. Singh (PW-3), had gone to village Puhuputra for investigation of a criminal case. The allegations are that he found that the applicant was roaming in the village having a sword in his hands. M.K. Singh (PW-3) seized the sword from the applicant in presence of 2 witnesses namely Dhaneshwar (PW-I) and Lacchanram (PW-2). Seizure memo (Ex.-P/I) was prepared and the applicant was taken into custody. M.K. Singh (PW-3) thereafter returned to the police station and lodged the First Information Report (Ex. PI 2). The statements of witnesses were also recorded by M.K. Singh (PW3). In fact, M.K. Singh himself completed the entire investigation and thereafter a charge-sheet was filed by him u/s 25 ( I-B) (b) of Arms Act. The learned Magistrate recorded the finding that the seizure of the sword was proved by the prosecution, therefore, the applicant was liable for punishment u/s 25 (IB) (b) of Arms Act. The above finding has been confirmed in the appeal. 3. Mr. Neeraj Mehta, learned counsel appearing on behalf of the applicant, argued that the arresting and the Investigation Officer cannot be the same person. This vitiates the entire investigation. He placed reliance on the judgment of the Supreme Court rendered in Megha Singh Vs. State of Haryanal. He further argued that the conviction was bad-in-Iaw because the charges were vague. He also argued that notification relating to prohibition of carrying a particular kind of arm was not filed and proved by the prosecution, therefore, the conviction vitiates on this account also. 4. On the other hand, Mr. Arun Sao, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the courts below. 5. I have heard learned counsel for the parties at length and have also perused the records of the courts below. 4. On the other hand, Mr. Arun Sao, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the courts below. 5. I have heard learned counsel for the parties at length and have also perused the records of the courts below. 6. So far as argument relating to non-framing of proper charges is concerned, we find that specific charges have not been framed. The contents of the charges framed are as under: **fd rqeus rkjh[k 25 ekg 10 lu~ 1996 bZ- ds mlds djhc eqdke ds 16-15 cts xzke iqgiqVjk varxZr Fkkuk y[kuiqj esa vius vkf/kiR; eas ,d ykSgs dh ryokj voS/k :i ls fcuk oS/k vuqKfIr ds j[ks ik;s x;sA** 7. There' is no mention about the notification issued u/s 4 of the Arms Act in the charges, the contravention of which was alleged against the applicant. Though it was necessary in such a case that the notification under which prohibition with respect to cel1ain arms was made should have been mentioned in the charges itself in order to give particular description relating to the alleged offence committed by the applicant which has not been done in this case, but, such omission alone would not be material in view of Section 215 Cr.P.c., unless the applicant was, in fact, mislead by such error or omission, and it has occasioned a failure of justice. It is an admitted position that the notification, contravention of which, has been alleged has also not been filed along with the charge-sheet and the contravention alleged in the charges as per notification is also vague as there are omissions in the charges relating to the notification about alleged contravention. In the above facts and circumstances, the omission in framing of the charges would assume importance and the applicant would be entitled to get benefit as in absence of filing of notification and framing of charges in the above manner prejudice has been caused to the applicant. 8. In Megha Singh (supra), the Supreme Court observed vide Para 4 that: "We have also noted another disturbing feature in this case, PW3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161, Cr.P.c. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation". 9. In the present case, as stated above, the seizure was made by S.H.a., M.K. Singh (PW -3), he himself arrested the accused on the allegation of carrying a sword and after returning to the police station, he himself lodged the F.I.R. (Ex.-P/2). Not only this, the entire investigation was conducted and completed by M.K. Singh (PW-3) and ultimately a charge-sheet was also filed by him under the aforementioned Section of Arms Act. The Supreme Court said that such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. Therefore, the investigation, in view of the above, becomes shadowed. 10. Considering all the above facts and circumstances of the case, I am of the opinion that the revision deserves to be allowed and the conviction and sentences awarded to the applicant deserves to be set-aside. 11. Accordingly, the revision is allowed. The conviction and sentences awarded to the applicant u/s 25 ( I-B) (b) of the Arms Act are set-aside. The applicant is acquitted of the charges framed against him. Revision Allowed.