JUDGMENT : 1. Question of inherent jurisdiction to try the cases with respect to prohibited arms or ammunition is involved in all the aforementioned 31 revision petitions as such these petitions are being decided by the common order. 2. First of all it is to be mentioned the details of firearms and ammunitions, which come in category of prohibited firearms and ammunitions as per Arms Act of 1959 as well as Arms Rules of 1962. 3. Section 2 of Arms Act defines "prohibited arms" which means - i. firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or ii. weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing, and includes artillery, anti-aircraft and anti-tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms; 4. Section 2 (h) "prohibited ammunition" means any ammunition containing, or designed or adapted to contain, any noxious liquid, gas or other such thing, and includes rockets, bombs, grenades, shells, articles designed for torpedo service and submarine mining and such other articles as the Central Government may, by notification in the Official Gazette, specify to be prohibited ammunition; 5. THE ARMS RULES, 1962 -Rule 3 Classification of arms or ammunition. -For the purposes of the Act and these rules, “arms” or “ammunition” shall be of the categories specified in Cols. 2 and 3. respectively of Sch. 1 and references to any category of arms or ammunition in these rules shall be construed accordingly. According to Schedule 1 the arms have been divided into 5 categories. Prohibited arms and ammunition have been placed in category 1. SCHEDULE 1 [Section Rule 3] CATEGORY ARMS AMMUNITION 1 2 3 CATEGORY I (a) Prohibited arms as defined in Sec. 2 (I) (i) and such other arms as the Central Government may, by notification in the official Gazette, specify to be prohibited arms. Prohibited ammunition as defined in Sec. 2 (h) and such other articles as the Central Government may, by notification in the official Gazette, specify to be prohibited ammunition.
Prohibited ammunition as defined in Sec. 2 (h) and such other articles as the Central Government may, by notification in the official Gazette, specify to be prohibited ammunition. (b) [Semi- automatic fire-arms, other than those included in categories I (c) and III (a), smooth bore guns having barrel of less than 20” in length. Ammunition for arms of Category I (b). (c ) Blot action or semi-automatic rifles of 303 or 7.62 mm. bore or any other bore which can chamber and fire service ammunition of .303 or 7.62 mm caliber; muskets of .410” bore or any other bore which can fire .410 musket ammunition; pistols, revolvers or carbines of any bore which can chamber 380” or .455” rimmed cartridges or service 9 mm or 445 rimless cartridges. ] Ammunition for fire arms of category 1 (c ) (d) Accessories for any fire-arms designed or adapted to diminish the noise or flash caused by the firing thereof. Nil. 6. For the recovery or use of the prohibited arms or ammunitions, the penal provisions viz; section 25 (1-A), 25 (1-AA), 26 (2) 26 (3) and 27 (2) of the Arms Act are applicable, which are as follows; ? Section 25 (1-A) runs inter-alia, “Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 Arms Act shall be punishable with imprisonment for term which shall not be less than five years but which may extend to ten years and shall also be liable to fine.” ? 25(1-AA) Arms Act reads as, “whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, 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 imprisonment for life and shall also be liable to fine” ?
Section 26(2) Arms Act reads as, “Whoever does any act in contravention of any of the provisions of section 5, 6, 7 or 11 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to ten years and also with fine. ? 26(3) Arms Act reads as whoever on any search being made under section 22 conceals or attempts to conceal any arms or ammunition, shall be punishable with imprisonment for a term which may extend to ten years and also with fine. ? 27(2) Arms Act reads as whoever uses 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 seven years but which may extend to imprisonment for life and shall also be liable to fine. ? Section 27(3) runs inter-alia, “whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death”. {ultra-virus declared by the Hon'ble Supreme Court in State of Punjab Vs Dalbir Singh reported in (2012) 3 SCC 346 } 7. The only point of law involved in all thirty one revisions is as to whether the penal offences under section 25 (1-A), 25 (1-AA), 26 (2) 26 (3) and 27 (2) of the Arms Act are Magisterial triable or Sessions triable? 8. The Arms Act is silent on above point. Hence, to know the court by which the penal offences under section 25 (1-A), 25 (1-AA), 26 (2) 26 (3) and 27 (2) of the Arms Act are triable, this court has to take help of the provisions incorporated u/s 26 Cr.P.C . 9. Section 26 Cr.P.C Courts by which offences are triable. Subject to the other provision of this code,- (a) any offence under the Indian Panel Code (45 of 1860) may be tried by- i. the High Court, or ii. the Court of Session, or iii.
9. Section 26 Cr.P.C Courts by which offences are triable. Subject to the other provision of this code,- (a) any offence under the Indian Panel Code (45 of 1860) may be tried by- i. the High Court, or ii. the Court of Session, or iii. any other Court by which such offence is shown in the First Schedule to be triable: Provided that offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code (45 of 1860)] shall be tried as far as practicable by a court presided over by a woman. (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by- i. the High Court, or ii. any other Court by which such offence is shown in the First Schedule to be triable. The first schedule for this purpose is as follows : First Schedule II.- CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS Offence Cognizable or non-cognizable Bailable or non-bailable By what Court triable If punishable with death, imprisonment for life, or imprisonment for more than 7 years. Cognizable Non-Bailable Court of Sessions. If punishable with imprisonment for 3 years and upwards but not more than 7 years. Ditto Ditto Magistrate of the first class. If punishable with imprisonment for less than 3 years or with fine only. Non-cognizable Bailable Any Magistrate 10. As per First schedule II- classification of offences against other laws; If offence is punishable with death, imprisonment for life, or imprisonment for more than 7 years......The offence shall be Cognizable, Non-Bailable and triable by the Court of Session. 11. On the touchstone of above legal provisions, this court is of considered view that penal Sections 25 (1-A) , 25 (1-AA), 26 (2) 26 (3) and 27 (2) of the Arms Act are sessions triable offences. 12. Further as per section 29 (2) Cr.P.C “The court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or both.
12. Further as per section 29 (2) Cr.P.C “The court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or both. In the case at hand the minimum sentence, prescribed in section 25 (1-A) , 25 (1-AA), 26 (2) and 27 (2) shall not be less than five years but which may extend to ten years and shall also be liable to fine. Thus in terms of section 29 (2) Cr.P.C also Magistrate shall not be able to pass sentence in the cases registered u/s 25 (1-A) , 25 (1-AA), 26 (2) 26 (3) and 27 (2) of the Arms Act. 13. Now, the recovery of arms and ammunitions in above thirty one criminal revisions can be conveniently perused by the chart below.
Thus in terms of section 29 (2) Cr.P.C also Magistrate shall not be able to pass sentence in the cases registered u/s 25 (1-A) , 25 (1-AA), 26 (2) 26 (3) and 27 (2) of the Arms Act. 13. Now, the recovery of arms and ammunitions in above thirty one criminal revisions can be conveniently perused by the chart below. S.No Criminal Revision No. Recovery of arms or ammunitions or both of prohibited category as per I (c) of schedule I (rule 3) Expert's opinion Penal section of Arms Act in which trial was done Correct penal section applicable for framing the charge as per Arms Act a b c d e f 1 412/2001 Five cartridges of 303 bore 303 Bore (live) 25 (1-B)A,26/35 25(1-A)/26 (2)/35 2 487/2001 One cartridge of 7.62 bore 7.62 bore (live) 25 (1)(b) 25 (1)(c)/35 26 29&30 25(1-A)/26 (2)/35 3 106/2002 Four cartridges of 7.62 bore 7.62 bore (live) 25 (1-b)/26 25(1-A)/26 (2) 4 275/2002 One cartridge of 303 bore 303 bore(live) 25 (1-B)a & 35 25(1-A)/26 (2) 5 542/2003 ONE cartridge of 303 bore 303 bore(live) 25(1-b)(a) 25(1-A)/26 (2) 6 585/2004 One cartridge of 303 bore 303 Bore(live) 25 (1-b)26 25(1-A)/26 (2) 7 944/2004 Two cartridges of 303 bore 303 Bore(live) 25 (a) 26 25(1-A)/26 (2) 8 1060/2004 Two cartridges of .38 bore .38 bore(live) 25 1(a) 26/35 25(1-A)/26 (2)/35 9 889/2004 Two cartridges of .38 bore .38 bore(live) 25 1(a) 26/35 25(1-A)/26 (2)/35 10 144/2005 One cartridge of 303 bore 303 bore (live) 25 (1-B)a/26 (1) 25(1-A)/26 (2) 11 718/2005 cartridges of 7.62 bore 303 bore (live) 25 (1-B)a ,26/35 25(1-A)/26 (2)/35 12 839/2005 cartridges of 7.62 bore 303 bore (live) 25 (1-B)a ,26/35 25(1-A)/26 (2)/35 13 889/2005 One cartridge of 303 bore 303 bore (live) 25 (1-b)a ,26/35 25(1-A)/26 (2)/35 14 1060/2005 One cartridge of 9 mm 25 (1-b)a ,26/35 25(1-A)/26 (2)/35 15 153/2006 One cartridge of 303 bore 303 bore (live) 25 (1-B)a ,26 25(1-A)/26 (2) 16 12/2007 One cartridge of 303 bore 303 bore (live) 25 (1-B)a ,26 25(1-A)/26 (2) 17 197/2007 240 cartridges of 7.62 bore 7.62 bore (live) 25 (1-b)a ,26 25(1-A)/26 (2) 18 645/2008 Two cartridges of 9 mm 9 mm (live) 25 (1-b)A ,26 25(1-A)/26 (2) 19 790/2008 One cartridge of 303 bore 303 bore live 25 (1-B)a ,26 25(1-A)/26 (2) 20 1154/2008 Nine cartridges of 303 bore and 53 cartridges of 7.62 caliber 303 bore and 7.62 caliber (live) 25 (1-B)a 26,/35 25(1-A)/26 (2)/35 21 1115/2008 Nine cartridges of 303 bore and 53 cartridges of 7.62 caliber 303 bore and 7.62 caliber 25 (1-B)a 26,/35 25(1-A)/26 (2)/35 22 1128/2008 Nine cartridges of 303 bore and 53 cartridges of 7.62 caliber 303 bore and 7.62 caliber (live) 25 (1-B)a 26,/35 25(1-A)/26 (2)/35 23 723/2009 One cartridge of 303 bore 303 bore (live) 25 (1-b)a 26(1),/35 25(1-A)/26 (2)/35 24 508/2010 Four cartridges of 9 mm 9 mm (live) 25 (1-B)a 26 25(1-A)/26 (2) 25 805/2010 Five cartridges of 9mm 9 mm (live) 25 (1-B)a 26 (1)/35 25(1-A)/26 (2)/35 26 864/2010 One cartridge of 303 bore 303 bore (live) 25 (1-B)a 26 25(1-A)/26 (2) 27 160/2011 One cartridge of 303 bore 303 bore (live) 25 (1-b)a 26 25(1-A)/26 (2) 28 188/2013 Two cartridges of 9 mm 9 mm (live) 25 (1-B)a 26 25(1-A)/26 (2) 29 552/3013 Two cartridges of 9 mm 9 mm (live) 25 (1-b)a 26/35 25(1-A)/26 (2)/35 30 785/2014 One cartridge of 303 bore 303 bore (live) 25 (1-b)a &26 25(1-A)/26 (2) 31 174/2015 Three cartridge of 303 bore 303 bore (live) 25 (1-B)a /35 25(1-A)/26 (2)/35 14.
On the basis of the aforementioned mandatory provisions of law, it can be conclusively opined that the trial held in the aforementioned cases by the learned Magistrate is without inherent jurisdiction, in turn without strength of law, as such non est/void and deserves to be vitiated. Ordered accordingly. 15. The next question that crops up for consideration of the Court after setting aside the order of both the Courts below, because of the aforesaid fundamental inherent defect is, whether it would be appropriate to remand back all the cases for fresh trial at this distant point of time or all the accused persons should be acquitted? 16. In many of the cases what is noticed is that the trial started somewhere in 1993. Learned counsel, appearing in some of the revision petitions, state that they are not in touch with the petitioners since long and despite intimating them about the hearing of these petitions, they have not received any intimation as such they cannot even state at the Bar as to whether the petitioners, who are not in touch with them since long, are alive or not. 17. In some of the cases, learned counsel for the petitioners have pointed out certain other vital flaws also vis-à-vis the sanction inasmuch as in 3 - 4 cases there is no sanction for prosecution at all and in few cases, the sanction is not by competent authority or not proved in accordance with law. They submitted that there are other vital defects also with regard to the recovery of the arms/ammunitions allegedly shown to be in possession of the petitioners-accused, but I am not delving deep into all these aspects by entering into merits of each individual petition. 18. Keeping all these aspects into consideration, putting the clock back at this stage by remanding the case for fresh trial when the prosecution witnesses may not be available or even chances of appearances of the accused also appear to be very bleak, in my considered view, would serve no purpose. The litigation should come to an end like a dead ball in cricket at one point of time. Therefore, I see no compelling reason for directing fresh trial at this distant point of time as all the petitioners have already suffered the ignominy of protracted trial. 19.
The litigation should come to an end like a dead ball in cricket at one point of time. Therefore, I see no compelling reason for directing fresh trial at this distant point of time as all the petitioners have already suffered the ignominy of protracted trial. 19. Accordingly, I allow all the revision petitions on hand and acquit all the petitioners of the charge(s). 20. All the petitions stand disposed of accordingly. 21. Registrar General is directed to circulate copy of this judgment in all Judgeships of the State. Copy of the judgment shall also be sent to the Principal Secretary, Department of Home, Government of Jharkhand to direct the Superintendent of Police of all the districts for proper investigation of cases related to prohibited arms and ammunitions.