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2022 DIGILAW 3 (KAR)

G. Somashekara Reddy v. State Of Karanataka

2022-01-03

S.SUNIL DUTT YADAV

body2022
JUDGMENT : 1. The petitioner is the sole accused in the proceedings in Crime No.0237/2013 subsequently registered as Spl.CC No.827/219 and has sought for quashing of the entire proceedings in pursuance of the FIR in Crime No.160/2013 dtd. 7/6/2013 at Annexure-A, the FIR in Crime No.0237/2013 dtd. 30/8/2013 at Annexure-B and the complaint dtd. 14/3/2013 at Annexure-C and the Charge Sheet dtd. 27/2/2014 at Annexure-D and has also sought for setting aside of the proceedings in Spl.CC No.0827/2019 registered on the basis of the charge sheet at Annexure- D for the offences punishable under Ss. 21(1) R/w Sec. 25(1B)(h) of the Arms Act, 1959 (hereinafter referred to as 'the Act' for brevity). 2. It is stated that the accused was holding a Arms Licence No.10/2004-05 in respect of 32 NP Bore Revolver No.752708, which licence had expired on 31/12/2009 and that the accused had deposited the weapon on 10/11/2011. It is further submitted that an application for renewal of licence on 16/11/2011 was filed, meanwhile, proceedings were initiated under the provisions of Sec. 21 and 25(1B)(h) of the Act on the ground that the accused without applying for renewal of licence had possessed the weapon without depositing the same. A case came to be registered against the accused in Crime No.160/2013 for the offences punishable under Sec. 25(1B) of the Act. In light of aspect of jurisdiction, same case came to be transferred to Bruce Pete Police Station, Bellary, where FIR came to be registered against the accused in Crime No.237/2013 for the offence punishable under Sec. 25 (1B) of the Act. It is further submitted that after investigation by respondent No.1, charge sheet for the offences punishable under Sec. 21 r/w Sec. 25 (h) of the Act came to be registered in C.C. No.752/2014. It is submitted that thereafter the case stood transferred to the Special Court and came to be registered as Spl.CC No.827/2019. 3. The present petition has been filed calling in question the validity of the proceedings and seeking for quashing of FIR and complaint at Annexure-A, B and C respectively and charge sheet at Annexure-D and to set aside the proceedings in Spl.CC No.827/2019. 4. It is the contention of the petitioner that the Sanction Order is invalid as the complainant himself has issued the Sanction Order. 4. It is the contention of the petitioner that the Sanction Order is invalid as the complainant himself has issued the Sanction Order. It is submitted that the question as to whether the Sanctioning Authority was satisfied with the material placed before it would not arise as the Sanctioning Authority was naturally interested in prosecuting the accused. 5. It is further submitted that the complaint at Annexure-C cannot be construed as a 'complaint' as the ingredient of Sec. 154 of Cr.PC are missing as it was a mere reminder to the Superintendent of Police, Bellary to take action against the accused. It is contended that for the purpose of imposing penal consequences, there must be 'wrongful act' and 'wrongful intention' and mere wrongful act itself is not sufficient for punishment. It is submitted that the 'act' would not constitute a 'crime' unless it is done with a guilty intention. 6. It is submitted that the accused being a member of Legislative Assembly, Bellary and the President of KMF has forgotten in his busy schedule to get the licence renewed on time. It is further submitted that during the period of expiry of licence, nothing is placed by the prosecution as to whether the weapon was used by the accused. Accordingly it is submitted that there was no wrongful intention on the part of the accused and that there was a bona-fide lapse in getting the licence renewed on time. 7. It is further submitted that in light of Rule 27 of the Arms Rules, 2016, the accused has paid Rs.360.00 and filed an application for renewal of licence on 16/11/2021. Hence, the complainant being the authority for renewal of licence ought to have renewed the licence by collecting fee of Rs.2000.00. 8. It is further submitted that though the complaint at Annexure-C is dtd. 14/3/2013, case came to be registered only on 7/6/2020 and no reason for the inordinate delay in registering the case is made out. It is further submitted that in the absence of any material being placed against the accused as regards use of weapon, proceedings initiated against the petitioner amounts to abuse of process of law. 9. Heard learned counsel for the petitioner as well as learned High Court Government Pleader for respondent- State. 10. It is further submitted that in the absence of any material being placed against the accused as regards use of weapon, proceedings initiated against the petitioner amounts to abuse of process of law. 9. Heard learned counsel for the petitioner as well as learned High Court Government Pleader for respondent- State. 10. Learned counsel Sri Rohith B.J., appearing for the prosecution submits that the contentions advanced herein have been considered by the Court while passing the order on the discharge application filed under Sec. 239 of Cr.PC and identical contentions have been adverted to in the present petition. 11. It is further submitted that the question of delay would not have the effect of nipping in the bud the initiation of the proceedings in light of nature of offence keeping in mind that number of reminders for taking action has been made by the Authority. It is submitted that prejudice has to be demonstrated by virtue of the complainant and the Sanctioning Authority being one and the same for entitlement of any relief. It is also submitted that mere renewal of licence with effect from the earlier date will not have the effect of wiping off the offence as renewal of licence was done at subsequent period of time and the offence makes the accused answerable for possessing the arm without renewal. It is further submitted that these aspects even otherwise are matters touching upon appreciation of evidence and are best left to be decided by the trial Court. 12. It ought to be noted that the complaint made on 14/3/2013 addressed to the Superintendent of Police, Bellary lays out various details relating to holder of the licence, nature of the arm, period of the licence, date of deposit of the licence, date of the application filed for renewal of licence, letter of the office dtd. 18/2/2012 and the Endorsement of the office. No doubt, it is contended by learned counsel for the petitioner that complaint of 14/3/2013 does not satisfy the requirement under Sec. 154 of Cr.PC. However, it must be noted that though Annexure-C is in the nature of a reminder, the fact that information is made of a cognizable offence which is taken note of by the Authority, that itself would be sufficient for constituting the complaint under Sec. 154. However, it must be noted that though Annexure-C is in the nature of a reminder, the fact that information is made of a cognizable offence which is taken note of by the Authority, that itself would be sufficient for constituting the complaint under Sec. 154. The Court need not to be too technical as to the nature of the information that has been furnished to the police authority and the infraction in form, if any, will not have the effect of setting aside the proceedings in its entirety. 13. Insofar as the contention relating to the delay in registering the complaint is concerned, it is pointed out that information was made by the office by letters dtd. 3/3/2012 and 5/12/2012. The FIR came to be registered much later only on 7/6/2013. It must be noted that the aspect of delay has to be taken note of in the context of 'nature of offence' that has been committed under Sec. 21(1) r/w 25(1B)(h) of the Act. The offence being one, that rests on the licence and the possession of the arm during the period of absence of licence, the period of delay in registering FIR cannot have the effect of vitiating proceedings. Infact, the material would show that the Authorities have been corresponding by way of communications dtd. 3/3/2012 and 5/12/2012 which has not been taken note of. Accordingly, the delay would not have the effect of prejudicing the accused nor will have the effect of vitiating the proceedings and accordingly looking into the nature of the offence and that the communications have been made to the Authority on 3/3/2012 and 5/12/2012, it cannot be stated that delay would have the effect of defeating the prosecution and accordingly, the said contention is rejected. 14. Insofar as the contention that the complainant and the Sanctioning Authority are one at the same, the said aspect requires consideration. 15. It is pointed out the sanction is required under Sec. 39 of the Act and prosecution cannot be instituted without previous sanction of the District Magistrate. It is submitted that the Sanctioning Authority in the present case also happens to be the complainant and looking into the nature of repeated reminders by the Authority as noticed from the contents of the complaint dtd. 14/3/2020, the said complainant being an interested party which has also granted sanction as per the proceedings dtd. It is submitted that the Sanctioning Authority in the present case also happens to be the complainant and looking into the nature of repeated reminders by the Authority as noticed from the contents of the complaint dtd. 14/3/2020, the said complainant being an interested party which has also granted sanction as per the proceedings dtd. 24/2/2014, the said sanction is vitiated. 16. It ought to be noted that the statute prescribes the Authority to be the Sanctioning Authority. Mere fact that complaint was also given by the said Authority would not by itself vitiate the proceedings as prejudice must be pointed out. This aspect is a matter to be considered during the trial and the accused is required to make out prejudice. The Constitution Bench of the Hon'ble Apex Court in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi)- SLP (Criminal) Diary No.39528/2018, has upon a reference laid down that the mere factum that informant is the investigator, that by itself would not vitiate the investigation. It is submitted that the question of bias or prejudice would depend upon the facts and circumstances of each case. In the present case also broadly the same principle may have to be extended. Accordingly, on this ground, it may not be proper to interfere in the present proceedings. 17. Insofar as the contention regarding the sanction for prosecution is concerned, it must be noted that the material that is available is putforth as per the complaint dtd. 14/3/2023. The nature of the offence is also clear in terms of Sec. 25(1B)(h) which makes it clear that failure to deposit arms as required under Sec. 21(1) of the Act to be an offence. 18. A perusal of Sec. 21 would reveal that any person having in his possession any arms or ammunition possession of which has ceased to be lawful by expiration of the duration of a licence shall without unnecessary delay deposit the same with the officer in charge of the nearest police station. 19. The facts relating to period of licence is not in dispute and is a matter on record. The material in the complaint would show that the licence was valid only till 31/12/2009 and it has been deposited on 10/11/2011 that by itself being an undisputed fact, the order of sanction cannot be assailed as being one which is made without proper application of mind. 20. The material in the complaint would show that the licence was valid only till 31/12/2009 and it has been deposited on 10/11/2011 that by itself being an undisputed fact, the order of sanction cannot be assailed as being one which is made without proper application of mind. 20. The petitioner has also contended that there must be 'wrongful intention' and mere 'wrongful act' by itself would not have the effect of making out an offence. It is contended by learned counsel for the petitioner that in light of the official engagement of the petitioner as a Member of the Legislative Assembly and other posts that he had held, the non depositing of the arm as a consequence of bona-fide lapse and in the absence of any material to demonstrate that he has used the weapon would amount to mere possession without wrongful intention and would not make out the offence. It must be noted that Sec. 21 is unambiguous and makes possession of the weapon consequent to expiration of the licence to be unlawful and there is the requirement from the holder of the arm without unnecessary delay to deposit the same with the officer in charge of the nearest police station. 21. The admitted facts which are not contradicted are that, the licence was valid till 31/12/2009 and the same was deposited on 10/11/2011. The application for renewal was filed only on 16/11/2021. The possession of the same between 31/12/2009 and 16/11/2011 would make out the offence prima facie. The question of renewal and its effect is a matter to be decided during the trial. 22. It is necessary to notice that the trial Court while passing order on the application for discharge filed under Sec. 239 of Cr.PC has made certain observations even as regard to the aspect of renewal of licence at para 15. This aspect touches upon appreciation of evidence on record and the Court having held that the contentions of the accused that licence was renewed cannot be accepted is also an aspect open for the petitioner to demonstrate during the trial and it would not be open for the Court in light of the limited jurisdiction under Sec. 482 of Cr.PC to appreciate the evidence and to arrive at factual finding which is an exercise best left to the trial Court. In fact, the trial Court has also considered all of these contentions and has arrived at a finding, while dismissing the discharge application and which finding cannot said to be perverse. 23. Accordingly, no case is made out for interference in this proceeding and the petition is rejected. However, observations made herein are to be construed to be made for the purpose of present proceedings. 24. In view of disposal of main petition, the pending I.A.'s do not survive for consideration. Accordingly, I.A.Nos.1/2021 and 2/2021 stand disposed off.