I.A. Ansari, J.
1. By making this application, under Section 482 Cr.PC., the present two petitioners, who were accused in CR Case No. 314/2005, under Sections 09/12/30/3/32/33/35(6-8)/39/25(1)B/52, which is presently pending in the Court of learned Additional Chief Judicial Magistrate, Tezpur, have sought to get, inter alia, quashed the First Information Report, which has given rise to Tezpur Police Station Case No. 506/2007 under Sections 25(1)B of the Arms Act, 1959.
2. The material facts, giving rise to the present petition, may be set out as under:
(i) CR Case No. 314/2005 aforementioned has arisen out of a complaint lodged by the District Forest Officer, Western Assam Wildlife Division, the case of the complainant being, briefly stated, thus: As per verbal instructions received, on 10.10.2005, from the Forest Officer of Nameri National Park/ Nameri Wildlife Region, four forest officials had gone inside Nameri Reserve Forest and when they reached Upper Dikiri Doimukh Tapo area of the said National Park/Wildlife Region, they noticed flashes of torchlight and also heard sound of oars steering wooden boat. A little while thereafter, they saw, under thin/mild/pale moonlight, two persons proceeding on foot and two persons present near the boat, one of the two persons, who had been seen proceeding on foot, had a rifle in his hand. Pointing their departmental rifles towards the said four miscreants, the forest personnel ordered the miscreants to put their hands up. In return, however, the miscreants opened fire from their rifle. The firing from the miscreants made the forest officials fire two rounds of bullets. One of the bullets, so fired, hit the left arm of one of the miscreants causing injury to his left arm. While two of the miscreants, including the injured, were arrested, the other two managed to flee away by taking advantage of darkness. The two arrested miscreants were asked to show if they were having any departmental permission allowing their entry into the forest, at night, with arms and ammunitions, but none of the said two miscreants (i.e., the present petitioners) could produce any such permission or paper. During interrogation, the two miscreants disclosed their names as Bijon Mahanta and Sangita Baruah. Forest personnel also looked for the boat, which they had seen, but after some search, though the boat was found, the persons, who had sailed away, could not be traced out. The arms and ammunitions found in the said boat and also with the said two apprehended miscreants were, then, seized. Altogether one .22 bore rifle, which accused Bijon Mahanta was carrying, along with 58 numbers of .22 bore ammunitions were seized. The forest officials also seized three 12 bore empty cartridges and seven 12 bore live cartridges. They also recovered and seized a license issued in respect of a 12 bore double-barreled gun, which stood in the name of Hiteswar Mahanta, father of accused Bijon Mahanta. Local police was informed about the incident and injured Bijon Mahanta was taken to Chariduar Hospital for primary treatment and from there, he was shifted to Tezpur Civil Hospital. Thereafter, accused Bijon Mahanta was taken to Guwahati (Gauhati) Medical College for treatment. An offence report was accordingly submitted against the accused-petitioners under Sections 9/27/30/31/32/34/50/51 and 52 of the Wildlife Protection Act, 1952, to the Court of Chief Judicial Magistrate, Sonitpur, and it is this offence report, which gave rise to CR Case No. 314/2005. The seized articles were also produced before the Chief Judicial Magistrate, Sonitpur.
(ii) In course of time, processes were also issued against the present two petitioners as accused. Since the license, issued in the name of Hiteswar Mahanta in respect of one 12 bore double-barreled gun, had been seized at the place of occurrence, the forest officials suspected that the said gun might have been carried to the National Park and used there by those two miscreants, who had fled away with the said gun. A petition was accordingly filed by the prosecution in the Court of the Additional Chief Judicial Magistrate, Sonitpur, seeking a direction to be issued to Hiteswar Mahanta to produce the double-barreled gun, in question, before the Court. By order, dated 04.12.2006, learned Additional Chief Judicial Magistrate, Sonitpur, allowed the prosecution's prayer. The two accused-petitioners challenged the order, dated 04.12.2006, aforementioned in Criminal Revision No. 485/2006. This revision was dismissed by the High Court on 30.01.2007. Despite dismissal of the revision, when the double-barreled gun, in question, was not produced, an order was passed, on 19.05.2007, by the learned Chief Judicial Magistrate, Sonitpur, directing issuance of search warrant for recovery of the said gun fixing 16.06.2007 for production of the gun. The learned Court below directed the prosecution too to produce, on the date fixed, i.e., on 16.06.2007, the said seized three empty 12 bore cartridges. In course of time, the said double-barreled gun and the three seized 12 bore empty cartridges were produced in the Court and the same, as per order, dated 30.06.2007, were directed to be kept in the custody of the Prosecuting Inspector with further direction to produce the same before the Court on the next date, i.e., 21.07.2007, for being sent to the Forensic Science Laboratory of necessary examination. On the date so fixed, i.e., on 21.07.2007, the double-barreled gun (Ext. A) and the said three empty catridges (Ext. B1, B2 and B3) were produced before the Court by the Prosecuting Inspector, the same were packed and sealed in two separate wooden boxes and sent for examination to the Forensic Science Laboratory, Guwahati, on the following points:
i. Whether the Exh-B (1)/(2)/(3) can be fired by Exh-A?
ii. Whether the Exh.-A is a live fire arm?
iii. Whether the 3 empty cartridges Exh.-B(1)/(2)/(3) have been recycled?
iv. Whether the firing pins of the guns Exh-A have been tempered with?
(iii) Before, however, the order, dated 21.07.2007, aforementioned was passed, the Divisional Forest Officer, Western Assam Wildlife Division, had sent a letter, dated 05.07.2007, to the Superintendent of Police, Sonitpur, informing him to the effect, inter alia, that while inspecting the seized cartridges, which were in the zimma of the forest personnel by order of the Court, it had been noticed that the 12 mm bore cartridges had been recycled from old cartridges, which is an offence under the Arms Act, 1959, and also the Explosive Substances Act, 1908. By this letter, the informant requested the Superintendent of Police to re-seize the cartridges, in question, with the permission of the learned Chief Judicial Magistrate and get the same examined by ballistic expert to confirm if the bullets, in question, were hand-made. By this letter, a request was also made to arrest the present two accused-petitioners for having committed offences under the Arms Act, 1959, and the Explosive Substances Act, 1908. Based on this letter and treating the same as First Information Report, Tezpur Police Station Case No. 506/2007 under Section 21/22(B) aforementioned was registered against the present two accused-petitioners and police investigation has accordingly commenced. By making this application under Section 482 Cr.P.C. the accused-petitioners, have, as already indicated above, now, sought to get quashed the First Information Report, in question, restraining the police from carrying on any investigation.
3. I have heard Mr. G.N. Sahewalla, learned Senior counsel, appearing on behalf of the accused-petitioners, and Mr. K. Munir, learned Additional Public Prosecutor, Assam, for the opposite party No. 1. I have also heard Mr. G. Uzir, learned Counsel for the opposite party No. 2, i.e., Divisional Forest Officer, Western Assam Wildlife Division.
4. Assailing the FIR and the investigation launched pursuant thereto, Mr. Sahewalla has submitted that the querries put by the learned Additional Chief Judicial Magistrate, by its order, dated 21.07.2007, to the Forensic Science Laboratory include the question as to whether the three empty cartridges have been recycled and this is very question, which the instant FIR seeks to determine. When a Magistrate is already in seisin of the very query, which the FIR seeks to determine, such an FIR is, according to Mr. Sahewalla, not maintainable, for, contends Mr. Sahewalla, there cannot be two parallel investigation at one and the same point of time in respect of an offence alleged to have been committed by an accused. In short, Mr. Sahewalla's contention is that in the present case, with the lodging of the FIR, two parallel proceedings have been started and both the proceedings cannot proceed at one and the same point of time and, hence, the FIR needs to be quashed.
5. Appearing on behalf of the opposite party No. 2, Mr. G. Uzir submits that the FIR, in the present case, was registered on 05.07.2007, whereas the order sending, amongst others, the said three empty cartridges was passed on 21.07.2007 and, hence, the subsequent order made by the learned Additional Chief Judicial Magistrate cannot make the FIR, which has, otherwise, been lodged in accordance with law, void and impermissible to be proceeded with. It is also pointed out by Mr. Uzir that the FIR relates to seven live cartridges, which were seized from the possession of the accused-petitioners and not in respect of the three empty catridges, which the order, dated 21.07.2007, covers.
6. It is further submitted by Mr. Uzir that while the complaint case, which the learned Additional Chief Judicial Magistrate has in seisin of, relates to offence under the Wildlife Act and not under the Arms Act and, hence, there is no impediment in law in an investigation from being carried on in respect of acts or omissions, which may constitute offence under the Arms Act and/or Explosive Substances Act. The two criminal proceedings, according to Mr. Uzir, are different from, and independent of, each other inasmuch as both these proceedings relate to distinct offences and, hence, even the provisions of Section 210 Cr.PC are not attracted to the facts of the case at hand. As far as learned Additional Public Prosecutor is concerned, his submission is that there is no impediment, on the part of the investigating agency, to launch investigation on the basis of the FIR filed by the opposite party No. 2.
7. While considering this criminal petition, what needs to be pointed out, at the very outset, is that though in this petition, one of the grounds for quashing of the FIR is that the FIR has been lodged mala fide and with ill motive to harass the accused-petitioners, nothing has been mentioned, in the present petition, to show as to how the FIR can be held to have been lodged mala fide and with ill motive. In the absence of any particulars of mala fide or evil design, FIR cannot be interfered with and quashed on the ground that the same has been lodged in mala fide and with evil design.
8. Coming to the main grievance of the accused-petitioners that with regard to the same offence, while there is an enquiry in progress, investigation cannot be allowed to proceed, what needs to be noted is that the offence report, which has given rise to CR case No. 314/2005 aforementioned, relates to trial of the accused-petitioners for offences allegedly committed by them under the Wild-life Act. Though it has been alleged in the offence report that the accused-petitioners were found in possession of the arms and ammunitions, the offence report did not seek prosecution of the accused-petitioners for offences allegedly committed under the Arms Act. Even if such a prosecution was sought, such prosecution would have been impermissible in law, for, in the absence of sanction, as required under Section 39 of the Arms Act, the Court could not have taken cognizance of offences under the Arms Act. It needs to be pointed out that the accused-petitioners, in the light of the FIR, are alleged to have been found in possession of fire-arms or ammunitions in contravention of the provisions of Section 3 and such an offence is punishable under Section 25(1)(B) Arms Act. Essentially, therefore, Section 25(1)(B) prescribes only punishment for an offence, which a person commits by contravening the provisions of Section 3. Section 39 makes it clear that no prosecution can be instituted against any person in respect of any offence committed under Section 3 without previous sanction of the District Magistrate. It is, therefore, crystal clear that the condition precedent for prosecuting the present accused-petitioners for any offence committed under the Arms Act, requisite sanction under Section 39 of the Army Act is necessary.
9. Coupled with the above, what is also of immense importance to note is that the impugned FIR was lodged, as correctly pointed out by Mr. Uzir, as early as on 05.07.2007, whereas the judicial order, in question, was passed as late as on 21.07.2007. The subsequent order, passed on 21.07.2007, cannot really lead to quashing of the FIR, which was, otherwise, validly lodged seeking to set into motion the machinery of law to determine if the accused had committed any offence under the Arms Act or the Explosive Substances Act.
10. What is also of immense importance to note is that it was, in compliance with the judicial order, passed by the learned Additional Chief Judicial Magistrate, on 19.05.2007, that the said three 12 bore empty cartridges were produced by the department concerned in the learned Court below and upon production of the said three empty cartridges, the same were directed to be kept in safe custody of the prosecuting inspector. This shows that the purpose of production was merely to prove the fact that accused-petitioners were found inside the reserve forest with arms and ammunitions and whether their entry into the forest with arms without any permission from competent authority constituted an offence under the Wildlife Act? The purpose of production of the said three empty cartridges was not aimed at launching prosecution against the accused-petitioners under the Arms Act.
11. What is also noteworthy is that the impugned FIR clearly shows that according to the informant, while inspecting the seized cartridges, which were in the custody of the forest personnel by orders of the Court, it was found that the 12 bore cartridges have been recycled from old catridges. These 12 bore cartridges, which the FIR refers to, include not only the seven live cartridges, but also the said three empty cartridges. The investigating agency, as the materials on record reflect, is trying to determine if the seven 12 bore live cartridges are recycled from the other cartridges. This can be determined not merely by the ballistic examination to be carried out by the Forensic Science Laboratory, but it can be done by even interrogating the accused or such other person, who may be acquainted with the facts of the case. Merely because of the fact that an order has been passed, on 21.07.2007, directing the Forensic Science Laboratory to determine if the said three empty cartridges were recycled from old cartridges, the investigation, which has been, otherwise, launched by the police in accordance with law, cannot be said to have become invalid. Even if the Forensic Science Laboratory reports to the learned Court below that the said three empty cartridges are recycled ones, the Court cannot take cognizance of offence under the Arms Act unless requisite sanction is obtained and such sanction cannot be obtained by the Court, but can only be obtained by the prosecuting agency. The police cannot, therefore, be debarred from carrying out an investigation to determine if the seven live cartridges allegedly found in the possession of the accused-petitioners are recycled ones.
12. If the Forensic Science Laboratory report shows that the said three empty cartridges are recycled ones, the Forensic Science Laboratory's report may become the basis for yet another investigation by the police. No legal bar for the investigation, which is presently being carried on by the police, could be shown on behalf of the accused-petitioners. What can also not be ignored is that in order to determine if the cartridges, in question, are recycled ones, the Forensic Science Laboratory report cannot be the sole criterion, for, it is open to the police to interrogate the accused-petitioners and also examine such other person, who may be acquainted with the facts of the case. The accused, in the course of such interrogation, may even confess his guilt. In such circumstances, it cannot be said that the Forensic Science Laboratory's report is the sole means to determine the question as to whether the cartridges, in question are or are not recycled ones.
13. Because of what have been discussed and pointed out above, I find absolutely no merit in this criminal petition. This criminal petition is, therefore, not admitted and the same shall accordingly stand dismissed.