Vijay Bahadur @ Bahudar Vs. State of M.P. - Court Judgment

Excerpt:
- - 4. learned trial court, after examining the prosecution witnesses as well as hearing both the parties convicted and sentenced the applicant as indicated above, against which the applicant went up in appeal and the same has been dismissed. 505 =2001(1) mpjr 296]. the judgment rendered by this court as well as affirmed by the supreme court in bhupendra singh's case (supra) has no relevancy in legal and factual position with the present case. 7. it would be relevant to mention here that learned lower appellate court in paragraph 10 of its judgment while dealing with this question, has failed to consider arms rules mentioned hereinabove and has taken recourse to section 20 of the code defining executive magistrate whereas this provision is not applicable in absence of the specific.....orders.l. kochar, j.1. this criminal revision has been directed against the judgment dated 3-7-2002 rendered by asj, indore in criminal appeal no. 231/2002 affirming the conviction and sentence passed by the judicial magistrate, indore in criminal case no. 1507/2002 by order dated 20-5-2002, thereby convicting the applicant for the offence punishable under section 25(1-b)(a) of the arms act, 1959 and sentencing him ri for one year.2. the brief facts lie in a narrow compass that on 16th january, 1995, sps chouhan (p. w. 4) during his bit visit to chhapan shops area, the applicant was found threatening the public on the point of revolver. he was also not having any licence for possessing the revolver. as such he was arrested under section 151 of the code of criminal procedure (for brevity.....

Judgment:
ORDER

S.L. Kochar, J.

1. This criminal revision has been directed against the judgment dated 3-7-2002 rendered by ASJ, Indore in Criminal Appeal No. 231/2002 affirming the conviction and sentence passed by the Judicial Magistrate, Indore in Criminal Case No. 1507/2002 by order dated 20-5-2002, thereby convicting the applicant for the offence punishable under Section 25(1-B)(a) of the Arms Act, 1959 and sentencing him RI for one year.

2. The brief facts lie in a narrow compass that on 16th January, 1995, SPS Chouhan (P. W. 4) during his bit visit to Chhapan Shops area, the applicant was found threatening the public on the point of revolver. He was also not having any licence for possessing the revolver. As such he was arrested under Section 151 of the Code of Criminal Procedure (for brevity 'the Code'). On the personal search of the applicant, three live cartridges were recovered from his packet of his trousers. The revolver along with thcsaid cartridges was seized on the spot and the applicant was arrested. First Information Report was lodged at the Police Station, Tukogang, Indore. After usual investigation, charge-sheet was filed before the learned Judicial Magistrate, First Class, Indore. Charges were framed for the aforesaid offences against the applicant. The applicant abjured his guilt, therefore, put for trial.

3. The prosecution has examined Munnasingh (P.W. 1) about seizure of revolver and cartridges recovered from the possession of the applicant. The investigating officer SPS Chouhan (P.W. 4) has also proved seizure memo (Ex. P-2), arrest memo (Ex. P-3), FIR (Exh. P-4). Virendrasingh (P.W. 8) took revolver cartridges for expert examination and after obtaining the examination report deposited the same in DRP Lines, Indore. The examination report is Exh. P-l. The important prosecution witness SPS Chouhan, investigating officer (P.W. 4) and Rajkumar (P.W. 9) were not cross-examined on behalf of the applicant. Therefore, they were re-summoned but on 16-5-2002, learned Counsel for the applicant, in the Trial Court, submitted that he did not want to cross-examine both the witnesses.

4. Learned Trial Court, after examining the prosecution witnesses as well as hearing both the parties convicted and sentenced the applicant as indicated above, against which the applicant went up in appeal and the same has been dismissed. Hence, this criminal revision before this Court.

5. Learned Counsel for the applicant has raised the solitary question before this Court about grant of sanction to prosecute the applicant as per requirement under Section 39 of the Arms Act, was not valid. The sanction Ex. P-4 was not accorded by the District Magistrate but the Additional Magistrate has granted the sanction who was not duly empowered in this behalf. In support, learned Counsel relied on the judgment passed by the Gwalior Bench of this Court in the case of Bhupendra Singh v. State of M.P. [2001 (1) MPJR 294]. This judgment has been affirmed by the Supreme Court in the case of State of M.P. v. Bhupendra Singh [2000(1) M.P.H.T. 505 = 2001(1) MPJR 296]. The judgment rendered by this Court as well as affirmed by the Supreme Court in Bhupendra Singh's case (supra) has no relevancy in legal and factual position with the present case. In the case of Bhupendra Singh (supra) the question of grant of sanction was under Section 7 of the Explosive Substances Act, 1908 (for brevity 'the Explosive Act'), in which the Central Government is empowered to grant consent for the prosecution. The Central Government has delegated it to the District Magistrate. Therefore, the view has been taken that the State Government is not competent to further delegate this power to the Additional District Magistrate.

6. In the instant case under Section 39 of the Arms Act, power of consent lies with the District Magistrate. The definition of 'District Magistrate', as per the Arms Rules, 1962 envisaged in Rule 2 (f) is reproduced as under:--

'2. Interpretation.--.......... .......... .......... ..........(a) ..:.......(b) ..........(c) ..........(d) ..........(e) .......... (f) 'District Magistrate', includes-- (ii) in relation to any district or part thereof, an Additional District Magistrate or any other officer specially empowered in this behalf by the Government of the State concerned.'

These rules have been framed by the Central Government having power under Sections 5, 9, 10, 11, 12, 13, 16, 17, 18, 21, 41 and 44 of the Arms Act. Under Section 44 the Central Government is empowered to make rules for carrying out the purposes of Arms Act and under Clause (x) of rules can be framed for any other matter is put or may be prescribed. Therefore, sanction granted by the Additional District Magistrate is a valid sanction and does not suffer from any voice of illegality.

7. It would be relevant to mention here that learned Lower Appellate Court in Paragraph 10 of its judgment while dealing with this question, has failed to consider Arms Rules mentioned hereinabove and has taken recourse to Section 20 of the Code defining Executive Magistrate whereas this Provision is not applicable in absence of the specific notification empowering the Additional Magistrate to use the power of the District Magistrate under the Arms Act. There is no such notification brought to the notice to this Court issued by the State Government authorizing the Additional Magistrate to use power under Section 39 of the Arms Act to grant sanction for prosecution. This Court is of the opinion that the sanction granted by the Additional Magistrate, in the present case Ex. P-4 is a valid sanction as per the Provision under Section 39 of the Arms Act read with Rule 2 (f) (ii) of the Arms Rules. Therefore, there is no substance in the submission of the Counsel for the applicant challenging the sanction to prosecute the applicant granted by the Additional Magistrate, Indore.

8. Consequently, this criminal revision stands dismissed.