Monday, 18 July 2016

Whether prosecution under S 3 of Arms Act is tenable without sanction of district magistrate?

Shri   R.H.   Raolani,   advocate   for   the   appellant   No.1   has
submitted that the Sessions Court has committed an error in convicting the
appellant No.1 for the offence under Section 3 read with Section 25 of the
Arms Act, 1959, overlooking the provisions of Section 39 of the Arms Act
which lay down that no prosecution shall be instituted against any person in
respect of any offence under Section 3 without the previous sanction of the
District Magistrate.  In support of his submission, the learned advocate has
relied on the judgment given in the case of  Kamalsingh Vs. State of Mah.,
reported in 2005(1) Mh.L.J. 218.  

It is undisputed that the prosecution is launched against the
appellant No.1 for the offence under Section 3 read with Section 25 of the
Arms Act, 1959 without there being sanction of the District Magistrate.  The
learned A.P.P. has not been able to counter the submission made on behalf of
the appellant No.1  relying on the provisions of Section 39 of the Arms Act.
In the facts of the case, it has to be held that the conviction of the appellant
No.1 for the offence punishable under Section 3 read with Section 25 of the
Arms Act is unsustainable and it has to be set aside.  
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 27  OF 2000
Viransingh @ Simansingh S/o.
Attarsingh Tomar,
 //  VERSUS //
State of Maharashtra,

               CORAM : Z.A.HAQ, J.
               DATED   : MAY 11, 2016.
Citation:2016 ALLMR(CRI)2616

1. Heard   learned   advocate   for   the   respective   appellant   and
learned A.P.P. for the respondent.  
2. The   appeal   was   filed   by   two   appellants   challenging   the
judgment passed by Sessions Court convicting the appellants for the offence

punishable under Section 399 of the Indian Penal Code and directing the
appellants to undergo rigorous imprisonment for two years and to pay fine of
Rs.Five   Hundred   and   in   default   of   payment   of   fine   to   undergo   simple
imprisonment for six months.  
The Sessions Court convicted the appellant No.1 for the offence
punishable under Section 3 read with Section 25 of the Arms Act, 1959 and
sentenced him to undergo rigorous imprisonment for one year and to pay
fine of Rs.Five Hundred and in default of payment of fine to undergo simple
imprisonment for three months.  
During pendency of the appeal the appellant No.2 died and by
the order dated 25th June, 2015 the appeal of the appellant No.2 is disposed
as abated.   
3. Shri   R.H.   Raolani,   advocate   for   the   appellant   No.1   has
submitted that the Sessions Court has committed an error in convicting the
appellant No.1 for the offence under Section 3 read with Section 25 of the
Arms Act, 1959, overlooking the provisions of Section 39 of the Arms Act
which lay down that no prosecution shall be instituted against any person in
respect of any offence under Section 3 without the previous sanction of the
District Magistrate.  In support of his submission, the learned advocate has
relied on the judgment given in the case of  Kamalsingh Vs. State of Mah.,
reported in 2005(1) Mh.L.J. 218.  

It is undisputed that the prosecution is launched against the
appellant No.1 for the offence under Section 3 read with Section 25 of the
Arms Act, 1959 without there being sanction of the District Magistrate.  The
learned A.P.P. has not been able to counter the submission made on behalf of
the appellant No.1  relying on the provisions of Section 39 of the Arms Act.
In the facts of the case, it has to be held that the conviction of the appellant
No.1 for the offence punishable under Section 3 read with Section 25 of the
Arms Act is unsustainable and it has to be set aside.  
4. The learned advocate for the appellant No.1 has submitted that
the   charge   against   the   appellant   No.1   regarding   preparation   to   commit
dacoity at the petrol pump has not been proved by the prosecution. The
learned advocate has pointed out the conclusions of the learned Additional
Sessions Judge in paragraph No.23 of the judgment that the evidence of
Satish (P.W.1) and Rameshwar (P.W.2)­employees at the petrol pump show
that the accused paid charges of the diesel taken at the petrol pump and
these witnesses have not stated that the accused made any attempt to snatch
the cash box at the petrol pump.    It is submitted that the Sessions Court has
acquitted the appellant No.1 for the offence of the charge of committing
offence punishable under Section 398 of the Indian Penal Code recording
that the prosecution has failed to prove that the accused made any attempt to
commit the dacoity at the petrol pump.  It is submitted that in view of the

above   conclusions,   the   conviction   of   the   appellant   No.1   for   the   offence
punishable under Section 399 of the Indian Penal Code is unsustainable.  
The learned advocate for the appellant No.1 has alternatively
submitted that the appellant No.1 has not been involved in any other crime
subsequently and has regularly abided by the orders passed by this Court and
has not attempted to jump over the bail and is now working as security guard
and considering these aspects, lenient view may be taken by modifying the
quantum of sentence and holding that the imprisonment undergone by the
appellant No.1 is sufficient conviction for the offence committed by him.  
5. Shri N.H. Joshi learned A.P.P. has submitted that the conclusions
of   the   learned   Additional   Sessions   Judge   recorded   while   acquitting   the
appellant No.1 of the charge of commission for offence under Section 398 of
the Indian Penal Code cannot be considered to examine the legality of the
conclusions   of   the   learned   Additional   Sessions   Judge   while   holding   the
appellant No.1 guilty for the offence punishable under Section 399 of the
Indian Penal Code.  The learned A.P.P. has pointed out the considerations in
paragraph Nos. 17 and 22 of  the  judgment  and has submitted that the
conclusions of the learned additional Sessions Judge holding the appellant
No.1 guilty for commission of the offence punishable under Section 399 of
the Indian Penal Code cannot be faulted with. 

6. With the assistance of the learned advocate for the appellant
and the learned A.P.P., I have examined the record.  I find that the learned
Additional Sessions Judge while dealing with the case of the prosecution
against the appellant No.1 for the offence punishable under Section 399 of
the Indian Penal Code has properly appreciated the evidence on record and
the   conclusions   of   the   learned   Additional   Sessions   Judge   in   this   regard
cannot be faulted with.   I see no reason to interference with the findings
recorded by the learned Additional Sessions Judge insofar as the conviction
under Section 399 of the Indian Penal Code is concerned.  
However, accepting the alternate submissions made on behalf
of the appellant No.1, the quantum of the sentence imposed on the appellant
No.1 is required to be reduced. 
Hence, the following order :
i) The conviction of the appellant No.1 for the offence punishable
under Section 3 read with Section 25 of the Arms Act, 1959 is
set aside.
ii) The conviction of the appellant No.1 for the offence punishable
under Section 399 of the Indian Penal Code is maintained.
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Judgment                6               apeal27.00.odt
iii) The sentence imposed on the appellant No.1 directing him to
undergo rigorous imprisonment for two years is modified and it
is directed that the appellant No.1 is sentenced to undergo
imprisonment for the period for which he had been in jail.
iv) The fine, imposed on the appellant and the directions that in
default of payment of fine the appellant No.1 shall undergo
simple imprisonment for six months are maintained.
The appeal is partly allowed in the above terms. 
JUDGE
RRaut..
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