Whether the court can hold accused guilty for the offence under Arms Act if he had a country-made pistol, not in working condition?

  The next the question to be addressed is whether the appellant’s

conviction under Sections 25 and 27 of the Arms Act is maintainable.

It was contended on behalf of the appellant that the country made

pistol (katta) was in a state of disrepair and therefore, could not be used as a weapon. It was argued that in view of the same, the country made pistol could not be considered as a firearm and therefore, neither the offence under Section 25 nor the offence under Section 27 of the Arms Act was established.

23. The country made pistol (katta) recovered from the appellant

was sent to the Forensic Science Laboratory (FSL). The FSL report

has been brought in evidence. The said report indicates that the

country made pistol is of 315 bore, which was designed to fire a

standard eight MM/.315 cartridge. It is also reported that a cartridge

recovered is a live one and could be fired through .315 bore firearm.

The said report (Ex.PW9/A) expressly records that the country made pistol recovered is a firearm and the cartridge is ammunition as designed under the Arms Act.

24. Sh. Puneet Puri, SSO (Ballistics), FSL was examined as PW9.

He had testified that the country made pistol was not in working order and required repair to bring it into working condition.

25. The contention that the country made pistol (katta) recovered

from the appellant is not a firearm, is unmerited. 

26. Undeniably, the country made pistol (katta) recovered from the appellant was designed to discharge a projectile and therefore, even though it may have fallen into disrepair it, nonetheless, falls within the definition of a ‘firearm’ within the meaning under Section 2(e) of the Arms Act.

27. It is also relevant to refer to Section 45 of the Arms Act, which

contains exclusionary clauses and inter alia, specifies that the Arms

Act would not apply to certain arms and ammunition in the given

circumstances. Clause (c) of Section 45 of the Arms Act is relevant and expressly provides that nothing in the Arms Act would apply to “any weapon of an obsolete pattern or of antiquarian value or in disrepair which is not capable of being used as a firearm either with or without repair”. Thus, a firearm, which is capable of being used as such with certain repairs is clearly not excluded from the scope of the Arms Act by virtue of Section 45(c) of the said Act.

28. In addition, a live cartridge was also recovered from the

appellant. A live cartridge falls within the definition of ‘ammunition’

as set out in Clause (b) of Section 2 of the Arms Act. Possession of

ammunition is a punishable offence under Section 25 of the Arms Act.

The use of such ammunition is punishable under Section 27 of the

Arms Act. Thus, there is little doubt that the appellant is guilty of

committing an offence punishable under Sections 25 and 27 of the

Arms Act.

IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment delivered on: 15.09.2020

 CRL. A. 807/2017

SONU @ RAJA  Vs STATE 

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Whether the court can convict accused of an offence U/S 202 of IPC if the prosecution has failed to prove principal offence?

It would be convenient at the stage to refer to Section 202 of the Penal Code which runs as under:

202. Intentional omission to give information of offence by person bound to inform - Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

The offence in respect of which the appellants were indicted viz. having intentionally omitted to give information respecting an offence which he is legally bound to give, not having been established, the appellants could not have been convicted under Section 202 of the Penal Code. It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main. offence before making a person liable under this section. The offence under Section 304 (Part II) and the one under Section 331 of the Penal Code not having been established on account of several infirmities, it is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 16 of 1973

Decided On: 18.01.1979

Harishchandrasing Sajjansinh Rathod  Vs.  State of Gujarat

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Whether Departmental authority can be held liable for abetment of suicide by holding delinquent guilty in enquiry?

It is possible that some persons who might have been 
against   the   deceased   tried   to   take   advantage   of   the   complaint 
lodged by Babybai Jadhav, and create a big uproar regarding the 
incident   resulting   in   loss   of   reputation   of   the   deceased.     The 

deceased, as a result of this, was apparently feeling humiliated.  If 
the   deceased   has   taken   the   step   of   putting   an   end   to   his   life 
because of loss of reputation, and the humiliation felt by him on 
account of being subjected to a departmental enquiry, it is indeed 
unfortunate but, that by itself would not render the petitioner – 
and even the other accused – to be prosecuted on the allegation of 
having abetted the commission of suicide by the said Shivaji Gade.
The   requisite  mens   rea   –  atleast   on   the   part   of   the 
petitioner – is clearly lacking in this case.
The parameters of criminal liability are well settled. 
Merely because a suicide has been committed and taking of such 
extreme   step   by   the   deceased   is   attributed   to   the   acts   of   some 
persons,   such   persons   would   not   be   liable   to   be   prosecuted   as 
abettors to the suicide.
There must be some indication of the requisite  mens 
rea on their part before they can be successfully prosecuted.

CRIMINAL WRIT PETITION NO.825 OF 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
Sanjay Kumar K. Shinde
Versus
The State of Maharashtra

CORAM :   ABHAY M. THIPSAY, J.
Citation;2015 ALLMR(CRI)1085
DATED  :    10th DECEMBER 2014.

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Whether putting of rubber Stamp of guilt of accused on charge sheet by Magistrate is objectionable?

A contention has also been raised in some of the petitions/
applications   that   the   trial   proceedings   are   not   proper   because   the
rubber stamp impression of the order that would ultimately be passed
in the proceedings had already been put on the charge­sheet.  Such a
question   has   been   specifically   raised   in   some   of   the   petitions/
applications  and it is  contended  that  this  shows  non­application  of
mind on the part of the Magistrate.    It is attempted to suggest that
putting   of   a   rubber   stamp   indicates   that   a  Magistrate   has  already
decided   to   hold   the   accused   guilty.     I   find   no   substance   in   this
contention.
It appears that in order to save time, such rubber stamps
were already put on the said 'charge­sheets', but from this it cannot be
suggested   that   the   Magistrate   thereby   committed   any   illegality.
Certainly,   if   an   accused   would   plead   not   guilty,   the   rubber­stamp
impression would have no meaning and would be cancelled by  the
Magistrate.  There is nothing illegal in the use of such rubber stamps,
provided such use in accordance with the provisions of the Criminal
Manual.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1849 OF 2010

Shri Sandeep Indravadan Sagar  V State of Maharashtra and others 

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Leading case law on plea bargaining

The status of accused, who pleads not guilty to the charge and claims to be tried is incomparable with the status of the accused, who pleads guilty and invokes remedy of plea-bargaining. In that sense, the two sets of accused cannot be equated or said to be similarly placed. Moreover, the provision, such as Section 265-E, providing for sentence is a concession offered to accused who voluntarily resorts to plea-bargaining, so as to avoid the uncertainty of the trial, the term of sentence, if found guilty and also the litigation costs and time. Until the introduction of Chapter XXI-A in the Code, the law of the land was to discourage plea bargaining, being against public policy. Thus, the argument of discrimination is unavailable to the accused, who, at his own volition, 38 210911

elects the remedy of plea-bargaining. As regards the effect of providing for fixed sentence period in cases of plea-bargaining, even though the principal substantive law does not provide for minimum sentence, we fail to understand as to how this argument can be taken forward by the accused electing remedy of plea bargaining at his own volition. Notably, the validity of Section 265-E is not put in issue in the present case. Neither the argument of discrimination, nor the effect of the provision resulting in imposing minimum sentence of one-fourth of the punishment provided or extendable can be taken forward by these petitioners.

33. Taking over all view of the matter, we have no hesitation in upholding the opinion of the trial Court that the Court has no discretion to award sentence other than one-fourth of the punishment provided for or extendable, as the case may be, for the offence in question in cases covered by clause (d) of Section 265-E of the Code. On this finding, the final order passed by the Magistrate of awarding sentence of 21 months to the petitioners is unassailable.

Bombay High Court

Guerrero Lugo Elvia Grissel vs The State Of Maharashtra on 4 January, 2012

Bench: A.M. Khanwilkar, Rajesh G. Ketkar

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Less Guilty Party Can Recover The Money-Principle of pari delicto

Contract-Principle of in pari delicto-When applicable- --Parties not in pari delicto-Right of less guilty party when arises.
Hindu Law-Avyavaharika debt-Burden of proof.

The plaintiff-respondent filed a suit demanding that certain jewellery which- she had entrusted to her deceased brother- appellant's father-for safe custody be returned to her. The appellant replied that his father during his life-time had returned the jewellery to the plaintiff. The trial Court dismissed the suit, but on appeal the High Court decreed the suit. In appeal to this Court, the appellant contended, that (i) the suit was not maintainable, because the jwellery was left with his father with the object of defrauding a third party, who had filed a suit claiming share in the ornaments; and (ii) the appellant was not liable 'to pay out of joint family property the debt of his father which was avyavaharika or, illegal.
Held: The appeal must be dismissed

(i) The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim in pari delicto, portior est conditio defendentis. But there are exceptional cases in which a man will be relieved of the cvonsequences of An illegal contract into which he has entered. To those cases the maxim does not apply. They fall into three classes (a) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance. of it (b) where the plaintiff is, not in pari delicto with the defendant, (c) where the plaintiff does not have to rely on the illegality to make out his claim. [811 F-G].
It is settled law that where the parties are not in pari delicto, the less guilty party may be, able,to recover money paid, or property transferred, under an unlawful contract. This possibility may arise in three situations. First,, the contract may be of a kind made illegal by statute in the interests of' a particular class of persons of whom the plaintiff is one. Secondly, the plaintiff may havebeen induced to enter into the contract,, by fraud or strong pressure Thirdly, a person who is under a fiduciary duty to the plaintiff win not be allowed to retain property, or to refuse to account, for moneys received on the ground that, the property or.the moneys. have come into his hands as proceeds of an illegal transaction, [812 A-D]. The plaintiff's case was that at the pursuation of appellant's father the jewellery was entrusted to him. On the plaintiff's case the appellant's father was under a fiduciary duty to the plaintiff and he could not withhold the property entrusted to him on the plea that it was delivered with the object of defeating the claim of a third party. 
(ii) The burden of proving that there was a debt and that the debt was avyavaharika or illegal lay upon the appellant. Granting that the defendant was after the, death of his father, unable to trace the jewellery entrusted, it could not be inferred that the jewellery was misappropriated by his father, There was no evidence in this case to prove that the debt- was avyavaharika or illegal. [813 A-C] Toshanpal Singh v. District Judge of, Agra, L.R. 61 I.A. 350, distinguished.

Supreme Court of India

Sita Ram vs Radhabai And Ors on 16 October, 1967

Equivalent citations: 1968 AIR 534, 1968 SCR (1) 805

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