Rajasthan High Court
Case BriefsHigh Courts

   

Rajasthan High Court: Vijay Bishnoi, J. held the appeal filed by District Magistrate before Divisional Commissioner under Section 18 of Arms Act, 1959 challenging the issuance of arms license in favour of the petitioner who was the holder of license, as non — maintainable.

The petitioner applied for an arms license before the District Magistrate, Banswara and was issued the same on 22-12-2016. The District Magistrate, thereafter, preferred an appeal under Section 18 of Arms Act, 1959 before the Divisional Commissioner with the prayer to cancel the arms license issued in favour of the petitioner.

The Divisional Commissioner vide impugned judgment cancelled the license issued in favour of the petitioner mainly on the ground that on 22-12-2016, the District Magistrate, Banswara was on leave and the charge was given to the Chief Executive Officer of the Zila Parishad, Banswara, however, he was not authorized to issue an arms license and, as such, the license issued in favour of the petitioner is by an unauthorized person, therefore, the same is illegal and liable to be cancelled.

Counsel for petitioner submitted that the appeal preferred on behalf of the District Magistrate, Banswara before the Divisional Commissioner under Section 18 of Arms Act, 1959 was not at all maintainable as it can only be filed by a person, who is aggrieved by the order of the licensing authority refusing to grant a license or varying the conditions of a license or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a license.

The Court noted that a bare perusal of Section 18 Arms Act, 1959 clearly reveals that any person can file appeal under the said provision being aggrieved with the action of the licensing authority of refusing to grant a license or varying the condition of license or against the order of suspension or revoking of license. There is no provision where appeal can be entertained under Section 18 of the Arms Act against the order of issuance of arms license.

Thus, the appeal filed by the District Magistrate before the Divisional Commissioner, Udaipur under Section 18 of Arms Act, 1959 challenging the issuance of arms license in favour of the petitioner was not maintainable.

The Court directed the respondents to return arms license to the petitioner and directed the competent authority to take appropriate action under the provisions of Arms Act, 1959 after providing opportunity of hearing for the petitioner, if deem fit.

[Ramesh Chandra Patel v. State of Rajasthan, S.B. Civil Writ Petition No. 7417 of 2022, decided by 05-08-2022]


Advocates who appeared in this case :

Mr. Lakshya Singh Udawat, Advocate, for the Petitioner(s);

Mr. R.D. Bhadu, Dy.GC and Mr. Harshit Bhurani, Advocates, for the Respondent(s).


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Andhra Pradesh High Court: Cheekati Manavendranath Roy, J., allowed the criminal petition and granted bail to the petitioners.

The facts of the case are such that the petitioner is 33 years who went to the cinema theatre on the date of release of a film along with one air gun and gave stills as a hero along with the gun. The said poses given by him were captured by the TV people and the same was telecasted. A case under Sections 290, 506 (2) r/w 34 Penal Code, 1860 i.e. IPC and under Section 25 of the Arms Act, 1959, was registered against the petitioners. Thus A1 was arrested and later disclosed that his brother in law A2 purchased the said air gun for the purpose of playing by his children through online. The criminal petitions are filed under Section 439 of the Code of Criminal Procedure, 1973, seeking to enlarge the petitioners on bail.

The Court observed that the offences punishable under Sections 290, 506(2) IPC are bailable in nature. As regards the offence punishable under Section 25 of the Arms Act, 1959, is concerned, the pistol which was seized from the possession of A-1 is an air gun. It is a toy gun. Therefore, prima facie Section 25 of the Arms Act is not attracted to the facts of the case.

The Court thus held “in the facts and circumstances of the case, the petitioners are entitled to bail.” [Maroju Vaikunta Balaji v. State of A.P., 2022 SCC OnLine AP 890, decided on 19-04-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Deciding a matter of whether an NRI person in possession of two live ammunitions with a valid license can be registered under Section 25 of Arms Act or not, Asha Menon, J., held that, prima facie no malafide intent was found and the licence found was a valid arms licence.

A petition was filed for quashing an FIR under Section 25 of the Arms Act, 1959 registered at IGI Airport, Delhi.

Submission of petitioner’s counsel was that he was a Non-Resident Indian (NRI) and travelling from Delhi to Dubai when two live ammunitions were detected in his check-in-baggage. It was found that he had a valid licence.

Prosecution alleged that he was not in conscious possession of the cartridges.

Analysis, Law and Decision


High Court cited the decisions of this Court in Davinder Singh Dhindsa v. State (NCT of Delhi), 2019 SCC OnLine Del 7895, Jasbir Chahal v. State, 2018 SCC OnLine Del 8839 and Dhanwant Kaur v. State, 2016 SCC OnLine Del 5492, where 1 or 2 live cartridges have been found in the possession of the accused, have taken a view that mens rea or mala fide intention must be present supporting a “conscious possession plea” of the prosecution and in the absence of any such evidence, even prima facie, there would be no reason to deny the relief to the petitioner.

Bench found a valid arms licence in the possession of the petitioner and the bullets recovered were relatable to the licensed weapon.

No prima facie evidence was found that he had any mala fide intent in keeping the ammunition and the safety of the passengers was not threatened. The possession was not conscious.

In view of the above discussion, the petition was allowed and FIR under Section 25 of the Arms Act, 1959 along with other proceedings emanating therefrom was quashed. [Karamjit Singh v. State (NCT of Delhi), 2022 SCC OnLine Del 800, decided on 22-3-2022]


Advocates before the Court:

For the Petitioner: Ajay Pal Tushir, Advocate

For the Respondent: Avi Singh, ASC with Karan Dhalla and Mizba, Advocates for State with SI Ramesh Chand, PS IGI Airport

Patiala House Courts, Delhi
Case BriefsDistrict Court

Patiala House Courts (New Delhi): While discharging the accused from alleged offences under Sections 3 and 4 of MCOC Act, Sh. Parveen Singh, J., held that mobile connectivity can only be corroborative evidence and in absence of any substantiated evidence, not much weight can be given to it.

Background

In the instant case, the accused had been charge-sheeted by the prosecution u/s 3/4 of Maharashtra Control of Organised Crimes Act, 1999 (MCOC Act). The prosecution case was that the accused Richhpal Singh is a notorious criminal and an active BC of PS Khankar Burhapur, M.P. The accused had been found involved in more than 10 cases including Arms Act, Explosive Substance Act, murder, attempt to murder and dacoity in M.P, Delhi, Telengana, Maharashtra etc. From the investigation, it had been revealed that the accused Richhpal along with his associates Rajpal Singh, Mani Singh, Yogender Singh and Hari Singh and others had been running a crime syndicate for pecuniary benefits by committing various offences particularly manufacturing and supply of illegal arms weapons, in an organized manner.

During the interrogation, accused Richhpal disclosed that he along with his associates used to manufacture weapons illegally and supplied them through his carriers in various parts of the country for more than 20 years. In the year 2006, he was caught and huge consignments of illegal arms were recovered from him. The call detail record (CDRs) of the phone numbers of accused revealed that they were in touch with each other. Relying on various FIRs registered against the accused persons, the prosecution contended that the gang was operating in an organized crime syndicate and the gang members had been co-accused with each other in those FIRs. Thus, sanction u/s 23 (2) of the MCOC Act was obtained against the accused persons from the competent authority.

Organized Crime Syndicate, Organized Crime and Continuing Unlawful Activity

“There is interdependency between these definitions as the existence of one leads to the establishment of the other and vice versa.”

As per section 2(f) of the MCOC Act, for the establishment of an organized crime syndicate, it has to be shown that there is group of two or more persons who either singly or jointly, indulged in activities of organized crime as a syndicate or a gang. But what is further required is, that crime so committed fulfills the conditions which shall make it an organized crime. This brings us to Section 2(e) according to which an organized crime is any continuing unlawful activity done by a person either singly or jointly but as a member of a crime syndicate or on behalf of such crime syndicate.

A continuing unlawful activity is defined u/s 2(d) of the MCOC Act as an activity which is prohibited by the law for the time being in force and this activity has to be a cognizable offence carrying punishment of three years or more. At the same time, it is further required that this continuing unlawful activity is done/ committed by using violence or threat of violence or intimidation or coercion or other unlawful means and should be done with an objective of gaining pecuniary benefits or gaining undue economic and other advantages for himself or for any person or for promoting insurgency. Opining that the definitions were intertwined and form a loop of continuity, the Bench stated,

“For the existence of an organized crime syndicate, commission of organized crime is a sine qua non and an act alleged as organized crime has to fall within the definition of continuing unlawful activity which is provided u/s 2(d) of the MCOC Act and has to be committed for the purposes and by the means provided in section 2(e) of the MCOC Act.”

Existence of Crime Syndicate

Noticing that for organized crime syndicate in respect of this activity, in preceding period of 10 years, more than one charge-sheet should have been filed before a court of the competent jurisdiction which had taken cognizance of such offences, the Bench assed the various FIRs which had been stated in the charge-sheet to ascertain existence of crime syndicate.

Considering that of the FIRs relied by the prosecution the accused was the sole accused in two and in other two the cognizance was taken upon the charge-sheets post grant of approval for the instant case, the Bench opined that those FIRs could not be considered for the purposes of MCOC Act to find that there exists a crime syndicate. Again, referring to the remaining FIRs the Bench observed that in all of them the accused Richhpal was arrested on the basis of disclosures made by co-accused and he was discharged in all of them due to lack of evidence. Therefore, the Bench opined that so far on the basis of previous involvements of the accused, no grave suspicion could arise that there existed a crime syndicate as there was no commonality of previous involvements of these accused which had stood the scrutiny of the courts.

Admissibility of CDRs

With regard to the contention that the connectivity of the accused persons was reflected from their phone records and their regular contact with each other especially in close proximity to the time when the FIRs were registered against the members of the gang, after having observed the CDRs, the Bench found several discrepancies in the CDR chart prepared by the investigating officer (IO). The Bench remarked,

“As per the chart, there are many calls which are made between the numbers which are attributed to the same person and there is no explanation to these calls.”

Consequently, a clarificatory chart had been prepared by the IO, wherein, of the four numbers, which were stated in the charge-sheet to be suspected to be used by accused Richhpal Singh, three had now been attributed to accused Mani Singh. All these numbers were in the name of one Laxman, who stated that accused Richhpal had obtained his identity during a land deal and he might have used his identity for obtaining these numbers. The Bench stated, it could not be definitively stated that accused Richhpal had obtained those numbers and was using them merely on the basis of a speculation/ opinion. The Bench stated,

“Merely a contact with the mobile phone, which was allegedly used by accused Richhpal, does not establish that the person who was using those mobile numbers was a part of either the conspiracy or of the crime syndicate.”

Furthermore, accused Richhpal and Mani Singh were brothers and therefore, even if he was calling his brother, it could not be said that his brother had any complexity in that crime. The Bench opined,

“It is a well settled law that the CDRs can only be used to corroborate any other evidence on record. Admittedly in that FIR, apart from the disclosure of accused Rajpal Singh, there was no evidence connecting accused Richhpal to that crime. Hence, there was no evidence which could be corroborated by these CDRs.”

Decision

Hence, considering that there was no cogent evidence to support the prosecution case, the Bench was of the view that CDRs alone could not be pressed into service for framing charges against the accused. Since there was no other evidence independently of these FIRs or the alleged connectivity which could prima facie establish the existence of a crime syndicate and as discussed above, the Bench held that FIRs and CDRs were not evidence sufficient to raise a grave suspicion of existence of crime syndicate. Accordingly, the accused persons were discharged. [State v. Richhpal Singh, SC No. 289 of 2018, decided on 16-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by

For the State: Advocate Manoj Dixit

For the accused: Akshay Bhandari and Digvijay Singh, Advocates

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal: The Division Bench of Justice R.N. Singh and A. K. Bishnoi, Member (A), settled a case of family pension and retirement dues in favour of widow of the deceased ASI who had committed suicide while in judicial custody. The Bench held,

“When subjective satisfaction of dispensing with the inquiry is not supported by any independent material, dispensing with holding the inquiry would be illegal and if a preliminary inquiry could be conducted, there may not be any reason as to why formal departmental inquiry could not have been initiated against the delinquent.”

The applicant – widow of deceased Satbir Singh, ASI (Exe.) in Delhi Police, had challenged the impugned order whereby the deceased was dismissed from service by the respondents without conducting the regular departmental inquiry.

The deceased was implicated in case under Sections 302 of Penal Code, 1860 read with Sections 25/54/59 of Arms Act, pursuant to which he was placed under suspension w.e.f. 21-01-2019. A preliminary inquiry was conducted by the respondents and taking into account the allegations levelled against the deceased the respondents had dismissed him from service by dispensing with the departmental inquiry by invoking the provisions of Article 311 (2) (b) of the Constitution. Consequently, the deceased committed suicide while in judicial custody.

The applicant contended that though the respondents had heavily relied upon the report of the preliminary inquiry as well as the allegations levelled against the her husband, no copy of the said report was ever served to the deceased and so her husband was deprived of an opportunity to refute the said report, findings in the said preliminary inquiry report and/or the allegations levelled against him in the said FIR, therefore, the impugned order was illegal, bad in the eyes of law and not sustainable.

The Bench noticed that the deceased had 37 years of unblemished service under the respondents and was to retire on attaining the age of superannuation on 31-05-2021. Moreover, keeping in view the facts noted hereinabove, he committed suicide while in judicial custody on 08-06-2019 and whatever the applicant would have got as retirement/terminal benefits had also been taken away in view of the orders passed by the respondents.

Hence, the application was allowed and the impugned orders were set aside. The respondents were directed to grant and release death-cum-retirement dues, viz., family pension, DCRG, leave encashment etc. with all consequential benefits family pension, arrears of family pension and interest on family pension, gratuity, etc. [Santra Devi v. GNCT of Delhi, O.A. No.3170 of 2019, decided on 07-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Applicant: Advocate Sourabh Ahuja

For the GNCT of Delhi: Advocate Sameer Sharma

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., addresses a matter revolving around the possession of ammunition by a person which he/she is unconscious of.

Instant matter was filed with regard to the quashing of an FIR registered at the police station – I.G.I Airport for the offences punishable under Section 25 of Arms Act, 1959.

Petitioner submitted that while waiting for his flight from Delhi to Lucknow, his baggage was put for screening wherein one live cartridge of .32bore with S&WL (KF) live ammunition was detected. It was added that he was not in conscious possession of the live bullet detected, since the petitioner could not produce any valid license for the ammunition, FIR was registered.

Though, during the investigation petitioner produced a valid arms license issued by the State of Uttar Pradesh and the same was found to be genuine, therefore the FIR deserved to be quashed.

“It is well settled that where a person is not conscious of the ammunition in his possession, an offence of under Section 25 of the Arms Act, 1959 would not be made out.”

The above-settled position was drawn in view of the following decisions:

  • Surender Kumar v. State (GNCT of Delhi), WP (Crl.) 2143 of 2019, decided on 27-09-2019
  • Aruna Chaudhary v. State, WP (Crl.) 1975 of 2019, decided on 25-09-2019
  • Paramdeep Singh Sran v. State (NCT of Delhi), WP (Crl.) 152 of 2019, decided on 29-08-2019.

In view of the above decisions, Section 25 of the Arms Act was converted into Section 30 of the Arms Act in light of the petitioner holding a valid Arms License.

In the present matter, the prosecution’s case was not that there was a firearm recovered from the petitioner or there was any threat to anyone at the airport, hence the possession of the ammunition was unconscious and there was no threat to anyone.

Therefore, FIR registered at Police Station – IGI Airport were quashed. [Narendra Kumar Gupta v. State of NCT of Delhi, 2021 SCC OnLine Del 2335, decided on 18-05-2021]


Advocates before the Court:

For the Petitioner: Ajay P. Tushir, Adv. with Varun Malik, Adv.

For the Respondent: Kamna Vohra, ASC for the State

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., in the present petition observed that,

“A deadly weapon is one, which is lethal and is likely to cause death when used in the manner in which it is intended. By its very nature, a deadly weapon is one, which is likely to result in a fatality.”

Appellant was convicted of the offences punishable under Sections 393/398 of the Penal Code, 1860 and Sections 25/27 of the Arms Act, 1959.

The present appeal has been filed impugning the judgment for the above-stated conviction and order of sentence.

It has been submitted that the accused was armed with a pistol which he placed on the complainant’s temple and asked him to hand over whatever he had.

While the accused was fleeing from the spot, two patrolling police officials pursued and apprehended him and the police officials snatched the pistol carried by the accused.

Analysis and Decision

Police Officials Testimony

Bench while analysing the facts and submissions in the present case stated that merely because witnesses from the general public that had allegedly assembled at the spot, were not examined does not mean that the testimony of the police officials is required to be discarded.

Supreme Court’s decision in Kalpnath Rai v. State, (1997) 8 SCC 732  was referred in the above context, wherein following was the Court’s proposition:

“There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance.”

Further, there wasno doubt on the fact that a country made pistol (katta) was recovered from the accused also the fact that he was apprehended while he was fleeing from the spot has also been established.

Question to be determined is whether the appellant’s conviction under Sections 25 and 27 of the Arms Act is maintainable?

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.

Further the Court observed that the 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.

Next issue to be examined is whether the country made pistol (katta) can be termed as a “deadly weapon” under Section 398 IPC?

Section 398 IPC states that if an offender is armed with a deadly weapon at the time of robbery or dacoity, the same would constitute an offence under Section 398 IPC.

Key Question:

Whether the country made pistol (katta) can be termed as a “deadly weapon” even if it is in a state of disrepair?

Court stated that in order for any weapon to be termed as deadly, it should one which is capable of or likely to cause death if used in the manner in which it is intended to be used.

There may be a large number of instruments or objects, which can be used in a lethal manner, however, if they are not intended or meant to be used in that manner, they cannot be understood to be weapons for the purposes of Section 398 of the IPC.

Bench also noted that there are a large number of instruments which if used in a particular manner, may result in a fatality. A pen is not a deadly weapon and merely carrying the said writing instrument, at the time of committing robbery or dacoity, would not constitute an offence punishable under Section 398 of the IPC.

Two necessary ingredients of a ‘deadly weapon’:

first, that it should be a weapon and capable of being used as such

second, that it must be inherently lethal and if used in the intended manner is likely to result in death.

Hence in view of the above analysis, it can be construed that even though the country made pistol recovered from the appellant constitutes a firearm, it cannot be considered as a deadly weapon.

In the present matter, at the material time, the pistol could not be used to inflict any fatal injury, if used in the manner in which it was meant to be used — that is, for the purpose of firing a bullet — on account of it being in disrepair.

Thus the impugned judgment convicting the appellant under Section 398 of the IPC was set aside and his sentence was also reduced.[Sonu v. State, 2020 SCC OnLine Del 1213, decided on 15-09-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Ashok Menon, J., allowed the bail application of the applicant-accused in connection with the FIR registered for offences punishable under Sections 365, 323, 324, 342, 506(ii), 34 of Penal Code, 1860 and Section 27 of the Arms Act.

The facts of the case are such that the applicant kidnapped and assaulted the victim because of some personal enmity on 29-05-2020. The act included the applicant kidnapping the victim on a motorcycle and then taking him to a rented house and then assaulting him with a sword-like weapon.

The counsel for the respondent, Amjad Ali while opposing the bail has argued that the applicant is part of a larger notorious gang having 11 cases registered against them under the IPC. The applicant has also been tried twice under the provisions of the KAAPA. Given the fact that there are criminal antecedents and the other co-accused are at large, the present application, if allowed would act as a roadblock in the investigation. There’s also a chance that the applicant might abscond or tamper with the witnesses.

On careful perusal of the facts, circumstance and the arguments advanced the Court observed that the victim has not been subjected to any grievous hurt and that there’s no offence under Sections 307 and 308 IPC. The primary offence is of kidnapping which carries a term of maximum seven years. It wouldn’t be correct to incarcerate the applicant and deny him bail solely based on the reason that he has a past criminal record and that the co-accused have not been apprehended.

In view of the above, the application for bail was allowed in favour of the applicant. [Ansab v. State of Kerala, 2020 SCC OnLine Ker 3299, decided on 17-08-2020]

Legislation UpdatesStatutes/Bills/Ordinances

Shooting is an important Olympic sport in India. The Indian shooters have excelled in international competitions. Keeping this in mind, the Ministry of Home Affairs, vide its notification issued under the Arms Act 1959, has made provisions to provide adequate firearms and ammunition to the shooters for their practice. The Ministry of Home Affairs vide its notifications dated 12-02-2020 has amended the provisions of the Arms Act, 1959 and the Arms Rules, 2016 to increase the number of firearms that can be kept by the shooters and enhanced the quantity of ammunition fixed for their practice for the year. These provisions shall greatly facilitate their shooting practice.

As per the new rules, now International Medalists/Renowned Shooters are allowed to keep additional weapons up to a total of twelve under the exempted category, which earlier was seven. If a shooter is renowned in one event, he can keep maximum eight (previously it was four), if a shooter is renowned in two events he can keep maximum ten (previously it was seven) and if a shooter is renowned in more than two events, he can keep maximum twelve (previously it was seven) firearms under exempted category. The junior target shooter/ aspiring shooter are now allowed to possess two weapons (previously one) of any category in which the person is junior target shooter/aspiring shooter. This provision shall facilitate shooters in practicing with various types of firearms. Apart from the above exemptions, the shooters are entitled to possess two firearms as normal citizens under provisions of the Arms Act, 1959.

Similarly, by amending the provision under Rule 40 of the Arms Rules, 2016 the quantity of ammunition that can be purchased by the shooters during the year for the practice has also been increased considerably. As per the new provisions, for .22 LR rifle/pistol 5000 instead of 1000, for other types of Pistol/Revolver 2000 instead of 600 and for shotgun calibers 5000 instead 500 can be purchased by the shooters.

Apart from this, the Ministry of Home Affairs has also made other necessary amendments in the Arms Rules, 2016 by amending the Arms Act, 1959, vide the Arms (Amendment) Act, 2019. Through these amendments, it has also been clarified that no licence is required for Indian citizens for acquisitions, possession of small arms falling under the category of curio. However, an appropriate licence as prescribed would be required for use or to carry or transport such small arms. Without the endorsement of such firearms in the prescribed licence of the owner, no ammunition shall be sold for their use.

It may be noted that as per the provisions of the Arms (Amendment) Act, 2019, the maximum number of firearms to be possessed by any person has been reduced from three to two. Those in possession of three firearms have been given facility to retain any two of such firearms and to deposit the remaining firearm by 13.12.2020.


Ministry of Home Affairs

[Press Release dt. 24-02-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of T.V. Nalawade and S.M. Gavhane, JJ., partly allowed the present petition while explaining the significance of few provisions of the Criminal Code of Procedure, 1973.

In the present case, the act of respondents, police officers, of taking search of the house of the petitioner was illegal and that was interference in the privacy of the petitioner and his family. Relief is claimed of compensation of Rs 10 lakhs for infringement of a fundamental right, “Right of Privacy”.

Petitioner contends that during the said search, one Constable had tried to plant a pistol in his house but due to alertness of the petitioner he could not plant such arm. He further adds that while leaving the house threats were given by the police that they would implicate the petitioner in a false crime. Further, he states that, act of the police was infringement into his privacy, violation of his fundamental rights guaranteed under Article 21 of the Constitution of India.

In the earlier order of this Court, Sub-Divisional Police Officer was appointed to make inquiry. Petitioner contends that, Sub-Divisional Officer noticed illegality but did not propose action against the police officers involved in the illegal search. Adding to his contentions, petitioner states that the respondents have nothing to show that they had any information against the petitioner on that night or the prior one.

Counsel for the petitioner mainly submitted that police ought to have obtained search warrant first for taking search of the house of the petitioner and as such warrant was not obtained, the house search was illegal.

In the present matter respondent’s case is that on the basis of some secret information, petitioner was in possession of a firearm illegally and thus the search was taken.

Court’s Analysis and Conclusion [Explained: Provisions of Sections 165 and 166 CrPC]

Court holds that provisions of Sections 165 and 166 CrPC are applicable in a case like the present one.

In Supreme Court’s decision in State v. Rehman, AIR 1960 SC 210, Apex Court laid down that,

“as search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power”

 Provision of Section 165 CrPC is enacted to enable police to take search when there is urgency and when it is not permissible to follow lengthy process, securing search warrant from Magistrate.

 The provision is not restricted to search of what is stolen or believed to be stolen and it permits the police officer to make search for anything necessary for the purposes of investigation into any offence.

It is further noted that, on one hand the provision enables police to take search of the house for investigation of any crime, on the other, it becomes mandatory for police to record reasons as the first step before entering the house.

In respect to the Arms Act, Court stated that it has gone through the provisions of the Arms Act, 1959 as the respondents had submitted that there was specific information that the petitioner was in possession of firearm illegally, for which the Court further stated that nothing in the Arms Act and Rules framed under the Act enable police to take such search by ignoring the provision of Section 165 CrPC.

 Court, adding to its analysis, stated that, while going through the provisions of Maharashtra Police Act also in order to ascertain the powers of police officer nowhere the Act shows that police can bypass the provision of Section 165 CrPC.

Intrusion of Privacy

Court held that as the police officers had entered the house that too in the night time when his family was sleeping which included two ladies and the issues, it would amount to the intrusion into their privacy.

Further, in the present case, respondents were given an opportunity by the Court to show that there was secret information received by police on that night.

“When police officers leave for action, they need to make an entry about their movements in the station diary.”

 Court on noting the circumstances in the present case stated that, record by the petitioner shows that most of the respondents were assigned different duties at different places on that night. All of them came together on that night for this action but no writing is there in respect of secret information and also about the compliance of provision of Section 165 CrPC. Thus Court held that action of the police officers was illegal.

State is liable to pay compensation for the above-stated illegal action. Action of police was not only the infringement into privacy but defamed the entire family.

High Court further came down the relief in respect to the prosecution of police officers which is not possible in the present matter for the following reasons:

Court referred to the provisions of Sections 165 and 166 CrPC. In view of the CrPC provisions, it can be said that search of the house premises was a part of official duty.

Placing reliance on the Supreme Court decision in Anjani Kumar v. State of Bihar, (2008) 5 SCC 248, wherein it was held that, if there is reasonable connection between the act and the discharge of duty by public servant, the act would be ‘official’ to which section 197 of the Cr.P.C. would be applicable.

For prosecution, there is a necessity of sanction under Section 197 CrPC and in view of the facts of the present matter, no further action like direction for the prosecution of the police officers is warranted.

Thus, in view of the above observations of the Court, appeal was partly allowed declaring the search to be illegal. [Dnyaneshwar v. State of Maharashtra, 2019 SCC OnLine Bom 4949, decided on 29-11-2019]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Suvra Ghosh, JJ. allowed the appeal filed by two persons who were convicted by the trial court for offence of waging war against the Government of India and set aside the judgment on the grounds of absence of a link between accused and alleged charges.

In the present case, the police received information about a meeting being held at a village where seditious lectures were being delivered. A few members of the said assembly of 30 to 40 people had firearms with them. When police arrived at the spot, the people started fleeing and accused-appellants herein were arrested. Certain seditious pamphlets and leaflets were recovered from their possession. A complaint was registered against them and chargesheet was filed against the appellants and charges were framed against them under Sections 121 A, 122, 124 A of Penal Code, 1860, Sections 25(a) and 35 of Arms Act, 1959 and Sections 4 and 5 of Explosive Substances Act, 1908. The appellants pleaded not guilty to the charges and the trial court convicted the appellants of the charges levied against them and sentenced them accordingly. Being aggrieved by the said judgment, the appellants preferred this appeal.

Counsels for appellants Amarta Ghose, Anirban Tarafder, Somdhuti Parekh, Rimpa Rajpal submitted that the witnesses were forcibly brought by the police which was not required, since under Section 87 of the Code of Criminal Procedure, 1973 the Court had ample power to ensure attendance of witnesses and prosecution had no power with regard to same. It was submitted that neither any explosive substance was recovered from the place of occurrence nor was any firefight was detected. Further, no incriminating article was found either in the possession of the appellant or in his house.

According to prosecution, in order to avoid delay in the trial of the case due to the absence of witnesses, the police took it upon themselves to bring the witnesses to Court and arrange for their stay. There was no suggestion to the fact that the police influenced or coerced the witnesses to adduce evidence or tutored them. It was submitted that since guilt of the appellants had been proved to the hilt and that conviction must be affirmed.

The Court noted that in their statements recorded under Section 313 of the Code, the appellants/accused gave a detailed account regarding their arrest, detention, search and seizure which sharply contradicted the case made out by the prosecution. It observed that the arresting officers had not followed the procedure laid down in D.K Basu v. State of West Bengal, (1997) 1 SCC 416. It was further opined that no firearm or ammunition was seized from the possession of the accused-appellants and such arms or ammunition were also not found in any premises occupied by them. Therefore, no responsibility could be thrust upon them for a commission of any offence under the Arms Act, 1959. Lastly, no explosive substance was recovered from the alleged place of occurrence, and thus offence under Explosives Act also could not be made out.

In view of the above, the Court held that prosecution had miserably failed to establish the charges levied against the appellants and there was no evidence on record that linked accused-appellant to the alleged charges. It was observed that the prosecution case suffered from severe contradictions and thus benefit of doubt could be granted to the appellants.

The Court also opined that it was trite law that the burden of proving a charge against an accused lied solely upon the prosecution and the prosecution was required to bring evidence which should be cogent, compact, believable and trustworthy as to become incompatible with the innocence of the accused. It was opined that the trial court had failed to appreciate the evidence in the proper perspective and missed the salient point that the link between the appellants and the incriminating material produced by the prosecution was non-existent. Thus, the appeal was allowed and the impugned judgment was set aside.[Patit Paban Halder v. State of West Bengal, CRA No. 337 of 2006, decided on 21-06-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: In this petition filed before Rashid Ali Dar, J., an order passed by District Magistrate, Baramulla was challenged whereby detenu was ordered to be taken into preventive custody under Section 8 of the J&K Public Safety Act.

Petitioner’s custody in the police for the offences referred in the grounds of detention was converted into the custody under the impugned detention order. Petitioner challenged the order of detention on the ground that detenu was already under custody where an FIR was registered for offences under Section 7 and 25 of the Arms Act, 2013 and thus could not have been detained under the provision aforementioned. Whereas, Asif Maqbool, learned counsel on behalf of respondents contended that order of detention was passed taking into consideration the relevant provisions of the Act and he was well informed of the grounds of his detention thus, no illegality occurred. The question before the Court was, whether an order of detention could have been passed when the detenu was already in the custody of the police.

High Court relied on the case of A.K. Gopalan v. State of Madras, (1950) 51 Cri LJ 1383 where it was held that: “Preventive detention is by its very nature repugnant to democratic ideals and an anathema to the rule of law”. Court mentioned that the mindset of respondents seems to be that if the detention order was passed the petitioner could not apply for bail and if he does he would be prevented by virtue of this order. The above thought of respondents was improper as the authorities in case of bail application could have contested the same thus; the impugned order cuts the very root of the State Act. Hence, this petition was allowed and the impugned order was quashed. [Akhter Rasool Lone v. State of J&K, 2019 SCC OnLine J&K 429, decided on 10-05-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. modified the order of sentence imposed on petitioner and directed that the sentences shall run concurrently and not consecutively.

Petitioner was alleged to have snatched a chain from a lade and threatening her with a weapon while fleeing. He was convicted under Section 382 read with Section 34 IPC and sentences to undergo 4 years rigorous imprisonment. He was also convicted under Section 25(1-B)(a) of the Arms Act and sentenced to undergo 1-year rigorous imprisonment. By the order on sentence, trial court directed both sentences to run one after the other, i.e. consecutively. This order was challenged in the present petition.

Archit Upadhyay, Advocate for the petitioner contended that the impugned order was erroneous and contrary to the settled position of law. He relied on Manoj v. State of Haryana, (2014) 2 SCC 153, wherein the Supreme Court interpreted Section 31 CrPC which relates ‘sentences in cases of conviction of several offences at one trial.’

The High Court noted that the offences committed by petitioner were part of the same transaction. The Court discussed the Manoj case while referring to Nagaraja Rao v. CBI, (2015) 4 SCC 302V.K. Bansal v. State of Haryana, (2013)  7 SCC 211Sharad Hiru Kolambe v. State of Maharashtra, 2018 SCC OnLine SC 1581. It was observed by the High Court that “if the accused convicted of separate offences under IPC as also the Arms Act but they are part of the same transactions, the sentences shall run concurrently and not consecutively.” As such, the impugned order of the sentence was modified to run concurrently. Furthermore, it was found that the petitioner had already undergone the substantive sentence and was therefore directed to be released forthwith. [Irfan v. State, 2019 SCC OnLine Del 6908, decided on 05-02-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench comprising of Vipin Sinha and Ifaqat Ali Khan, JJ. dismissed the appeal as the applicant failed to prove the alleged charges against the accused.

The applicant through his counsel Afzal Ahmad Khan Durrani has filed an application seeking leave to appeal against the judgment by means of which all the accused persons have been acquitted for the offence punishable under Sections 394/34, 302/34, 201, 120B and 411 IPC along with Section 25/5/35 Arms Act. He has stated that along with the body of the deceased silver ornaments were also found at the spot.

It was important to note that the silver ornaments costed about Rs 5,000 which was a very meagre amount to commit murder plus neither the court could find a reason as to why the accused would commit the murder along with the fact that no active participation of the accused could be proved.

The High Court stated that a witness could lie but not the circumstances and in this case chain of pieces of evidence furnished by those circumstances were far from complete which failed to prove the guilt of the accused. Here the Court reiterated the basic rule of criminal jurisprudence according to which if two views were possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt a view which is favorable to the accused. Hence as the applicant failed to prove the charges against the accused the appeal was dismissed. [Mira Devi v. State of U.P., 2018 SCC OnLine All 3307, Order dated 04-07-2018]

Patna High Court
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Patna High Court: A Single Judge Bench comprising of Aditya Kumar Trivedi, J. allowed a criminal appeal and set aside the conviction and sentence of the appellant under Section 307, 333 and 34 IPC along with Section 27(1) of Arms Act.

The appellant was accused of firing gunshot at the injured Assistant Sub-Inspector (informant) while he was returning from election duty. It was alleged that the appellant came on a motorcycle from behind along with the co-accused and fired gunshot at the petitioner thereby injuring him. The FIR was registered in the case, the appellant was apprehended, charge sheet filed, and he was tried, convicted and sentenced as mentioned above. The appellant challenged the order of the trial court in the instant appeal.

The High Court, on a careful consideration of the record, inter alia observed that the informant saw the appellant who came from behind, only after the gunshot had been fired. As there was no other person to be seen on the road, the informant inferred that it was the appellant who had injured him. The conviction was based on the fardbeyan of the informant, and such inference as was made by the informant could not be made a basis for conviction of the appellant. Further, identification of the appellant was done by the informant while he was in the police station in another case, and no proper test identification parade was conducted which was another irregularity which demanded consideration while deciding the case. In such circumstances, the High Court allowed the appeal and set aside the order of conviction and sentence passed against the appellant. [Santosh Yadav v. State of Bihar,2018 SCC OnLine Pat 955, dated 29.05.2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of KL Wadane, J. heard a criminal writ petitioner challenging the order of the respondents, wherein the Arms Licence application of the petitioner had been dismissed. The reason why petitioner had applied for an arms licence was because he feared that he and his family had threat from anti-social elements who held grudges against him since he worked as a string operationalist and had also become a successful businessman and agriculturist in a short period of time.

The respondents denied him a licence on the grounds that they did not think there was any threat to him or to his family; that his annual income for 2012-13 was only Rs. 4,11, 942 and that if they started granting licences to every businessman, then the number of arm licence-holders will increase.

Referring to Section 14 of the Arms Act of 1959 (which deals with the situations under which licensing authority can refuse the grant of a licence) the petitioner contended that the reasons stated by the authority were not mentioned under Section 14 and that “if a particular provision of a statute prescribes the grounds on which discretion is to be exercised, then such a discretion is to be exercised in accordance with the provisions”.

Section 14 lists the following grounds as reasons for refusal of licence- when it pertains to prohibited arms or ammunitions; when the licence seeker is prohibited from acquiring or carrying arms, is of an unsound mind, or is unfit for any other reason; or the refusal is for public peace or for public security; and that grant of licence shall not be refused merely because the person does not own or possess sufficient property.

Since the reasons mentioned by the respondents were contrary to the provisions of the Arms Act, the writ petition was allowed and the order of the respondent was quashed. [Ashok v. State of Maharashtra, 2018 SCC OnLine Bom 70, dated 12-01-2018]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A petition under Section 482 CrPC was filed by the petitioner  to conduct proper investigation in FIR registered by him in October, 2014 under Section 364/34 IPC registered at Police Station Malout, District Sri Muktsar Sahib. The petitioner also apprehended death threat from four police officials who are also the respondents in the case.

On hearing both the parties, Court examines the allegations by the petitioner on the respondents. The petitioner has alleged that in October, 2014, his son was kidnapped from Malout under the railway over bridge Malout by some police officials of Abohar while one official was in uniform and others were in civil clothes and accordingly, FIR was registered by the petitioner the very next day of kidnapping. However, later on, Abohar Police registered another FIR under Sections 399 and 402 IPC and Sections 25/54/59 of the Arms Act showing the arrest of petitioner’s son on 15.10.2014 at about 9.00 p.m. from a factory area in Abohar recording that they had received a secret information that five persons are making preparation to commit dacoity. Further, the offences under Sections 399 and 402 IPC were deleted and Amrik Singh was challaned only under Section 25 of the Arms Act and challan is since pending before Illaqa Magistrate for trial and the police also moved a cancellation report of FIR filed by the petitioner.

Conclusively, the Court observed that the allegations put by the petitioner were quite serious as he had alleged that son of the petitioner was falsely implicated after being kidnapped from Malout and Police Station Sadar Abohar registered the FIR for dacoity only after the registration of FIR by the petitioner under Sections 364/34 IPC registered at Police Station Malout regarding kidnapping of his son.

The Court noted the fact that the matter involved was regarding life and liberty of the petitioner and was thus, very serious. The Court concluded with its findings stating that that police officials have committed the crime, necessary departmental and criminal action shall be taken against them and police may also take further action in the FIR lodged by the petitioner and follow up action for quashing the FIR alleged to be falsely implicating the petitioner’s son. It ordered the authorities concerned  to conduct the inquiry and submit the report within 3 months. Accordingly, it allowed the petitioner’s appeal along with an additional order that the petitioner and his son would not be called to the police station without prior permission of the Court. [Balkar Singh v. State of Punjab, 2017 SCC OnLine P&H 1725, decided on 18th July, 2017]