A Single Judge Bench of Justice Rana Vikram Singh observed that the requirement of previous sanction under Section 39 of the Arms Act is statutory and cannot be dispensed with where the provision is attracted.

The case arose from an FIR lodged by Abdul Halim alleging that on December 9, 2013, he and his companion were travelling towards a brick kiln carrying ₹80,000 for payment of labourers' wages when four accused persons intercepted them and threatened them with firearms.

According to the complaint, petitioner Md. Moajjam threatened the informant over the cancellation of his dealership and allegedly snatched the cash. It was further alleged that a pistol fell from Moajjam's possession when the accused attempted to flee. The informant and his companion handed the pistol to the police, who seized it along with a live cartridge.

Following investigation, however, the police submitted a final report dated March 31, 2015, treating the occurrence as false and recommending prosecution of the informant under Sections 182 and 211 IPC. The informant subsequently filed an application seeking cognizance. Disagreeing with the police report, the Judicial Magistrate, First Class, Begusarai, took cognizance on October 28, 2015, under Sections 143, 341, 323, 504 and 379 IPC and Sections 25(1-B)(a) and 26 of the Arms Act.

The accused challenged the order before the Additional Sessions Judge-I, Begusarai, but their revision was dismissed on March 21, 2017. The Revisional Court held that the materials disclosed a prima facie case and that the objection concerning sanction under the Arms Act could be raised at the framing-of-charge stage.

The petitioners thereafter approached the High Court under Section 482 CrPC, challenging the cognizance order and consequential criminal proceedings. One of their principal objections was that the Arms Act prosecution suffered from non-compliance with the mandatory requirement of previous sanction under Section 39. Examining this objection, the High Court observed:

“The petitioners have also raised a specific objection concerning the absence of previous sanction under Section 39 of the Arms Act. The said provision stipulates that no prosecution shall be instituted in respect of an offence under Section 3 of the Act without the previous sanction of the District Magistrate. The requirement is statutory in nature and cannot be dispensed with, where the provision is attracted.”

On the Revisional Court's decision to defer consideration of sanction until the framing of charges, the Bench held:

“The learned Revisional Court, while considering the aforesaid objection, observed that the question of sanction could be raised by the petitioners at the stage of hearing for framing of charge. However, where a statutory bar to prosecution is demonstrated from the materials on record, the same cannot be treated as an inconsequential objection or invariably postponed without examining its legal effect. The applicability of Section 39 of the Arms Act has to be considered with reference to the precise offence alleged and the relevant sanction record.”

The Court also examined the circumstances in which the Magistrate had differed from the police final report. It held that although a Magistrate is not bound by the investigating officer's opinion and may independently take cognizance, such power must be exercised upon due application of judicial mind. Merely filing an application seeking cognizance does not establish the truthfulness of the informant's allegations, and the materials must disclose sufficient grounds for proceeding against the accused.

The Bench further considered connected proceedings arising from Bakhari P.S. Case No. 232 of 2014, in which the present informant, Abdul Halim, was himself accused in connection with the alleged possession of the same firearm. The Court noted that the two FIRs concerned the recovery of the same pistol. While the investigation in the present case had concluded that the allegations were false, a charge-sheet had been submitted against Halim in the connected case.

In an earlier order dated April 13, 2018, passed in Criminal Miscellaneous No. 11048 of 2017, the High Court had quashed the cognizance order in the connected case and directed that its records and charge-sheet be considered as further material in the present proceedings under Section 173(8) CrPC. The Bench held that these connected proceedings could not be examined in isolation, particularly in view of the petitioners' allegation that the prosecution was instituted as a counterblast arising from previous disputes.

Considering the police final report, the connected criminal proceedings, the earlier High Court order and the objection concerning Arms Act sanction cumulatively, the Court found substantial doubt regarding the bona fides of the prosecution and its continuation against the petitioners.

Accordingly, the High Court allowed the application and quashed the criminal proceedings arising from Bakhari P.S. Case No. 320 of 2013 insofar as they concerned the petitioners.

Appearance:

For the Petitioners: Mr. Pritish Kumar Lal, Advocate

For the State: Mr. Jharkhandi Upadhyay, APP

For the Informant: Mr. Ajay Kumar Thakur, Advocate; Mr. Purushottam Kumar, Advocate; Mr. Abhijeet Chandra, Advocate