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1950 Supreme(Pat) 7
PATNA HIGH COURT
Meredith and Sarjoo Prasad JJ.
Mohan Lahiri
Versus
King
Criminal Revision No. 1328 of 1949 ; 1452 of 1949 ;
Decided On : JANUARY 13, 1950
The word "proceedings" in Section 29 of the Arms Act means judicial proceedings in Court and not searches or arrests or investigations made by the police.
Headnote:
ARMS ACT - SECTION 19 (F) - SANCTION FOR PROSECUTION - MEANING OF INSTITUTION OF PROCEEDINGS - SECTION 29 - SECTION 30 - SEARCH - ILLEGALITY - POSSESSION AND CONTROL - CONSCIOUS POSSESSION AND ACTUAL CONTROL - SECTION 19 (F) - HEAD OF THE FAMILY - RESPONSIBILITY.
Fact of the Case:
Petitioners were convicted under Section 19 (f) of the Arms Act for possession of unlicensed weapons. They challenged the validity of the proceedings on the ground that the sanction of the District Magistrate was not obtained in sufficient time. The petitioners also argued that the search was illegally held and that the petitioner Mohan Lahiri was not personally and consciously in possession of the weapons.
Finding of the Court:
The court held that the word "proceedings" in Section 29 of the Arms Act means judicial proceedings in Court and not searches or arrests or investigations made by the police. The court further held that the search, even if illegally held, had no bearing on the question of the petitioners' guilt. The court also held that the principle of responsibility for possession of unlicensed weapons by the head of the family is not enough in cases under the Arms Act and that there must be conscious possession and actual control.
Issues: 1. Whether the proceedings were null and void due to the absence of a timely sanction from the District Magistrate? 2. Whether the search was illegally held? 3. Whether the petitioner Mohan Lahiri was personally and consciously in possession of the weapons?
Ratio Decidendi: 1. The court held that the word "proceedings" in Section 29 of the Arms Act means judicial proceedings in Court and not searches or arrests or investigations made by the police. Therefore, the proceedings were not null and void due to the absence of a timely sanction from the District Magistrate. 2. The court held that the search, even if illegally held, had no bearing on the question of the petitioners' guilt. 3. The court held that the principle of responsibility for possession of unlicensed weapons by the head of the family is not enough in cases under the Arms Act and that there must be conscious possession and actual control. Since there was no finding that the petitioner Mohan Lahiri was personally and consciously in possession of the weapons, his conviction was set aside.
Final Decision: The court set aside the conviction and sentence of the petitioner Mohan Lahiri and maintained the conviction and sentence of the petitioner Tulsi Sao.
Meredith, J.
1. These two rules have been issued upon the application of two persons who have been convicted under Sec.19 (f), Arms Act. Petitioner 1 Mohan Lahiri has been found to have been in possession of an unlicensed revolver, cartridges and two toy pistols, and has been sentenced to one years rigorous imprisonment and a fine of Rs. 200. The other petitioner Tulsi Sao has been convicted for the possession of an unlicensed revolver and cartridges with which he was said to have threatened the police, and has been sentenced to two years rigorous imprisonment.
2. The principal point taken on behalf of both petitioners is that the proceedings are null and void by reason of the fact that the sanction of the District Magistrate was not obtained in sufficient time. In the case of Mohan Lahiri, he was arrested after search of his house on 12th July 1948, On 26th July a Magistrate admitted him to bail. On 25th August sanction for prosecution was given by the District Magistrate, and on 17th September the police submitted charge-sheet.
3. In the case of Tulsi Sao, the search and arrest took place on 30th August 1948. The sanction was obtained on 14th November 1943, and the charge-sheet was submitted and cognizance taken by the Magistrate on 25th November.
4. Sec.29, Arms Act, provides that where an offence punishable under Section 19, Clause (f), has been committed, no proceedings shall be instituted against any person in respect of such offence without the previous sanction of the Magistrate of the District, or in a presidency town, of the Commissioner of Police. There can be no gain-saying the fact that proceedings taken in the absence of a sanction required by law are a complete nullity. It is not a question of a technical defect which can be remedied by a belated sanction--see Basdeo Agarwalla V/s. Emperor, A. I. R. (32) 1945 P. C. 16: (46 Cr. L. J. 510). But the real question is what is meant by the "institution of proceedings" in Sec.29. Is the word "proceedings" used in a very wide sense so as to include an investigation before the police, as argued for the petitioners, or is it used in the narrower sense of judicial proceedings before a Court ?
5. Taking the common sense view it is difficult to hold that the law could have contemplated that no proceedings of any sort, even an enquiry by the police, could be taken unless a previous sanction had been obtained ; for, how is the District Magistrate to determine whether to accord sanction or not unless he has some prima facie materials before him ? And how are those materials to be obtained unless some enquiry be held ? Moreover, what are the police to do if they find a man in possession of arms for which he cannot produce a licence ? Are they to stay their hands and do nothing until they have run off and obtained sanction from the District Magistrate? That would be an impossible position, And it is indeed conceded by Mr. Mukherji for the petitioners that in such a case the police could arrest, and taking the man into custody could not be regarded as the institution of proceedings within the meaning of Sec.29. But he attempts to make a distinction between the actual arrest and the police investigation.
6. These practical considerations seem to suggest that the words must have been used in the sense of judicial proceedings, and the only case of this Court directly in point takes that view. I refer to Emperor V/s. Ghulam Nabi, 6 pat. 768 : (A. I. R. (15) 1928 pat. 146: 29 Cr. L. J. 301). In that case a Division Bench laid down that the word "proceedings" in Sec.29, Arms Act meant legal proceedings in Court and not searches or arrests or investigations made by the police in exercise of the powers conferred upon them by the Criminal Procedure Code or any other law. This case being directly in point, it is binding upon us. If there was any case of this Court, also directly in point, where the contrary view was taken, the only course would be to refer the matter to a Full Bench
