Sanction from the District Magistrate is not required for prosecution under Sec. 27 of the Arms Act, which punishes the use of firearms in contravention of Secs. 5 and 7 of the Act.

1. This application is being disposed of at the stage of admission itself.

2. The sole petitioner has filed the present application for quashing the order dated 21-6-1993, passed by the 11th Additional Sessions Judge, Gaya, in Sessions Trial No.18/93, 58/ 93 framing charges under Sec. 302 of the Indian Penal Code and Sec. 27 of the Arms Act against the petitioner and under Sec. 302/ 34, IPC against other accused person.

3. The facts necessary for disposal of the present application are that a fardbeyan was lodged by one Smt. Anjani Sharma at 3 p.m. on 6-7-92 with regard to an occurrence which took place near Bari Road, Marufganj Mor in the town of Gaya at 2 p.m. at the place of occurrence itself in which her Mama (maternal uncle) Ramswarath Sharma was alleged to have been murdered. The petitioner is alleged to have fired at her Mama which hit in the chest and as a result of which he died on the spot. The other accused persons were also standing there. On the basis of the Fardbeyan lodged by Smt. Anjani Sharma a first information report was lodged at Gaya Kotwali Police Station, being Case No. 141/92 and the police after investigation submitted charge-sheet under Secs. 302 / 34 and Sec. 27 of the Arms Act against all the accused persons including the petitioner. The Chief Judicial Magistrate took cognizance and committed the case to the Court of Sessions. Thereafter the case was transferred to the Court of the 11th Additional Sessions Judge, Gaya, for trial.

4. Two of the accused persons, namely, Laxchami Prasad Agrawal and Shatrughan Prasad Agrawal, filed an application on 16-693 to discharge them as there was no material against them. A rejoinder to that was also filed on behalf of the State. Thereafter, the Additional Sessions Judge-XI, heard the parties on the said petition as well as on the point of framing of charges and by the impugned order directed for framing of charges under Sec. 302, I. P.C. and Sec. 27 of the Arms Act against the petitioner Laxchami Prasad Agrawal and under Secs. 302/34, I.P.C. against the other accused persons.

5. Learned counsel for the petitioner, firstly, contended that the prosecution of the petitioner under Sec. 27 of the Arms Act is not permissible in law for the reason that no sanction has been obtained from the District Magistrate for prosecution of the petitioner under Sec. 39 of the Arms Act. Secondly, he submitted that the impugned order has been set aside at the instance of the two accused persons, namely, Shatrughan Prasad Agrawal and Laxchami Prasad Agrawal by this Court in Cr. Misc. No. 8764/93 and the matter has been remitted to the Addl. Sessions Judge to re-hear the application filed by them and to pass a fresh order in accordance with law, in that view of the matter, framing of charges against the petitioner should also be quashed.

6. So far as first point is concerned, the learned counsel for the petitioner stated that Sec. 39 of the Arms Act provides that no prosecution shall be instituted against any person in respect of any offence under Sec. 3 without the previous sanction of the District Magistrate and as in the present case the allegation against the petitioner is that he has unlicensed fire-arm, his prosecution without sanction is bad in law. In support of his submission he relied upon the judgment of a single Judge of this Court, reported in 1986 Pat LJR (HC) 449 (Kapildeo Baitha V/s. State of Bihar); wherein, it has been held that sanction of the District Magistrate is necessary before prosecution of an accused under Sec. 27 of the Arms Act.

7. I am unable to agree with the submission advanced on behalf of the petitioner for the reasons stated hereinafter. Sec. 39 of the Arms Act provides as follows :-

"Provious sanction of the District Magistrate necessary in certain cases - No prosecution shall be instituted against any person in respect of any offence under Sec. 3 without the previous sanction of the District Magistrate. "

This Section prohibits prosecution