S. Ali Ahmad, J. :

This is an application for quashing the order dated the 3rd of April, 1972 by which the Sub-divisional Magistrate, Madhubani, took cognizance against the petitioner for an offence punishable under section 25 of the Arms Act.

2. Shortly stated the facts are that on the 25th of April, 1969, on the basis of a confidential information the Laukaha Police Station came to kn0w that a gun was concealed in the Bakhar belonging to one Rameshwar. On the basis of the information, so received, a raid was conducted and on search a gun along with three cartridges was recovered. During the course of investigation it came to light that the Bakhar from where the gun and the cartridges were recovered belonged to the petitioner Rajendra Sahu. The Police was also of the view that the gun and cartridges were concealed there at the instance of some inimical hands. Accordingly a report in final form was submitted by the Police on the 21st of February, 1970. A protest petition, which was in fact a petition of complaint, was filed by Janak Lall MandaI. It was alleged in that petition that the police in collusion with the petitioner had submitted report in final form and that the petitioner should be summoned and put on trial. Janak Lall Mandai was examined on solemn affirmation by the Sub-divisional Magistrate. After he was examined on solemn affirmation the Sub-divisional Magistrate sent the matter to another Magistrate for enquiry.

3. The learned Magistrate after holding enquiry submitted a report mentioning that a prima facie case had been made out by the petitioner. The learned Sub-divisional Magistrate by his order dated the 3rd of April, 1972 accepted the inquiry report submitted by the Magistrate and took cognizance under Section 25 of the Arms Act.

4. Mr. Parimal Chandra Das has attacked the order taking cognizance on the ground that it was without jurisdiction. He has referred to section 39 of the Indian Arms Act, which reads as follows:

"No prosecution shall be instituted against any person in respect of any offence under section 3 without previous sanction of the District Magistrate Section 3 of the Act, prescribes that 'no person shall enquire, have in his possession or carry any firearm or ammunition unless he hold in this behalf a licence issued in accordance with the provision of this Act, and the rules made there under' -Violation of provision contained under section 3 of the Act, is punishable under section 25 of the Act.

5. Learned counsel further contended that before cognizance is taken of an offence under section 3 of the Act, there must be a previous mention by the District Magistrate as required under section 39 of the Act. Admittedly no sanction was granted by the District Magistrate.

6. Counsel for the state, however, stated that want of sanction will not be fatal and the requirement regarding sanction would be complied with by the grant of subsequent sanction by the District Magistrate. I do not think the argument on behalf of the State can be accepted. The language of section 39 of the Act, is very clear and simple. It speaks of a previous sanction by the District Magistrate. In that view of the matter even if sanction by the District Magistrate is given at subsequent stage the requirement of section 39 of the Act, will not be fulfilled.

7. It, therefore, appears that the Older dated the 3rd of April, 1972 was illegal, being without jurisdiction. It is quashed and the application is accordingly allowed.

Application allowed.