Prosecution under Sections 25(1-A) and 26 of the Arms Act cannot be instituted without the previous sanction of the District Magistrate, as required under Section 39 of the Act.

S.N. Jha, J.-This application has been filed for quashing an ORDER :dated 9.8.1981/10.8.1981, whereby cognizance has been taken against the petitioners under Section 25 (I-A), 26 and 34/ 26 of the Arms Act (in short 'Act').

2. The facts relevant for the disposal of this application, in short, are that in the evening of 22.8.79 one Mahendra Kamat and Tapeshwar Kamat of village Tuniahi entered into the house of the petitioner for committing theft. They were detected by petitioner no. 1, who raised hullah on which the aforesaid two persons took to their heels and after hot chase those two persons were apprehended by petitioner no. 1 and other members of his family as well as the villagers. It is said that in course of chasing, petitioner no. 1 also received a Lathi injury on his head. On search a country made pistol was recovered from the possession of Mahendra Kamat and they were brought in that police station alongwith the said pistol.

3. On the written statement of petitioner no. 1, the police instituted a case under Section 457 and 380 of the Indian Penal Code (in short 'Penal Code') and under Section 25 (1-A) and 26 of the Act, against the aforesaid two persons.

4. During the course of investigation, the case was found to be false and on the statement of Mahendra Kamat a case was instituted against these two petitioners under Section 25(1-A) and 26 of the Act. It appears that the case was supervised by the Superintendent of Police personally and he directed the Investigating Officer and the Deputy Superintendent of Police to produce witnesses before him to make some querries, but no witnesses were produced before him. In the meantime Madhepura was separated and was made out a new independent district. The new Superintendent took the charge and the police after investigation submitted charge sheet, on the basis of which the cognizance was taken by the impugned ORDER :.

5. Mr. Pashupati Nath Jha, learned counsel appearing on behalf of the petitioners, has submitted that the cognizance under Section 25 (1-A) and 26 of the Act is illegal and fit to be quashed as no prosecution regarding an offence under Section 25 (1-A) and 26 of the Act can be instituted without the previous sanction of the District Magistrate under Section 39 of the Act.

6. In ORDER :to appreciate the contention raised on behalf of the petitioners, it is necessary to examine some provisions of the Act.

Section 39 of the Act, reads as follow :

"No prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the District Magistrate:''

Section 3 (i) of the Act, lays down that : –

"No person shall acquire, have in his possession, or carry any fire-arm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder : Provided......... "

Section 25 (1-A) says that :

"Whoever has in contravention of a notification issued under Sec. 24 A in his possession or in contravention of a notification issued under Sec. 24-B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than one year, but which may extend to five years and shall also be liable to fine."

7. Mr. Jha streneously argued that no prosecution can be instituted against any person regarding any such offence without previous sanction of the District Magistrate. According to him a proceeding started without sanction is null and void. The requisite sanction is a condition precedent for the institution of a proceeding in respect of an offence of this nature.

8. In the instant case the fardbeyan of the said Mahendra Kamat, on which the case was instituted, was recorded as far back as 24.8.1979 and cognizance was taken in the year 1981. Till then no sanction was received by the prosecution. It is admitted fact that no sanction was obtained by the prosecution tilt the date of cognizance.

9. The learned