Back
2010 Supreme(Mad) 2078
High Court of Judicature at Madras
THE HONOURABLE MS. JUSTICE R. MALA
Abbas
Versus
State by Inspector of Police, Coimbatore
Criminal Appeal No. 1645 of 2002
Decided On :05-02-2010
For the Appellants:R. Sankarasubbu, Advocate.
For the Respondent:I. Paul Noble Devakumar, Government Advocate (Crl.side).
The requirement of sanction for prosecuting under Section 25(1)(1A) of Arms Act and the evidentiary standard for proving theft under Section 379 I.P.C.
Headnote:
Arms Act - Theft - Section 379 I.P.C., Section 25(1)(1A) of Arms Act - Section 39 of Arms Act - Section 3 of Arms Act
Fact of the Case:
The accused was convicted under Section 379 I.P.C. for stealing a firearm belonging to the Police Department and under Section 25(1)(1A) of Arms Act. The appeal challenged the lack of sanction for prosecuting the accused under Section 25(1)(1A) of Arms Act.
Finding of the Court:
The court found the accused guilty under Section 379 I.P.C. based on witness testimonies and the confession statement. The court set aside the conviction and sentence under Section 25(1)(1A) of Arms Act due to lack of sanction.
Issues: The issues revolved around the theft of the firearm, the requirement of sanction for prosecuting under Section 25(1)(1A) of Arms Act, and the appropriate sentencing for the accused.
Ratio Decidendi: The court held that the accused was guilty under Section 379 I.P.C. based on witness testimonies and the confession statement. The lack of sanction for prosecuting under Section 25(1)(1A) of Arms Act led to setting aside the conviction and sentence under that section.
Final Decision: The conviction and sentence under Section 25(1)(1A) of Arms Act were set aside, and the conviction and sentence under Section 379 I.P.C. were confirmed. The accused was sentenced to undergo two years rigorous imprisonment.
This Criminal Appeal has been arising out of the conviction and sentence passed by the Additional Sessions Judge, Coimbatore (Fast Track Court-II) on 09.07.2002 in S.C. No.130 of 2002 convicting the accused under Section 379 I.P.C. and sentencing him to undergo two years rigorous imprisonment and convicting him under Section 25(1)(1A) of Arms Act and sentencing him five years rigorous imprisonment and imposing fine of Rs.1000/- in default to undergo six months simple imprisonment.
2. The case of the prosecution is as follows: On 24.06.2001 at 3.30 a.m., when P.W.1 and P.W.2 were in banthopasth duty, P.W.3 is a driver in the jeep bearing No. T.N.38G0175, the material object has been kept in the jeep which was given by P.W.7 has handed over the same to the P.W.1 and P.W.2 for bandhopasth duty. Without knowledge of P,W.3 Dinesh the accused has stolen the
M.O.1 which was belonging to Police Department. Then, P.W.2 made an enquiry, he came to know that M. O.1 has been missing. Then, they gave a complaint Ex.P1 and the same was received by P.W.9 Inspector of Police. After receipt of complaint, he registered a case in Crime No. 262 of 2001 under Section 379 I.P.C. and prepared Ex.P6 F.I.R. Then, at 8.20 p.m. P.W.9 gone to the place of occurrence and prepared an observation mahazar Ex.P7 in the presence of Yahoob and Yousuf. Then, he prepared Ex.P8 rough sketch and examined the witnesses and recorded their statement at 4 p.m.
3. On the same day at Ukkadam Bye-pass road in front of Holy Family School Board, he arrested the accused. At that time, the accused gave a confession and the same was recorded in the presence of P.W.6 Kuppusamy and one Murugesan. In the confession statement, he has admitted and handed over the hidden property. The admitted portion of the confession statement is marked as Ex.P2 prepared by P.W.9 in the presence of
P.W.6 and Murugesan, the accused has gone to Prabasam Rubber Company in the open terrace and handed over M.O.1 gun which was seized under Ex.P3 mahazar at 5.15 p.m. Then, P.W.9 has gone to police station. Since the accused has sustained injury on his right leg, he was sent to hospital where P.W.8 Dr.Paramasivam treated him and gave Ex.P5 Accident Register. Then, P.W.9 examined the witnesses. He further gave requisition to record the Section 164 Cr.P.C. statement of the witnesses P.W.4 Sikkendar Batcha and P.W.5 Fyrose. The requisitions are marked as Exs.P10 and P12 and P.W.9 concluded his investigation and filed charge sheet against the accused under Section 379 I.P.C. and Section 25(1)(1A) of Arms Act.
4. The learned Additional Sessions Judge after framing necessary charges against the accused, questioned the accused and he pleaded not guilty. He examined the witnesses P.W.1 to P.W.9 and Exs.P1 to P12 and M.O.1, posed the question under Section 313 Cr.P.C. based on the incriminating evidence against this accused/appellant for which he denied the same. On considering the oral and documentary evidence, he found the accused guilty of the offence under Sections 379 I.P.C. and 25(1)(1A) of Arms Act and sentenced the accused as indicated above.
5. Challenging the conviction and sentence passed by the Sessions Court, the learned Counsel appearing for the appellant would submit that before prosecuting the accused under Section 25(1)(1A) of Arms Act, sanction has not been obtained as per Section 39 of Arms Act, from District Magistrate/District Collector.
So, the entire prosecution under Section 25(1)(1A) is non existent in the eye of law. It is the case of the prosecution is that he has stolen the property as he is not having any motive of using. Hence, the Trial Court has committed an error in convicting the accused under Section 25(1)(1A) of Arms Act. He further submits that the appellant is not guilty under Section 379 I.P.C. Even if he will be found guilty under Section 379 I.P.C., he prays for lesser punishment.
6. The learned Government Advocate (Criminal Side) submits that ingredients of Sect
