Back
2023 Supreme(Online)(KER) 21817
HIGH COURT OF KERALA
P.V. KUNHIKRISHNAN, J
SAJAN SAJI – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 6728 2023
M.J.SANTHOSH
A mandatory notification under Section 4 of the Arms Act is required for prosecution under Section 25(1-A); absence thereof negates the offence.
Headnote:
Arms - Offences under Arms Act - Sections 25(1-A), 4 - Notification Requirement - The court held that for a successful prosecution under the Arms Act, specifically Section 25(1-A), a mandatory notification under Section 4 must be in place which was absent in this case, leading to the quashing of proceedings.
Fact of the Case:
The petitioner was accused of violating Section 25(1-A) of the Arms Act after two axes and swords were found at the petitioner's residence. The petitioner contended that the area was not notified under Section 4 of the Arms Act, which is necessary for establishing the offence.
Issues: Whether the non-notification of the area under Section 4 of the Arms Act negated the prosecution under Section 25(1-A).
Ratio Decidendi: A notification under Section 4 of the Arms Act is mandatory for prosecuting under Section 25, and without it, no offence can be established.
Final Decision: The court quashed all further proceedings against the petitioner in CC No. 2506/2022.
O R D E R
The petitioner is arrayed as an accused in CC No.2506/2022 on the file of the Judicial First Class Magistrate Court-II, Chengannur. The above case is registered against the petitioner alleging offences punishable under Sec. 25(1-A) of Arms Act . The prosecution case is that on 07.5.2022 at about 6.15 pm, two steel axes and two swords found concealed in house No. 137 of Thriperrunthara Panchayat. Annexure -A1 is the FIR. After investigation, the final report was filed before the Judicial First Class Magistrate Court-I, Chengannur and the learned Magistrate took cognizance of the offence and registered the case as CC No. 2506/2022. Annexure-A2 is the final report. The petitioner earlier filed Crl.M.C. No. 7314/2022 to quash Annexure-A1 FIR and this Court passed Annexure-A3 interim order. Thereafter, Annexure-A2 final report is filed and hence, this Crl.M.C. is filed to quash Annexure-A2 final report.
2. The main contention of the petitioner is that the place of occurrence is not within the notified area as per Sec. 4 of the Arms Act . It is also submitted that there is no material to attract the offence punishable under Sec.25(1-A) of the .
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
4. The counsel for the petitioner reiterated the contentions raised in the Crl.M.C. The counsel also relied the judgment of this Court inStephen v. State of Kerala [ 2018 (4) KHC 58 ] andJithu and anr. v. State of Kerala and anr. [ 2014 (3) KHC 77 ]. The counsel also submitted that in Annexure-A4, the counter filed in Crl.M.C. No. 7314/2022, the respondents conceded that the place of occurrence is not within the notified area. The Public Prosecutor also submitted that the place of occurrence is not within the notified area under Sec.4 of the Arms Act . But, the Public Prosecutor submitted that the petitioner can raise this before the trial court.
5. This Court considered the contentions of the petitioner and the Public Prosecutor. In Stephen's case (supra), this Court considered this point in paragraph 13. It will be better to extract the same.
13. “This Court in Jithu v. State of Kerala , 2014 (3) KHC 77 : 2014 (2) KLD 209 : 2014 (3) KLT 243 : ILR 2014 (3) Ker. 504 : 2014 (3) KLJ 323, had held that for constituting an offence under S.25 of the Act, notification under S.4 is mandatory. This is in conformity with the view of the Division Bench of Bombay High Court in Sudhir Suresh Kamble v. State of Maharashtra , Laws (Bom.) 1992 106, where it was held that in the absence of a notification under S.4, prosecution for offence under S.25 cannot be considered. In State of Punjab v. Swaran Singh (supra) the Full Bench held that in the absence of a notification under S. 4 declaring 303 rifle as a prohibited arm, prosecution under S.27 of Arms Act was not sustainable.”
6. In Jithu's case (supra), this Court again considered this point in paragraph 12, which is extracted hereunder :
12. “The above decisions support the view I have taken, so far as offence under S.25(1B)(b) of the Act concerning "arms" which is defined in S.2(1)(c) is concerned that as required by S.4 of the said Act, a notification issued by the Central Government specifying the area where acquisition, possession or carrying such arms are prohibited is necessary to make such acquisition, possession or carrying such arms an offence. In the absence of such notification, acquisition, possession or carrying of such arms cannot be said to be an offence under the Act of 1959.”
7. Moreover, a perusal of Annexure-A4 would show that the area from where the arms were detected is not included or notified as per Sec. 4 of the Arms Act . In the light of the same, I think the prosecution against the petitioner is unsustainable.
Therefore, this Crl.M.C. is allowed. All further proceedings against the petitioner in CC No. 2506/2022 on the file of the Judicial First Class Magistrate Court-I, Chengannur are quashed.
sd/-
P.V.KUNHIKRISHNAN JUDGE
