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HIGH COURT OF KERALA
K.ABRAHAM MATHEW, J
AJITH KUMAR – Appellant
Versus
STATE OF KERALA – Respondent
Bail Appl./3688/2015
Bail - Anticipatory Bail - Cr.P.C. Section 438, Arms Act Section 27(2) - Court emphasized that absence of usage of weapons precludes conviction under Arms Act, leading to anticipatory bail grant.
Fact of the Case:
Petitioners sought anticipatory bail under Section 438 of the Cr.P.C., facing allegations of possession of a sword and an iron rod, under Section 27(2) of the Arms Act without evidence of use.
Finding of the Court:
The court found that since there were no allegations of the petitioners using the weapons, the charge under Section 27(2) of the Arms Act could not be sustained, leading to the grant of bail.
Issues: Whether the absence of evidence showing the use of weapons negates the applicability of Section 27(2) of the Arms Act, allowing for anticipatory bail.
Ratio Decidendi: The court held that without evidence of weapon usage, charges under Section 27(2) were unsustainable based on prior Supreme Court rulings, hence anticipatory bail was warranted.
Final Decision: Anticipatory bail granted to the petitioners.
O R D E R
Petition filed under Section 438 Cr.P.C.
2. Petitioners are alleged to have committed the offence under Section 27 (2) of the Arms Act .
3. According to the prosecution they were found to be in possession of a sword and an iron rod.
4. Heard.
5. The learned counsel submits that there is no allegation that the petitioners used the weapons which were allegedly found in the possession and Section 27 (2) of the Arms Act is not attracted. He places relies on the decision of the Hon'ble Supreme Court in[Mahendra Singh Vs. State of West Bengal (1974) 3 SCC 409 ]. In that case the Supreme Court held that unless there is evidence to prove that the accused used the arm conviction under (2) of the cannot be sustained. In this case there is no allegation that the petitioners used the arms. So I am inclined to grant their prayer for anticipatory bail.
In the result, this application is allowed.
1. The petitioners shall be released on bail after interrogation on their executing a bond for Rs.50,000/- (Rupees Fifty thousand only) each with two solvent sureties for the like sum each if they are arrested by the police in connection with this case.
2. They shall appear before the investigating officer between 10 a.m to 11 a.m on every Friday for four months or till the final report is filed whichever is earlier.
3. They shall not get themselves involved in any other criminal case while they are on bail.
4. They shall not intimidate or attempt to influence the witnesses.
5. They shall not destroy or tamper with evidence.
6. They shall surrender their passport before the lower court concerned of if they do not have one, they shall file an affidavit to that effect within five days of their release.
7. They shall not leave India without the previous permission of the court of enquiry or trial court as the case may be.
In case of violation of any of the above conditions, the learned Magistrate is empowered to cancel the bail in accordance with law.
If the petitioner surrenders before the Magistrate this order is not applicable and the learned magistrate may pass appropriate orders.
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