Quashed

Kamal Kishore Rathi v. State

Allahabad HC9 Oct 2018CRLR/454/1991

Case brief

AI extract

What is this about?

In this criminal revision, the High Court quashed the order taking cognizance and the subsequent proceedings against the revisionist under Sections 25, 27, and 30 of the Arms Act. The court held that since the main accused was acquitted and no evidence linked the revisionist to the crime, continuing the prosecution served no purpose.

What did the court decide?

The order dated 19.3.1991 taking cognizance and the proceedings under Criminal Case No. 494 of 1991 are quashed.

Kamal Kishore Rathi Vs State — Constitutional and Fundamental Rights | Allahabad HC (2018)

¶1

¶2

Reserved on 18.9.2018 Delivered on 9.10.2018

¶3

Case :- CRIMINAL REVISION No. - 454 of 1991

¶4

Revisionist :- Kamal Kishore Rathi Opposite Party :- State Counsel for Revisionist :- G.S. Chaturvedi,Ritvik Upadhyay Counsel for Opposite Party :- A.G.A.

¶5

Hon'ble Aniruddha Singh,J.

¶6

Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri S.P. Pandey, Learned counsel for the revisionist and Sri Devesh Nath Tiwari, learned AGA for the State.

¶7

This criminal revision has been filed by Kamal Kishore Rathi against State of U.P. challenging order dated 19.3.1991 passed by CJM, Sonbhadra in Criminal Case No. 494 of 1991 under Section 25/27/30 Arms Act, Police Station Pipri, District Sonbhadra whereby after taking cognizance, revisionist was summoned for trial.

¶8

Learned counsel for the revisionist submitted that charge sheet was submitted against revisionist on the basis of false evidence collected during investigation. No offence under Section 25/27/30 of the Arms Act is made out against the revisionist. The revisionist is Vice-President of HINDALCO, Renukoot, Sonbhadra and licence of firearms was granted to him in the capacity of Vice-President for the purpose of security of the factory and name of Tribhuwan Singh was mentioned as retainer in a licence but the said licence was deliberately not taken by the Investigating Officer.

¶9

Learned Senior Advocate further submitted that according to prosecution case, Tribhuwan Singh was working as Security Guard in the unit of HINDALDO, Renukoot, Sonbhadra. On 13.1.1991 Tribhuwan Singh was on duty and at about 7:30 A.M. Amar , Santosh and Babu Rao were picking sticks in the jungle near HINDALDO company. Security guard deputed at the boundary of company chased them and fired from behind with the gun which hit Santosh who died on the spot and Banu Rao also received injuries.

¶10

¶11

Case was registered by Informant Beera Singh, father of Santosh under Section 302, 307 IPC against Guard deputed at boundary. It was found that gun used by Tribhuwan Singh was supplied by this accused/revisionist Kamal Kishore Rathi. Hence after investigation charge sheet was submitted against the revisionist. Subsequently, accused Tribhuwan was acquitted in Session Trial No. 50 of 1992 by the Sessions Judge, Sonbhadra vide order dated 22.12.1993 and it was found that said gun was not recovered from the possession of Tribhuwan Singh. Hence no evidence is available against this accused to be tried.

¶12

It is admitted fact between the parties that revisionist Kamal Kishore Rathi was licence holder of the gun. The copy of licence of gun is annexed in the memo of revision.

¶13

It is also admitted fact that Tribhuwan Singh and other nine persons were authorized to hold the said gun for security purposes. Order in this respect is annexed in the revision. Hence it is very clear that the gun was licenced gun, not illegal firearm. It is also very clear from perusal of judgment in S.T. No. 50 of 1992 wherein it was held by the competent Court that prosecution was unable to prove that the said gun was used in that crime. It is also pertinent to mention here that it was also held that this gun was neither used in the crime nor recovered from the possession of Tribhuwan Singh. Operative portion of the judgment is quoted below:-

¶14

“Regarding offence punishable under Section 25 Arms Act it is alleged that the accused was having gun without licence. But as mentioned above none had seen the accused with the gun on the spot. The I.O. had not apprehended the accused with the gun but according to prosecution Bamdeo P.W.-5 produced him with the gun. Bamdeo P.W.-5 has not supported the prosecution story. Therefore, the prosecution also could not prove that accused was having gun without any licence. This being so the offence punishable under Section 25 Arms Act could also not be proved.

¶15

¶16

Order

¶17

Accused Tribhuwan Singh is found not guilty and is acquitted of the offences to which he stood charged with.

¶18

He is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. There is no material exhibit in this case.

¶19

The original judgment shall be placed on the record of S.T. No. 50 of 1992 and a copy of which shall be placed on the record of S.T. No. 51 of 1992.”

¶20

From perusal of original record of S.T. No. 50 of 1992 which was summoned and annexed with this revision as well as record and the file of this revision, it is very clear that no offence under Section 25, 27 and 30 Arms Act as stated above, is made out against the revisionist.

¶21

On submission of charge sheet against the accused revisionist, learned Magistrate has taken cognizance by the impugned order and the proceedings of that case has been stayed by this Court. Subsequently, main accused Tribhuwan Singh was acquitted by above judgment and that judgment is final. Hence in the eye of law, in my opinion, no fruitful purpose would be served to remand back the case for hearing on the issue of cognizance & summoning order and it is very clear that no offence under section 25,27, 30 Arms Act, is made out against the revisionist.

¶22

Sections 25, 27 and 30 Arms Act are quoted below:-

¶23

Section 25 in Arms Act

¶24

“25. Punishment for certain offences—

¶25

(1) Whoever—

¶26

(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or

¶27

(b) shortens the barrel of a firearm or converts an immitation firearm into a firearm in contravention of section 6; or

¶28

¶29

(d) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

¶30

(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.

¶31

(1AA) Whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

¶32

(1AAA)Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than²⁴ [three years, but which may extend to seven years] shall also be liable to fine.

¶33

(1B) Whoever—

¶34

(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or

¶35

(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or

¶36

(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer’s number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or

¶37

(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or

¶38

¶39

(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of subsection (1) of section 9; or

¶40

(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or

¶41

(g) transports any arms or ammunition in contravention of section 12; or

¶42

(h) fails to deposit arms or ammunition as required by subsection (2) of section 3, or sub-section (1) of section 21; or

¶43

(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than [one year] but which may extend to three years and shall also be liable to fine: Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 6[one year].

¶44

(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

¶45

Explanation.—For the purposes of this sub-section, “disturbed area” means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.

¶46

(2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with

¶47

¶48

fine or with both.

¶49

(3) Whoever sells or transfers any firearm, ammunition or other arms—

¶50

(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or

¶51

(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to subsection (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.

¶52

(4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.

¶53

(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.”

¶54

Section 27 of Arms Act

¶55

“ 27. Punishment for using arms, etc.—

¶56

(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

¶57

(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

¶58

(3) Whoever uses any prohibited arms or prohibited

¶59

¶60

ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.”

¶61

Section 30 of Arms Act

¶62

“30. Punishment for contravention of licence or rule.—Whoever contravenes any condition of a licence or any provision of this Act or any rule made thereunder, for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to [six months], or with fine which may extend to [two thousand] rupees, or with both.”

¶63

It is admitted fact in record that revisionist was licence holder of the said gun. Co-accused Tribhuwan Singh was authorized to hold the said gun. Hence under Section 25 and 30 Arms Act is not made out. From perusal of judgment, it is also admitted that Tribhuwan Singh was acquitted under Section 25 Arms Act and that judgment is also final. Hence, at present there is no evidence of any kind by which the revisionist may be summoned. Offences under Sections 25. 27 and 30 of Arms Act are not made out against the revisionist. 12. In the case of Pepsi Foods Limited vs. Special Judicial Magistrate, 1998(5)SCC 749 the Apex Court has held that if no offence was made out for prosecution, proceedings of case may be quashed by the High Court under Section 482 Cr.P.C.. Same view was taken in the case of All Cargo Movers(I) Pvt Ltd vs. Dhanesh Badarmal Jain, 2007(14) SCC 776. In this case order taking cognizance against the appellant was set aside. Similar view was also taken by the Allahabad High Court in Algoo Ram and others vs. State of U.P. And another, 2012(1) ADJ 114 in which all proceedings of criminal case under section 420, 468, 471 and 467 IPC was quashed.

¶64

High Court has inherent power to quash the proceedings as well as order of taking cognizance, if it finds that there is no prima facie evidence against the person. The charge sheet has been

¶65

¶66

submitted and cognizance has been taken. The incident is of year 1991, 21 years have elapsed and the revisionist had been roped under section 25, 27 and 30 Arms Act at that time. It is also admitted fact that no recovery was made from the possession of revisionist. Allegation was that said gun was delivered to co-accused Tribhuwan Singh by which he killed Santosh. When co-accused Tribhuwan Singh has been acquitted, this Court finds that no purpose would be served to prosecute the revisionist for the offences levelled against the revisionist.

¶67

In this backdrop, the revision succeeds and is allowed. Impugned order dated 19.3.1991 is hereby quashed. Proceeding of Case No. 494 of 1991 under Section 25/27/30 Arms Act, Police Station Pipri, District Sonbhadra is also hereby quashed.

¶68

Copy of this order alongwith record of lower court be transmitted to the Court concerned immediately.

¶69

Order Date :- 9.10.2018 P.P.

Kamal Kishore Rathi v. State

Case brief

What is this about?

What did the court decide?

Kamal Kishore Rathi v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Asif Javed Vs State of U.P.

Rajkumar and Others Vs State of U.P. and Others

Gudil @ Sushil Singh Vs State of U.P. and Others

Sonu Vs State of U.P.

Mohd. Shadab Ahmad Vs State of U.P. and Another

Jalim and Others Vs State of U.P.