Dismissed

Umesh Kumar Rai v. the State of Bihar and Ors.

Patna HC23 Apr 2013CR. WJC/638/2012

Case brief

AI extract

What is this about?

Petitioner challenged the commitment order to the Sessions court for possession of an automatic pistol. The Court held that an automatic pistol fits the definition of prohibited arms under Section 2(i) of the Arms Act, making the case triable by the Sessions Court. Writ dismissed.

What did the court decide?

Criminal Writ Petition dismissed; petitioner directed to raise plea before the Sessions Court at the appropriate stage.

Umesh Kumar Rai Vs the State of Bihar and Ors. — Writ and Judicial Review | Patna HC (2013)

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Patna High Court CR. WJC No.638 of 2012 (7) dt.23-04-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.638 of 2012

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====================================================== 1. Umesh Kumar Rai S/O Sri Khalifa Rai R/O Village - Babura, P.S. Barahra, District - Bhojpur .... .... Petitioner/s Versus 1. The State Of Bihar 2. The District Magistrate, Bhojpur At Ara 3. The Superintendent Of Police, Bhojpur At Ara 4. The Officer - In - Charge, Barahra, P.S. Barahra, Distt. - Bhojpur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Kanahaiya Pd. Singh (Sr. Advocate) Mr. Shivaji Singh (Advocate) For the State : S.C. No. 24. ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER 7 23-04-2013 Heard learned counsel for the petitioner as well as learned counsel appearing for the State. This criminal writ petition has been filed on behalf of the petitioner for quashing the order dated 04.04.2012 passed by learned Judicial Magistrate, 1st Class, Bhojpur in connection with Barhara P.S. Case No. 47 of 2012 by which and whereunder he committed the case of the petitioner to the court of Sessions. Petitioner is said to be caught by the informant, the then officer in charge of Barhara police station with automatic pistol containing five live cartridges and, accordingly, he was made accused in Barhara P.S. Case No. 47 of 2012. After investigation, police submitted charge sheet against him for the

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Patna High Court CR. WJC No.638 of 2012 (7) dt.23-04-2013

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offences punishable under Sections 25(1-b) a, 26 of the Arms Act. The cognizance was taken for the above stated offences. On 28.03.2012, a petition on behalf of the prosecution was filed praying therein to commit the case of the petitioner to the court of Sessions as prohibited arms had been recovered from possession of the petitioner and the case comes under the provision of Sections 25(1-A) and 25(1-AA) of the Arms Act which is exclusively triable by the court of Sessions. The learned Magistrate having considered the submissions of the parties, ordered to commit the case of the petitioner to the court of Sessions vide impugned order dated 04.04.2012 which has been challenged before this Court.

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Learned counsel appearing for the petitioner assailed the impugned order contending that charge sheet has been submitted under Sections 25(1-b) a, 26 of the Arms Act and the cognizance has also been taken for the aforesaid offences and besides it, sanction has also been obtained for the aforesaid offences and, therefore, the learned trial court had got no jurisdiction to commit the case of the petitioner to the court of Sessions. It is also contended by him that seized arms does not come under the definition of prohibited arms.

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On the other hand, learned counsel appearing for the

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Patna High Court CR. WJC No.638 of 2012 (7) dt.23-04-2013

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State supported the impugned order arguing that admittedly, an automatic pistol has been recovered and the said pistol comes under the definition of prohibited arms and, therefore, learned Magistrate rightly came to conclusion that the case of petitioner should be tried by the court of Sessions.

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Having heard the rival contentions of both the parties, I have gone through the record along with the record of lower court. It is not in dispute that allegedly, an automatic pistol containing five live cartridges were recovered from possession of the petitioner. Section 2(i) of Arms Act, 1959 defines the prohibited arms. The aforesaid provision says that prohibited arms means firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty or weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing and includes artillery, anti-aircraft and anti-tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms.

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From bare perusal of the aforesaid provision, it is explicit clear that if a firearm, so designed or adapted that, if pressure is applied to the trigger, missiles continue to be

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Patna High Court CR. WJC No.638 of 2012 (7) dt.23-04-2013

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discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, comes under the definition of prohibited arms.

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Allegedly, the automatic pistol containing five live cartridges was recovered from possession of the petitioner and it is clear that if pressure is applied on the trigger of automatic pistol, the missiles continue to be discharged until the pressure is removed from the trigger of automatic pistol and, therefore, it is apparent that automatic pistol comes under the definition of prohibited arms.

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Section 25(1-A) of the Arms Act says that if any person is found in possession of prohibited arms, he shall be punished 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. Similarly, Section 25(1-AA) of the Arms Act says that if any person is found in possession of prohibited arms, he shall be punished 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. Admittedly, the offences under both the aforesaid sections are triable by the court of Sessions and, therefore, in my view, the learned trial court rightly ordered to commit the case of the petitioner to the court of

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Patna High Court CR. WJC No.638 of 2012 (7) dt.23-04-2013

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Sessions and, therefore, I do not find any illegality in the impugned order.

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In view of the aforesaid discussions, this criminal writ petition stands dismissed.

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However, petitioner may raise his plea before the Sessions court at the time of framing of the charge or at later stage, if he is advised so and if any plea is raised by the petitioner before the Sessions court at any stage, the said plea shall be decided on its own merit without being prejudiced by this order.

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(Hemant Kumar Srivastava, J)

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SHAHZAD/N.A.F.R.

Umesh Kumar Rai v. the State of Bihar and Ors.

Case brief

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Umesh Kumar Rai v. the State of Bihar and Ors.

Case brief

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What did the court decide?

What the court decided

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