1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE29H DAY OF SEPTEMBER2016BEFORE THE HON’BLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION NO.48585 OF2016(GM-RES) BETWEEN: Mrs. Sunil Gupta, (Mrs. K.S.Archana Gupta), Wife of Sunil Gupta, Aged 37 years, #S-711, 7th Floor, South Block, Manipal Centre, Dickenson Road, Bengaluru – 560 042. (By Shri P. Prasanna Kumar, Advocate) AND:
1. State of Karnataka, Represented by Station House Officer, Mahadevapura Police Station, Benglauru, Karnataka – 560 048. …PETITIONER22. Mr. Lavakumar, (By Shri K.R.Keshav Murthy, State Public Prosecutor-II for Respondent No.1) Vice President Liaison, Vaswani Estate Developers Private Limited, No.30, “Vaswani Victoria”, Victoria Road, Bengaluru – 560 047. …RESPONDENTS ***** This Writ Petition filed under Articles 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure 1973, praying to call for records pertaining to the FIR in Crime No.397/2016 dated 17.8.2016 at Annexure- A and to quash the FIR in 397/2016 dated 17.8.2016 at Annexure-A as registered by first respondent. This Writ Petition coming on for Orders this day, the court made the following: ORDER
Heard the learned counsel for the petitioner.
2. The counsel for the petitioner would contend that one of the reliefs claimed herein, is seeking the release of the vehicle that has been seized. However, he would seek to 3 withdraw the petition insofar as such relief is concerned, with liberty to approach the Magistrate.
3. It is secondly contended that the petitioner, pursuant to a direction by this court, did approach the Magistrate in seeking bail. Though the matter had been adjourned on three occasions, ultimately, the Public Prosecutor was compelled to file his objections and now the matter is set down for further hearing on 6.10.2016. Incidentally, in respect of one other accused, it has been observed by the learned Magistrate that since Section 27 of the Indian Arms Act, 1959 has been invoked, it would be a case triable by the Sessions Court and therefore, had dismissed the application on the finding that he may not even be competent to consider the bail application. The petitioner is apprehensive that his bail application which is now pending before the Magistrate would also meet the same fate. Therefore, he seeks that Section 27 of the Indian Arms Act which has been invoked deliberately in order to give the case the colour of a sessions case, shouldould be eschewed. 4 In this regard, he would point out that the allegations against the petitioner are that the petitioner is said to be the owner of property under the name of ‘Kaman Holding Private Limited’, bearing Survey No.132/4 situated at Hoodi Village, Varthur Hobli, Bangalore, measuring 38 guntas partly and is in possession of the property. It transpires that the second respondent, a retired Assistant Commissioner of Police, presently employed by a private developer namely M/s. Vaswani Whitefield Projects Pvt. Ltd., is working as its Vice President Liason and that the said company is developing land bearing Sy.No.132/1, 132/2, 132/3 and 132/4 in part, at Hoodi village, Varthur Hobli and which is said to be adjacent to the petitioner’s land. It transpires that there was a cart track through Sy.No.132/1 which is now an arterial route connecting the City of Bangalore to Whitefield. In view of the development of the area, the cart track has widened and the same is now known as ITPL Main Road. After expansion, the road measures 92 feet wide. By virtue of this expansion and on 5 the formation of the main road, the above mentioned company of the second respondent has lost 19 guntas of land, as a result of which the second respondent has chosen to physically push back his property, brazenly encroaching the petitioner’s land. It is this controversy which is the subject matter of a suit and a counter suit.
4. Though the respondent - company has an order of status-quo in its favour, it transpires that when a violent move was made on the part of the second respondent – Company along with about 100 rowdy elements with the active assistance of the second respondent, the petitioner had resisted such encroachment on her land and she was indeed carrying a ‘machette’ in her hand. It was for her self-protection, in view of so many persons having gathered there and were intimidating her and proceeding to level the land and put up a fence. She had stood guard and resisted encroachment, unsuccessfully. However, a criminal case having been registered against her for offences punishable under Sections 143, 147, 148, 504, 6 506, 149 of the Indian Penal Code, 1860 read with Section 27 of the Indian Arms Act, 1959, the petitioner had initially approached this court seeking anticipatory bail. She was directed to approach the Magistrate. She has now approached the Magistrate. The Magistrate having expressed his opinion as above, the present petition is filed to point out that Section 27 of the Arms Act has been mischievously invoked, only to ensure that the petitioner is tried before a Sessions Court and the case is given a much more serious complexion.
5. The learned counsel would draw attention to Section 4 of the Arms Act, to contend that it is only if the Central Government is of the opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification. In the absence of any such notification, carrying a ‘machette’, could never be 7 construed as carrying a firearm and therefore, the Arms Act would not be applicable. He would also point out that if this logic of invoking the Section being invoked in every single case wherein the accused was found to be carrying any weapon, invariably, the Arms Act also would have to be invoked. Therefore, it is evident that in the present case on hand, there was no firearm that was involved and it was a ‘machette’. Therefore, the Arms Act having been invoked and thereby creating a situation where the Magistrate could not be in a position to entertain the bail application looms large and hence, seeks that the provision be eschewed.
6. The learned State Public Prosecutor would submit that he would have to ascertain whether there was indeed a notification by the Central Government applicable to the area in question to concede that the section could be eschewed. He would submit that in any event, it is for the court below to consider this aspect of the matter and when the case is at an 8 initial stage where the bail application of the petitioner is for consideration, there is no warrant to go behind the F.I.R. to examine whether the provisions of the Arms Act could be invoked.
7. Given the circumstances of the case where it is not the case of the prosecution that the woman was carrying any firearm, whether the weapon, namely the ‘machette’ that she was carrying, could be considered as a firearm, is the question.
8. From a reading of the statement of objects and reasons of the Arms Act, it is clear that as early as in the year 1878, Indian Arms Act, 1878 was brought into force by the English and the intention was to disarm the entire nation. Even after independence, the law declaring “swords, daggers, spears, spear-heads, bow and arrows” as “arms” has been allowed to continue unaltered in the statute book. The rigour of the Arms Act continue to make it difficult for law abiding citizens to possess firearms for self-defence, etc. Therefore, by way of an 9 amendment, the Indian Arms (Amendment) Bill, 1953 was introduced with the specific object to exclude knives, spears, bows and arrows and the like from the definition of “arms”. Therefore, it is evident that such weapons cannot be treated as arms and certainly, a ‘machette’ being carried by the accused in the present case on hand, could not be brought under the definition of firearms. Consequently, the Arms Act, 1959, would not apply. However, as pointed out by the learned counsel for the petitioner, it is quite possible that in disturbed areas, as for instance, presently in Jammu and Kashmir, there are areas where notifications are issued to ban any kind of weapon being carried by anyone, including a knife or a sword or any such object which could be used as a deadly weapon. Therefore, the invocation of Section 27 of the Arms Act by itself, would not deter the Magistrate from considering the bail application. In view of Section 27 of the Arms Act being invoked, that shall not be a precedent for the Magistrate to similarly reject the bail 10 application of the petitioner. The Magistrate shall keep in view that the mere invocation of the Section does not take away the jurisdiction of the Magistrate to consider the bail application. The question as to whether Section 27 of the Arms Act was attracted at all, is left open for the court to consider at a later stage. The petition is disposed of. As a consequently, I.A.1/2016 stands disposed of. A copy of this order may be provided to the learned State Public Prosecutor. KS Sd/- JUDGE