T.N.R. Tirumalpad, J.C.
1. Criminal Appeal No, 14 of 1962 is filed by the State against the acquittal of the 9 respondents, who were accused Nos. 6 and 8 to 15 in the Court of the First Class Magistrate Shri H. Ibungoyaima Singh, Criminal Revision No. 16 of 1962 is also filed by the State for the enhancement of the sentence of fine of Rs. 500/- each passed by the said Magistrate against the 6 respondents therein, who were accused Nos. 1 to j and 7 Under Section 19 of the Indian Arms Act.
2. The case arose under the following circumstances:
There were communal riots in some villages in Churachandpur sub-division between Kukis and Hmars during April to July, i960. On 31-5-60, P. W. 20, the 0/C. in charge of Bishenpur Polica Station got information that fire-arms were being carried in a truck proceeding towards the disturbed area and he checked vehicle No, MNS 789 proceeding to Churachandpur at about 7-00 p. m. at the Bishenpur Police gate. The truck was being, driven by accused No. 7 Ngulchung Kipgen and there were 9 occupants including the driver, all of whom except one were Kukis, and five of them being Police personnel. Of the said 9 persons, 7 were prosecuted as accused Nos. 1 to 7. On checking the vehicle, 15 fire arms Exts. M/I to M/15 of which 9 were licensed and the rest unlicensed and is bullets and 4$ tolas of gun powder were recovered from the vehicle, the guns being packed in gunny bags and kept covered by a tarpaulin? in the ear compartment of the truck and the bullets and gun powder being kept in a bag concealed under the seat of the driver.
Some of the occupants of the truck were seated over the tarpaulin. On thus being discovered, accused No. 1, who was an A. S. I. and accused No. 7, the driver, offered a bribe of Rs. 100/- to P. W. 5 Shri Mani Singh, an A. S. I., who was-assisting in the search, but the offer was rejected and the search continued and the arms and ammunition were seized. The Police personnel in the truck stated that they were deputed to Churachandpur by the Dy. S. P. and hence they were not arrested at the time, but the remaining occupants were arrested and investigation proceeded and in the course of the investigation, the Police personnel were also arrested. During the investigation, it was found, accused Nos. 8 to 15 were the licensees of 8 of the 9 licensed guns.
They gave written missing reports regarding their licensed guns on 2-6-60, to P. W. 4, the Officer in charge of the Kangpokpi Police Outpost, As P. W. 4 had learnt that a large number of fire arms were seized at the Bishenpur Police Station, he forwarded the missing reports to the I. O, P. W. 20 for information. The gun licenses were then seized in the course of the investigation. Of the 9 occupants of the truck, two namely, a constable Deikhomao and one Ngamlum were found to have boarded the truck at Koisampat without knowing the contents of the truck and so they were not proceeded against and charpc-sneet was filed against accused Nos. 1 to 7, the other occupants of the truck, Under Section 19(f) of the Arms Act read with Section 120B Indian Penal Code and against accused Nos. 8 to 15, the gun licensees Under Section 21 of the Indian Arms Act read with Section 120B, Indian Penal Code.
3. On 7-10-60, the Magistrate framed charges Under Section 19(f) of the Arms Act and Section 120B Indian Penal Code against accused 1 to 7 for being in unauthorised possession of the arms and ammunition and for criminal conspiracy with accused 8 to 15 to help the Kukis in their fight against the Hmars with arms and ammunition and to commit murder. Charges were also framed against accused 8 to 15 Under Section 120B for criminal conspiracy to help the Kukis with arms and ammunition in their fight against the Hmars and to commit murder and also Under Section 22 of the Indian Anns Act for having delivered their guns to accused Nos. i to 7 who were not authorised to possess the same. Then the trial of the case strategy and between 7-10-60 and 25-9-61, as many as Q P. Ws. were examined and cross-examined.
On 25-9-61, the Magistrate realised that the charge Under Section 120B as framed was triable only by the Court of Session and that he should -have adopted the procedure under Chapter XVIII Criminal procedure Code instead of framing charges .himself and trying the case. He therefore cancelled the charges framed by him and proceeded with the case as an enquiry under Chapter XVIII Criminal Procedure Code. He stated in his order that the procedure has not prejudiced the accused persons in the least and that this was also admitted by the defence counsel. Then the case was adjourned to 4-10-61 and on that date and on subsequent dates, namely, 5-10-61 and 13-10-61, P, W. of the I.O. was examined. Afterwards on 23-10-61 and 24-10-61 all the accused were examined Under Section 342 Criminal Procedure Code and... the case underwent some adjournments for tearing Arguments regarding the framing of the charges and it was finally posted to 4-12-61.
4. On 4-12-61, the Magistrate passed an order that from the evidence on record the prosecution was unable to prove that there was any pre-plan pr agreement between the accused persons to do any illegal act and therefore no case was madb out against the accused to warrant their convictions Under Section 120B Indian Penal Code and hence there were no grounds for committing the accused persons for trial. But he stated that from the evidence before him a prima facie case was established against accused Nos. 1 to 7 Under Section 19(f) of the Indian Arms Act and against accused Nos. 8 to 15 Under Section 21 of the same Act and that the said offences were triable by his Court. So, he framed charges against accused Nos. 1 to 7, Under Section 19(f) of the Arms Act to the effect that they were in possession of 15 guns, rifles and ammunition atthe Tishenpur Police gate on 31-5-60. Against accused 8 to 15, the charge framed was that they handed over their guns to accused 1 to 7 and thereby violated I condition No. 2 of the licence.
Condition No. 2 is to the effect' that the licence clovers only the persons named therein and such retainers, if any, as may be entered in column '5. After framing these charges all the accused Ipersons pleaded not guilty and claimed to be Triedi The Magistrate straightway called upon the accused persons to enter on their defence and to prodihce their evidence and the counsel for the accused i persons stated that they were not examining any D, Ws. Then the Magistrate posted the case for arguments to 23-1-62 and on that date he heard arguments and posted the case for judgment to 6-2-62. But for one reason or other the delivery of the judgment was delayed till 22-5-62, on 'which date the accused 1 to 5 and 7 were convicted Under Section 19(f) of the Anns Act and sentenced to a fine of Rs. 500/- each and accused 6 and 8 to 15 were acquitted.
5. Now Criminal Appeal No. 14 of 1962 is filed by the State against the acquittal of accused 6 and 8 to 15 and Criminal Revision No. 16 of 1962 is filed by the State for enhancement of sentence against accused 1 to 5 and 7. In the meantime, accused Nos. 1 to 5 and 7 had filed Criminal Appeal No. 26/17 of 1962 in the Sessions Court against their conviction and sentence. The said appeal was dismissed by the Additional Sessions Judge on 7-11-62. It was after this that this appeal and revision were taken up before mo for hearing. In the course of the arguments, they counsel who appeared for accused 1 to 5 and 7 in thei Criminal Revision Case, opposed the revision not only regarding the enhancement of sentence, but even questioned the correctness and legality of the conviction and sentence by the lower Court, as he was entitled to do Under Section 439 (6) Criminal Procedure Code.
6. I shall take up first the Criminal Revision ' for enhancement of sentence. It was argued for the respondents that the entire trial against them was vitiated as the mandatory provisions of Section 251 (AJ, Criminal P. C. were not observed. It was in particular pointed out that the charge Under Section 19(f) of the Arms Act was framed against them on 4-12-61 when the Magistrate after holding the enquiry under Chapter XVIII was satisfied that there were no grounds for committing the accused perspns for trial and when it appeared to the Magistrate that the said persons should be tried before himself and that the proper procedure for the Magistrate, after reading out the charge to the accused and the accused pleaded not guilty and claimed to be tried, was to fix a date for the examination of witnesses as provided Under Section 251-A (6), but that in the present case, the Magistrate without examining any witnesses simply called upon the accused persons to enter on their defence, evidently treating the depositions of P. Ws. already examined previously before the framing of the charge and in the course of the enquiry under Chapter XVIII, as evidence in the case against the accused. Such a procedure, it was claimed, was not warranted by Section 251-A Criminal Procedure Code.
7. There is lot of force in this argument. The witnesses already examined were examined at a time when the Magistrate was treating the matter as an enquiry under Chapter XVIII and before framing the charges. Further, at that time evidence was also let in regarding the conspiracy to commit the offence of murder Under Section 120B Indian Penal Code. The evidence given by the witnesses in respect of the conspiracy was totally unnecessary for the decision in respect of the charge Under Section 19(f) Anns Act. Thus, it was necessary that the witnesses for the prosecution who were to give evidence in respect of the charge framed Under Section is (f) of the Arms Act should have been examined afresh. I am saying this because all the P. Ws. examined at the time of the enquiry would not have been necessary witnesses at, the subsequent stage as they also consisted of witnesses who were examined to prove the case of conspiracy which was given up by the Magistrate,
Thus, out of the witnesses examined already, the witnesses who would have spoken about the charge Under Section 19(f) of the Arms Act should have been examined again so that the accused may know what the evidence against them was in respect of the charge under the said section. At least, such of those witnesses examined already on whose evidence the prosecution was relying for their case Under Section 19(i) should have been offered for further cross-examination by the accused persons as the earlier cross-examination of the said witnesses before the framing of the charge against them cannot be said to have been completed or directed to the evidence relating to the specific charge.
8. I find that this matter was raised before the Sessions Judge in the appeal filed by the accused. But the Sessions Judge relied on the decision Jhagru Tewari v. State of West Bengal : AIR1959Cal176 , to show that it cannot have been the intention of the legislature that in a case where the Magistrate has decided to proceed with . the trial himself under -Sub-section (6) of Section 207-A, the witnesses already examined should again be examined by the prosecution. But a perusal of that decision shows that in that case the witnesses who had been examined in the enquiry stage before the charges were framed were offered for further cross-examination by the defence and in fact they were further cross-examined. If that had been done in the present case, it would have been considered sufficient compliance of the provision in Section 251-A (6) and (7).
Further, after the charge was framed and the accused had pleaded not guilty, if the magistrate was treating the evidence of witnesses already examined as the prosecution evidence in respect of the charge, it was imperative, for him to have examined the accused again Under Section 342 Criminal Procedure Code. Any earlier questioning done b$ the Magistrate Under Section 207-A (6) before the framing of the specific charges will not satisfy the mandatory provision in Section 342 Criminal Procedure Code which makes it obligatory for the Magistrate to question the accused after the prosecution witnesses. have been examined and before the accused is called upon to enter on his defence. That was not done in the present case. Thus, there has been a serious violation of the mandatory provision in Section 251-A Criminal Procedure Code.
The conviction of the accused persons 1 to 3 and 7, under the circumstances cannot be upheld. Section 439 (6) Criminal Procedure Code entitles the accused persons in a revision petition for enhancement of their sentences to show cause against their conviction. As the procedure adopted at the trial has been illegal, the conviction and sentences of accused 1 to 5 and 7 who are the respondents in this revision petition are set aside. But it is necessary that this case should be remanded to the Magistrate for a fresh trial against accused 1 to 5 and 7 in respect of the charge Under Section 19(f) of the Arms Act.
9. Now I shall take up the appeal against the acquittal of accused 6 and 8 to 15. As I have pointed out in dealing with the revision petition, the procedure of the Magistrate has been illegal and this illegality was not only in respect of accused 1 to 5 and 7 but also in respect of the trial of accused 6 and 8 to 15. Hence, it follows that there cannot be any question of the acquittal of accused 6 and 8 to 15 being converted into conviction. Accused 6, was also charged Under Section 19(f) of the Arms Act and it is necessary that the case as far as he is concerned should also be remanded for fresh trial along with the case against accused 1 to 5 and 7 after setting aside the acquittal of accused 6 as a result of an illegal trial. . It is so ordered.
10. As for accused 8 to 15, it will be seen that they were originally charged Under Section 22 of the Arms Act when evidence was let in before the Magistrate and that after the Magistrate cancelled the said charge and converted the trial into-an enquiry under Chapter XVIII Criminal Procedure Code and after he finally decided to try them before himself, he framed the charge Under Section 21 of the Arms Act instead of Section 22 for violation of condition No. 2 of the Licence Rules. No doubt the trial so far Section 21 was concerned could have been in the nature of a summons case and no charge even need have been framed against them. But since the trial was made jointly with the trial agoinst accused 1 to 7 the Magistrate adopted warrant procedure against accused 8 to 15 also. If he thus adopts warrant procedure, the trial has to be in accordance with the procedure as prescribed Under Section 251-A Criminal Procedure Code.
But as already pointed out there has been serious illegality by the Magistrate in not holding the trial in accordance with the provision in the said Section 251-A. Hence the trial of accused- & to 15 has also been thoroughly illegal and their acquittal cannot be converted into conviction in the face of the illegal trial. The only question is. whether I should set aside the acquittal of accused 8 to 15 and order fresh trial against them.
11. It seems to me that it is necessary in this case. In fact, there should not have been a joint trial of accused 1 to 7 along with accused 8 to 15. It cannot be said that Section 239 Criminal Procedure Code would apply and that accused 1 to 15 are being charged for different offences committed in the course of the same transaction. I am doubtful if there could be a joint trial of even accused 8 to 15 for charges Under Section 21 of the Arms Act. They are not alleged to have entrusted their guns jointly to accused 1 to 7. Each of them possessed a licensed gun and these licensed guns were all seized at the same time from accused 1 to 7. This joint seizure will not permit a joint trial for the charges framed Under Section 21 of the Arms Act against accused 8 to 15. They will have to be separately charged and separately tried. Again, it seems to me that the charge against them cannot be for violation of condition No. 2 of the licence.
For the said violation, the explanation of the accused that the guns were forcibly taken away from them and that they filed missing reports in respect of the guns would be a complete answer to the charge and the Magistrate would be justified in acquitting them of violation of condition No. 2. But there seems to be a prima facie case against them for their failure to give information forthwith at the nearest Police Station of the loss or theft of the gun covered by the licence. This is condition No. 7 of the licence. The missing reports filed by accused 8 to 15 stated the arms were forcibly taken away from accused 8 to 12, 14 and 15 on 30-5-66, and from accused 13 on 28-5-60. They should have therefore is accordance with condition No. 7 of the licence reported the loss at the Kangpokpi Police Station the next day, that is on 31-5-60, in the case of accused 8 to 12, 14 and 15 and on 39-5-60 in the case of accused 13.
But in actual fact, they reported the losses only on 2-6-60, two days after the said guns were seized from accused 1 to 7 at Bishenpur Police Gate. Thus a prima facie case seems to have been made out against them in respect of violation of condition from of the licence and there must be a trial against them in respect of the said offence Under Section 21 of the Indian Arms Act. The acquittals of accused 8 to 15 are therefore set aside and 'the cases against them are remanded to the Magistrate's Court for fresh and separate trials against each one of them Under Section 21 of the Arms Act for the violation of condition No. 7 of the licence. As for accused No, 6, his acquittal is set aside and he will be tried jointly with accused 1 to 5 and 7.
12. Ordered accordingly.