Skip to content


The Government of Bombay Vs. Dodyama BIn Basapa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom478
AppellantThe Government of Bombay
RespondentDodyama BIn Basapa
Excerpt:
arms - possession of arms--badami taluka--indian arms act no. xi of 1878, sections 15 and 19--act xxxi of 1860, section 32, clause 1 and 2. - .....but it appears that, in the opinion of mr. maccallum, such possession is not an offence within the badami taluka, where the accused resides, and where the alleged offence, was committed.2. the prohibition to possess arms is applicable under section 15 to-(1). any place to which section 32, clause 2, of act xxxi of 1860 applied at the time act xi of 1878 came into force; and,-(2). any place to which the local government with the provious sanction of the governor-general in council, may, by notification in the local official gazette, specially extend the section.3. it is not alleged that a notification under the second alternative has been issued. the point, therefore, for determination is, whether section 32, clause 2 applied to the badami taluka at the time when act xi of 1878 came into.....
Judgment:

W. Wedderburn, J.

1. In this case the Government of Bombay appeals against an order of acquittal passed by Mr. MaeCallum, First Class Magistrate of Kaladgi, in the case of Dodyama bin Basapa charged, under Section 19 of Act XI of 1878, with having in his possession a sword, in contravention of the provisions of Section 15 of the Act. The possession of the sword by the accused is not denied. But it appears that, in the opinion of Mr. MacCallum, such possession is not an offence within the Badami Taluka, where the accused resides, and where the alleged offence, was committed.

2. The prohibition to possess arms is applicable under Section 15 to-

(1). Any place to which Section 32, Clause 2, of Act XXXI of 1860 applied at the time Act XI of 1878 came into force; and,-

(2). Any place to which the Local Government with the provious sanction of the Governor-General in Council, may, by notification in the local official gazette, specially extend the section.

3. It is not alleged that a notification under the second alternative has been issued. The point, therefore, for determination is, whether Section 32, Clause 2 applied to the Badami Taluka at the time when Act XI of 1878 came into force?

4. On referring to Section 32, Clause 2, it appears that the possession of arms is therein made unlawful-

(a). In any place which the Executive Government of the Presidency has under Clause 1, ordered to be disarmed, such order to be published (vide Clause 5) in the official gazette; and-

(b) In any place in which an order for a general search for arms has been issued, and is still in operation under Act XXVIII of 1857, Such a search is authorized by Section 24 of Act XXVIII of 1857, which provides that the Executive Government of a Presidency may order a general search for arms to be made by any officer or persons named in such order in any district or place specified therein.

5. Reading these Sections together, it seems clear that Section 32, Clause 2, can be said to apply, in any specific sense, to the Badami Taluka only if one or other of, these conditions has been fulfilled, that is if either-(a) an order of disarmament has been duly published, or (b) a general search for arms has been ordered, such order in either case making specific mention of the Badami Taluka. Does any such order exist? With reference to this point, we have been referred by the learned Government Pleader to a notification in the Government Gazette, No. 1112 of 19th February, 1878. This notification declares that the provisions of Act XXXI of 1860 (relating to the manufacture, importation, and sale of arms and ammunition, and for regulating the right to keep and use the same and to give the power of disarming in certain cases), as modified by Act VI of 1866, are in force in certain specified places and districts, among which the Badami Taluka is mentioned. There is nothing to show under what section and for what purpose this notification was issued about three weeks before the new Arms Act (XI' of 1878) was passed. The learned Government. Pleader is not able to enlighten us on this point; and the notification, so far as the paragraph above quoted from it is concerned, appears to us to be without effect because under Sections 54 and 55 of Act XXXI of 1860 that Act came into force from 1860 throughout British India, and was (with trifling modifications) continued in force by Act VI of 1866 until repealed by Section 3 of Act XI of 1878. It was, therefore, surplusage to declare the Act to be in force in certain specified localities. Whatever its object or intention may have been, the notification cannot be construed as an order of disarmament under Section 32, Clause 1, of Act XXXI of 1860. It no doubt, refers, in the way of recital, to the power of disarming 'in certain oases,' but it does not purport to issue the specific order without which the disarmament cannot be effected. We have further been referred to a circular, dated 2nd August 1857, addressed by the Chief Secretary to Government to the Magistrate of Belgaum, within which district the Badami Taluka was then included, conveying certain discretionary powers to disarm. But this circular cannot be regarded as an order for a general search for arms under Section 24 of Act XXVIII of 1857, as this Act was not passed until the 11th of September, i.e., more than a month after the circular was issued. It appears, therefore that Section 32, Clause 2 of Act XXXI of 1860 did not apply to the Badami Taluka at the time when Act XI of 1878 came into force.

6. The Honourable Rav Saheb has taken time to search for specific orders of the kind above referred to, but bas not been able to point them out to us. We are, therefore, of opinion that the appellant has not shown that the view taken by the First Class Magistrate is incorrect; and we reject this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //