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Lal Ji Vs. State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1976CriLJ479
AppellantLal Ji
RespondentState of Uttar Pradesh
Excerpt:
- - in any case the facts of that case re clearly distinguishable from the one before me. the court merely has to be satisfied that there is a law which prohibits possession of a knife of the type alleged to have been recovered from the possession of the applicant. there is no mention of any such notification in that note as well......for the prosecution to have proved and brought on record a notification under section 4 of the arms act, learned counsel appearing for the applicant has placed reliance on a decision by j.m.l. sinha, j. in state of u.p. v. munna 1972 all wr (hc) 569 : 1973 cri lj 1708. to my mind this decision also is not an authority for the .proposition canvassed by the learned counsel. it appears to me that j. m. l. sinha, j. dismissed the appeal by the. state against the acquittal of munna for an offence under section 25 of the arms act because in his opinion the charge was defective, and there was no proper compliance with section 251-a(4) of the code and the applicant had not been properly examined as would appear from the following observations contained in the judgment 39 reported :now, a.....
Judgment:
ORDER

Yashoda nandan, J.

1. The applicant was convicted by the trial Magistrate for an offence punishable under Section 25 of the Arms Act and sentenced to a fine of Rs. 100. It was ordered that in default of payment of fine he shall undergo rigorous imprisonment for a period of two months. In appeal the conviction was upheld and the sentence maintained. Aggrieved by his conviction and sentence the applicant has invoked the jurisdiction of this Court under Section 439 of the Code of Criminal Procedure. The prosecution case in brief was that on 26th August, 1969 at about 7 p.m. the convict applicant was found to be in possession of the 'Karauli' haying a (blade of 19 cms. in length for which he (held no licence. Three witnesses were examined by the prosecution to establish the applicant's arrest and the recovery of an unlicensed Karauli from his possession.

2. The applicant pleaded not guilty and claimed to have been falsely implicated on account of enmity with the police. He asserted that the witnesses examined: by the prosecution deposed against him on account of previous enmity with two-of his relations Dhanni and Ganpat. In his defence the applicant examined Sudarshan (D.W. 1) and Ganpat (D.W. 2).

3. On a consideration of the evidence on record the two courts below have recorded concurrent findings regarding the guilt of the applicant and the testimony of the defence witnesses has been rejected. In exercise of my revisional jurisdiction I see no reason to interfere with the findings of fact recorded by the two courts below.

4. learned Counsel appearing for the applicant contended that the prosecution did not produce and prove the notification, if any, issued under Section 4 of the Arms Act making applicable the provisions of that Act to 'Karaulis' in the district of Ghazipur. I gave time to the learned Counsel for the State to produce the Gazette notification, if any, issued under Section 4 of the Arms Act prohibiting the possession of a 'Karauli' in the district of Ghazipur without a licence. learned Counsel representing the State has today ,produced before me U.P. Gazette Extraordinary dated 29th January, 1969 which contains a notification issued in exercise of the powers under Section 4 of the Arms Act making applicable that provision of the Act to knives, with blades longer than 10-16 cms., other than those primarily designed for industrial, agricultural or domestic purposes. learned Counsel for the applicant, however, contended that the production of a Gazette notification at this stage did not justify the applicant's conviction being sustained since the Gazette notification had not been produced at the trial and proved according ing to law. In support of his contention learned Counsel placed reliance on a decision by V. 5, Jetley, J. C. of the Goa, Daman and Diu J. Cas in Mani Muttayya Pillay v. State AIR 1969 Goa 55 :1969 Cri LJ 728). The relevant facts giving rise to the abovementioned decision were that the applicant before the High Court had been convicted by the trial Magistrate for offences punishable under Section 379, I.P.C. and Sections 5 and 6 of the Telegraph Wires (Unlawful Possession) Act, 1950 hereinafter referred to as the Telegraph Act, and sentenced to varying terms of imprisonment and fine. In appeal the convictions and sentences were upheld by the appellate court. In the revision before the High Court it was urged that the trial court had no jurisdiction to take cognizance of the offence alleged to have been committed by the applicant, under Sections 5 and 6 of the Telegraph .Act because the complaint had not been filed in accordance with Section 7(1) of that Act which provides that no court shall take cognizance of any offence punishable under that Act, save on complaint trade by or under the authority of the Central Government or toy an officer specially empowered in that behalf by the Government. It appears from the report of the case that in the judgment of the learned Magistrate there was a reference to Section 7(1) of the Telegraph Act and there was a statement therein to the effect that the power to file a complaint had been delegated by notification 'published in the Gazette of India and that it was published is a fact-see foot note to Section 7 in the AIR Manual, Vol. XV ,p. 592'. While deciding the revision V. S. jetley, J, C. observed that,

It appears through oversight the learned Magistrate relied on this notification cited in the above Manual, The said notification is not on the record. The ccmplainant did not state in this case that the complaint was made by or under the authority of the Central Government or he was specially empowered to file that complaint by that Government. The learned Assistant Public Prosecutor who appeared in the Sessions Court explained at the stage of admission that there was no notification authorising the complainant to file the complaint... It appears there has been no compliance with the provisions of Section 7 and consequently the learned Magistrate had no power to take cognizance of the offence and hence the conviction of the accused under Sections 3 and 6 of the Telegraph Wires (Unlawful Possession) Act, 1950, was without jurisdiction.

This decision to my mind is of no assistance to the applicant. It was a case where it was conceded by the Public Prosecutor representing the State that in fact there was no notification authorising the complainant to file a complaint. The learned Judge appears to have held that the trial Magistrate had been misled into holding that a notification authorising the complainant to file a complaint did exist on account of some foot note in the AIR Manual. In any case the facts of that case re clearly distinguishable from the one before me. Section 7(1) of the Telegraph Wires Act prohibits the court from taking cognizance of an offence except on a complaint filed by an authority duly authorised. It was for the prosecution to establish by legal evidence that the complaint had been filed by one who had authority to do so. There existed no evidence on reoord to that effect. A notification under Section 7 of the Telegraph Act is merely to executive Act conferring authority on individuals. Such a notification is not law prescribing a binding rule of conduct for those concerned. It is not a legislative Act, paramount, subordinate or conditional. A notification issued under Sec, 4 of the Act is on the other hand an instance of conditional legislation. The notification itself is law and by notification issued in the Gazette it is promulgated. The court merely has to be satisfied that there is a Law which prohibits possession of a knife of the type alleged to have been recovered from the possession of the applicant. No evidence in accordance with the Indian Evidence Act is needed to 'be produced to establish the promulgation of a notification under Section 4 of the Arms Act. It was thus to my mind unnecessary for the prosecution to have proved the existence of a notification under Section 4, otherwise than by production of the notification before the Court.

5. In support of his submission that it was incumbent for the prosecution to have proved and brought on record a notification under Section 4 of the Arms Act, learned Counsel appearing for the applicant has placed reliance on a decision by J.M.L. Sinha, J. in State of U.P. v. Munna 1972 All WR (HC) 569 : 1973 Cri LJ 1708. To my mind this decision also is not an authority for the .proposition canvassed by the learned Counsel. It appears to me that J. M. L. Sinha, J. dismissed the appeal by the. State against the acquittal of Munna for an offence under Section 25 of the Arms Act because in his opinion the charge was defective, and there was no proper compliance with Section 251-A(4) of the Code and the applicant had not been properly examined as would appear from the following observations contained in the judgment 39 reported :

Now, a perusal of the record indicate that there is no mention of any notification of the aforesaid nature either in the first information report or in the charge-sheet submitted by the police. A note was submitted for soliciting sanction of the District Magistrate for prosecution. There is no mention of any such notification in that note as well. The District Magistrate by his order Ex. Ka-3 accorded sanction to prosecute. That also does not make mention of any such notification. The respondent was examined under Section 251-A, Cr.P.C. by the court below on 19th June, 1968. Even in the questions put to the respondent at that stag it is not mentioned as to under what notification, if at all, possession of 'Kripan' is an offence punishable under Section 25 of the Arms Act. Subsequent to the examination of the respondent, the trial court framed a charge against him. Even in that charge there is no mention of any such notification. All that has 'been stated in the various papers from beginning to end is that the respondent was found in .possession of a Kripan having its blade more than 10.16 cms. and he thereby committed an offence under Section 25 of the Arms Act. I have however already indicated that neither Section 3 nor any other section under the Act by itself makes the possession of Kripan an offence punishable under Section 25 of the Arms Act.

When any act is an offence by virtue of a clear provision contained in any Act or the rules framed thereunder, it is sufficient to mention the particular section or the rule to give notice to the accused of the charge against him. But when any act is said to be an offence 'by virtue of a notification issued under any Act, It is necessary that either a copy of the notification be placed on the record of the case or the number and date of the notification is mentioned in the charge-sheet and, preferably also in the question put to the accused or in the charge framed against him so that the accused may have noticet of the precise nature of the charge that he of the precise nature of the charge that he ' has to meet. This was not done in the instant case.

In fact it appears no a persual of the record that none applied his mind at any stage that there was any notification making possession of a Kirpan an offence The case was handed at all stahes in mechanical manner...

In any case as already stated earlier there is nothing on record to indicate as to how the possession of Kripan is an offence. In fact learned Counsel for the appellant also when called upon could not provide the court with the particulars of the notification prohibiting, if at all, the possession of a Kripan without a licence. The result is that on the material existing on record it is difficult to say that the respondent was guilty of an offence under Section' 25 of the Arms Act merely because he was in possession of a Kripan.' Since it was an appeal by the State against an order of acquittal Section 537 of the Code of Criminal Procedure could not 'be pressed in aid for the purposes of curing the defects noticed by the learned Judge in the charge framed against Munna and his defective examination. As would appear from the quotation from the judgment, even before this Court the learned Counsel representing the State could not produce the relevant notification under Section 4 of the Arms Act. This case to my mind cannot be treated as an authority for the proposition that unless the relevant notification under Section 4 of the Arms Act is brought on record at the trial and is proved 'by some witness, a conviction under Section 25 of the Aims Act cannot be recorded. As already held all that the prosecution is required to do is to satisfy the Court that a notification does exist and this can be done by merely producing the relevant Gazette.

6. For the reasons given above I find no merit in this revision which is hereby dismissed. It appears that when the revision was admitted an interim order was passed directing the release of the applicant on bail. The interim order seems to have been passed under some misapprehension, since the applicant was sentenced to fine only and was ordered to undergo rigorous imprisonment only in case of default of payment of fine. In any case the revision having been dismissed the interim order dated 10th August, 1971 is rejected. The applicant shall have one month's time within which he shall pay the fine imposed.


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