K.C. Puri, J.
1. This revision petition has been Wed by Ganga Sahai who has been convicted of offence under Section 25, Arms Act and sentenced to undergo rigorous imprisonment for nine months by the judicial Magistrate Kheri. The appeal preferred by the petitioner was dismissed by the Sessions Judge Kheri. This revision petition came up before a learned single Judge who directed that the same may be placed before a Division Bench as he was doubtful about the correctness of the principle laid down in Diwan Singh v. State 1965 All LJ 11 : 1956 Cri LJ 2. Along with the petitioner one Santawan was also claimed to have been arrested and both the petitioners as well as his companion were said to have been in possession of unlicensed arms. Both the persons were charge-sheeted separately. Santawan was acquitted because there was no requisite sanction for his prosecution, but the petitioner for whose prosecution the requisite sanction was there, was convicted and sentenced after assessment of the evidence led by the prosecution. The trial Court as well as the Court which disposed of the appeal concurred that the prosecution succeeded in establishing beyond reasonable doubt that unlicensed arms were recovered from the possession of the petitioner. We do not, presently, seized as we are of the revision petition, find any justification in interfering with the finding of fact arrived at by the Courts below concerning the recovery of the unlicensed arms from the possession of the petitioner.
2. The only question to be determined presently is as to whether the decision referred to above can lend any assistance to the petitioner. The said decision was based upon the decision of the Supreme Court in Pritam Singh v. State of Punjab AIR 1956 SC 415. The Supreme Court laid down in the said decision that:
The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted can be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Thus an acquittal of an accused in a trial under Section 19(f), Arms Act, is tantamount to a finding that the prosecution had failed to establish the possession of certain revolver by the accused as alleged. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence under Section 19(f). That fact was found against the prosecution and could not be proved against the accused in the subsequent proceedings between the Crown and him, under a charge of murder. The evidence against him in the latter proceedings would have to be considered regardless of the evidence of recovery of the revolver from him.
The principle enunciated (sic) by the Supreme Court was followed by Tripathi J. in the decision referred earlier. In the case before him two persons had been separately tried of offences committed in the same transaction of the basis of the same evidence. One of the said persons was acquitted while the other was convicted and sentenced. The person who had been convicted and sentenced went up in revision it was while disposing of the said revision petition that it was observed by Tripathi. J. that
If two persons are prosecuted though separately, under the same charge for offences having been committed in the same transaction and on the basis of the same evidence, and if one of them is acquitted for whatever may be the reason and the other is convicted, then it will create an anomalous position in Jaw and is likely to shake the confidence of the people in the administration of justice. Justice is not only to be done but also seem to be done.the principle of stare decisis will apply in the present case and the applicant's conviction cannot be sustained.
3. The learned Counsel for the petitioner lays stress upon the words 'whatever may be the reason' contained in the said decision and it is urged by him that though the other person who had been arrested along with the petitioner had been acquitted on a technical ground i.e. for want of requisite sanction for prosecution, yet the petitioner would be entitled to acquittal pursuant to the principle laid down in the said pronouncement. The words quoted here-to-fore are to be read in the relative context. In that case both the persons had been tried separately but evidence had been led in both the cases and it was after the assessment of the evidence that one of them was acquitted while the other was convicted. Same evidence had been led in both the cases and. therefore, it was held that an anamolous position would crop up if on the basis of the same evidence one person is acquitted and the other is convicted. The said pronouncement does not lay down a law to the effect that if a person has been acquitted for warit of sanction for his prosecution then the other person, for whose prosecution requisite sanction is there and in whose case the prosecution has led evidence and the said evidence does establish beyond reasonable doubt that the person concerned is guilty of the charge for which he stood the trial must also be acquitted because the other person had been acquitted in a separate trial on a technical ground. In these circumstances we do not uphold the contention of the learned Counsel for the petitioner that because of the acquittal of the other person the petitioner too could not be convicted and sentenced. In the case of the petitioner, as mentioned above, the requisite sanction was there and evidence led by the prosecution which substantiated his guilt. Both the Courts below concurred that the petitioner was proved to have been found in possession of unlicensed arms.
4. It is next urged by the learned Counsel for the petitioner that the sentence awarded to the petitioner errs on the side of excess. In the matter of sentence the discretion of the trial Court is not to be interfered with lightly. We do not find that the sentence awarded to the petitioner is severe.
5. The petition is. consequently, dismissed. The petitioner is reported to be on bail. The A.D.M. (J) Concerned shall issue non-bailable warrant of arrest against' the petitioner and after he is apprehended, shall remand him to jail custody to suffer the said sentence.