1. These are three acquittal appeals (Criminal Appeals Nos. 142, 143 and 144 of 1961) filed by the Stale In which the same question of law is Involved. The facts are undoubtedly not completely identical but for the purposes of these appeals the essential features are similar with the result that for understanding the real nature of the point Involved, I will briefly narrate only the facts of the case, State v. Ram Chard (Criminal Appeal No. 142 of 1961).
2. One Puran son of Dhonkal died In February, 1955. He had a licence for a muzzle loading gun No. 573, After his death this gun is stated to have been kept or retained by Ram Chand accused respondent In his possession. On 20-6-1360 Ram Chand produced this gun In the Court of the Sub Divisional Magistrate, Nalagarh, who directed Ram Chand to deposit the same with the police. The accused was proceeded against under Section 19(1) of the Indian Arms Act for having In his possession the gun In question without a licence. The learned Magistrate trying the case was of the view that the conduct of the accused In keeping with him this gun from 8-2-1956 to 20-6-1960 did bring his case within the purview of Section 19(1) but in view of Section 29 of the Indian Arms Act, he acquitted him because previous sanction as contemplated by this section had not been obtained before instituting these proceedings.
3. At the trial the prosecuting Sub-inspector cited a decision of a Full Bench of the Allahabad High Court in Bhai Singh v. State, AIR 1960 All 369 (FB), where Section 29 was struck down as invalid being violative of the rule of equal protection of laws which is incorporated in Article 14 of the Constitution. But the learned Magistrate preferred to follow a decision of the Pepsu High Court in Chand Singh v. State, AIR 1954 Pepsu 132, and a decision of the Himachal Pradesh Judicial Commissioner in Kanhya v. State, AIR 1951 Him. Pra. 35.
4. On appeal the learned counsel for the State read the ratio of the decision of the Allahabad Full Bench but frankly declined to build any argument on the basis of the ratio of this decision. In view of the argument having not been pressed on behalf of the State. I do not think it is necessary for me to say anything on the soundness or otherwise of this decision, though, as at present advised, I am not impressed by its soundness, and I speak with respect.
5. The counsel, however, urged that the admitted facts on the record clearly bring the case of Ram Chand within the mischief of Section 19(1) of the Indian Arms Act according to which any one who fails to deposit arms, ammunition etc. as required by Section 16, is liable to be punished with imprisonment for a term which may extend to three years, or fith fine, or with both. According to Section 16 any person possessing arms etc. the possession whereof has in consequence of the cancellation or expiry of its licence or exemption or by the issue of a notification under Section 15 or otherwise, become unlawful must without unnecessary delay deposit the same either with the officer in charge of the nearest police-station or at his option and subject to the prescribed conditions with a licensed dealer. He has contended that admittedly Ram Chand is guilty of failure to deposit the arm in question as required by Section 16 and, therefore, liable to be convicted under Section 19(1). Reliance has been placed on Section 237, Code of Criminal Procedure, in support of the contention.
6. This point was also raised in the trial Court but did not find favour with it, for the reason, that in its opinion Ram Chand could not have been charged for this offence under Section 236, Criminal Procedure Code, and, therefore, could not be convicted under Section 237. This view, according to the appellant's counsel, is based on an erroneous construction of Sections 236 and 237. I am Inclined to agree with the learned counsel for the appellant that the reason on which the Court below has ruled out Section 237 is not quite correct. Nevertheless, I entertain grave doubt if Ram Chand can be convicted of an offence under Section 19(1) Indian Arms Act in the present proceedings because on account of the absence of previous sanction, as required by Section 29, the institution of the proceedings against him were contrary to law and void. Section 29 lays down a mandate that no proceedings for an offence under Section 19(1) committed in the circumstances mentioned therein shall be instituted against any person without the previous sanction of the Magistrate of the District, or in the Presidency Town, of the Commissioner of Police. Now, if the condition precedent for the initiation of the proceedings is absent, then obviously the entire subsequent proceedings would be illegal and without jurisdiction.
7. The counsel for the appellant has not been able to place before us any precedent in support of his contention. If the proceedings are contrary to law and without jurisdiction, I find it a little difficult to hold that these proceedings may be considered to be lawful and valid for convicting Ram Chand for an offence under Section 19(1), Indian Arms Act, by having resort to Section 237, Criminal Procedure Code. Sections 236 and 237, Criminal Procedure Code, constitute one of the exceptions to the rule laid down in Section 233, according to which for every distinct offence of which a person is accused there is to be a separate charge and every such charge is to be tried separately. It is not disputed that the accused in the present case was not charged with an offence under Section 19(1) of the Indian Arms Act, and in respect of the offence charged, namely, under Section 19(1) Indian Arms Act, the proceedings have been instituted without the requisite previous sanction with the result that the proceedings at the trial must be considered to be illegal and without jurisdiction. Without a binding precedent I would feel disinclined, as at present advised, to hold that these proceedings can legally form the basis of a conviction for an offence under Section 19(1), Indian Arms Act, for which the accused was never legally tried. Except for a bald assertion the learned counsel for the State too has not been able to offer any convincing argument in support of his submission.
8. And finally, we have to bear in mind that the matter has come up before us on an acquittal appeal and the offence more or less lies in Ram Chand having retained with himself a gun belonging to his deceased father, of which he (the deceased) had a proper licence during his life time. On these facts the offence can hardly be considered to be very serious, and I would feel disinclined to interfere on acquittal appeal.
9. For the reasons given above this appeal fails and is hereby dismissed. The fate of the other two appeals, it is conceded, depends on the decision of this appeal. In the result those two appeals also fail and are hereby dismissed.
10. I agree.