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ismail Khan Vs. King-emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1927Cal721
Appellantismail Khan
RespondentKing-emperor
Cases ReferredAhmed Hossein v. The Queen
Excerpt:
- .....up with a chalan and placed before the court. the argument on his behalf is that under section 29, arms act, no proceedings should have been instituted again3t the accuse without the previous sanction (in this case) of the commissioner of police. it is urged that entering a case in the ca3e-book and making out a charge is institution of proceedings under section 29 and therefore the absence of proper sanction previous to the entry in the thana book has vitiated the entire trial. we do not think that this argument has any substance in it. section 29 says that no proceedings should be instituted against any par3on in respect of an offence under section 19(f). arms act, without the sanction of the commissioner of police, if the offence is committed in a presidency town. the meaning which is.....
Judgment:

1. The appellant Ismail Khan has been convicted by the Chief Presidency Magistrate of Calcutta under Section 19 (f), Arms Act (11 of 1878) and sentenced to two years' rigorous imprisonment. The first and the only substantial ground taken on his behalf is that proper sanction not having been obtained before the proceedings against the petitioner were instituted, the trial and the conviction are bad in law. The facts of the case are that the prosecution inspector on receipt of certain information arrested the accused, with a pistol and 23 live cartridges, in the presence of search witnesses on Prem Chand Boral Street about 7 p.m. on the 6fch September last. Thereafter he took the accused to the Muchipara police station and entered a case against him under the Arms Act and searched his house. The charge was entered in the crime sheet. Sanction was secured on the 7th and the man was then sent up with a chalan and placed before the Court. The argument on his behalf is that under Section 29, Arms Act, no proceedings should have been instituted again3t the accuse without the previous sanction (in this case) of the Commissioner of Police. It is urged that entering a case in the ca3e-book and making out a charge is institution of proceedings under Section 29 and therefore the absence of proper sanction previous to the entry in the thana book has vitiated the entire trial. We do not think that this argument has any substance in it. Section 29 says that no proceedings should be instituted against any par3on in respect of an offence under Section 19(f). Arms Act, without the sanction of the Commissioner of Police, if the offence is committed in a presidency town. The meaning which is sought to be attached to the word 'proceeding' is that no action can be taken by any officer, police or otherwise, in the matter without a previous sanction of the Commissioner of Police. It is difficult to sea what the arresting inspector was expected to do in the circumstances of this case; but it is suggested that ha might, if the offence was a cognizable one, have taken the accused into custody and, without entering a charge in the diary book, asked for the sanction of the Commissioner of Police and on receipt of it made the necessary entries in the station books. We feel no hesitation in saying that this argument is far fetched and that it has never been the intention of the legislature to lay down such an awkward procedure and make the prosecution open to the charge that no entry equivalent to a first information was made immediately after the arrest.

2. In support of the view urged on behalf of the appellant reliance has been placed on the Full Bench decision of this Court in the case of Karim Buksh v. The Queen-Empress [1890] 17 Cal. 574. There it was held that the lodging of a false information with the police of a cognizable offence is instituting a criminal proceeding within the meaning of Section 211, I.P.C., Wilson, J., who delivered the judgment of the Full Bench, took particular care to say that the meaning which he gave to the words 'institution of criminal proceedings' in Section 211, I.P.C., must be limited to the scope of that section. No analogy can be drawn by putting Section 211, I.P.C., alongside Section 29, Arms Act, which deals with totally different matters. Under Section 211, I.P.C., the complainant is said to institute a proceeding if he prefers a the charge of a cognizable offence to the police who are expected to move in the matter, and if they are satisfied that there is a prima facie case against the accused will send him up for trial. It was pointed out in that case that there are two sorts of institutions of criminal proceedings : one was by giving information to the police which would in all probability move them into action and the other by filing a complaint in Court with the idea that the Court will take action in the matter. In either case the police or the Court may refuse to proceed further but the complainant has done all he could to charge his adversary with the alleged offence. It was in this view held that making a false charge to the police of a cognizable offence is the institution of criminal proceedings within the meaning of Section 211, I.P.C.

3. In a sister piece of legislation, that is, the Explosive Substanee3 Act, a similar sanction is provided for by Section 7 of Act 6 of 1908. Section 7 of that Act runs as follows:

No Court shall proceed to the trial of any person for an offence against this Act except with the consent o the local Government or Governor-General in Council.

4. There is no much difference between consent and sanction, the absence of either of them being a bar to the initiation of prosecutions under the Acts. Section 7, Explosive Substances Act, provides that consent to the prosecution should be obtained before the Court proceeds with the trial of the accused. The idea underlying Section 29, Arms Act, is the same. By entering the charge in the office diary or preparing the charge sheet no criminal proceedings are instituted, the acts being really routine and administrates. The proaeeding3 really start when the accused is placed before the Court. In Section 195, and the following sections of the Criminal Procedure Code which speak of sanction, it is laid down that proper sanction should be obtained before the Court takes cognizance of the case. By obtaining sanction a bar is removed to prosecution for a particular offence; in oilier words, in order to enable the Court to take cognizance of it proper sanction must be obfcain3d from proper quarters. An objection similar to this was taken in the case of Ahmed Hossein v. The Queen-Empress [1900] 27 Cal. 692. In that case the objection was not particularly dealt with in the judgment of the learned Chief Justice but it wa3 overruled. We are accordingly of opinion that no error of procedure has been made in the present case and that sanction was properly obtained from the Commissioner of Police before the accused was placed on his trial.

5. It is next urged by Mr. Mrityunjoy Chatterjee for the accused that possession found with the accused by the Magistrate was not sufficient for a conviction under Section 19(f). That clause says that any person who has in his possession or under his control any arms, etc. We fail to understand what the real ground of objection is; but it is probably ba3ed on the case for the defence which we are asked to accept as true. The defence case is that the bundle which contained the pistol and ammunition was the property of a friend of the accused named Idu who was proceeding with him along the Street and had just made over the bundle to him and gone away on the pretext of answering a call of nature. The police in the meantime came up and arrested the applicant the suggestion is that the ease was a manufactured one and that the police had engaged Idu to decoy the accused. There is no evidence worth the name to support the defence story. Two witnesses have been examined on behalf of the appellant. The first witness says that the accused came to his. shop one day to bring some offerings and the next day he came to him and told him that he had been arrested. While the witness was weighing the offerings, an old man came and called the accused and took him away. The old man had a bundle wrapped in cloth in his own hand the second witness says that he saw the accused and another man in the street and the other man had a bundle in his hand and told the accused 'hold this for a few minutes as I have to answer a call of nature.' Within five minutes the accused was arrested. It is not contested that the accused was found in possession of a bundle containing articles. The story now set up by the accused was not put before the police at the time of the arrest, and in the cross-examination of the prosecution witnesses the case for the defence was not put to them in the way in which it has now been attempted to be put. We think that the story set up on behalf of the accused was an afterthought, In his statement the accused named only one person by the name of Elahi who saw the appellant going with an old man; but this man Elahi was not examined and two other persons were produced to support the defence story. In these circumstances we have no hesitation in holding that the appellant has failed to prove his case and that he being found in possession of the articles is liable to be convicted under the Arms Act.

6. Then it is urged that the sort of possession found is not inconsistent with the innocence of the accused. The possession found by the lower Court is that the accused was arrested with a bundle containing those articles. He was employed on board a sea going vessel and had shortly before the occurrence came to the town. The weapon found is of foreign make which is not ordinarily to be found in the city. Taking these and other circumstances into consideration the learned Magistrate found that the appellant was possessing those articles with a guilty knowledge and we think that he has been rightly convicted. The appeal fails and is dismissed.


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