STATE OF GUJARAT Vs. DAWOOD JIVAN SOLANKI

JUDGEMENT

(1.) The judgment and order of acquittal passed by the learned Sessions Judge of Kutch at Bhuj on 8th December 1995 in Criminal Appeal No. 4 of 1995 is under challenge in this appeal by leave of this Court under Sec. 378 of the Code of Criminal Procedure, 1973 (the Code for brief). By his impugned judgment and order, the learned Sessions Judge accepted the appeal preferred by the respondent against the judgment and order of conviction and sentence passed by the learned Judicial Magistrate (First Class) at Rapar on 30th December 1994 in Criminal Case No. 764 of 1993. The learned trial Magistrate convicted the respondent herein of the offence punishable under Sec. 25(1-B) (a) of the Arms Act, 1959 (the Act for brief) and sentenced him to rigorous imprisonment for one year and fine of Rs. 500.00 in default simple imprisonment for one month.

(2.) It is not necessary to set out in detail the facts giving rise to this appeal. It may be sufficient to note that the respondent herein was found in possession of some fire-arm without any licence or permit in contravention of Sec. 3 of the Act. Thereupon, a complaint was filed by the Police Sub-Inspector of the Police Station at Rapar. The First Information Report in that regard is at Exh. 18 on the record of the trial Court. Thereafter, the necessary sanction to prosecute the respondent herein was obtained from the District Magistrate of Kutch at Bhuj by his order passed on 7th January 1993. It is at Exh. 19 on the record of the trial Court. On completion of investigation, the charge-sheet against the present respondent was submitted to the Court of the learned Judicial Magistrate (First Class) at Rapar on 22nd October 1993. It came to be registered as Criminal Case No. 764 of 1993. The charge against the respondent as the accused was framed on 6th November 1993. It is at Exh. 3 on the record of the trial Court. He did not plead guilty to the charge. He was thereupon tried. After recording the prosecution evidence and after recording the further statement of the respondent herein as the accused under Sec. 313 of the Code and after hearing the parties, by his judgment and order passed on 30th December 1994 in Criminal Case No. 764 of 1993, the learned trial Magistrate convicted the respondent herein of the offence punishable under Sec. 25(1-B)(a) of the Act and sentenced him to rigorous imprisonment for one year and fine of Rs. 500.00 in default simple imprisonment for one month. That aggrieved the respondent herein. He carried the matter in appeal before the Sessions Court of Kutch at Bhuj. His appeal came to be registered as Criminal Appeal No. 4 of 1995. After hearing the parties, by his judgment and order passed on 8th December 1995 in the aforesaid appeal, the learned Sessions Judge accepted the appeal and set aside the aforesaid judgment and order of conviction and sentence passed by the learned trial Magistrate and acquitted the respondent as the accused of the charge levelled against him. That aggrieved the prosecution agency. It has, therefore, invoked the appellate jurisdiction of this Court after obtaining its leave under Sec. 378 of the Code for questioning the correctness of the aforesaid judgment and order passed by the learned Sessions Judge.

(3.) It may be mentioned that the learned Sessions Judge accepted the appeal only on the short ground that the sanction to prosecute the respondent herein was not produced along with the charge-sheet and the learned trial Magistrate could not have taken cognizance of the case in absence of any valid sanction accompanying the charge-sheet. The learned Sessions Judge does not appear to have examined the merits of the case while accepting the appeal. The learned Sessions Judge has relied on the ruling of the Bombay High Court in the case of State of Maharashtra v. Harshed K. Shah, reported in 1981 Cri.LJ 1096 in support of his conclusion that the sanction should accompany the charge-sheet before the cognizance of the case could have been taken by the learned trial Magistrate.