LALTA PRASAD Vs. STATE

JUDGEMENT

(1.) Lalta Prasad, his son Madan Lal and nephew Siya Ram were charged Under Sections 19(a) and (f) Arms Act for possession of illicit arms and for manufacturing them in their house. The learned Magistrate found that the charge Under Section 19(a) Arms Act had not been established. He therefore acquitted them of it. He was, however, of opinion that the charge Under Section 19(f) Arms Act had been satisfactorily established against them and he therefore convicted them of this offence. They filed an appeal against their conviction and sentence. The learned Additional Sessions Judge Farrukhabad maintained the conviction and sentence of Lalta Prasad Under Section 19(f) Arms Act. He allowed the appeal of Madan Lal and Siya Ram against their conviction and sentence Under Section 19(f) Arms Act and set aside their conviction under this section. He, however, found that these two accused had committed the offence Under Section 202 I.P.C. read with Section 28 of the Indian Arms Act and therefore convicted them under this section and sentenced each of them to 6 month's rigorous imprisonment. The present application in revision has been made by Madan Lal and Siya Ram against their conviction and sentence Under Section 202 I.P.C.

(2.) It has been contended on behalf of the applicants that in absence of any charge Under Section 202 I.P.C. they could not be convicted of it. It was contended on behalf of the State that Section 202 I.P.C. was a minor offence as contemplated in Section 238 Code of Criminal Procedure and as such the applicants could be convicted of it even if the offence Under Section 19(f) Arms Act with which they were charged had not been made out against them. In my opinion the contention on behalf of the applicants appears to be correct. I do not think that offences Under Section 19(f) Arms Act and Section 202 I.P.C. are cognate offences because the ingredients of these two offences are entirely different. In a case Under Section 19(f) Arms Act the prosecution has to establish that the accused was in possession of illicit arms whereas in a case Under Section 202 I.P.C. the prosecution has to prove that the accused had knowledge or had reason to believe that a certain offence had been committed, that he was legally bound so give information of such offence to the police or magistrate, that he intentionally without any lawful excuse omitted to give such information. There is no doubt that Under Section 28 of the Arms Act every person aware of the commission of any offence punishable under this Act shall, in the absence of reasonable excuse, the burden of proving which shall lie upon such person, give information to the nearest Police Officer or Magistrate. There can be no doubt that if the applicants knew that an offence Under Section 19(f) Arms Act had been committed then it was their duty to give information of it to the police or Magistrate in absence of reasonable excuse according to the provisions of Section 28 of the Arms Act. Section 238 Code of Criminal Procedure provides that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved. He may be convicted of the minor offence, though he was not charged with it. It well appear from an examination of Section 238 Code of Criminal Procedure that it is applicable only to those cases where only some of the ingredients required to constitute a major offence are proved in the case and those ingredients constitute a minor offence. As has already been pointed out above the ingredients of Section 19(f) Arms Act and Section 202 I.P.C. are entirely different and one has no connection with the other.

(3.) In the present case the applicants not being charged with S 202 I.P.C. had no opportunity to show that they had no knowledge that an offence Under Section 19(f) had been committed and that even if they had such a knowledge they had a reasonable excuse for not giving the information to the police or the Magistrate. If a charge Under Section 202 I.P.C. would have been framed against them they could have got an opportunity of proving these facts. There is also nothing on the record to show that the applicants knew that Lalta Pd. had committed an offence Under Section 19(f) Arms Act and with that knowledge they did not give any information to the police or Magistrate. It is a well settled law that ordinarily an accused person cannot be convicted of an offence unless he was charged of it and had an opportunity of meeting it.