BHAI SINGH Vs. STATE

JUDGEMENT

(1.) This is an application for the revision of an order of the Civil and Sessions Judge, Budaun, dated 15-3-1958, dismissing an appeal from an order of a learned Magistrate convicting the applicant of an offence under Section 19, Clause (f) of the Indian Arms Act, 1878, and sentencing him to undergo rigorous imprisonment for one year.

(2.) The offence was committed in village Palia Danda, and as that village is north of the river Ganga the applicant was prosecuted without the sanction of the District Magistrate. It is common ground that under Section 29 of the Act the sanction of the District Magistrate for the institution of proceedings under Section 19, Clause (f) is not necessary if the offence is committed north of the Ganga, although it is necessary if it be committed south of that river. The applicant contended that the descrimination made in Section 29 between the two classes of offences was unconstitutional, and he relied on Mehar Chand v. State 1959 All LJ 464 : (AIR 1959 All 660). In that case a Division Bench of this Court held that the discrimination made in Section 29 contravened Article 14 of the Constitution and that in consequence sanction was necessary in the case of all prosecutions under Section 19, Clause (f), so much of Section 29 as rendered this procedure unnecessary being void. The correctness of that decision having been doubted, this application has been referred to this Bench.

(3.) At the outset of the argument the learned Advocate General informed the Court that the State did not propose to challenge the opinion expressed in Mehar Chand's case, 1959 All LJ 464: (AIR 1959 All 660) that Section 29 of the Act created a classification which was unconstitutional but it did question the correctness of the finding of the Court that in all cases under Section 19, Clause (f), the sanction of the District Magistrate must be obtained. The Advocate-General's contention is that the necessary consequence of the conclusion that the classification is unconstitutional is that the entire section is invalid and that the sanction of the District Magistrate is not required in any case. In the circumstances therefore we do not consider it necessary for this Bench to consider further the question of the constitutionality of the impugned section.