BAIJNATH SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This revision petition is directed against the order dated 31-8-1996 passed by Shri M.L. Tiwari. Second Additional Sessions Judge, Ashoknagar, Guna, It has arisen out of the following facts.

(2.) The prosecution claimed that applicant was found in possession of a sword measuring 3 balist 10 angul on 1-2-1991 of which he had no licence at the time of his arrest in the Haar of Village Raipura. The learned trial court after consideling the evidence on record held the accused guilty of the offence punishable u/Sec. 25(1)(a) of the Arms Act and convicted and sentenced him under that section to a term of one year R.I. and a fine of Rs. 100/-. An appeal was preferred against that order which was rejected by the learned Appellate Court. Hence this revision.

(3.) The learned counsel for the petitioner contended that in the petitioner case the petitioner was charged and tried u/Sec. 25(a) of the Arms Act. It was mentioned in the charge that he was found in possession of a sword measuring 3 Balist 10 Angul and 2 Angul in width at the Haar of Village Raipura and the offence shown was u/Sec. 25(a) of the Arms Act. The contention of the learned Counsel is that there is no such offence is provided under Section 25(a) of the Arms Act. The fact is that a sharp edged weapon has been forbidden and its possession without a licence is an offence in view of the Notification No. 6312-6552-II-B(i) dated 22-11-1974. This notification was, issued in exercise of the powers conferred by Section 4 of the Arms Act. The learned Counsel urged that this notification was not mentioned in the charge nor it was specified as to what offence was actually committed by the petitioner. It was necessary to have mentioned the notification number in the charge. In support of his contention he placed reliance on State of U.P. v. Munna a decision of the Allahabad High Court. He further contended that in the present case the alleged sword was not at all produced at the trial. Had it been produced it would have been shown that it has prohibited measurement. In absence of the production of the sword in question the finding that the petitioner was guilty of the offence could not be maintained. He also urged that the person who seized the arm was himself the Investigating Officer. The Apex Court in Meghasingh v. State of Haryana observed that the officer who had arrested and recovered the articles should not have provided with the investigation of the case and as such investigation was also improper. The learned Counsel for the State on the other hand contended that in view of the provisions of Section 215. Cr. P.C. an error in stating either the offence or the particulars required to be stated in the charge cannot be regarded as material unless the accused was misled by such error or omission and it has occasioned a failure of justice. He, therefore, contended that the accused applicant knew fully well for which he was being tried and as such mention of wrong section did not vitiate the trial. As far as the argument relating to non-production of the sword at the trial, the learned Counsel found himself in difficulty. He could not say that the sword was produced. As far as the argument relating to investigation is concerned, it is a fact that, who is alleged to have recovered the article was the Investigating Officer.