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Gunwantilal Vs. The State of Madhya Pradesh [1972] INSC 138 (3 May 1972)

REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN MATHEW, KUTTYIL KURIEN MITTER, G.K.

CITATION: 1972 AIR 1756 1973 SCR (1) 508 1972 SCC (2) 194

CITATOR INFO :

E 1980 SC 52 (10,16)

ACT:

The Arms Act 54 of 1959, S. 25(a)-Possession of fire arm whether includes constructive possession-Code of Criminal Procedure s. 39 Sanction for prosecution-Validity of.

HEADNOTE:

M who who was accused of an offence under S. 302 of the, Indian Penal Code gave information to the Police on September 16, 1966 during the course of investigation of that offence that the appellant had given him a revolver which he had kept with one C at village Karoonda in the State AA Rajasthan. On that information the revolver was seized from C the next day namely September 17, 1966. The police at Neemuch in Madhya Pradesh applied for Sanction under S. 39 of the Art to prosecute the appellant for the offence uader S. 25 (a) of the Act. The Sanction stated that the appellant had "allegedly been found in possession of and having under his control one revolver without a valid licence at Neemuch Police Station, Neemuch on 17-9-1966." The Megistrate at Neemuch framed a charge against the appellant under s. 25(a) of the Indian Arms Act 1959 on the basis that be was found in possession of the revolver on or before 17-9-196,6.

The appellant filed a revision petition before the, sessions judge which was rejected The High Court rejected a further revision petition. In appeal by special leave before dos Court the question that fell for consideration were (1) whether on the facts alleged the appellant could be said to be in possession of the revolver for being changed with in offence under SI 25(a) of the Act : and (ii) whether the charge went Leyond the sanction.

Held:(i) The possession of a fire arm under the Arms Act must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence and secondly, where he has not the actual physical possession, he has nonetheless a power or control over that weapon so that his possession thereon continues desire physical possession being in someone else. if this were not so, then :an owner of a house who leaves an unlicenced gun in that house but is not present when it was recovered by the police can plead that he was not in possession of it even though he had himself consciously kept it three when he went out. Similarly. if he goes out of the house during the day and in the meantime someone conreals a pistol in his house and during his absence the notice arrives and discovers the pistol he cannot be charged with the offence unless it c,n be shown that he had knowledge of the weapon being placed in his house. And vet again if a gun or firearm is given to his servant in the house o clean it, though the physical no session is with him nevertheless possession ,of it will be that of the owner. [511 G-512 BI In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. [512 D] On the above view the charge that the appellant was in possession of the revolver on 17-9-1966 did not suffer from any defect particularly 509 when he was definitely informed in that charge that he had control over the revolver. However in view of the forms of the charge given in the Schedule to the Code of criminal Procedure the charge should be amended to read 'on or about 17-9-1966 instead of 'on or before'. [511 E_G] (ii) under the Arms Act all that is required for sanction under s. 39 is that the person to be prosecuted was found to be in possession of the firearm, the date at dates on which he was so found in possession and the possession of the firearm was without a valid licence. As all the ,elements were contained in the sanction in the precent case it was not an illegal sanction nor could it be said that the charge travelled beyond the sanction. [513 E-F] Gokak Chand v. The King, 75 Indian Cases 30, distinguished.

Madan Mohan v. State of Uttar Pradesh, A.I.R. 1954 $..C. 637, referred to.

[The contention that the Court in Madhya Pradesh had no jurisdiction since the revolver was recovered in Rajasthan was not allowed to be raised since it had not been raised in the Courts below]

CRIMINAL APPELLATE JURISDICTION: Cr. A. No. 241 of 1969.

Appeal by special leave from the Judgment and Order dated the 23rd April, 1969 of the Madhya Pradesh High Court, Indore Bench in Criminal Revision No. 75 of 1969.

Frank Anthony, A T. M. Sampath and K.C. Agarwala for the appellant.

I. N. Shroff, for the respondent.

The Judgement of the Court was delivered by P. Jaganwohan Reddy, J. This appeal is by Special Leave challenging the judgment of the High Court which dismissed a Revision petition filed by the appellant against the framing of a charge by the, Magistrate of the 1st Class, Neemuch. The ,charge, was that on or before 17-9-1966 at Neemuch, the appellant was found in possession of and having control over one revolver without a valid licence and that by so doing had committed an offence under Section 25(a) of the Indian Arms Act (hereinafter called the Act).

It appears that one Miroo who was accused of an offence under Section 302 of he Indian Pepal Code gave information to the Police on 16-9-66, during the course of an investigation of that offence, that the appellant had given him a revolver which he bad kept with one Chhaganlal at the Village Karoonda in the S ate of Raiasihan. On that information, the revolver was seized from the said Chhanganlal on the next day namely on 17-9-1966. The Police at Neemuch applied for sanction under Section 39 of the Act to prosecute the appellant for an offence under Section 25(a) of the Act. The sanction was granted by the District Magistrate, Neemuch on 4-11-1967. The sanction states that 510 the appellant had "allegedly been found in possession of and having under his control one revolver without a valid licence at Neemuch Police Station, Neemuch on 17-9-1966." After the sanction, the Police prosecuted the appellant on 16-1-1968 as stated already in the 1st Class Magistrate's Court, Neemuch. The Magistrate after perusal of the, case diary and other papers and after hearing the applicant, by his Order dated 23-9-1968 was of the view that there was a prima facie case for flaming a charge against the appellant under Section 25(a) of the Act and he accordingly framed the charge in respect of which a revision was filed before the Additional Sessions Judge, Neemuch. This revision was rejected on 19-12-1968 and thereafter another revision was filed in the High Court of Madhya Pradesh. Before the High Court, it appears the only contention urged was that the charge went beyond the sanction in hat while the sanction specifically mentions that the appellant had been found in possession of the revolver at the Police Station, Neemuch on 17-9-1966, the charge speaks of his having been found in such possession "on or before 17-9-1966" which words are vague and not according to the sanction, as such the charge was bad. The High Court rejected this contention, holding that the words "on or before" would not render the charge illegal inasmuch as even on the date of recovery, the applicant could be said to be in possession of the revolver, and whether the charge is substantiated or not could be decided only after the Magistrate proceeds with the trial, records the evidence and determines the credibility of the witneses thereon. The High Court also thought that the Additional Sessions Judge while rejecting the revision was of the view that before the actual recovery of the revolver the appellant was in possession at some point of time and he was in constructive possession thereof on the date of its recovery. In these circumstances, it saw no illegally or impropriety in framing the charge and accordingly dismissed the revision.

Before us the learned advocate for the appellant contends that the High Court has palpably misconstrued the case of Golak Chand v. The King(1) a case where it was held that a charge cannot go beyond the scope of the sanction, (2) that admittedly as the revolver was seized from Chhaganlal from Karoonda in the State of Rajasthan, the Court at Neemuch in Madhya Pradesh has no jurisdiction to try the case against the appellant who was a resident of Neemuch in the State of Madhya Pradesh, and (3) that it was Miroo who is alleged to have handed over the pistol to Chhaganlal after receiving it from the accused which would show that the revolver was not in the constructive possession of the appellant on 17-91966.

(1) 75 Indian Ca 511 The main question in this case is whether on the facts alleged if true and at this stage nothing can be said about the truth or otherwise of that allegation, the appellant can be said to be in possession of the revolver for being charged with an offence under Section 25 (a) of the Act.

Section 25 (a) in so far as it is relevant states "whoever acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3.......... shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both".

What is meant 'by possession in the context of this section ? Is it that the person charged should be shown to be in physical possession or is it sufficient for the purposes of that provision that ha constructive possesion of any firearm or ammunition in contravention of Secton 3 which prohibits him to be in such possession without a licence. I may be mentioned that under Section 19 of the Arms Act of 1878, an offence corresponding to Section 25 ( 1 ) (a) is committe I if a person had in his or under his control any arms or ammunition in contravention of Section 14 and 15 of that Act. The would control' under Section 25 (1 ) (a) has en omitted. Does this deletion amount to the legislature confining the offence only to the case of a person who has physical possession or doe; it mean that a person will be considered to be in possession of a firearm over which he has constructive possession or over which he exercises the power to obtain possessing the of when be so intends ? If the meaning to be given to the word "possession" is that it should be a physical possession only, then certainly the chase as framed on the facts of the prosecution case will not be sustainable but if the meaning to be given to the word "prossession" is wider than that of actual or physical possession then it is possible,, if the evidence produced by the prosecution is such as would sustain a finding, that he had constructive possession on 17-91966 when he handed it over to Miroo and Miroo handed it over to Chhaganlal because if it was not seized from Chhaganlal, the appellant could have at any time got back the physical possession of the revolver through Miroo. The possession of a firearm under the Arms Act in our view must have, firstly the element of consciousness or knowledge of that possession in the person charged with such offence and secondly where lie has not the actual physical possession, he has none-the less a power or control over that weapon so that his possession thereon continues despite physical possession being in someone else. If this were not so, then an owner of a house who leaves an unlicenced gun in that house but is not present when it was recovered by the police can plead that he was not in possession of it even though he bid himself consciously kept it there when he went out.

Similarly. if he goes out of the house during the day and in the meantime someone conceals a pistol in his house 512 and during his absence, the police arrives and discovers the pistol he cannot be charged with the offence unless it can be shown that he had knowledge of the weapon being placed in his house. And yet again if a gun or firearm is given to his servant in the house to clean it, though the physical possession is with him nonetheless possession of it will be that of the owner. The concept of possess ion is nit easy to comprehand as winters of Jutice,you have had occasions to point out. In some cases under Section 1 9 ( 1 ) (f ) of the Arms Act, 1878 it has been held that the word "possession" means exclusive possession and the word "control" means effective control but this does not solve the problem. As we said earlier, the first precondition for an offence under Section 25 (1 ) (a) is the element of intention, consciousness or knowledge with which a person possessed the firearm before it can be said to constitute an offence and secondly that possession need not be physical possession but can be constructive, having power and control over the gun, while the person to whom physical possession is given holds it subject to that power and control. In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de-facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. In this view it is difficult at this stage to postulate as to what the evidence will be and we do not therefore venture to speculate theeon. In the view we have taken, if the possession of the appellant includes the constructive possession of the firearm in question theeven though lie had parted with physical possession on he date when it was receive---d, he will nonetheless be deemed to be in posession of that firearm. If so, the charge that he was in possession of the revolver on 17-9-1966 does not suffer from any defect particularly when he is definitely informed in that charge that he had control over that revolver. It is also apparent that the words 'on or before' were intendel to bring home to the accussed that he was not only in constructive possession of it on 17-9-1966 'but that he was in actual physical possession of it prior to that date when he gave it to Miroo It is submitted, however that the word 'on or before' might cause embarrassment and prejudice to the defence of the accused because he will not be in a position to know what the prosecution actually intends, to allege. From a reference of Form XXVIII of Schedule 5 of the Code of Criminal Procedure, the made of charging a person is that he 'on or about.......... did the act complained of. In view of the forms of the charge given in the Schedule to the Code, we think that it it would be fair to the appellant if The charge is amended to read 'on or about' instead of 'on or before' which we accordingly o-der.

Once we hold that the charges is not defective it cannot be said that it travels beyond the sanction accorded by the District Magistrate under Section 39 of the Arms Act as both of them are in 513 similar terms in that the sanction also refers to the appellant having been allegedly found in possession of and having under his control one revolver without a valid licence at Neemuch Police Station on, 17-9-1966. The decision of the Privy Council in Golak Chand's case(1) is inapplicable to the facts and circumstances of this case.

What the Privy Council was considering was a prosecution under Clause 18(2) of the Cotton Cloth and Yarn Control Order, 1943 for which sanction to prosecute under Clause 23 was required. The sanction did not set out the facts constituting the offence nor did the prosecution prove by extraneous evidence that the necessary facts required for granting sanction were placed before the sanctioning authority. The sanction merely mentioned the names of the person-, to be charged and the provision of the Control Order under which they were to be prosecuted. It appears that cases under Section 195 of the Criminal Procedure Code were cited before the Board, which. however, as observed by the Lordships do not lay (town any principle inconsistent with the views expressed by them and as the sections of the Code are expressed in language different from that used in clause 23 of the Control Order and are directed to different objects. it was thought that no usefull purpose will be served by an examination of these cases. This Court held in Madan Mohan v. State of Uttar Pradesh(2) following the Privy Council else in Golak Chand that where facts do not appear on the face of 'he letter sanctioning prosecution it is incumbent upon the prosecution to prove by other evidence that the medical facts constituting the offence were placed before the sanctioning authority. Under the Arms Act all that is required for sanction under Section 39, is, that the person to be prosecuted was found to be in possession of the firearm, the date or dates on which he was so found in possession and the possession of the firearm was without a valid licence. As all the elements are contained in the sanction in this case. It is not an illegal sanction nor can it be said that the charge travels beyond that sanction.

It is further contended as already indicated that the Court at Neemuch has no jurisdiction to try the case in view of the fact that the revolver was recovered at Karoonda in Rajasthan. Apart from the question whether the possession of the revolver by the appellant is deemed to be at the place where he resided or whether it is a case covered by the provisions of Section 182 of the Criminal Procedure Code which is contained in Chapter XV dealing with places of enquiry and trial, we do not think that this contention can be allowed to be raised before us because no such objection was urged before the High Court in revision. Even in the application for a certificate under Article 134(1) (c) of the Constitution, the appellant did not urge that any such objections were urged on his behalf (1) 75 Indian Cises 3@D.

(2) A.I.R. 1954 S@C. 63.7 514 before the High Court and these were not considered. In that petition, five grounds were said to have been raised before the Magistrate and the Additional Sessions Judge, one of which was regarding the jurisdiction of Neemuch Court to take cognizance ,of the case. The complaint in respect of these grounds was that while all of them were taken and urged before the Magistrate and the Additional Sessions Judge, they have not been fully and properly considered. No similar allegation was made in so far as the High Court was concerned though it was said that the Court at Neemuch in Madhya Pradesh would have no jurisdiction to by the ,offence. As this objection was not urged we cannot permit any such contention to be raised before us.

As the third contention raised before us namely that since on the prosecution case Miroo had handed over the revolver to Chhaganlal after receiving it from the accused, it cannot be said to have been in constructive possession of the appellant, is dependent on the evidence to be adduced at his trial, the learned advocate for the appellant did not press this ground.

In The view we have taken except for the direction that the charge be amended by the substitution of the words "on or before" by the words "on or about", this appeal is dismissed.

G.C. Appeal dismissed.

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