Bhekha Ahir vs Emperor

Sinha, J.—This is an application in revision on behalf of one Bhekha Ahir aged 65 years, who has been convicted by the Courts below u/s 19(f), Arms Act, and sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 100 and in default, to suffer further rigorous imprisonment for two months.

The prosecution case shortly stated is that on certain confidential information received by the local police, the house, consisting of several rooms, occupied by the petitioner and his three sons and a nephew as also their respective wives was raided by the Sub-Inspector of Police of Piro Thana. On a search being made of the house in presence of two search witnesses, a double-barrelled breach-loading gun was recovered from a north facing room of the house. The gun was found in a rusty and broken condition concealed in a kothila (a small earthen granary) which was covered with an earthen lid on its top. It is also to be noted that the petitioner being the eldest male member in the family, has rightly been deemed to have been the karta and leading member thereof. It was he who produced the key with which the lock in the room was opened. It was admitted at the trial that this key he produced after taking it from his daughter-in-law. A first information report was drawn up on the basis of the police fard-bayan. On 5-10-1945, the petitioner, his three sons and his nephew, all the five were produced in custody before the learned Sub-divisional Magistrate of Arrah. Though a bail of Rs. 400 for each one of those five persons was granted on the same date, the accused persons do not appear actually to have been released on bail. I find from the order of the learned Sub-divisional Magistrate that on four different dates, in the months of October and November, the police were not able to produce something (not absolutely clear from the record) and nothing was done. On 1-12-1945, charge-sheet was received from the police. On that date the learned Magistrate passed the following order: "Charge-sheet received against accused persons. Cognizance taken. To my file for disposal." The case was adjourned to 22-12-1945, but on that date, for reasons not explained, the police did not produce the accused persons, and, therefore, the trial had to be adjourned till 4-1-1946. The case was tried from time to time on six different dates, and judgment was ultimately delivered on 1-4-1946. The learned Magistrate convicted the petitioner on the ground that he was the karta of the family. In this connexion the learned Magistrate has made the following significant observations:

The weight of the evidence, therefore, shows that all the accused lived jointly. The next point that arises is whether in such circumstances all the accused can be held criminally liable for possessing the gun or only the head man. There is no clear evidence on the record to show as to which of these accused had kept the gun in question there. In the circumstances, as has been held in previous judicial decisions, the head man of the family alone can be held to be liable. In this case the head of the family is accused Bhekha Ahir.

In this view of the matter the learned Magistrate convicted and sentenced Bhekha Ahir as stated above, but acquitted the other four accused persons.

Before proceeding further, I must observe that the police in this case have not only been negligent but rather oppressive to the family of the petitioner. Their house was searched and a broken gun recovered from there. The police at once sent up all the five accused persons to Court without making up their mind as to which one of them is to be proceeded against, and all the male members in the family of the petitioner appear to have been in custody from 3rd November until judgment was delivered by the learned Magistrate on 1-4-1946. It is rather regrettable that the entire family should have been proceeded against and kept in custody because the police officer in charge of the investigation was not able to make up his mind as to which one of them was the real culprit.

The result has been that the family hag been deprived of the use of all the male members who could have perhaps earned a living not only for themselves but for their female folk as well.

On conviction by the trial Court, the petitioner preferred an appeal to the learned Sessions Judge of Shahabad who dismissed the appeal without any modification. Hence this application in revision.

Mr. Harians Kumar, who has appeared in support of the application, has argued in the first instance that this prosecution is null and void for want of a sanction in terms of Section 29, Arms Act, which, in substance, provides that no proceedings shall be instituted against any person in respect of an offence u/s 19, Clause (f) of the Act without the previous sanction of the Magistrate of the district. His contention is that the case was instituted on 6-10-1945, whereas the sanction of the District Magistrate was accorded on 28-10-1945. It has been argued on behalf of the Crown by Mr. Tarkeshwar Nath that the charge-sheet in this case was submitted on 21-11-1945, and it is that date which will be deemed to be the date of the institution of the case. He, therefore, distinguishes a Division Bench ruling of this Court in Girja Suri Vs. Emperor, . Mr. Tarkeshwar Nath has argued that the charge-sheet in the reported case had been received on 10-7-1944. On the other hand, Mr. Harians Kumar relies upon the following observations of their Lordships:

The proceedings were clearly instituted against the petitioner without the requisite previous sanction which was imperative. The proceedings started on 25-6-1944, and the sanction was received on 16-8-1944, and it is not possible to sever the proceedings prior to the date of the receipt of the sanction. The whole proceedings, therefore, in this case are null and void.

These observations must be read in the light of the facts set out at page 643 of the report, where their Lordships have quoted in extenso the order-sheet in that case, relating to the relevant dates. Mr. Tarkeshwar Nath relies upon a Full Bench decision of this Court in Gopal Marwari and Others Vs. Emperor, . He contends that, on the authority of the decision of the Full Bench, the proceedings should have been initiated on receipt of the charge-sheet which was certainly later than the date of the sanction of the District Magistrate. I need not decide this question in this particular case because I have taken the view, presently to be expressed, that the conviction cannot stand on a different ground.

It was argued on behalf of the petitioner that he has been convicted for possession of the gun, which was more or less in a dilapidated condition, simply because he happens to be the head and karta of the family. His contention, further is that u/s 19, Clause (f), Arms Act, the burden lies on the prosecution affirmatively to prove that the petitioner had been in possession of the gun or that it was under his control on the date the police raided his house and recovered the gun. Mr. Harians Kumar would make it out that "possession" in that clause of Section 19 means conscious possession, and "control" would mean actual control of the arms in question. His contention is that there is no evidence on the record to justify the inference that he had either conscious possession or actual control of the gun which was the subject-matter of the charge in this case. In my opinion, there is a good deal of substance in this contention. Mr. Tarkeshwar Nath, on behalf of the Crown, has relied upon the decision of a Division Bench of this Court in Mangar Koiri and Others Vs. Emperor, . In that case three: persons had been convicted for having been in possession of certain arms and materials for making ammunition, After referring to certain judgments of the Allahabad High Court, Agarwala J. who delivered the judgment of the Court, observed as follows:

In the absence of proof in the present case that the room in which the weapon was kept was in the exclusive or particular possession of any member of the family, I am not prepared to hold that it can be inferred that the weapon was in the possession of any other person than the head of the family, namely, the petitioner Manager.

It does not appear from the report in that case-that the point actually mooted before me was argued before their Lordships. It appears, as I read the judgment of Agarwala J. that the main argument in that case was that the other junior members of the family who had been convicted by the Courts below should not have been convicted because there was no evidence that the room was in the particular possession of any member of the family. His Lordship was discussing more the case of the junior members of the family than that of the karta of the family himself. The advocate who argued the case appears to have been content with pressing the case on behalf of two out of the three petitioners and getting them acquitted on the simple ground that there was no evidence that any one of the junior members of the family was in possession of the arms in question or of the room from where those things had been recovered. In my opinion, the duty lies on the prosecution to adduce some evidence from which the inference could properly be deduced that any particular member, or, for the matter of that, the head of the joint family was in possession in the sense of conscious possession of the corpus delicti. Mr. Tarkeshwar Nath pointed out to the circumstance that it was the petitioner who handed over the key of the room to the police party. That is perfectly true. But the Courts below seem to have lost sight of the further evidence contained in the admissions of the prosecution witnesses that the petitioner took this key from the custody of one of his daughters-in-law and handed it over to the police. If possession of the keys of the room were the criterion to judge conscious possession of the room or its contents, then I do not see any reason why the police did not prosecute the woman from whose custody the key was produced and handed over by the petitioner. In my opinion, that circumstance by itself could not lend itself to the inference that he was consciously in possession of the gun which was the subject-matter of the charge in this case. Mr. Harians Kumar placed reliance on the decision of a Full Bench of the Lahore High Court in Emperor v. Santa Singh AIR 1944 Lah. 339. In that case Harries C.J. who delivered the opinion of the Full Bench, said that the onus lies on the prosecution in a case u/s 19(f), Arms Act, to prove the guilt of the accused and that the onus does not shift on to the accused by reason of Section 106, Evidence Act. His Lordship further went on to hold that, where incriminating articles are recovered from a place in the occupation or possession of more persons than one, and it is not possible to fix the liability of any particular individual, it would not be legally permissible to call upon all the occupants of the place to account for the presence of the incriminating articles in their premises, and, in the absence of any satisfactory explanation on their behalf, to hold all of them to be in possession or control of the same. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or of all of them jointly. His Lordship also observed that possession and control required to be established u/s 19(f), Arms Act, mean conscious possession and actual control. In other words, mens rea or guilty knowledge must be proved in a particular individual or group of individuals. It was also laid down in that case that because the other members of the family from whose house an incriminating article had been recovered cannot be found guilty, it did not follow as a necessary corollary of law that the head of the family must be held guilty. Like all other criminal trials, the burden lies entirely on the prosecution and all the time on the prosecution, to show the guilty knowledge in any particular individual or the head of the joint family. In my opinion, that decision lays down a very sound proposition of law. Keeping in view that decision and the fact that there is no particular circumstance to distinguish the case of the petitioner from that of the other members of the family from whose premises the gun had been recovered, it must be held that the prosecution has failed to bring the charge home to the petitioner.

For the reasons given above, this application must be allowed, the orders of the Courts below set aside and the petitioner acquitted. He will be discharged from his bail bond and the fine, if paid, will be refunded to him.