Nishit, Babloo @APPELLANT@Hash State of Rajasthan & Ors

Heard learned counsel as also learned Public Prosecutor.

The relevant facts of the case are that an FIR came to be filed on 23.11.2009 for the offence under Section 3/25 Arms Act. After investigation

charge-sheet came to be filed for the offence under Section 7/27 of the Arms Act. Charge was also framed for the same offence by the Court of

CJM, Jhunjhunu. During the course of trial, in all 10 prosecution witnesses were examined and at the stage of culmination by trial, learned trial court

passed an order dated 12.5.2016 to commit the case to the sessions court under the provisions under Section 323 Cr.PC on the basis of the application

filed by the prosecution.

This order came to be challenged by the accused- petitioner by filing criminal revision before learned Sessions Judge who, vide his order dated

22.9.2016 rejected. However, liberty was granted to the accused-petitioner to raise all the objections at the time of the charge arguments before the

sessions court.

After hearing the charge arguments, learned sessions court framed the charge on 19.2.2018 for the offence under Section 7/25 (1A) of the Arms

Act. This order has been challanged by way of filing this criminal revision petition.

Learned counsel for the petitioner submits that as per provisions contained in Section 323 Cr.PC if during any inquiry or trial it appears to the

Magistrate before signing the judgment that the case ought to be tried by the court of sessions then he shall commit it to that court. Learned counsel

submits that looking to the whole of the prosecution evidence there was not even an iota of evidence to infer that the arm allegedly recovered from the

accused-petitioner was covered in the definition of prohibited arm as given in Section 2(i) of the Arm Act, 1959. He has referred to the statement

of PW-5 Phool Chand Armour who has been declared hostile by the prosecution. He has not stated any thing in his statement about category of the

arm. Even he is not sure whether the arm brought to him was pistol or revolver. Counsel further submits that other prosecution witnesses have

also given different versions regarding the arm allegedly recovered from the petitioner as to whether it was pistol or revolver. In this regard, he has

referred to the statement of PW-1 Multanaram, PW-2 Sunil Kumar and PW-3 Pratap Singh. Learned counsel submits that in view of the above,

there was no sufficient material available for the court to pass an order to commit the case to the sessions court under Section 323 Cr.PC.Â

He has placed reliance on the following judgments:-

Prem Das Vs. State of U.P. and Another 2013 ACR 62.

Vakil Prasad Singh Vs. State of Bihar reported in (2009) 3 SCC 355.

Kuldeep Singh Vs. State of Punjab reported in 2011 CRL. L.J. 488 on the point that if the report of armour regarding of the evidence is not clear

the case cannot be treated to be relating to all.Â

Per contra, learned Public Prosecutor has opposed the submissions made by learned counsel referring to the statement of the PW-7 Virendra.

 In Prem Das’s (supra) it has been observed as under:-

In the instant case as discussed above, the learned Magistrate has ordered to commit the case as the Magistrate was of the view that the accused

persons had also committed an offence under Section 3(1)(X) of the S.C./S.T. Act and the case is one which ought to be tried to the Court of Session.

However, as stated earlier, the essential ingredients constituting offence under Section 3(1)(X) of the S.C./S.T. Act are absolutely lacking, even there

is not a whisper in the F.I.R., statement under Section 161 Cr.P.C. and the deposition of the PW-1 Kishan Ram that any “caste specific†word

was uttered. The learned Magistrate thus, mislead evidence of PW-1 and arrived at a wrong conclusion that “caste specific†words were

uttered during the occurrence and thereby committed the case to the Court of Session by the impugned order.

The impugned order, therefore, untenable, as has been passed under misconception by the Magistrate and as such deserves to be set aside.

In my view, the pertinent point to be considered in this matter is whether the arm allegedly recovered from the possession of the accused-petitioner,

answers to the definition of prohibited arms given under Section 2(i) of the Arms Act.

The Section 2(i) is reproduced below:-

(i) “prohibited armsâ€​ means-

(i) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure in removed from the

trigger or the magazine containing the missiles is empty, or

(ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing, and includes artillery, anti-aircraft

and anti-tank firearms and such other arms as the Central Government may, by notification in the official Gazette, specify to be prohibited arms:Â

Looking to the prosecution evidence, it appears that the prosecution witnesses have given different versions about the arm recovered from the

accused. PW-1 Multanaram has stated to have recovered Katta from the scene of offence. PW-2 Sunil Kumar has stated that one revolver was

recovered from the accused. PW-3 Pratap Singh has stated to have recovered pistol from him. In addition to this, PW-5 Armour Phool Chand

has stated nothing about the nature of the arm which was brought to him for inspection.Â

In view of the statements given by the above witnesses, the evidence given by the Police officer cannot be given credence to infer that the arm

recovered from the accusedpetitioner was in the category of prohibited arm.

In view of the above, the evidence available on record in this case does not justify the action taken by the trial court to commit the case to sessions

court as evidence necessitating this action was completely missing.

In Kuldeep Singh’s case (supra) it was held that if the report of armour regarding to the serviceability of the arm is not specific and the evidence

is not there, then conviction under Arms Act cannot be sustained.

This also needs to be observed here by this court that the court of CJM, Jhunjhunu is not competent to try the offence punishable under Section

7/27(2) of the Arms Act or under Section 7/25 (1A) of the said act. In that case, if the action of committing the case to sessions court for trial is

taken then no evidence is available on record to justify this step in the absence of any ingredients of the offence punishable under Section 25 (1A) or

Section 27(2) read with Section 7 of the Act of 1959. It will be a futile exercise to keep the matter pending before the sessions court and to force

the accused-petitioner to face the trial.

 In Vakil Prasad Singh’s case (supra) it has been observed as under:-

It is, therefore, well settled that the right to speedy trial in all criminal prosecutions (sic prosecutions) is an inalienable right under Article 21 of the

Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the proceeding police investigations

as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every

case, where the right to speedy trial is allegedly to have been infringed, the court has to perform the balancing act upon taking into consideration all the

attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case.

Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may

be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may

not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including

fixation of time-frame for conclusion of trial.

Tested on the touchstone of the broad principles enumerated above, we are convinced that in the present case the appellant’s constitutional right

recognised under Article 21 of the Constitution stands violated.

In the facts and circumstances of the case in hand, this court feels inclined to quash and set aside the order dated 19.2.2018 for framing charge for the

offence under Section 7 read with Section 25 (1A) and compelling the accused-petitioner to face trial for which essential ingredients of the offences

are completely missing.

In the result the proceeding initiated against the petitioner pursuant to FIR No.402/2009 PS Kotwali, Jhunjhunu are quashed and set aside.

This revision petition stands allowed.