Rameshwar vs The State

Virendra Saran, J.—Rameshwar s/o. Jeet R/o. Madhapur, P.S. Fatehpur Chaurasi. District Unnao has filed this appeal against the judgment and order of Sri U.S. Gupta, Sessions Judge, Non Metropolitan Area, Kanpur dated 18-7-1978, passed in Sessions Trial No. 299 of 1977. The learned Sessions Judge has convicted the Appellant u/s 23 Arms Act and sentenced him to two years'' R.I.

According to the case of the prosecution, S.I. Prahlad Singh, Station Officer of P.S Kakwan, District Kanpur was returning to his Police Station after Investigating a case registered at Crime No. 109,under Section 395/397 IPC on 15-9-1974. He received information at Maddupur Pul from an Informer at about 2 P.M. that two persons were coming from towards Nadwa Rampur side and would go to Village Kursi Khera and that the two persons were in possession with Illicit arms and stolen property. Thereupon Sub Inspector collected public witnesses, namely, Suraj Pal, Raja Ram and Natha Singh and lay in ambush towards south of the culvert waiting arrival of the culprits. At about 2.30 P.M. two persons, Including the Appellant, were seen coming from Nadwa Rampur side. When they came near culvert, Sub Inspector accosted them and apprehended them after using necessary force. The Appellant was carrying a Jhola which was searched. A country made pistol and three live cartridges were found in the Jhola wrapped in a towel. S.I. Prehlad Singh sealed the same in the Jhola (Ext. 2) in presence of the witnesses and prepared recovery memo Evt. Ka-3. The Appellant was made Baparda on the spot and despatched to the Police Station. A cheeck FIR Ext. Ka-4 was drawn on the basis of the recovery memo Ext. Ka-3 and the case was registered against the Appellant. The case was investigated by S.I Ram Babu Yadav who after obtaining necessary sanction of the prosecution from the District Magistrate Ext Ka-6 filed charge sheet against the Appellant. At the trial the prosecution examined PW 2 Suraj Pal, PW 3 Nathu Singh and PW 4 S.I. Prahlad Singh as witnesses of fact. PW 1 Riyazulhaq was constable Moharrir who proved the general diary entry Ext. Ka-2 He also proved FIR Ext. Ka-1 and general diary Ext. Ka-2 PW 5 S.I. Ram Babu Yadav is the Investigating Officer of the case.

At the close of the prosecution evidence the Appellant was examined and he denied the prosecution case he further denied that he was arrested near culvert as alleged by the prosecution. He further denied that any country made pistol or cartridges were recovered from his possession. The Appellant further pleaded that he was falsely implicated by the police. The Appellant examined DW 1 Puttu Lal & DW 2 Jagdish Prasad in his defence who stated that the Appellant was arrested from his house by Sub Inspector and four or five constables and that nothing was recovered from the possession of the Appellant On consideration of the evidence on record the learned Sessions judge found that prosecution has proved its case against the Appellant and hence he convicted and sentenced the Appellant as mentioned above. The Appellant has now come up in appeal before this Court.

I have heard the learned Counsel for the Appellant and learned Counsel for the State at length and have also perused the material on record.

The learned Counsel for the Appellant has submitted that the sanction of prosecution has beer given by the District Magistrate, Kanpur without applying his mind to the facts and circmstances of the case. He has drawn the attention of the court to the fact that the order of sanction is not a speaking order. The sanction order reads as follows:

Seen the case diary, one country made pistol of 12 bore and three cartridges of 12 bore only.

Prosecution sanctioned.

Sd. District Magistrate Kanpur. 9-4-75.

The learned Counsel for the Appellant has submitted that the sanction order appears to be the handi work of some clerk and the District Magistrate has simply signed the order in mechanical manner. The learned Counsel for the Appellant has pointed out that the evidence at the trial is that the pistol and the cartridges were scaled on the spot any they remained so sealed and were opened for the first time at the time of evidence of Surajpal PW 2. Learned Counsel has referred to the cross-examination of PW 2 Surajpal, who in reply to question No. 19 has stated that the ''Jhola'' Ex.1 is sealed with read sealing wax and the seal has been opened in the court and this was the very seal which was fixed on the spot by the ''Daroga''. Learned Counsel has submitted that in view of the above evidence the claim of the District Magistrate of having seen the pistol and the cartridges is sot correct. The learned state Counsel has not been able to satisfactorily explain the shove discrepancy but has submitted that even of the pistol and the cartridges has not been seen by the District magistrate it will not have any material bearing on the sanction order. I am unable to accept the submission of the learned State Counsel because if one material fact mentioned in the sanction, is found to be incorrect it goes to support the defense contention that the typed sanction order was placed before the District Magistrate who simply singed it. The District Magistrate has not been examined as a witness in the present case and there is no other extra-neous evidence to show that the case diary. the pistol and the cartridges were placed before the District Magistrate PW 5 S.S.I. Ram Babu Yadav who is the only Witness on the point of sanction has simply stated that the typed sanction, which is on the charge sheet, bears the signatures of the District magistrate. He has nowhere stated that he ever sent the case diary for the perusal of the District Magistrate Similarly he does not say that the pistol and the cartridges were ever sent to the District Magistrate. In view of the above discussion I am, of the opinion that the prosecution has failed to prove that the sanction to prosecute was granted after application of mind by the District Magistrate.

It has been repeatedly held by the Supreme Court as well as by this Court that granting of sanction to prosecute is cot an idle formality and the sanction should always be granted after application of mind to the facts and circumstances of the ease, A valid sanction is sine qua non for taking cognizance of an offence and existence of a valid sanction is a jurisdictional question because unless there is valid sanction the court cannot take cognizance of the offence. The grant of refusal of sanction is within the discretion of the District Magistrate who may grant or refuse to grant sanction after applying his mind to the facts and circumstances of each case. The mere fact that prima facie an offence is disclosed does not mean that the sanction must be granted in each case. There may be a variety of circumstances where the District Magistrate may refuse to grant sanction even if a prima fade case is disclosed In the case of Jaswant Singh Vs. The State of Punjab, while considering the provision of sanction contained in Section 6 of the Prevention of Corruption Act, 1947 the Supreme Court observed:

The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; AIR 1945 16 (Federal Court) The object of the provision for sanctions Is that the authority giving the sanction should be able to consider for itself the evidence before It comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden.

In this very case the Supreme Court replying on the observations made in the case of AIR 1948 82 (Privy Council) observed:

it should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and, therefore, unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case.

(The underlining is mine.)

In the case of Nanhey v. State 1987 ACC 238 this Court observed:

A reading of the above sanction will show that the District Magistrate gave the sanction for the prosecution of the applicant without considering the evidence that was available against him. Obviously, therefore, fee gave the sanction without applying his mind to the facts and circumstances of the case. Such a sanction is no sanction in the eye of law.

The sanction and the evidence recorded in the present case go to to show that the sanction has been granted by the District Magistrate in a most mechanical manner and in all probability a typed sanction was placed before him which he signed. Such an order of santion is bad in law. The court had no jurisdiction to take cognizance of the offence u/s 25 Arms Act and hence the entire proceedings against the Appellant are vitiated.

In the result, this appeal is allowed and conviction and sentence of the Appellant are set aside The Appellant is on bail. He need not surrender. His bail bonds are discharged.