Settu vs Sub-Inspector of Police

A. Ramamurthi, J.—Petitioner/Accused in C. C. No. 273 of 1989 on the file of learned Judicial Magistrate, Polur, has preferred the revision

aggrieved against the Order passed in C. N. P. No. 2976/99 dated 30-8-99.

The case in brief is as follows: The petitioner/accused has been charged for an offence u/s 25(l)(a) of the Indian Arms Act. Even though sanction

has been obtained from the learned District Magistrate, perusal of the sanction Order would go to show that he has not strictly observed the

provisions of law. It is mandatory that the provisions have to be scrupulously followed. The copy of the Order has also not been served on the

petitioner. Hence, the petitioner filed the application for discharge u/s 239 of the Code of Criminal Procedure. Learned Additional Public

Prosecutor opposed the application and after hearing both sides, the learned Magistrate dismissed the petition and aggrieved against this, the

present revision has been filed.

Heard the learned counsel for the petitioner.

Learned counsel for the petitioner contended that non-furnishing of the sanction copy is illegal and went of compliance of the Code of Criminal

Procedure. It is contrary to the principles laid down in Narayana Kani Vs. State of Kerala, . The judgment relied on by the trial Court is not

applicable.

There is no dispute that the petitioner was charged for an offence u/s 25(1)(a) of the Indian Arms Act. Learned counsel for the petitioner mainly

contended that there is no proper sanction Order in accordance with law and the copy of the sanction Order was also not supplied to him. In

support of his contention, he relied on Narayana Kani Vs. State of Kerala, that Section 25(1)(a) has to be complied with. This decision cannot be

made applicable because whether a copy was given or not is a matter of evidence. The Order passed by the trial Court indicates that it has been

duly complied with. When the point in controversy can be decided only on evidence, I am of the view that this cannot be used as a ground for

discharge.

Learned counsel for the petitioner further relied on Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, wherein it is

observed that no doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does

not mean that the accused cannot approach the High Court u/s 482 of the Code or Article 227 of the Constitution to have the proceeding quashed

against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. There is no dispute

about this proposition.

Learned counsel for the petitioner further stated that even if the Court comes to the conclusion that the Order passed by the Court below is

correct, already the petitioner filed an application to recall P.W. 1 for the purpose of cross-examination in CM.P. 1985/99 and the same was

dismissed on 14-6-99 and, as such, a direction can be given to the Court below to give an opportunity. It is necessary to state CM.P. 1985/99

was dismissed on 14-6-99 and there is nothing to show that any revision was preferred against the said Order. The charge-sheet has been filed as

early as 1989 and the case is pending without disposal for the last nine years. There is no illegality or infirmity in the Order passed by the Court

below and, as such, no interference is called for.

For the reasons stated above, the revision fails and is dismissed. However, the Court below can consider the recall of P.W. 1 if it is absolutely

necessary and on payment of charges by the petitioner. Consequently, Crl.M.P. No. 8033/99 is also dismissed.