The State vs Inder Singh

R.P. Khosla, J.—This appeal at the instance of the Punjab State is from an appellate judgement of acquittal.

The respondent, Inder Singh resident of village Mailikpur was tried upon charge of having been found in possession of one country-made.12 bore pistol and one.12 bore live cartridge Without requisite permit or licence. Magistrate 1st Class, Karnal, found him guilty and while convicting u/s 25 of the Indian Arms Act 1959 sentenced him to undergo rigorous imprisonment, for six months and a fine of Rs. 100/- or in default to undergo rigorous imprisonment for a further period of 15 days. On appeal, Sessions Judge, Karnal, upon the findings that the sanction for prosecution postulated u/s 38 Of the Indian Arms Act (No. 54 of 1959 had been accorded by the Additional District Magistrate whereas it ought to have been by the District Magistrate, held the trial vitiated and acquitted the respondent.

Mr. Gaur appearing in support of the instant appeal on the strength of the provisions of section 10, sub-section (2) of the Code of Criminal Procedure reading-

10 (2) The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code, or under any other law for the time being in force as the State Government may direct.

contended that the Additional District Magistrate in the instant Case had pursuant to the said provisions been invested with the'' powers of the District Magistrate vide Punjab Government Gazette Notification No. 8610ASI 62/41987 dated 21st of November 1962. The terms of the notification might be set herein under:

In exercise of the powers conferred by section 10(2) of the Code of Criminal Procedure, 1898, the Governor,of Punjab is pleased to appoint M.R. Vaid, a Magistrate of the 1st Class in the Karnal District to be an Additional District Magistrate, M.R. Vaid, is here by invested with all the powers of the District Magistrate under the said Code and under any other law for the time being in force, from the date he takes over, charge of such duties in the district.

The argument evolved that "the District Magistrate" contemplated by the provisions of section 39 of the Indian Arms Act was not persona designate and the sanction accorded by the Additional District Magistrate who had been invested with the powers of a District Magistrate satisfied the requirements of those provisions, appears to have merit.

Section 39 of the Indian Arms is worded as follows:

39- No prosecution shall be instituted against any person in respect of any offence u/s 3 without the previous sanction of the District Magistrate.

For purpose of according sanction the provisions undoubtedly have the District Magistrate in view; but the State Government u/s 10, sub-section (2) of the Code of Criminal Procedure is competent to appoint, firstly any Magistrate of the 1st Class to De an Additional District Magistrate and secondly to invest that Additional District Magistrate with the powers of a District Magistrate under the Code as well as for any other law in operation That was done in the instant case by the State Government vide Notification set out above. The words "under any other law" used in the notification covered Indian Arms Act. Exhibit P.E. the sanction for prosecution accorded by the Additional District Magistrate, therefore, was valid and satisfied the requirements of the provisions of section 39 of the Indian Arms Act (No. 51 of 1959 ).

This view finds support from the findings in The State v. Hussain Mirdha A.I.R.1960 Ass 46. The case was under the old Arms Act. The sanction for prosecution granted u/s 29 of the said Act by the Additional District Magistrate was questioned. Deka J. (Mehrotra J. concurring) observed that empowering the Additional District Magistrate under S. 10(2) of the Code of Criminal Procedure made him competent to accord sanction u/s 29 of the Arms Act. Supreme Court in The Central Talkies Ltd., Kanpur Vs. Dwarka Prasad, when called upon to consider the effect of permission granted by Additional District Magistrate whereas the District Magistrate was in contemplation u/s 3 of the U.P. (Temporary) Control of Rent and Eviction Act, ruled that the provisions of section 10(2) of the Code of Criminal Procedure were specific and an Additional District Magistrate authorised must be regarded as possessing the powers of the District Magistrate under the Code as also any other law including the U.P. Act 3 of 1947.

We have no doubt whatever that the Additional District Magistrate had in the instant case been authorised to perform the functions of the District Magistrate and was competent to accord sanction for the prosecution u/s 39 of the Indian Arms Act.

The learned counsel for the opposite party brought to our notice the observations made by the Supreme Court in Ajaib Singh v. Gurbachan Singh A.I R. 1965 S.C 1819. The provisions of section 3(2), clause 15(i) of the Defence of India Act were under consideration. The question was whether Additional District Magistrate invested with the powers of the District Magistrate pursuant to section 10(2) of the Code of Criminal Procedure could on temporary vacancy of District Magistrate''s post exercise the powers of the District Magistrate. Clause 15(i) of section 3(2) is couched in different language as below:

(15) Notwithstanding anything in any other law for the time being in force-(i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or having acted, acting, being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India''s relations with foreign States, the maintenance of peaceful conditions in any part or areas of India or the efficient conduct of military operation, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner.

It is apparent that the authority empowered to detain was to be not lower in rank than that of District Magistrate. Additional District Magistrate even when specially empowered u/s 10 (2) of the Code of Criminal Procedure did not hold the rank of a "District Magistrate". The provisions of sub-section 3 of section 10 of the Code of Criminal Procedure point to the Additional Magistrate being subordinate in rank to the District Magistrate, Ajaib Singh v. Gurbachan Singh A.I R. 1965 S.C 1819. was clearly distinguishable on the very terms of the statutory provisions under consideration.

Our conclusion, therefore, is that the sanction accorded by the Additional District Magistrate in the instant case was in order and that the learned Sessions Judge, Karnal, was in error in allowing the appeal on the preliminary question of sanction for prosecution and acquitting the respondent.

We would thus allow this appeal, set aside the impugned judgment of acquittal and remit the case to Sessions Judge, Karnal, for decision on merits.

P.D. Sharma, J.

I agree.