Amritha vs State Of Kerala

Mary Joseph, J

In this application, CC No.1672 of 2019 pending on the files of Judicial First Class Magistrate Court-XI, Thiruvananthapuram (for short 'the court

below') and originated from Crime No.1764/19 of Valiyathura Police Station is sought to be quashed. The petitioner is the sole accused in CC

No.1672/19 and the offence for which she stands chargesheeted are those punishable under Section 3 read with Section 25(1B) of the Arms Act,

1959 (for short 'the Act'). The allegation of the prosecution was that on 15.08.2019 at about 11 a.m., the accused with a view to travel to Delhi as a

passenger in Indigo flight CYE-6052, arrived at the Airport at Thiruvananthapuram and during the check-up of her baggage at the Airport, 5.56 mm

Live round Ammunition which is used in Insal rifle was found inside. On enquiry, it was revealed that she does not hold any document to justify its

possession. The Air Port Manager has forwarded a complaint to Valiyathura Police Station, following which Crime No.1764/19 was registered against

her, true copy of which is appended to the petition on hand as Annexure A1. A report was called for by the police from Armourer Sub Inspector,

A.R. Camp, Thiruvananthapuram City regarding the nature and characteristics of the ammunition recovered from the petitioner. The Armourer Sub

Inspector had submitted a report before the Sub Inspector of Police Valiyathura Police Station, true copy of which is appended to the petition on hand

as Annexure A2. On completion of the investigation, based on Annexure A2 report, a final report was submitted before the court below, true copy of

which is appended to the petition on hand as Annexure A3. The said final report has been taken cognizance of by the Magistrate and CC No.1672/19

was registered on its file. The Final Report and the proceedings initiated in CC No.1672/19 are now sought to be quashed.

Learned Public Prosecutor though entered appearance sufficiently earlier on 18.02.2021, despite granting several opportunities to report on the

veracity of the allegations raised by the petitioner, sought for time again for the purpose. Enough opportunity having been granted already, this Court

finds it expedient in the interest of justice to hear the matter.

It is submitted by Sri.Rajit, the learned counsel for the petitioner that the Magistrate ought not to have taken cognizance of the offence under

Section 3 read with Section 25(1B) of the Act against the petitioner, since sanction to prosecute her has not been obtained by the prosecution. The

petitioner is a member of Central Reserve Police Force (CRPF) and by Ext.A4 letter, her superior officer has intimated that she has got every

authority to carry arms and ammunition. According to the learned counsel, ignoring Ext.A4 letter, the investigation has been concluded and the final

report was laid chargesheeting the petitioner.

According to the learned counsel, Section 39 of the Arms Act contemplates the requirement of sanction for taking cognizance of the offence under

Section 3 read with Section 25(1B) of the Act. According to him, the prosecution in the case on hand failed to obtain sanction from the appropriate

authority for prosecuting the petitioner and therefore, the Magistrate ought not to have taken cognizance of the offence and registered CC No.1672/19

on its file on the basis of the final report laid in Crime No.1764/19 of Valiyathura Police Station. In the case on hand, Magistrate took cognizance of

the offence on the basis of a final report laid by the prosecution, which does not incorporate the sanction mandated by Section 39 of the Act to be

obtained. The dictum in Sarath v. State of Kerala [2019 (4) KLT 924] has been relied on by the learned counsel to fortify his contentions.

It has been held by this Court in the case cited supra that prior sanction of the District Magistrate is necessary for taking cognizance of an offence

under Section 3 of the Act. It has been held in the case that the prosecution is unable to succeed in the proposed trial against the petitioner unless

sanction obtained from the District Magistrate is made available with the records relied on by the prosecution at the time of taking cognizance of the

offence.

True copy of the final report laid in the case on hand is placed on record and it would disclose that sanction was neither applied for nor obtained by

the investigating officer to prosecute the petitioner for the offence for which she stands chargesheeted. The prosecution also has no say that sanction

as contemplated under Section 39 of the Act was obtained by the investigating officer and made available for the court's perusal prior to taking

cognizance of the offence. In the above circumstances, the accused evenif, is let to face the trial for the offence, for want of sanction it will not bring

the result desired by the prosecution.

In the result, Crl.M.C is allowed. All further proceedings initiated by Judicial First Class Magistrate Court XI, Thiruvananthapuram against the

petitioner in CC No.1672/19 registered on the basis of the final report laid in Crime No.1764/19 of Valiyathura Police Station is hereby quashed.