Md. Arif Hussain vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 22.08.2023 passed in connection with Criminal Revision No.04 of 2023 by the learned Sessions Judge, Giridih whereby and where under the learned Sessions Judge, Giridih dismissed the Criminal Revision filed against the order dated 07.12.2022 passed in MCA No.4765 of 2021 by the learned Judicial Magistrate-1st Class, Giridih in connection with Pachamba P.S. Case No.11 of 2021 corresponding to G.R. Case No.600 of 2021; by which the learned Judicial Magistrate-1st Class, Giridih, has rejected the petition under Section 239 of the Code of Criminal Procedure for discharge.

The allegation against the petitioner is that the petitioner acquired and have in possession a firearm and ammunition in contravention to the provision of Section 3 of the Arms Act, 1959 and the petitioner possessed the same in a manner, as to indicate an intention that such possession may not be known to any public servant, by hiding the firearm and ammunition, in his school owned by the petitioner. On the basis of the written report submitted by the informant, police registered Pachamba P.S. Case No.11 of 2021 registered for the offences punishable under Sections 25(1-B)a and 26 of the Arms Act and took up investigation of the case. Police, after investigation of the case, found the allegations against the petitioner to be true and submitted the charge sheet. Basing upon the charge sheet, cognizance has been taken. The petitioner filed a petition for discharge under Section 239 of the Code of Criminal Procedure. The learned Judicial Magistrate-1st Class, Giridih considering the entire allegations made against the petitioner in detail, came to the conclusion that there is sufficient ground to presume that the petitioner has committed the offences punishable under Section 25(1-B)a and 26 of the Arms Act and dismissed the said petition.

Being aggrieved by the same, the petitioner filed Cr. Revision No.04 of 2023 in the court of Sessions Judge, Giridih. The learned Sessions Judge, Giridih, considering the materials available in the record as well as the submissions made before it and the limited scope of criminal revision, found that there are sufficient materials to frame charges in the case and dismissed the criminal revision.

Learned counsel for the petitioner submits that there is discrepancy in the description of the fire arm as provided in the seizure list and in the ballistic report and though in the FIR, it has been mentioned that the fire arm was kept in the store room but the seizure has been shown to have been made from the veranda of the said school. It is then submitted that the ballistic report submitted in this case goes to show that the seized article was a pistol but not the revolver and these facts, both the courts below failed to consider.

Learned counsel for the petitioner next submits that in the seizure list and the statement of the seizure witnesses, it has been mentioned that the country-made revolver was of five rounds but the copy of the seizure list which has been supplied to the petitioner along with the police papers, it has been mentioned that the country-made revolver was of six rounds and the same has been cut and mentioned as of five rounds in the seizure list which was submitted in the court. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in this Criminal Miscellaneous Petition and submits that erroneous copy of the seizure list, which is supposed to have been supplied to the petitioner but which is not even in the case record of this case, cannot be a ground to assail the cognizance order. It is next submitted that, the copy of the seizure list annexed by the petitioner in this case at page No.26 of the brief clearly shows that the country-made revolver was of five rounds. It is also submitted that person who prepared the seizure list was not a ballistic expert and that is the reason why the seized material was sent for the report of the ballistic expert to find out whether the materials seized was a firearm or not and the report of the ballistic expert has in no uncertain manner shows that the seized article was a fire arm. So, merely because in the seizure list, it has mentioned that the seized article prima facie appears to be a country-made revolver; the same as such is not a ground to quash the entire criminal proceeding; as even if it is considered that the seized article was a pistol, which no doubt is a firearm, still both the offences in respect of which the learned Judicial Magistrate-1st Class, Giridih was of the considered view that there is sufficient materials to frame charge, are made out. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, this court finds that there is direct and specific allegation against the petitioner of having committed both the offences punishable under Section 25(1-B)a and 26 of the Arms Act; even if the ballistic report submitted by the police is considered to be true its entirety, because ballistic report undisputedly shows that the article seized was pistol, which is a firearm. So far as the minor discrepancy regarding the place of seizure is concerned, since the trial is yet to begin, this Court restrains itself from making any comment but suffice it to say that only because the fire arm was found in the store room that does not mean that it could not have been seized from the verandah adjacent to the store room and it has to be seized from the store room itself, when there is no material in the record, to show as to what was the dimension of the store room, whether it was possible to prepare this seizure list in the store room itself.

Under such circumstances, this Court is of the considered view that there is no justifiable reason to interfere with either the order of the learned Judicial Magistrate-1st Class, Giridih rejecting the petition under Section 239 of Criminal Miscellaneous Petition or the order dated 22.08.2023 passed by the learned Sessions Judge, Giridih in connection with Criminal Revision No.04 of 2023.

Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.