State of Jammu & Kashmir vs Shabir Ahmad Dar

Y.P. Nargotra, J.—By the charge sheet filed before the Ld. Judicial Magistrate Srinagar the accused/respondent was alleged to have

committed the offences u/s 3/25 of Indian Arms Act, on the allegations that in a Special Operation one pistol and Magzine which are prohibited

arms and cannot be possessed without a licence, were recovered from his possession.

Ld. Trial Magistrate took the cognizance upon the police report and tried the accused for the said offence. The prosecution had cited only three

witnesses who were not produced, so the Ld. Trial Court closed the evidence of the prosecution and acquitted the accused in terms of the

following order;

Accused face trial for allegedly having committed offences punishable u/s 3/25 of Indian Arms Act. No prosecution witness is present today

despite prosecution given last and final opportunity to produce the witnesses on 4.6.1999 and the case was adjourned for 28.6.1999. On

28.6.1999 also no prosecution witness was present and the case was posted for 7.7.1999. Today also no prosecution witness is present. The

prosecution has not shown any explanation for not producing the witnesses. In the absence of any evidence much less incriminating one there is no

need to record the statement of the accused in terms of Section 342, Cr.P.C. The result is that the prosecution has badly failed in proving its case

against the accused and the case is hereby dismissed. The accused and the case is hereby dismissed. The accused is acquitted. File be consigned

to records after due completion.

The State has come in appeal against the acquittal on the ground that the Ld. Trial Court was not justified in closing the evidence of the

prosecution in the circumstances of the case. But before we go to the said question another important question is required to be determined. It is,

whether the trial Magistrate possessed jurisdiction for trial of the case. The accused was charged for commission of the offence as contemplated

by Section 3 of Indian Arms Act u/s 25 punishable. The relevant portions of Section 25 are being reproduced hereunder:

Punishment of certain offences:.............................................

(1B) whoever:

(a) acquires, has in his possession or carries any firearm of ammunition in contravention of Section 3; or......................... shall be punishable with

imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine. Provided that the

court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one

year.

(1C) Notwithstanding anything contained in Sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed

area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also

be liable to fine.

Explanation: -- For the purposes of this sub-section ""disturbed area"" means any area declared to be disturbed area under any enactment, for the

time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas

specified by notification u/s 24A or Section 248.

(2)........................................

(3).........................................

(4).........................................

The valley indisputably has already been declared as a disturbed area therefore maximum punishment for an offence u/s 3 punishable u/s 25(1-

C) is imprisonment for a period of seven years and fine.

Schedule II of Criminal Procedure Code 1989 provides as follows :

TABLE

1 2 3 4 5 6 7 8

Sec. Offence Whether Whether Whether Whether Punish-ment By what

of the warrant bailable com- under the court

Ranbir police or a or not. pound- Ranbir Penal triable.

Penal may summ- able or Code.

Code arrest ons shall not.

without/ ordina-

warrant rily issue

or not. in the

first

instance.

OFFENCES AGAINST OTHER LAWS

If punishable with death or May Warrant Not Not Court

imprisonment for 7 years, arrest bailable compoundable of

or upwards without Session.

warrant.

Thus under the above quoted schedule the offences which carry punishment of death or of imprisonment for seven years or upwards are triable

by Court of sessions. Since the present case carries punishment of seven years, therefore the case exclusively triable by a Court of Session.

Therefore the Judicial Magistrate Anantnag had no jurisdiction for trial of the case, involving the offences u/s 3 read with Section 25 of LA. Act.

Ld. Trial Court should have noticed the said provision contained in the schedule and then committed the case for Trial to the Court of Session

Judge, after following the procedure prescribed in Section 205D of the Criminal Procedure Code. The trial conducted and the judgment of

acquittal recorded by the Ld. Judicial Magistrate Anantnag therefore, is held to be without jurisdiction and the same is as such set-aside and the

case is remanded back to the Ld- Judicial Magistrate Anantnag for proceeding afresh with the case in the light of this judgment. LC for the

respondent shall produce the accused before the Ld. Trial Court on 17.5.2003.