CRIMINAL APPEAL No.153 OF 1993 Appeal against the judgment and order dated 25.5.1993 passed in Sessions Trial No. 419 of 1988/ 102 of 1990 arising out of Dehri P.S. Case No. 267 of 1986 by Ist Additional Sessions Judge, Rohtas at Sararam. SHEO NATH CHAUDHARY, Son of late Mahabir Chaudhary, Resident of village – Tolara, P.S. Rehala, District – Palamu …………….. Appellant. Versus THE STATE OF BIHAR …………….. Respondent. For the Appellant : - Sri Vidramdeo Singh, Advocate Sri Dharmendra Kumar Singh, Advocate Sri Sadanand Roy, Advocate For the Respondent : - Sri Dasrath Mehta, Addl. Public Prosecutor. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ************* Dharnidhar Jha, J. The solitary appellant Sheo Nath Chaudhary was put on trial in Sessions Trial No. 419 of 1988 by the Ist Additional Sessions Judge, Rohtas at Sasaram for charges under Section 307 of the Indian Penal Code and Sections 25 (i) (a) and 27 of the Arms Act and by the judgment dated 25th of May, 1993 the appellant was acquitted of the charge under Section 307 of the Penal Code and Section 27 of the Arms Act, but was found guilty of possessing two illegal arms in the nature of country made guns in a bag and was inflicted rigorous imprisonment for five years. The above - 2 - judgment is being questioned in the present appeal. 2. The facts of the case are very short that while on patrolling duty, the informant, S.I. Md. Anwar Khan (PW 3), was accompanied by a posse of armed forces, happened to find and arrest the appellant and on search of his bag, seized two country made pistols therefrom. It is alleged that initially the criminals started running away but they were chased and that before being caught the appellant and others also fired at the police party. 3. PW 3 presented his own written report (Ext.3) to the Officer-in-charge of Dehri police station upon which Ext. 1, the FIR of the case, was drawn up and PW 3 was directed to investigate the case. The seized arms were examined by the Sergeant Major and the two were reported to be effective arms. On completion of the investigation the police sent up the present appellant, Sheo Nath Choudhary, for trial and accordingly he was tried and convicted as indicated above. 4. The defence of the appellant was that he was falsely implicated for reasons best known to the police and that nothing had been recovered from him. - 3 - 5. Three witnesses were examined during the course of the trial. Besides the FIR and the written report of the informant, the prosecution also produced seizure memo (Ext. 2) and the sanction order to prosecute the accused as required by Section 39 of the Arms Act granted by District Magistrate, Rohtas at Sasaram which is dated 4.10.1981 and which was marked Ext. 4 in the case. Ext. 5 is the report submitted by the Sergeant Major on examination of the two country made guns, seized allegedly from the possession of the appellant. 6. PW 1 Kanhaiya Prasad Singh was a witness of formal character, who proved the writings of the FIR in the hand of S.I. Lalan Mishra, who was the Officer-in-charge on that date of Dehri police station and accordingly the FIR was marked Ext. 1. 7. PW 2 was constable Binda Singh, who was accompanying the informant as per the claim and who also, chased and caught the appellant and in whose presence the recovery of two effective arms was allegedly made. But PW 2 in paragraph 4 of cross examination has stated that nothing had been recovered from any one in his presence. - 4 - Thus, the evidence of PW 2 appears of no consequence as regards the conviction of the appellant under Section 25 of the Arms Act rather it disproves the charge. 8. So far as the evidence of the informant PW 3 S.I. Md. Anwar Khan is concerned, his own evidence may also not lead any reasonable person to come to a conclusion that the story of recovery could have been foisted upon the appellant. PW 3 has stated in paragraph 4 that no copy of seizure memo in respect of seizure of the two arms was handed over to him and his signature was not obtained on the document. This appears a violation of the provision of Section 100 of the Cr. P.C. which requires two respectable persons of the locality to be associated with the search and seizure of any article and a copy of the document to be made over to the accused or any of his family members. If the arms were recovered from the possession of the appellant and indeed any document was prepared in token of the search and seizure then there was no reason for the informant PW 3 to deviate from the requirement of law and to disobey the provision. 9. On the above ground it was contended before - 5 - me by Sri Vikramdeo Singh, the learned counsel appearing for the appellant that, in fact, there was no search nor was any seizure of any weapon and that is indicated also by another aspect of the evidence of PW 3, when he stated that the pistols/country made guns which could have been recovered from the possession of the appellant were not produced in court. Besides, it was contended, and rightly, that if at all search and seizure was made it was expected that before taking up the exercise, the informant and his accompanying police personnel or any one who could be associated with the exercise ought to have given the search of their own persons to the witnesses or to some independent witness that they did not bear on their persons any weapon. It was contended that the witness has stated in paragraph 8 that he did not do it. The next contention was, and again rightly, that the zeal of PW 3 to present a fool- proof story so as to justifying his illegal act of arresting the appellant on the false plea of carrying illegal weapons appears from the fact that he was himself investigating the case, so as to be able in creating materials for obtaining an illegal conviction of the appellant and it was contended that - 6 - PW 3 appears succeeding in his attempt. 10. The most important part of the prosecution of the appellant in the court below was that the sanction order was, though, produced before the learned Judge in the form of Ext. 4, but if one could peruse that particular document one could find that it was in a cyclostyled form which was having vacant spaces left over it, so as to filling up in them some important informations, like, the name of the police station, the place of posting of the S.P., who could have recommended for grant of sanction as also the name of the District Magistrate, besides the details of the police case and the name of the accused. It was contended by Sri Singh that the order of granting sanction was an act done in a mechanical manner without due application of the mind to the facts of the case, so as to arriving at a conclusion that indeed an offence under the Arms Act had been committed, which required sanction to prosecute the accused. The courts have been pointing out to the District Magistrates that granting sanction is not a mere form it is a serious business which could be done only after considering the facts of the case on due application of the mind by the - 7 - sanctioning authority and it must appear from the sanction order itself that actually application of mind has been made and the Officer granting the sanction order was fully aware of the facts of the case. The cyclostyled language of the form of Ext. 4 is such as could be covering any case as regards the sanction of the offences and the act. It does not speak any word about the date on which the offence was committed, the manner in which the accused was arrested or the manner of making search and seizure and recovery of the arms. Sanctioning the prosecution of a person could not be an act to issue a licence for sale the arms or either of any commodity as is done by the Officers of the Executive. This is an act which forms part of the judicial function of an Officer of Executive which is defined by Section 3(4) of the Cr. P.C. It might be an administrative executive action but the function ultimately being of putting a person on trial for a particular offence, it could really be a quasi judicial in nature, which could have an administrative tinge. It was required that the District Magistrate, Rohtas at Sasaram ought to have indicated facts of the case and other details of it sufficiently in his sanction order, so as to indicating that - 8 - the order had been passed on due application of the mind. On considering Ext. 4, the order to sanction prosecution, I find that it was not really an order of that quality and effect as is required under law to be granted and it could nor be, as such, excessive to hold that the appellant was prosecuted without any sanction. 11. These are some of the reasons on which the judgment and order of conviction passed by the learned trial Judge cannot be sustained. The same is hereby set aside. The appellant is hereby acquitted by allowing the appeal. The appellant is on bail. He shall stand discharged from the liability of his bond. Patna High Court Dated 3rd of March, 2009 NAFR/DKS (Dharnidhar Jha, J.)