IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32554 of 1999 KRISHNANDAN MALAKAR @ BUDHU MALI @ RAM KRISHNA MALAKAR & ANR Versus STATE OF BIHAR ----------- 4/ 29.6.2010 Heard Shri Pramod Kumar Sinha No. 1, learned counsel for the petitioners and Shri Dashrath Mehta, learned APP for the state. The petition seeks quashing of order dated 30.9.1997 passed by the learned A.C.J.M., Sheikhpura in Barbigha P.S. Case No. 156 of 1996. Without noticing the facts stated in the FIR, I find it suffice to note that on the basis of a written report, a case was registered under sections 25(1-B) A 26 and 35 of the Arms Act. It appears that the Investigating Officer did not send up the petitioners for trial while submitting the final form. However, the learned A.C.J.M., after hearing the parties, summoned the petitioners to stand trial under the aforementioned sections of the IPC. As may appear from the above facts, because the police had not found it a fit case for sending the accused to trial, no previous sanction for initiating the prosecution of an accused for committing an 2 offence under section 25 or 26 or 35 of the Arms Act was obtained. The learned A.C.J.M. still passed the summoning order and directed the learned APP to obtain sanction from the District Magistrate, Sheikhpura. If one peruses the provision of section 39 of the Arms Act, one could find that no prosecution could proceed without the sanction of the District Magistrate in violation of any condition of section 3 of the Arms Act. A perusal of sections 25, 26 and 35 of the Arms Act may indicate that those provisions prescribe punishment for violation of one or the other conditions of section 3 of the Arms Act. As such, it is sine qua non that for initiating the prosecution, previous sanction of the District Magistrate is obtained and placed before the court. A question may be raised as to whether an order of summoning could tantamount to initiating a proceeding. One may find, if one ponders over the issue, that merely instituting an FIR or lodging a complaint petition is not initiating the prosecution. An FIR could result into investigation by the police as per its statutory powers and duties. Likewise, a complaint petition may, after being presented before a competent court, be inquired into by a 3 magistrate or sent under section 156(3) of the Code of Criminal Procedure for investigation by the police or may also be investigated into by any other person than the officer incharge of the police station as per section 202 of the Code of Criminal Procedure at the order of the Magistrate. The ultimate result either of an investigation or an enquiry, as may be envisaged by different provisions noted above, could be that it may result into submission of report or a judicial order which may be passed under section 204 of the Code of Criminal Procedure. This could be the threshold when an order is passed under section 204 of the Code of Criminal Procedure that, in real terms, the prosecution is initiated. We generally and loosely call an order which is passed under section 204 of the Code as an order of cognizance which, in fact, is legally incorrect as it always has to be an order summoning an accused either on receipt of a police report of facts constituting one or the other offence or after the enquiry or investigation, as the case may be, under section 202 of the Cr.P.C. has ended. It can be an order of taking cognizance of an offence as also the order summoning of accused when it is passed on a police report. In respect of complaint case, such an order would 4 necessarily be an order summoning an accused so as to initiate the proceeding or prosecution. If one co-relates and considers the provision of section 39 of the Arms Act, then one could properly comprehend the import and ambit of the word ‘prosecution’ which appears in that section of the Arms Act. I, therefore, could safely conclude that as soon as an order of summoning and cognizance, as we call it, is passed by the magistrate so as to putting a person on trial, the order could be an order initiating a prosecution in terms of section 39 of the Arms Act and no such order could be passed if the offences relate to the violation of condition of section 3 of the Arms Act without obtaining the sanction of the District Magistrate. As pointed out earlier, no order sanctioning the prosecution of the petitioners was granted by the District Magistrate and, as such, the learned A.C.J.M. directed the Additional Public Prosecutor to procure the said order and produce it before the court. The learned magistrate was himself, probably, feeling that his order was not as per the provision of section 39 of the Arms Act. In the light of the discussion just made, the whole 5 prosecution initiated by order dated 30th September, 1997 in Barbigha P.S. Case No. 156 of 1996 appears a complete abuse of the process of the court and the same is quashed. The petition stands allowed. Anil/ ( Dharnidhar Jha, J.)