IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.53 of 2009 RAJESH KUMAR CHAUDHARY @ RAJESH CHAUDHARY Versus STATE OF BIHAR ----------- 04 02.04.2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order of cognizance dated 22.10.2008, under Sections 25(1- b)a, 29, 30, 35 of the Arms Act registered as G.R. No. 817 of 2008, Trial No. 2982 of 2008, arising out of Nagar P.S. Case No. 134 of 2008, pending before the Court of Judicial Magistrate, Ist Class at Muzaffarpur. The allegations are that one Ashok Singh was standing by the road carrying a Telescopic Rifle. The informant, a Police Officer, asked him for the papers or license with regard to the weapon, which he failed to produce or explain. Learned counsel for the petitioner submits that the petitioner is the licensed owner of the weapon. He has also been made an accused. Strong reliance has been placed on Section-3 proviso of the Arms Act to submit that the licensee may by a written authority permit another to hold the weapon for purpose of renewal repair or any other use of the 2 holder. Referring to Rule-13 of the Arms Rules, it is submitted that it provides for an application to be submitted before the Licensing Authority to permit the weapons to be kept with another as a retainer with the consent of the owner. Not only had the petitioner given the necessary authority under Section-3 to Ashok Singh, but that an application for grant of retainer license to the latter under Rule 13 was also pending. No offence was, therefore, made out. The Court is satisfied that the grounds urged are in the nature of a defence and are questions of fact primarily to been seen from the materials collected during investigation only whereafter an appropriate decision whether a case fit to go to trial is not be made out. Once cognizance has been taken there arises a presumption of its correctness. If the petitioner be of the opinion that the materials collected during investigation itself do not make out a case to go to trial it remain shall appropriately in the realm of a discharge application, when the materials collected during investigation shall be more easily available before the Magistrate to pass appropriate orders in accordance with law. 3 If any such application is filed on behalf of the petitioner for discharge, it is required to be considered on its own merit on basis of materials collected during investigation, without being prejudiced by the order. The application is dismissed. P.K. (Navin Sinha, J.)