Madhya Pradesh High Court
Brijmohan Agrawal vs State Of M.P. on 19 February, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 19 th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 4116 of 2012
BETWEEN:-
1. BRIJMOHAN AGRAWAL S/O MANGILAL
AGRAWAL, AGED ABOUT 86 YEARS, CHETAKPURI,
GWALIOR (MADHYA PRADESH) (DELETED)
2. SUNIL SHUKLA S/O RAMCHARAN DAS SHUKLA,
AGED ABOUT 40 YEARS, R/O FALKA BAZAR,
GWALIOR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI PRASHANT SHARMA - ADVOCATE )
AND
STATE OF M.P. TH:P.S.INDERGANJ, LASHKAR,
GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PAWANT SINGH RAGHUVANSHI - GOVT. ADVOCATE)
This application coming on for direction this day, the court passed the
following:
ORDER
This petition has been filed under Section 482 of Cr.P.C. against the
order dated 19.04.2012 passed in Criminal Revision No.516/10 by learned
Third Additional Sessions Judge, Gwalior, confirming the order dated
09.09.2010 passed by learned Judicial Magistrate First Class, Gwalior, in
Criminal Case No.15915/06 whereby charges were framed for the offence
punishable under Sections 420/120-B, 467/120-B, 468/120-B, 471/120-B of IPC
and 26(2) and 29(b) of Arms Act against the petitioner.
The brief facts of the case are that petitioner is a Manager in a shop
dealing with Arms of co-accused Surendra Agarwal. Some arms and
ammunition were supplied to other dealer Raj Kumar Sharma of Mahoba, who
was proprietor of M/s Raj Kumar Sharma Arms Stores, Mahoba district, U.P.
on the basis of Form 16 issued under Arms Rules. When it was suspected by
Brijmohan Agarwal father of co-accused Surendra Agarwal that Raj Kumar
Sharma is not having any arms shop at Mahoba, he enquired about it and found
that Raj Kumar Sharma is not proprietor of M/s Sharma Arms Stores, Mahoba
and he has obtained arms and ammunition on fabricated Form 16. He reported
the matter to the Police and Police after investigation found that Raj Kumar
Sharma was in reality Kamal Kant Verma, S/o Mahesh Chand Verma and he is
not having any shop of Arms at Mahoba. Police has filed challan not only
against Raj Kumar Sharma @ Kamal Kant Verma but has filed challan against
present petitioner and co-accused Brijmohan Agarwal and Surendra Agarwal
for violation of instructions issued by Additional District Magistrate, Gwalior
regarding supply of Arms and Ammunition to the dealers of other districts for
the offence punishable under Sections 26(2) and 29(b) of the Arms Act but
learned trial Court has also framed charges for the offence punishable under
Sections 420/120-B, 467/120-B, 468/120-B, 471/120-B of IPC for which Police
has not filed challan against them. Challan has been filed against Raj Kumar
Sharma @ Kamal Kant Verma for the offence punishable under Sections 420,
467, 468 and 471 of IPC for fabricating forged documents i.e. Form 16.
Petitioner challenged the order framing charge in revision but revisional Court
has dismissed the revision petition, therefore, petitioner has filed this petition
under Section 482 of Cr.P.C.
Learned counsel for the petitioner has submitted that Police has filed
challan against the petitioner who was complainant in the case and challan has
been filed only for the offence punishable under Sections 26 and 29. of the
Arms Act. Learned counsel for the petitioner has drawn attention towards the
fact that during relevant period i.e. in the year 1995-1996 ADM, Gwalior, has
made only inspection of the shop and after checking the registers has found no
irregularity or illegality in the shop of petitioner. If there had been any violation
of instructions issued by ADM, Gwalior, then, certainly he should have pointed
out such violations in his inspection report which has been filed alongwith
challan by the Police and a copy of which is annexed with the petition. It is
further submitted by the learned counsel for the petitioner that Investigating
Officer has not found any link of the petitioner in fabricating forged Form 16.
Therefore, the learned trial Court has erred in framing charges for the offence
punishable under Sections 420/120-B, 467/120-B, 468/120-B, 471/120-B of
IPC.
On perusal of the challan papers, it is clear that there is no evidence
connecting the petitioner with fabrication of forged documents i.e. Form 16 by
other accused Raj Kumar Sharma @ Kamal Kant Verma, therefore, there was
no ground for framing charge for the offence under Sections 420/120-B,
467/120-B, 468/120-B, 471/120-B of IPC. M.Cr.C.4136/2012
So far as charges for the offence punishable under Section 26 and 29 of
Arms Act is concerned Additional District Magistrate at the relevant period had
found no illegality or irregularity in inspection of the shop of the co-accused in
which present petitioner was working in the capacity of Manager. The statement
of concerned Deputy Collector of relevant period who inspected the shop of
S.H. Jadon and P.D. Mishra in their statements under Section 161 of Cr.P.C.
have also stated that they have inspected the shop and recommended for
renewal of licence of Arms dealer which again shows that there was no illegality
or irregularity found with regard to the shop of the petitioner.
Section 26 (2) of Arms Act relates to contravention of provisions of
Sections 5, 6, 7 or 11 which relates to licence for manufacturing or shortening
of guns etc., prohibition of acquisition or possession manufacture or sale, of
prohibited arms or prohibited ammunition and prohibition of import and export
of arms etc but it does not contain any condition that arms dealer has to comply
with any instructions issued by Additional District Magistrate or District
Magistrate.
Section 29 (b) of Arms Act reads as follows:-
"29. Punishment for knowingly purchasing arms,
etc., from unlicensed person or for delivery arms,
etc., to person not entitled to posses the same-
Whoever--
(a) .............
(b) delivers any arms or ammunition into the
possession of another person without previously
ascertaining that such other person is entitled by
virtue of this Act or any other law for the time
being in force to have, and is not prohibited by this
Act or such other law from having, in his
possession the same, shall be punishable with
imprisonment for a term which may extend to
[three years, or with fine, or with both]."
The co-accused Surendra Agarwal has supplied arms and ammunition on
the basis of form 16 prescribed under Arms Rules and when he suspected that
purchaser of arms is not a proprietor of arms shop then he himself has reported
the matter to the Police after due enquiry. The documents submitted by the
purchaser i.e. Raj Kumar Sharma @ Kamal Kant Verma bears the seal and
signature of A.D.M and D.M. which was sufficient compliance of provisions of
Section 29 (b) of Arms Act at the time of delivery of arms and ammunition to
him.
Learned counsel for the petitioner has cited the judgment of this Court in
the matter of Imtiaz Ahmed Vs. State of M.P., 1997 (1) JLJ 373 , in which it
has been held that charge can only been framed on the basis of material
available against an accused. Court should evalute the material against each
accused before framing of charge. Learned counsel for the petitioner has also
cited judgment of Hon'ble Apex Court in the matter of Union of India Vs.
Prafulla Kumar Samal, 1979 AIR(SC) 366 and another judgment of Hon'ble
Apex Court in the matter of Niranjan Singh Karam Singh Punjabi,
Advocate, State of Maharashtra Vs. Jitendra Bhimraj Bijjaya and
Others, AIR 1990 SC 1962 in which it has been held that under Sections 227.
and 228 of Cr.P.C. it is a duty of the Court to evaluate the material and
documents with a view to finding out if the facts emerging therefrom taken at
the face value disclose the existence of all the ingredients constituting the alleged
offence. He further submits that this Court vide order dated 29.08.2012 in
M.Cr.C. No. 4136 of 2012 has allowed the petition of co-accused Surendra
Agarwal filed u/s. 482 of Cr.P.C. and the case of the present petitioner is
identical to that of the co-accused. Under these circumstances, he seeks parity.
In the present case, charges for the offences punishable under Sections
26(2) and 29(b) of the Arms Act have been framed against the petitioner only
on the ground that he has not complied with the direction of A.D.M. But such
non-compliance is not covered under Section 26 or 29 of the Arms Act.
Therefore, petitioner who happens to be the Manager of the shop of the
complainant and should have been listed as witness, while he has been wrongly
implicated as accused without any material against him and thus learned Trial
Court is not justified in framing the charges for the offence punishable under
Sections 420/120-B, 467/120-B, 468/120-B, 471/120-B of IPC and Sections
26(2) and 29(b) of the Arms Act as no challan has been filed against the
petitioner for the offence punishable under Sections 420/120-B, 467/120-B,
468/120-B, 471/120-B of IPC and under Section 26(2) and 29(b) of Arms Act
and no offence is made out against him. Therefore, petition is allowed and the
impugned order passed by the learned Judicial Magistrate First Class, Gwalior,
in Criminal Case No.15915/06 and the order passed by the revisional Court in
Criminal Revision No.516/10 are hereby quashed and the trial Court is directed
to drop the proceedings against the petitioner.
A copy of this order be sent to the trial Court for Information and
compliance
(MILIND RAMESH PHADKE)
JUDGE
ar
