Jaison Joseph and Gireesh v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944** ## **CRL.MC NO. 6219 OF 2022** ## **PETITIONER/ACCUSED NO 1 AND 2:** 1 JAISON JOSEPH AGED 49 YEARS S/O JOSEPH O.J, PUTHENPURACKAL, THODUPUZHA, THODUPUZHA P.O., IDUKKI DISTRICT, PIN - 685584 2 GIREESH AGED 40 YEARS S/O NARAYANA PILLAI, CHAMBAMANGALATHU HOUSE, THODUPUZHA, IDUKKI DISTRICT , PIN - 685584 BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) SAMEER M NAIR HARSHA SUSAN SAM GEETHU KRISHNAN ## **RESPONDENTS/STATE, DEFACTO COMPLAINANT AND INJURED:** 1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER POLICE STATION OF MOOZHIYAR, PATHANAMTHITTA DISTRICT, PIN - 689662 3 K.V CHANDRA KUMAR AGED 66 YEARS S/O VASU, KADUVATHARAYIL HOUSE, KOTTAMONPARA P.O., SEETHATHODE VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT , PIN - 689711 4 DR. PRABHATH V.NAIR AGED 31 YEARS S/O VIJAYAMMA P.B, PUNNAPPILLIL HOUSE, VADACODE, KURA P.O, THALAVOOR, KOLLAM DISTRICT, PIN - 691557 5 KAMALAMMA AGED 61 YEARS 2 Crl.M.C No. 6219 of 2022 W/O K.V CHANDRA KUMAR, KADUVATHARAYIL HOUSE, KOTTAMONPARA P.O., SEETHATHODE VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT , PIN - 689711 6 SREEJITH K. AGED 49 YEARS S/O VISWANATHAN, KALARICKAL HOUSE, KOTTAMONPARA P.O., SEETHATHODE VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT , PIN - 689711 BY ADVS. PUBLIC PROSECUTOR ANSU VARGHESE > u ADV SANGEETHARAJ -PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 3 Crl.M.C No. 6219 of 2022 ## **O R D E R** The petitioners are the accused Nos.1 and 2 in Crime No.233/2022 of Moozhiyar Police Station, which was registered for the offences punishable under Sections 452, 294 (b), 323, read with Section 34 of the Indian Penal Code and under Sections 20 and 27(1) of Arms Act. 2. The prosecution case is that on 07.08.2022 at 17.00 hrs, the petitioners trespassed into the residence of the 4[th] respondent, engaged in a verbal and physical altercation and thereafter, the 1[st] accused drew a gun out, thereby causing a terror situation. Annexure A1 is the FIR, and this Crl.M.C is filed for quashing all further proceedings pursuant to Annexure A1. 3. Heard Sri. Manu Ramachandran, the learned counsel appearing for the petitioners and Smt. Sreeja V, the learned Public Prosecutor appearing for the State and Sri. Ansu Varghese, the learned counsel appearing for respondents 3 to 6. 4. The prayer sought by the petitioners is to quash the proceedings pursuant to Annexure A1 based on settlement arrived 4 Crl.M.C No. 6219 of 2022 between the petitioners and the respondents 3 to 6, who are the victims of the crime. 5. To substantiate the aforesaid settlement, Annexures A2 to A5 affidavits sworn by respondents 3 to 6 respectively are produced. Based on said documents, it is contended that no fruitful purpose would be served by continuing the prosecution, as the matter is settled between the parties. 6. I have gone through the records and heard the contentions raised from either side. 7. It is true that, the matter is settled. The veracity of the settlement, as revealed through the affidavits filed by the respondents 3 to 6, was verified by the Station House Officer concerned and found to be genuine. The learned Counsel appearing for respondents 3 to 6 has also confirmed the same and reiterated that they do not have any subsisting grievances against the petitioners and have no objection in quashing the proceedings against the petitioners. There is no dispute that the offences under the provisions of the Indian Penal Code alleged against the petitioner can be quashed on the basis of settlement, being not 5 Crl.M.C No. 6219 of 2022 very serious offences. However, the question arises is with regard to the offences under the provisions of the Arms Act. 8. The petitioner produced Annexure A6, the license issued to him in respect of the said gun and according to him, he had the authorization to use the said gun at the relevant time. Therefore, it is pointed out that no offence under the provisions of the Arms Act would be attracted. 9. The learned counsel for the petitioner contends that the offences alleged against him, namely, Section 20 and 27(1) of the Arms Act are not attracted from the materials placed on record. According to him, the contents of Annexure A1 FIR and the FIS would not make out the offences punishable under Section 20 or Section 27 of the Arms Act. 10. I have carefully examined the facts of this case, materials placed in support of the allegations and relevant statutory provisions applicable. As far as the offence under Section 27 is concerned, the same would be attracted only when the person concerned uses any arms or ammunition in contravention of Section 5 or under Section 7. Section 5 deals with the use, 6 Crl.M.C No. 6219 of 2022 manufacture, sale, transfer, convert, repair, test etc., of any firearm, without obtaining a license issued as per the provisions of the Act. Annexure A6 license issued to the petitioner shows that he was duly licensed to hold the gun at the relevant time and therefore the act alleged against the petitioner would not make out a case for the contravention of section 5 of the Act. 11. The Section 7 deals with the acquisition, possession or manufacture or sale of prohibited arms or prohibited ammunition. There is no allegation that the firearm, the petitioner was possessing, is something which comes under the definition of 'prohibited Arms or prohibited ammunition. Therefore it cannot be concluded that while the petitioner was carrying the gun and taking out the gun, he violated Section 7 of the Arms Act . Since there is no violation of section 5 or 7 of the Arms Act, the offence under section 27 of the Arms Act would not be attracted. The said view is fortified by the observations made by the Honourable Supreme Court in **Surinder Singh v. State (Union Territory of Chandigarh) [2022(1) KLD 40]** , wherein, it was observed by the Honourable Supreme Court, as follows: 7 Crl.M.C No. 6219 of 2022 “30)……………….The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited under S.5 of the Arms Act. It appears that the Trial court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing regulatory regime, to enable law-abiding citizens to carry arms, and also to prohibit possession, acquisition, manufacture etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of licensed or sanctioned weapon per se does not constitute an offence under section 27 without proving the misdemeanor under S.5 or 7 of the Arms Act. At best, it could be a ‘misconduct’ under the service rules, the determination of which was not subject of the trial.” 12. As far as section 20 of the Arms Act is concerned, it is an enabling provision which empowers the police to arrest a person holding a firearm in suspicious circumstances. The same by itself is not a penal provision that can sustain prosecution on its own. Thus on perusal of the materials, it is evident that, even though the offences under the provisions of the Arms Act, are not the offences which can be quashed based on settlement under normal circumstances, in this case, as observed, no materials are available for attracting the said offences. Therefore, proceedings 8 Crl.M.C No. 6219 of 2022 against the petitioners for the offences under the Arms Act are to be quashed for that reason, while the proceeding pertains to the offences under the provisions of the Indian Penal Code are to be quashed based on settlement between the parties. In the result, this Crl.M.C is allowed, Annexure A1 FIR in Crime No. 233/2022 of Moozhiyar Police Station and all further proceedings pursuant thereto as against the petitioners are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk 9 Crl.M.C No. 6219 of 2022 ## **APPENDIX OF CRL.MC 6219/2022** |PETITIONER ANNEXURES|| |---|---| |Annexure A1|THE CERTIFIED COPY OF THE FIR IN CRIME| ||NO.233/2022 OF POLICE STATION OF| ||MOOZHIYAR, PATHANAMTHITTA DISTRICT| |Annexure A2|THE ORIGINAL OF THE AFFIDAVIT DATED| ||29.08.2022 SWORN BY THE 3RD| ||RESPONDENT/DE-FACTO COMPLAINANT| |Annexure A3|THE ORIGINAL OF THE AFFIDAVIT DATED| ||29.08.2022 SWORN BY THE 4TH| ||RESPONDENT/INJURED| |Annexure A4|THE ORIGINAL OF THE AFFIDAVIT DATED| ||29.08.2022 SWORN BY THE 5TH| ||RESPONDENT/INJURED| |Annexure A5|THE ORIGINAL OF THE AFFIDAVIT DATED| ||29.08.2022 SWORN BY THE 6TH| ||RESPONDENT/INJURED| |Annexure A6|THE TRUE COPY OF THE LICENSE VIDE NO.| ||LN18316A7A18620/BL/1401/TDA/ID ISSUED BY| ||ADDL. DISTRICT MAGISTRATE, IDUKKI TO| ||PETITIONER NO.1/ACCUSED NO.1| |Annexure A7|THE TRUE COPY OF THE MAHASAR DATED| ||08.08.2022 PREPARED BY THE 2ND| ||RESPONDENT IN ANN.A1 FIR|