Jinu George v. State of Kerala; Reji George v. State of Kerala (CRL.M.C. Nos. 4472/2021 & 4552/2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 2[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943** ## **CRL.MC NO. 4472 OF 2021** **(AGAINST FIR NO. 68 OF 2019 OF NEDUMKANDAM POLICE STATION, IDUKKI)** ## **PETITIONER/ACCUSED:** ## **JINU GEORGE** **AGED 45 YEARS** **S/O. GEORGE JOSEPH, KIZHAKATHALACKKAL HOUSE, CHAMPALAM, IDUKKI685553.** **BY ADVS.** **R.SANJITH** **C.S.SINDHU KRISHNAH** **P.S.ANJU ANOOP GEORGE NIYA BENNY** ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2 SUB INSPECTOR OF POLICE, NEDUMKANDAM POLICE STATION, IDUKKI-685553.** ## **OTHER PRESENT:** **PP -SRI. M.C.ASHI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.12.2021, ALONG WITH Crl.MC.4552/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.Nos. 4472 & 4552 of 2021 **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 2[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943** **CRL.MC NO. 4552 OF 2021** **(AGAINST FIR NO. 67 OF 2019 OF NEDUMKANDAM POLICE STATION, IDUKKI) PETITIONER/ACCUSED:** **REJI GEORGE** **AGED 51 YEARS** **S/O. GEORGE JOSEPH, KIZHAKATHALACKKAL HOUSE, CHAMPALAM, IDUKKI-685 553.** **BY ADVS.** **R.SANJITH** **C.S.SINDHU KRISHNAH** **P.S.ANJU** **ANOOP GEORGE** **NIYA BENNY** ## **RESPONDENTS/COMPLAINANT:** - **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 SUB INSPECTOR OF POLICE NEDUMKANDAM POLICE STATION, IDUKKI-685 553.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.12.2021, ALONG WITH Crl.MC.4472/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.Nos. 4472 & 4552 of 2021 **3** ## **ORDER** These are petitions filed under Section 482 of the Criminal Procedure Code seeking to quash all proceedings pursuant to Annexure-A1 FIR that is, Crime No. 68 of 2019 of Nedumkandom police station, Idukki in respect of the petitioner in Crl. M C. No. 4472 of 2021 and Crime No. 67 of 2019 of Nedumkandom police station in respect of the petitioner in Crl. M. C. No. 4552 of 2021, on the file of the Judicial First Class Magistrate's Court, Nedumkandom. Since common questions have arisen, both the cases have been heard together and are disposed of by this common order. 2. The averments of the petitioners can be summarised as follow: 3. The above-stated crimes of Nedumkandom police station lodged with Judicial First Class Magistrate's Court, Nedumkandom allege offence against the petitioners under Crl.M.C.Nos. 4472 & 4552 of 2021 **4** Sections 21(1), 25(1B)(h) and Section 27 of the Arms Act, 1959. Petitioners claim that they are cardamom planters in Nedumkandom. The allegation in the FIR is that Arms licences bearing Nos. BL-804/UCHOLA/ID and R805/Uchola/ID respectively issued to the petitioners expired on 17.06.2017 and they failed to deposit the arms thereby committed the above-stated offences. According to the petitioners, they are holding one 12 Bore SBBL gun bearing No.A/44105 under Arms Licence Nos. BL-804/UCHOLA/ID and R805/Uchola/ID respectively, for self-protection. They are planters and partners of Mekkallar plantation in Idukki, engaged in cardamom cultivation in more than 65 acres of land. They are members of the District Rifle Association in Idukki and are holding the licence for more than a decade without any complaint. The licence was valid up to 17.06.2017 and they applied for renewal of arms licence as dated 15.05.2017 before the District per application Magistrate, Idukki. They were under the bonafide expectation Crl.M.C.Nos. 4472 & 4552 of 2021 **==> picture [8 x 8] intentionally omitted <==** that their applications will be considered within the time period stipulated under Rules 13 and 14 of Arms Rules, 2016. It is further submitted that the guns possessed by the petitioners were deposited with the District Rifle Association in Idukki on 16.08.2017. Later, under Annexure-A2 in both the cases dated 19.05.2019 the Additional District Magistrate issued orders renewing their arms licences for the period from 18.06.2017 to 17.06.2020. Thereafter both the petitioners for fresh renewal licence on preferred applications 18.05.2020, for further renewing their arms licence after the period covered by Annexure-A2 and deposited the guns on 14.05.2020. But to their utter surprise, on enquiry in relation to the fresh renewal licence dated 18.05.2020 they were informed that Annexure-A1 FIR in both the cases were registered against them on 15.02.2019 alleging the abovestated offences. According to them, before registering the crime they were not put on notice or informed about any violation on their part. Entire action on the part of the 2[nd] Crl.M.C.Nos. 4472 & 4552 of 2021 **6** respondent is a clear abuse of law and intended to harass the petitioners. During Annexure-A2 proceedings arms licence for the petitioners was renewed from 18.06.2017 to 17.06.2020. Therefore the period alleged in Annexure-A1 FIR, in both the cases is covered under Annexure-A2 proceedings and therefore, the petitioners cannot be construed to be in contravention of Section 21(1) of the Arms Act. 4. In the circumstances, both of them want Annexure-A FIR in both the Criminal Miscellaneous Cases to be quashed. 5. I heard the learned counsel for the petitioners and also the learned Public Prosecutor. 6. According to the learned counsel, both the crimes were registered under misconception of facts. Before the expiry of the licences both of them had made applications before the District Magistrate; referring to Rules 13 and 14 of the Rules 1962, he said that they had time up to six months to deposit. Still, without further delay, they deposited the arms with the Rifle Association and therefore such an allegation will not lie against them. It is Crl.M.C.Nos. 4472 & 4552 of 2021 **7** not known as to how Section 27 of the Arms Act would attract. Both of them knew about registration of the crime only thereafter. They do not have any antecedents, they are cardamom cultivators and part of the vocation, they used to handle large amounts in cash, and therefore for personal security, such arms have to be kept by them. They are also members of the Rifle Association of Idukki and law-abiding citizens and both the arms were deposited with the Riffle Association within a period of two months and still, they have been harassed by registering the crime unnecessarily. Referring to Rules 13 and 14 of the Arms Rules, 1962, the learned counsel submitted that even without any report, the licence can be renewed. What is important is the satisfaction of the licence issuing authority and they are expected to surrender the arms without unnecessary delay, which has been interpreted as within reasonable time, for which the learned counsel placed reliance on the decision reported in **Devasia Mathew v. State of Kerala [2017 (1) KLT 994]** . Crl.M.C.Nos. 4472 & 4552 of 2021 **8** 7. According to the learned Public Prosecutor, on the date of renewal of the licence, it was not renewed and the report of the police was against them which is evident from Annexure-A2, report of the District Police Chief, Idukki, made mention in the order. 8. The positive averments of the petitioners that they are holders of Arms licence issued by the District Magistrate is not disputed. Similarly, the currency of the licence had expired on 17.06.2017 and even before that, on 15.05.2017 itself, both of them had applied for renewing the licence with the District Magistrate. It is also submitted that both of them were under the bonafide belief that the licence would be renewed within the stipulated time provided under Rules 13 and 14 of the Arms Rules, 2016. It is the specific case of the petitioners that on 16.08.2017 they had deposited the guns with the District Rifle Association of Idukki. In fact, these contentions are not denied by the respondents. Later, petitioners have produced copy of receipts dated 16.08.2017 as well evidencing issue of receipt in Crl.M.C.Nos. 4472 & 4552 of 2021 **9** Form A by the Secretary of the District Rifle Association of Idukki accepting arms for safe custody. Thereafter, AnnexureA2 proceedings of the Additional District Magistrate, Idukki shows that their arms licence was renewed despite the objections raised by the District Police Chief that they do not need arms. Thus, the licences were renewed for a period of three years with effect from 18.06.2017 to 17.06.2020. This order is dated 19.06.2019. However, Annexure-A1 crime in both the cases have been registered on 15.02.2019 by the Sub Inspector Nedumkandom police station on the basis of some cause of action on 18.06.2017. It is not known as to what is the cause of action on 18.06.2017. May be the date on which their arms licence was expired. But it is very patent that both of them had applied for renewing the licence before one month of the date of expiry of the licences. But such a crime was registered alleging that they did not deposit the arms even after the period of licence on 17.06.2017. The crime has been registered after nearly two years alleging offence under Sections 21(1), 25(1B) (h), and 27 Crl.M.C.Nos. 4472 & 4552 of 2021 **==> picture [15 x 9] intentionally omitted <==** of the Arms Act. As rightly pointed out by the learned counsel, it is not known as to how Section 27 of the Arms Act is attracted. 9. Whatever it may be, such a delay in registering the crime is not explained by the respondents. Secondly, AnnexureA2 indicates that the District Magistrate, in spite of the resistance or objections raised by the District Police Chief, on the basis of a report given the Tahsildar, Udubumchola, decided to renew the licence for the period from 18.06.2017 to 17.06.2020. The references in the Annexure-A2 order indicate that the matter was under the consideration of the Additional District Magistrate. A letter was obtained from the District Police Chief only on 04.05.2019. So it may be because of the delay in getting a reply from the District Police Chief that the processing of the applications was delayed. As rightly pointed out by the learned counsel, Rules 13 and 14 of the Arms Rules, 2016 clearly mandate that when an application is filed, it should be processed and considered within a period of sixty days. When a report is called for, the officials should give the Crl.M.C.Nos. 4472 & 4552 of 2021 **==> picture [15 x 9] intentionally omitted <==** report within thirty days. In other words, the delay in issuing Annexure-A2 cannot be attributed and for that reason, the petitioners who have since been renewed licence cannot be prosecuted. 10. The other argument that can be raised is that even after the expiry of the arms, they had deposited the same only on 16.08.2019. I think such a delay is negligible. As I stated earlier, they had moved before the District Magistrate in advance for renewing the licence. So they might have been under the bonafide belief that their applications would be considered on the time-line under Rules 13 and 14. Secondly, the Rules only say that it should be deposited without unnecessary delay. Such a delay cannot be highlighted and therefore, I have no doubt that the crimes registered after nearly two years of the alleged cause of action is an abuse of the process of law. Licences have been renewed by the competent authority covering the period of the cause of action for registering the crime. Thus by virtue of the Annexure-A2 proceedings of the Additional District Magistrate, Crl.M.C.Nos. 4472 & 4552 of 2021 **12** Idukki, during the period 18.06.2017 to 17.06.2020, they have licence. Annexure-A2 proceedings cuts the root of the allegation against the petitioners and make the crimes stale. Therefore, both the crimes, i.e. Crime No. 68 of 2019 and Crime No. 67 of 2019 of Nedumkandom police station are colourable exercise of power of the police officials and therefore, are liable to be interfered with. All further proceedings in both the crimes are quashed and both the Criminal Miscellaneous Cases are allowed. The Criminal Miscellaneous Cases are allowed as above. Sd/- **K. HARIPAL JUDGE** RMV/21/10/2021 Crl.M.C.Nos. 4472 & 4552 of 2021 **13** ## **APPENDIX OF CRL.MC 4552/2021** ## **PETITIONER ANNEXURE** **Annexure A1 CERTIFIED COPY OF FIR NO.0067/2019 OF NEDUMKANDAM POLICE STATION, IDUKKI, ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDOM. Annexure A2 TRUE COPY OF PROCEEDINGS OF THE ADDITIONAL DISTRICT MAGISTRATE, IDUKKI BEARING NO.DCIDK/1129/2018-E2.** Crl.M.C.Nos. 4472 & 4552 of 2021 **14** ## **APPENDIX OF CRL.MC 4472/2021** ## **PETITIONER ANNEXURE** **Annexure A1 CERTIFIED COPY OF FIR NO.0068/2019 OF NEDUMKANDAM POLICE STATION, IDUKKI, ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDOM. Annexure A2 TRUE COPY OF PROCEEDINGS OF THE ADDITIONAL DISTRICT MAGISTRATE, IDUKKI BEARING NO.DCIDK/1128/2018-E2.**