117}It is a settled principle of law that if a law
laid down by this Court was not applied properly by
the High Court then such order has to be set aside.
In this case, we find that the law laid down by this
Court in Bhajan Lal (supra) and S.B Johari's case
(supra) was not applied properly.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 836 OF 2015
(Arising out of S.L.P.(Crl.)No. 7082 of 2014)
The State rep. by the
Inspector of Police, ‘Q’
Branch C.I.D.,Tirunelveli
Range, Tamil Nadu Appellant(s)
VERSUS
Mariya Anton Vijay Respondent(s)
Decided On:01.07.2015
Citation; 2015(3)Crimes89(SC), (2015)9SCC294,
(2) These appeals are filed by the State against the
1common final judgment and order dated 10.07.2014
passed by the Madurai Bench of the Madras High
Court in Crl. R.C.(MD)No. 204 of 2014 and Crl. O.P.
(MD) No. 6719 of 2014 whereby the High Court
partly allowed the criminal revision case and the
criminal original petition filed by the accused
persons.
(3) The relevant facts giving rise to these appeals
though have been set out in great detail in the
impugned judgment of the High Court, have to be
recapitulated in order to enable us to give our own
reasons keeping in view the law laid down by this
Court in the decisions referred to hereinbelow. The
material facts mentioned herein are taken from
impugned judgment, charge sheet/final report and
the special leave petitions.
(4) The appellant is the State of Tamil Nadu
represented through the Inspector of Police “Q”
Branch of CID Tirunelveli Range and Thoothukudi,
Tamil Nadu whereas the respondents are the
2accused persons.
(5) On 11.10.2013, the Indian Coast Guard
Thoothukudi received an information that one
Vessel named "M. V. Seaman Guard Ohio" was
stationed at 10.8 Nautical miles from Vilangusuhi
Island of India/Thoothukudi Port and 3.8 Nautical
miles away from the baseline promulgated by the
Ministry of External Affairs, Government of India
vide Notification No. SO-1197 (E) 11.05.2009. The
Vessel was located within the territorial seawaters of
India. The information received also revealed that
one unidentified boat from Thoothukudi coast was
suspected to have sailed to the Vessel for doing
some kind of illegal activities on the vessel with the
connivance of crew members on the vessel.
(6) On the basis of information received, the
Indian Coast Guard Station Ship "Naikidevi"
intercepted the suspected vessel. On reaching there,
the sleuths of the Coast Guard questioned the crew
members and inquired as to whether they possessed
3any arms, ammunitions, guards etc. on the vessel?
On being questioned, the crew members candidly
admitted that they do possess and were carrying
with them arms and ammunitions on the vessel.
(7) On such disclosure being made admitting
therein that the vessel was carrying
arms/ammunition, the Coast Guard Ship directed
M.V. Seaman Guard Ohio to weigh anchor and
proceed to Tuticorin Port for further investigation by
the concerned agencies. The vessel was accordingly
escorted under the supervision of Captain KPP
Kumar along with 3 armed guards of Indian Coast
Guard Station. The vessel reached the port around
13.25 hrs on 12.10.2013.
(8) The joint interrogation team was accordingly
constituted comprising of representatives of Indian
Coast guard, Customs Department and other
agencies. The team members visited the vessel on
the same day, i.e.,12.10.2013 at 14.00 hrs. and
undertook thorough inspection of the vessel. The
4team members also interrogated the crew members
staying on the vessel. It continued till the next day
(13.10.2013), which inter alia revealed that the
vessel was carrying huge quantity of
arms/ammunition without any valid authorization
and documentation by the crew members. It was
further revealed that the vessel had received diesel
in bulk quantity from one Indian fishing boat
illegally few days back after the vessel entered in
Indian Sea waters.
(9) The vessel was accordingly handed over to
Coastal Security Group Thoothukudi on
13.10.2013. Mr. Narendran-Assistant Commandant
Boarding Officer of Indian Coast Guard Ship,
Naikidevi lodged a written complaint with the
Tharuvaikulam Marine Police Station, Tuticorin
stating the aforementioned facts with details, which
had come to their knowledge while inspecting the
vessel.
(10) On receipt of the report, immediately the
5Inspector of Police Marine PS Tharuvaikulam
registered a First Information Report (in short “FIR”)
in Cr.No. 18/2013 under Section 25 (1B) (a) and (f)
of the Arms Act, 1959 read with Section 3(b) and
Section 7 (1) (a) (ii) of the Essential Commodities
Act, 1955 read with Section 2(m) (5) of Motor Spirit
and High Speed Diesel (Regulation of Supply,
Distribution and Prevention of Malpractices) Order
1990.
(11) The registration of FIR led to deeper
investigation into the matter. However, looking to
the seriousness of the matter, the DGP Tamil Nadu,
by order dated 15.10.2013 in RC No 176936/crime/
IV (2)/2013 transferred the case to “Q” Branch, CID
for further investigation.
(12) The sleuths of CID Branch accordingly took
up the investigation and visited the vessel on
16.10.2013 (MV Seaman Guard Ohio Vessel), which
was by that time brought to the V.O.C. Thoothukudi
port. After inspecting the vessel, the team made
6necessary sketches and directed the vessel to
remain at the port under the custody of Port
authorities to enable them to carry out thorough
investigation. It was revealed that around 35 crew
members were stationed on the vessel out of which
11 were Indian national whereas remaining were
foreign nationals.
(13) On 17.10.2013, the investigation team again
visited the vessel to collect more information.
During this visit, it was found that 35 firearms,
5682 ammunition and 102 magazines were kept in
the vessel without any documents and authorization
certificates. These arms and ammunition were
accordingly seized after doing physical verification
on 18.10.2013. The investigating team also
intimated to the Court of Judicial Magistrate-II,
Thoothukudi about the factum of seizure of
arms/ammunition made by them. Independent
witnesses attested the seizure of arms/ammunition
made by the team members.
7(14) On 18.10.2013, three crew members on the
vessel described as A-4 A-6 and A-37 were arrested
whereas other two, A-3 and A-5, were allowed to
remain in vessel for doing maintenance work on
their request. These arrests were made after
observing necessary legal formalities.
(15) On 19.10.2013, the other two crew members,
A-3 and A-5, were also arrested, as none of the crew
members, namely, A-3 to A-37, including the
Captain of the vessel, who was under legal
obligation to carry with him the necessary
documents during voyage, were able to produce any
document such as licenses issued by the statutory
authorities or authorization orders issued by any
competent authority as required under the Arms Act
or/and any other law akin to Arms Act of any
country in relation to the seized arms/ammunition
to show that they were duly authorized to possess
and carry these arms/ammunition for their own use
while on the vessel.
8(16) The seized firearms and ammunition were
accordingly remanded to the judicial custody on
18.10.2013 and kept at the armory of CISF
Thoothukudi as ordered by the Court. On
19.10.2013, Maria Anton Vijay (A-38) was arrested
whereas Vijay (A-39), Ranjit Kumar (A-40), Murgesh
(A-41) and Selvam (A-42), crew members, were
arrested on 20.10.2013. On 24.10.2013, Paul
David Dennish Towers (A-4), Lalit Kumar Gurung
(A-6) and Radhesh Dhar Dwivedi (A-7) crew
members were taken to police custody for
interrogation where their voluntary confessions were
recorded. Later on, they were also arrested.
(17) Pursuant to the disclosure made, the
investigating team again visited the vessel on
27.10.2013 and recovered certain documents in
relation to the seized weapons movement and e-mail
transactions exchanged between the owner of the
vessel- Advanfort Company USA and the crew
members stationed at the vessel. The investigating
9team also seized about 2000 liter diesel kept in 10
barrels on the deck, which was purchased by the
crew members on 11.10.2013 when the vessel was
in territorial waters of India and anchored therein.
(18) It was further revealed that the owner of the
vessel had credited 40,476 US $ (around Rs.20
lakhs) from USA to India through HDFC, Chennai
account of A-43 bearing No. 50200000105782.
Thereafter, A-43 had credited Rs.10 lakhs in HDFC
account of A-41 (A/c No. 11041050004770) who, in
turn, had withdrawn Rs.7 lakhs on 09.10.2013 and
handed over the same to A-38 to enable him to
purchase the bulk quantity diesel, which was
transported to the vessel with the help of fishing
boats successfully.
(19) On 31.10.2013, the seized arms/ammunition
were sent to Tamil Nadu Forensic Sciences
Department, Chennai for analysis and diesel
samples collected from 10 barrels were sent to
Hindustan Petroleum Corporation Limited, Chennai
1for its analysis under the orders of the Court.
(20) On 08.11.2013 the ballistics report was
received which confirmed that out of 49 items of
arms/ammunition, item Nos. 16 to 21 were
prohibited arms/ammunition as defined under
Section 7 of the Arms Act whereas rest were
ordinary firearms.
(21) Investigation also revealed that the vessel in
question belongs to A-1, which is a company known
as "Advanfort Company” having its office at 1875
Eye Street, MW 5th floor Washington DC–2006, USA
and its Operations Director is A-2-Mr. Mohamed
Frajallah. Both A-1 and A-2 were responsible for all
clandestine acts and deeds done by them with the
connivance of crew members. Likewise, as
mentioned above, A-3, who was the Captain of the
vessel, and A-4, who was Tactical Deployment
Officer of the vessel were found in physical
possession of 35 illegal and unauthorized firearms
and other ammunition without any valid documents
1and were thus found directly involved in the entire
operation. Likewise, A-5 to A-37, who were crew
members on the Board, were equally found involved
in joint operation with A-3 and A-4 and were
accordingly found responsible for commission of
various offences registered against them so also
A-38 to A-45, who were found involved in supply of
bulk quantity of diesel and other items to the crew
members for running vessel and, therefore, found
responsible for commission of the offences
registered against them under various Acts as
detailed in the FIR.
(22) After completion of the investigation which
was based on spot inspection of the vessel and other
places as disclosed by the accused persons during
their interrogation, examination of witnesses,
seizure of documents, arms/ammunition, various
articles from the vessel and other places, opinion of
statutory authorities on seized items, opinion of
public prosecutor and sanction order obtained from
1competent authorities for filing prosecution case
under the Arms Act, a detailed charge sheet along
with several documents and other materials
collected during investigation was filed by the
investigation officer against the respondents herein
(A-1 to A-45) on 30.12.2013 before the Judicial
Magistrate Court No. 1 Thoothukudi bearing PRC
No. 1 of 2014 seeking prosecution of the accused
persons (A-1 to A-45) for commission of offences
punishable under Sections 33, 35 and 3 read with
Section 25 (1B) (a), Section 7 read with 25 (1-A),
Section 10 read with Section 25 (1-B) (f) of the Arms
Act 1959 and Rule 30 of the Arms Rules, 1962 ,
Section 36 (2) read with Section 30 of the Arms Act
and Section 3 (2) (d) read with Section 7(1)(a)(ii) of
the Essential Commodities Act, 1955 and Order 2(e)
(v)(vi) of the Motor Spirit and High Speed
diesel(Regulation of Supply Distribution and
Prevention of Malpractices) Order 1998 and Section
120-B of IPC.
1(23) On perusal of charge sheet and enclosed
materials, the Court took cognizance of the case and
accordingly on 20.01.2014 issued non-bailable
warrants against A-1 (Advanfort Company) and A-2
(Mohamed Frajallah Director Operations), who are
the resident of USA (Washington) for their arrest
and appearance in the Court in connection with the
commission of aforementioned offences along with
other accused named above. However, two accused
(A-1 and A-2) are still not apprehended despite
issuance of non-bailable warrants against them,
which remain unexecuted. Similarly, A-43, A-44
and A-45 are also not yet apprehended and
absconding.
(24) So far as the other accused, i.e., A-3 to A-41
are concerned, though they were arrested on
different dates, some were enlarged on bail by the
Trial Court and remaining by the High Court on
different dates on terms imposed on them.
(25) This led to filing of two criminal cases by the
1accused persons before the Madurai Bench of
Madras High Court. So far as accused A-38 is
concerned, he filed Criminal Revision(MD) No.
204/2014 under Section 397 of Criminal Procedure
Code, 1973 (hereinafter referred to as “the Code”)
wherein the challenge was to the cognizance taken
by the Judicial Magistrate of the charge sheet
seeking to prosecute A-38 for commission of several
offences detailed therein. So far as A-3 to A-37 are
concerned, they filed Crl.O.P. (MD) No. 6719 of 2014
under Section 482 of the Code wherein they also
sought quashing of the final report/charge sheet
filed seeking to prosecute them for commission of
various offences detailed therein.
(26) By common impugned judgment/order, the
learned Single Judge of the High Court partly
allowed both the cases. The High Court quashed
the charge sheet/final report filed against all the
accused persons insofar as it related to offences
punishable under the Arms Act are concerned. It
1was held that no prima facie case has been made
out on the facts set out in the charge sheet to
prosecute any of the accused persons for
commission of any offence punishable under the
Arms Act and hence charge sheet/final report filed
by the State prosecuting agency for commission of
various offences punishable under the Arms Act
against all the accused persons to that extent
deserves to be quashed at the threshold. It was
accordingly quashed to that extent.
(27) The High Court, however, upheld the filing of
the charge sheet against A-3 and A-38 for their
prosecution in relation to the offences punishable
for violating the Control Order, 2005 punishable
under Section 3 (ii) (d) read with Section 7 (1) (a) (ii)
of the Essential Commodities Act, 1955 (in short
“the EC Act”), holding that prima facie case against
these accused for commission of offences under the
EC Act is made out and hence these accused
persons have to face trial on merits insofar as the
1offences punishable under the said Act are
concerned.
(28) It is apposite to reproduce the operative
portion of the order of the High Court in paragraph
43 infra,
“In fine, I find that the prosecution of
the accused for the offences under the Arms
Act, 1959 is not maintainable. Hence, the
prosecution of the petitioners in both
petitions under the Arms Act, 1959 is
quashed. Mariya Anton [A38] will be liable for
prosecution for violating the Control Order,
2005 punishable under Section 3(ii)(d) r/w
7(1)(a)(ii) of the Essential Commodities Act,
1955. Dudinik Valentyn [A3], the Captain of
the Ship will be liable for abetment of the
offence committed by Mariya Anton [A38]
under the Essential Commodities Act within
the Indian territorial waters.
The cognizance taken by the learned
Judicial Magistrate for offences under the
Arms Act is set aside.
Accordingly, the Criminal Original
Petition and the Criminal Revision Case
stand partly allowed. Consequently, M.P.Nos.
1&2/2014 in Crl.R.C(MD) No. 204/2014 and
M.P.Nos. 1,2&4/2014 in Crl.O.P.
(MD)No.6719/2014 are closed.”
(29) The effect of the impugned order is that only
two accused namely A-3 and A-38 will have to face
prosecution in relation to the offences punishable
for allegedly violating the conditions of the Control
1Order, 2005 issued under the Essential
Commodities Act. In other words, all the accused
persons (A-3 to A-45) stand discharged insofar as
offences punishable under the Arms Act are
concerned whereas the charge sheet/final report
filed against two accused, A-3 and A-38, in relation
to offences punishable under the Essential
Commodities Act is held legal and proper and,
therefore, trial on merits would be held against A-3
and A-38 in relation to offences punishable under
the Essential Commodities Act.
(30) Aggrieved by the said judgment/order of the
High Court, the State has filed these appeals by way
of special leave before this Court.
(31) This is how the controversy is brought before
this Court to examine the legality and correctness of
the impugned order passed by the High Court.
(32) The question which arise for consideration in
these appeals is whether the High Court was
justified in quashing the charge sheet in part in
1exercise of powers under Section 397 or/and
Section 482 of the Code at the instance of accused
persons insofar as it related to the offences
punishable under the Arms Act?
(33) Heard Mr. K. Ramamoorthy, Mr. C.A.
Sundaran, learned senior counsel Mr. Hari Narayan
V.B and Mr. P.B. Suresh, learned counsel for the
parties.
(34) Mr. K. Ramamoorthy, learned senior counsel
for the State, the appellant herein while assailing
the legality and correctness of the impugned order,
urged several contentions. He contended that the
High Court erred in quashing the charge sheet in
relation to offences punishable under the Arms Act
against all the accused. According to him, the entire
approach of the High Court in entertaining the
criminal revision and petition filed under Section
482 of the Code seeking to quash the charge sheet
filed against the accused persons was per se illegal
and erroneous being against the well settled
1principle of law laid down by this Court in a catena
of decisions.
(35) Elaborating his submissions, learned senior
counsel contended that firstly, there was no basis
factually or/and legally to invoke the revisionary
power under Section 397 or/and inherent power
under Section 482 of the Code for quashing the
charge sheet at the threshold.
(36) Secondly, learned counsel contended that
having regard to the nature of controversy and the
materials collected during investigation coupled
with the admitted fact that huge quantity of
unlicensed, unauthorized arms/ammunition
including prohibited arms were recovered from the
vessel were sufficient to attract the provisions of the
Arms Act for prosecuting the accused persons as it
was enough for holding that prima facie these
accused persons have committed the offence
punishable under the Arms Act rendering them
liable to face the prosecution in accordance with
2law.
(37) In any case, according to learned counsel, the
issues involved in this case were such that it
required full trial on merits and for that the
prosecution should have been afforded an
opportunity to prove their case set up in the charge
sheet by adducing evidence in support of the
contents of the charge sheet.
(38) Thirdly, learned counsel contended that this
was not a case where the High Court could have
formed any opinion or as a matter of fact was in a
position to form any opinion by simple reading the
contents of the charge-sheet and perusing the
materials collected in support of the charge sheet
for holding that no prima facie case under the Arms
Act against any of the accused was made out or that
allegation made in the charge sheet were so absurd
that no trial on such facts was legally possible and
if it was allowed to be held then it would have
amounted to sheer abuse of exercise of powers and
2harassment to all accused.
(39) On the other hand, learned counsel
contended that mere reading of the charge sheet
running into several pages coupled with the
materials filed in support thereof and more
importantly, the admitted fact that unlicensed and
unauthorized arms/ammunition in huge quantity
were recovered from the vessel which was in
possession and control of crew members(accused
persons) fully justified prima facie that prosecution
of accused for the offences punishable under the
Arms Act was called for requiring them to face trial
on merits in accordance with law.
(40) Fourthly, learned counsel contended that the
High Court committed yet another jurisdictional
error when it decided the matter like an appellate
court and in this process appreciated the factual
allegations made in the charge sheet and
documents/materials filed along with the charge
sheet which were yet to be proved in evidence and
2further committed an error in proceeding to draw
inferences therefrom for holding that no prima facie
case was made out against any of the accused
persons for commission of the offences punishable
under the Arms Act. Such approach of the High
Court, according to the learned counsel, being
against the well settled principle of law laid down by
this Court in many decisions has rendered the
impugned order bad in law.
(41) Fifthly, learned counsel contended that the
High Court failed to keep in mind the subtle
distinction between the powers which are exercised
by the High Court while deciding criminal appeal
arising out of final order of conviction and the
powers which are exercised by the High Court while
deciding petition under Section 482 of the Code.
(42) In the former category of cases, according to
learned counsel, the High Court is fully empowered
to probe into the issues of facts and the law as also
empowered to appreciate the entire evidence for
2recording findings whereas in the later category of
cases, the High Court is empowered to examine only
jurisdictional issues arising in the case on admitted
facts without going into any appreciation of such
facts and evidence. Since the High Court, according
to learned counsel, failed to keep this well settled
distinction in mind and proceeded to decide the
matters like an appellate court, it has rendered the
impugned order wholly unsustainable.
(43) Sixthly, learned counsel contended that the
High Court failed to see that once the charge sheet
was filed and its cognizance taken, by the
magistrate, the case was required to be committed
to the Session Court for trial on merits in
accordance with law so that the issue is brought to
its logical conclusion one way or other, i.e., either
resulting in conviction or acquittal of the accused.
(44) In this case, according to learned counsel,
before this stage could arrive, the High Court
intervened without there being any justification by
2invoking its inherent jurisdiction under Section 482
and quashed the charge sheet in part. Such exercise
of jurisdiction by the High Court has rendered the
impugned order bad in law.
(45) Seventhly, learned counsel contended that
the High Court though mentioned the law laid down
by this Court in State of Haryana & Ors Vs Bhajan
Lal & Ors. (1992 supp (1) SCC 335) and State of
Madhya Pradesh Vs S.B. Johari & Ors. (2008) 2
SCC 57 but unfortunately failed to examine the
facts of the case in hand in the light of the law laid
down in these two cases much less in its proper
perspective.
(46) It was, therefore, his submission that if the
facts of the case in hand had been examined in the
light of law laid down in the case of S.B Johari's
case (supra) because the facts of the case in hand
and the one involved in S.B. Johari's case (supra)
were more or less identical on all material issues,
then the High Court would have upheld the charge
2sheet in its entirety.
(47) Eighthly, learned counsel contended that the
case in hand did not involve any jurisdictional issue
such as (1) despite there being a requirement to
obtain prior statutory sanction to file the charge
sheet, no sanction was obtained or (2) lack of an
authority of a person who has filed the charge
sheet or (3) the contents of the charge-sheet were so
vague, inadequate or/and absurd that even after
reading them as a whole it did not constitute prima
facie case against any accused under the Arms Act
etc. so as to enable the High Court to entertain the
petition under section 482 of the Code.
(48) According to learned counsel, these being
usually the grounds raised by the accused to
challenge the FIR/ charge sheet/final report in a
petition under Section 482 of the Code in the High
Court no such ground really existed even prima
facie in favour of any accused on facts/law so as to
enable the High Court to quash the charge sheet by
2invoking inherent jurisdiction of the High Court
treating this case to be the rarest of the rare.
(49) Ninthly, learned counsel contended that in
this case there should have been a trial which
would have enabled the prosecution to adduce
evidence in support of the charges and, in turn,
would have enabled the accused to lead evidence in
defence. This not having been done, has caused
prejudice to the prosecution because despite
collecting evidence against the accused, the
prosecution was deprived of their right to prove
their case against any accused on merits in trial.
This has also rendered the impugned order bad in
law.
(50) Tenthly, learned counsel contented that the
High Court erred in travelling into the factual matrix
of the whole controversy without there being any
evidence on record and, therefore, erred in recording
factual findings on several material factual issues
arising in the case such as whether the vessel in
2question was in Indian sea water and if so its effect,
what was the nature of business in which the vessel
was engaged, vessel's registration to do business
etc., the effect of registration on the controversy in
question, whether vessel was enjoying the benefit of
innocent passage as provided in (UNCLOS) in sea
waters and if so its effect, whether vessel was in
distress at any time and if so, whether it ensured
compliance of the relevant clauses of United Nations
Convention on the law of Sea (UNCLOS) providing
remedial measures to follow in such eventuality and
how these clauses were complied with, whether
there was any conspiracy to commit any offence and
if so, how?
(51) It was his submission that in no case the
High Court could have gone into any of the
aforementioned material factual issues arising in
the case in a petition filed under Section 482 of the
Code because all being purely factual issues, could
be gone into only in an inquiry made by the Trial
2Court on evidence in accordance with law.
(52) Eleventhly, learned Counsel contended that
the High Court further erred in not examining the
effect of recovery of unauthorized/unlicensed
arms/ammunition from the possession and control
of the accused lying in vessel and also the accused
persons not being able to produce any documents of
title in relation to the seized arms/ammunition
or/and any certificate/license issued by the
competent authorities to prove their right to possess
and carry along with them such arms/ammunition
on the vessel.
(53) Non-consideration of these material issues
and without recording any finding thereon has,
according to learned counsel, rendered the
impugned order bad in law.
(54) Twelfthly, learned counsel contended that the
High Court grossly erred in holding that the Arms
Act does not apply to the vessel in question and, in
consequence, cannot be applied against the accused
2persons. It was his submission that the
interpretation made by the High Court of Section 45
(a) was not in conformity with the Object of the Act.
According to learned counsel, due to erroneous
interpretation of Section 45 (a) made by the High
Court, the accused person got the benefit which
otherwise they were not entitled to get. The finding
on this issue, therefore, deserves to be set aside.
(55) Learned counsel further maintained that
Section 45 (a) does not apply to the case in hand
and in any event, according to him, the question as
to whether benefit of exemption as provided under
Section 45 (a) is available to the accused or not can
be decided only when the accused persons are able
to prove in their defence by adducing adequate
evidence that the ingredients of Section 45 (a) are
fully satisfied by them. This, according to learned
counsel, was not proved by the accused persons
because no documents were produced by them
during investigation and before they could be called
3upon to adduce evidence in trial, the High Court
invoked the inherent powers and interfered in the
investigation by quashing it. The finding on this
issue is, therefore, against the plain reading of
Section 45 (a) and renders the impugned order
legally unsustainable.
(56) Lastly, learned counsel placed reliance on the
decisions of this Court reported in Bhajan Lal case
(supra), S.B. Johari case (supra) and Gunwantlal
vs The State of Madhya Pradesh, (1972) 2 SCC
194 and prayed that applying the law laid down in
these cases to the facts of the case in hand, these
appeals deserve to be allowed by setting aside the
impugned order and remanding the case to the
concerned trial court for conducting full trial on
merits in accordance with law.
(57) In reply, learned senior counsel Mr. C.A.
Sundaram, and Mr. Hari Narayan V.B, and Mr. P.B.
Suresh appearing for the respondents-accused
supported the impugned order and contended that
3no case is made out to interfere in the impugned
order. Learned counsel elaborated their
submissions in support of the reasons recorded by
the High Court by referring to counter affidavits and
various documents on record.
(58) Having heard learned Counsel for the parties
at length and on perusal of the entire record of the
case, we find force in various submissions urged by
the learned senior counsel for the State.
(59) Before we deal with aforementioned various
submissions, we consider it apposite to take note as
to how and in what manner the High Court decided
the issues in the impugned order. Indeed, it is
necessary to keep this fact in mind in the light of
the submissions of the learned counsel.
(60) Out of 61 pages in which the impugned
judgment was rendered, first 4 Paragraphs (pages 1
to 14) were devoted by the learned Single Judge in
mentioning factual matrix of the case. This was
followed by mentioning submissions of the parties
3in Paras 5 to 9 (15 to 30 pages) followed by the
discussion, findings and conclusion in Paras 10 to
43 (pages 31 to 61).
(61) After narrating the submissions, the Single
Judge in Para 10 began his discussion with
following observations:-
“………Initially, this Court did not want
to even admit this quash petition and cross
the Lakshman Rekha in view of the caution
sounded by the Supreme Court in the
aforesaid judgment. But, the following
aspects prompted this Court to break away
from the self imposed barrier and peep to see
if there is any legitimacy in the prosecution.
Even according to the Police, M.V. Seaman
Guard Ohio is a Flag Ship registered in Sierra
Leone, a U.N. Member State.”
(62) Immediately, after the aforementioned
observations, the Single Judge set out the reasons
in the same para which, according to him, prompted
him to break the “Laxman Rekha” (expression used
in the impugned order) due to peculiar facts for
invoking inherent powers to interfere. These reasons
are reproduced in verbatim infra:
“(1) Even according to the police,
3M.V.Seaman Guard Ohio is a flag Ship
registered in Sierra Leone, a U.N.Member
State.
(2) The majority in the ship's crew are
Indian nationals with Indian passports (8
names are mentioned i.e. A-6 to A-13).
(3) The Chief cook, who hails from
Uttaranchal State, has also joined in the
conspiracy and made accused along with
others.
(4) As regards the security guards, four
are Indians (A-31, A-33, A-34, and A-37).
(5) The central Agencies like
Intelligence Bureau, DRI etc. got involved on
12 & 13.10.2013 and thereafter they handed
over the matter to the State Police to be
investigated as any other ordinary municipal
offence.
(6) The “Q” branch CID of the Tamil
Nadu Police is an elite investigating unit and
has got a very good track record of cracking
down terrorists and extremists. After their
investigation, they were able to file a final
report only for possession simplicter of
prohibited firearms and for violation of
control order under the Essential
Commodities Act and nothing more. In other
words, the final report does not even show
any needle of suspicion about the
involvement of the crew members and others
in the ship in any crime that is prejudicial to
the interest of this country.”
(63) After setting out 6 reasons, the learned Single
Judge in para 10 observed as under:-
“Therefore, for the aforesaid reasons, this
Court ventured to go into the final report and
the accompanying documents to find out,
even if by accepting the entire averments
found therein as gospel truth, would it
attract a prosecution under the Arms Act and
the Essential Commodities Act?”
3(64) Then in Para 11 the Single Judge rejected the
defence submission on the ground that the ship was
not within the Indian territorial Sea and holds that
it being a question of fact cannot be looked into
while deciding the petition under Section 482 of the
Code, which reads as under:-
“The learned counsel for the defence
submitted that the ship was not within the
Indian territorial sea. In my considered
opinion, this is a disputed question of fact
which cannot be looked into while dealing
with a petition under Section 482 Cr.P.C.
Therefore, this Court will go under the
premise that the ship was within 12 Nautical
Miles and was in the territorial sea of India.”
(65) Thereafter in para 12, the Single Judge
formulated the question for decision which reads as
under ;
“Now the line of enquiry is, can the
crew and the guards in the ship be
prosecuted for possession of prohibited arms
under the Arms Act?”
(66) Thereafter in Para 13, the Single Judge
observed that it is legitimate for the Court to take
3“judicial notice of certain notorious facts” and
then set out facts relating to piracy, which we
consider has nothing to do with the case in hand
being general in nature. However, it is worth
reproducing hereinbelow:
“13. It will be legitimate for this Court to
take judicial notice of certain notorious facts
and those facts are as follows:
Merchant vessels all over the world
are not permitted to carry arms.
Piracy in and around Indian Ocean,
especially by Somali Pirates, is a fact
which has been taken note of by the
Government of India, as could be
seen from the Preamble to the
circular dated 28.09.2011 issued by
the Director General of Shipping,
Ministry of Shipping, Government of
India [which is also a document
relied upon by the prosecution and
supplied to the accused], which runs
as under:
“The menace of piracy continues
unabated in spite of increased naval
presence in the Gulf of Aden region
and merchant ships being asked to
comply with best management
practices which includes
establishment of “Citadel”.
The Hon’ble Supreme Court has also
taken note of this, as could be seen from the
judgment in Republic of Italy through
Ambassador and others vs. Union of India and
others reported in (2013) 4 SCC 721:
“The past decade has witnessed a
sharp increase in acts of piracy on
the high seas off the coast of Somalia
and even in the vicinity of the
3Minicoy islands forming part of the
Lakshadweep archipelago.”
The Government of India has
recognized the fact that there are private
maritime security companies that provide
security for merchant vessels while they
traverse through pirate infested locations.
This is evident from the circular dated
28.09.2011 issued by the Director General of
Shipping, which is referred to above and is
being strongly relied upon by the
prosecution.
Apart from taking judicial notice of the
aforesaid facts, this Court is constrained to
bear in mind the following two facts that are
admitted by the prosecution. Even according
to the prosecution, M.V. Seaman Guard Ohio
is a ship, registered with Sierra Leone and
Registration Certificate is part of the final
report and is one of the documents that is
relied upon by the prosecution.
It is not the case of the prosecution
that M.V. Seaman Guard Ohio is an
unregistered vessel or a pirate vessel.”
(67) Then in Paras 14, 15 and 16, the Single
Judge took note of the issues relating to grant of
registration of vessel, the nature of business carried
on by the owner of the vessel with the use of vessel
and the effect of both the issues on the whole
controversy involved in this case.
(68) The Single Judge then proceeded to consider
these issue on merits after taking into account the
3entries in log book, GPS register, the registration
certificate, the statement of Captain recorded during
his interrogation by joint investigation team where
he had explained the functioning of the guards
posted in the ship, minutes of investigation team
drawn during inspection of the vessel, and lastly,
the names of Indian crew members.
(69) The Single Judge appreciated the aforesaid
material/documents and then after appreciation
concluded that the vessel in question is a ship
registered in Sierra Leone and is doing anti piracy
business.
(70) The concluding portion of Para 16 reads as
under:-
“………Therefore, I have no doubt in my
mind that M.V. Seaman Guard Ohio is a ship
registered in Sierra Leone and is into
Antipiracy business.”
(71) In Para 17, the Single Judge formulated the
question as to whether the Indian Arms Act applies
to the prohibited arms on the Board of the flagship.
3“The next line of enquiry is does the
Indian Arms Act apply to the presence of
prohibited arms on board the Flag Ship M.V.
Seaman Guard Ohio?”
(72) This issue was then considered by the
learned Judge in Paras 18 to 22 after referring to
Section 4 (2) of IPC, the law laid down by this Court
in Republic of Italy through Ambassador & Ors.
Vs U.O.I. & Ors. (2013) 4 SCC 721, and certain
Articles of UNCLOS 1982 and held that the crew
and guards of the vessel cannot be prosecuted for
the offence punishable under the Arms Act for
possessing simpliciter prohibited arms on board of
the vessel. This finding is recorded in Para 22 and it
reads as under:
“……..Therefore, I hold that the crew and the
guards of M.V. Seaman Guard Ohio cannot be
prosecuted for the offence under the Arms
Act for possession simpliciter of prohibited
arms on board their vessel.”
(73) Then in Para 23, the learned Judge observed
that the aforesaid issue could be examined from yet
another angle, namely, as to whether the vessel in
3question was in distress and secondly, whether it
was sailing in the innocent passage in the sea
waters?
(74) This issue was considered in Paras 23 to 29
after taking into account the entries in logbook, GPS
register, contents of final report, and applying
Section 4(1) of Territorial Waters, Continental Shelf,
Exclusive Economic Zone and other Maritime Zone
Act 1976, and Articles 18 (2) and 19 of UNCLOS.
(75) In Para 29, the Single Judge held that
anchoring of the vessel was within Indian territorial
seawaters and that the vessel was sailing out of
necessity and hence their action is saved by the
principle of "innocent passage" as defined in UN
Conventions (UNCLOS). The Single Judge held that
none of the crew members can, therefore, be
prosecuted for any of the offences punishable
under the Arms Act. Para 29 reads as under:
“To sum up, I hold that the anchoring of M.V.
Seaman Guard Ohio within our territorial sea
4was out of necessity and their action is saved
by the principle of ‘innocent passage’
contemplated by Section 4(1) of the
Territorial Waters, Continental Shelf,
Exclusive Economic Zone and Other Maritime
Zone Act, 1976 and Articles 18 and 19 of
UNCLOS and therefore, the Crew and the
Security Guards cannot be prosecuted for an
offence under the Arms Act.”
(76) In Para 30, the Single Judge then dealt with
the question as to whether the vessel (ship) violated
clauses 7.3 and 7.5 of Circular dated 28.09.2011
issued by Director General of Shipping and then
went into factual matrix of the whole controversy
and came to the conclusion on this issue in the
following words:
“……..That apart, this Circular would
apply only to a foreign ship visiting Indian
port. In this case, I have given a finding that
the said Ship was drifting and out of
necessity it had come into the Indian waters
and had anchored at the Outer Port Limits
(OPL) of Tuticorin Port. This Ship never had
the intention of visiting the Indian Ports,
because the Captain was waiting for further
instructions from its owners as to what the
next move should be for getting provisions
and fuel…...”
(77) After recording the aforesaid finding, the
learned judge held that the ship did not violate the
4requirements adumbrated in the said circular which
reads as under:-
“………Hence, I am of the opinion that the
Ship has not violated the requirements
adumbrated in the said Circular issued by the
Director General of Shipping.”
(78) The Single Judge then in Para 32 framed a
question viz.
"Assuming for a moment that the ship, which
has been registered as an “utility vessel” in
Sierra Leone has changed its status, can the
captain, crew members and others on board
the ship be prosecuted in India for violation
of the registration granted by Sierra Leone?
(79) The learned judge in the next sentence held
"The answer is an obvious "No". He then referred
to the statement of Mr. Senthil Kumar, Captain and
after appreciating the contents of the statement held
that breach of registration of the vessel will not give
any right to Indian prosecuting authorities to
prosecute the accused under Indian Laws but such
right is available only to prosecuting agencies to
prosecute the accused in Sierra Leone.
(80) The learned judge then proceeded to consider
4the next issue as to whether any case for breach of
condition of the Notification dated 20.04.2012
issued under Section 457 of the Merchant Shipping
Act, 1958 read with the Rules framed thereunder is
made out on the facts set out in the charge sheet?
(81) The learned Judge in Paras 33 and 34 dealt
with this issue and held that in the light of findings
already recorded in favour of the accused persons
and on interpretation of Rules 3 and 4 of the
Merchant Shipping Rules, no case for violation of
any of the conditions is made out against the
accused. In paragraph 34, the Single Judge held as
under:-
“(b) The maximum punishment is Rs. 1,000/
for the violation of this Notification.
Violation of this Notification cannot lead to
the inference that they have committed
offences under the Arms Act.”
(82) The learned Judge then considered the last
issue regarding applicability of Section 45 (a) of the
Arms Act in Para 36. Without any discussion, the
4learned judge held that in the light of finding
already recorded that the Indian authorities cannot
invoke Arms Act against the accused, the provisions
of Section 45 (a) of the Arms Act, in any event, will
otherwise protect the accused, i.e., crew members
and the guards on the vessel from being prosecuted,
under the Arms Act.
(83) The learned Judge then in Paras 37 and 38
held that in the light of findings already recorded,
no case is made out against any of the accused to
prosecute them for commission of any offence under
the Arms Act. However, the learned Judge went on
to hold against the two accused that A-3 and A-38
are liable to be prosecuted for commission of
offences punishable under the Control Order, 2005
read with Section 7 (1) (a) (ii) of the Essential
Commodities Act for purchase of fuel which was
alleged to have been purchased in violation of the
Control Order. While recording finding on this issue,
the learned Judge referred to Section 81 of the IPC.
4(84) We have purposefully mentioned supra in
detail the various findings recorded by the Single
Judge only with a view to show the approach and
the manner in which the learned Judge decided the
case and eventually allowed it in part in favour of
the accused.
(85) The question as to how, in what manner and
to what extent, the inherent powers of the High
Court under Section 482 of the Code are exercised
for quashing the registration of FIR/final
report/charge sheet/complaint etc. are no more res
integra and settled by several decisions of this
Court.
(86) One leading case on this question is Bhajan
Lal’s case (supra) and the other is S.B.Johari’s
case (supra) apart from many others.
87) So far as the case of Bhajan Lal (supra) is
concerned, following proposition of law is laid down:
“102. In the backdrop of the interpretation of
the various relevant provisions of the Code
4under Chapter XIV and of the principles of
law enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Article 226 or the
inherent powers under Section 482 of the
Code which we have extracted and
reproduced above, we give the following
categories of cases by way of illustration
wherein such power could be exercised either
to prevent abuse of the process of any court
or otherwise to secure the ends of justice,
though it may not be possible to lay down
any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of
myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not disclose a
cognizable offence, justifying an
investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same do
not disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but
constitute only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or
4complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal
proceeding is instituted) to the institution
and continuance of the proceedings and/or
where there is a specific provision in the
Code or the concerned Act, providing
efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on
the accused and with a view to spite him due
to private and personal grudge.
103. We also give a note of caution to the
effect that the power of quashing a criminal
proceeding should be exercised very sparingly
and with circumspection and that too in the
rarest of rare cases; that the court will not be
justified in embarking upon an enquiry as to
the reliability or genuineness or otherwise of
the allegations made in the FIR or the
complaint and that the extraordinary or
inherent powers do not confer an arbitrary
jurisdiction on the court to act according to
its whim or caprice.”
(88) As far as S.B. Johari (Supra) case is
concerned, following proposition of law is laid down:
“4. In our view, it is apparent that the entire
approach of the High Court is illegal and
erroneous. From the reasons recorded by the
High Court, it appears that instead of
considering the prima facie case, the High
Court has appreciated and weighed the
4materials on record for coming to the
conclusion that charge against the
respondents could not have been framed. It is
settled law that at the stage of framing the
charge, the court has to prima facie consider
whether there is sufficient ground for
proceeding against the accused. The court is
not required to appreciate the evidence and
arrive at the conclusion that the materials
produced are sufficient or not for convicting
the accused. If the court is satisfied that a
prima facie case is made out for proceeding
further then a charge has to be framed. The
charge can be quashed if the evidence which
the prosecutor proposes to adduce to prove
the guilt of the accused, even if fully
accepted before it is challenged by
cross-examination or rebutted by defence
evidence, if any, cannot show that the
accused committed the particular offence. In
such case, there would be no sufficient
ground for proceeding with the trial. In
Niranjan Singh Karam Singh Punjabi v.
Jitendra Bhimraj Bijjayya, (1990) 4 SCC 76,
after considering the provisions of Sections
227 and 228 CrPC, the Court posed a
question, whether at the stage of framing the
charge, the trial court should marshal the
materials on the record of the case as he
would do on the conclusion of the trial. The
Court held that at the stage of framing the
charge inquiry must necessarily be limited to
deciding if the facts emerging from such
materials constitute the offence with which
the accused could be charged. The court may
peruse the records for that limited purpose,
but it is not required to marshal it with a
view to decide the reliability thereof. The
Court referred to earlier decisions in State of
Bihar v. Ramesh Singh, (1977) 4 SCC 39,
Union of India v. Prafulla Kumar Samal,
(1979) 3 SCC 4 and Supdt. & Remembrancer
of Legal Affairs, W.B. v. Anil Kumar Bhunja,
(1979) 4 SCC 274 and held thus: (SCC p. 85,
para 7)
4“From the above discussion it seems
well settled that at the Sections
227-228 stage the court is required to
evaluate the material and documents
on record with a view to finding out if
the facts emerging therefrom taken at
their face value disclose the existence
of all the ingredients constituting the
alleged offence. The court may for this
limited purpose sift the evidence as it
cannot be expected even at the initial
stage to accept all that the prosecution
states as gospel truth even if it is
opposed to common sense or the broad
probabilities of the case.”
(emphasis supplied)
5…………………………………………………………..
6. In our view the aforesaid exercise of
appreciating the materials produced by the
prosecution at the stage of framing of the
charge is wholly unjustified. The entire
approach of the High Court appears to be as
if the Court was deciding the case as to
whether the accused are guilty or
not………………..”
(89) Keeping the aforementioned principles of law
in mind and applying the same to the facts of the
case in hand, we have no hesitation to hold that the
High Court erred in allowing both the criminal cases
filed by the accused persons thereby erred in
quashing the charge sheet at the threshold.
(90) In our considered opinion, both the cases out
of which these appeals arise, deserve to be
4dismissed thereby enabling the prosecuting agency
to prove the charges against the accused persons in
a trial on merits in accordance with law. This we say
for the following reasons.
(91) It is apparent from mere reading of the
impugned order that the entire approach of the High
Court while deciding the petition was illegal and
erroneous. It looks so apparent that instead of
considering the prima facie case, the High Court
appreciated and weighed the materials on record for
coming to the conclusion that the charge sheet
against the respondents could not have been filed
and if filed no charges could have been framed
against the respondents on the basis of such charge
sheet, for facing trial.
(92) As rightly argued by the learned senior
counsel for the appellant (State), the Single Judge
while deciding the matters virtually acted as an
appellate Court as if he was hearing appeals arising
out of the final order and proceeded to examine
5each and every issue mentioned in the charge sheet
by appreciating the material on record and applying
the relevant provisions of various Acts, Rules and
international treaties governing the controversy.
(93) This approach of the High Court while
hearing the case under section 482 of the Code, in
our considered view, was wholly unwarranted,
illegal and thus cannot be upheld. Having rightly
observed by the Single Judge in the beginning that
he cannot cross “barrier” while hearing the petition
under Section 482 yet committed an error by
crossing the barrier.
(94) As noted above, six reasons given by the High
Court, in our opinion, were not the reasons which
could be made basis to invoke the inherent
jurisdiction of the High Court. For quashing the
charge-sheet, those six factual reasons had nothing
to do with the jurisdiction of the court while
entertaining the charge sheet. Apart from the fact as
to whether such reasons were relevant or not, the
5fact remained that none of them were of any avail
unless each reason was proved by the evidence
adduced by both parties during trial.
(95) It cannot be disputed that prosecuting agency
had collected material during investigation to enable
the Court to frame appropriate charges for
commission of the offences punishable under the
Arms Act and such material was capable of being
proved in evidence in accordance with law to enable
the Trial Court to reach any conclusion as to
whether a case of conviction or acquittal is made
out or not?
(96) The very fact that huge quantity of arms and
ammunition were recovered from the possession
and control of the crew members from the vessel
and further during investigation, the crew members
were unable to satisfy their legal possession over
such arms/ammunition with them by not being
able to produce any evidence such as licenses,
certificates etc. it was sufficient to attract the
5provisions of Arms Act for initiating prosecution of
the accused for commission of the offences
punishable under the Arms Act, namely, for
possessing unlicensed and unauthorized
arms/ammunition on the vessel.
(97) The questions as to whether the vessel in
question was found in Indian sea waters, or outside
Indian territory, whether the vessel was in distress
and if so, for what reasons, what steps were taken
by the crew members on the vessel to come out of
the distress call given by them to the Indian
authorities at Indian port and whether steps
allegedly taken in that behalf were in conformity
with the relevant clauses of UNCLOS which govern
the subject, whether the accused persons were
having any valid licenses and certificates issued by
statutory authorities under the applicable laws so
as to enable them to possess and carry with them
the arms/ammunition including prohibited
categories of arms/ammunition on the vessel, what
5was the nature of business in which the vessel was
engaged and whether owner of the vessel was
having a license to do that business which enabled
them to possess and carry such arms/ammunition
in huge quantity, why amount of 40476 US dollars
(Rs. 20 lakhs in Indian currency ) was credited by
the owner of the vessel (A-1 & A-2) from US to the
accounts of some accused persons in their accounts
in India (HDFC Bank, Chennai), whether such
amount was used for purchase of diesel which was
recovered from the deck of the vessel or it was used
for doing some other illegal activity etc.
(98) These were some of the material questions,
which had a bearing over the issues involved in the
case. Admittedly, these factual questions could be
answered one way or other on the basis of evidence
to be adduced by the parties in the trial but not
otherwise.
(99) In other words, none of the aforementioned
questions were capable of being answered without
5the aid of evidence to be adduced by the parties, by
mere reading of FIR, Final report, charge sheet, for
the first time by the High Court in exercise of its
inherent jurisdiction. Similarly, the High Court had
no jurisdiction to appreciate the materials produced
like an appellate court while hearing the petition
under Section 482 of the Code or/and Revision
Petition under Section 397 abid.
(100) As rightly argued by the learned senior
counsel for the appellant, the law laid down by this
Court in S.B. Johari's case (supra) squarely applies
to the facts of the case in hand in favour of the
State.
(101) S.B. Johari's case (supra) was also a case
where the High Court had quashed the charge at
the instance of accused persons in exercise of its
inherent jurisdiction by appreciating the material
filed by the prosecution along with charge-sheet.
The High Court therein had held that no case was
made out on the basis of the contents of the charge
5sheet and the material filed in support thereof as in
the opinion of the High Court, it was insufficient to
frame the charge against the accused for their
prosecution for commission of offence punishable
under Section 5(1)(d) and (2) of the Prevention of
Corruption Act. The accused were accordingly
discharged by the High Court without compelling
them to face the trial on merits.
(102) In an appeal filed by the State against the
order of the High Court, this Court allowed the
State's appeal, set aside the order of the High Court
and upheld the charge sheet and the charges which
were framed by the trial court and laid down the law
which we have reproduced in para 88 above.
(103) Coming back to the facts of this case, the
High Court committed the same error which was
committed by the High Court in S.B. Johari's case
(supra) because in this case also the High Court
went into the questions of fact, appreciated the
materials produced in support of charge sheet,
5drawn inference on reading the statements of the
accused, and applied the law, which according to
the High Court, had application to the facts of the
case and then came to a conclusion that no prima
facie case had been made out against any of the
accused for their prosecution under the Arms Act.
This approach of the High Court, in our considered
view while deciding petition under Section 482 of
the Code was wholly illegal and erroneous.
(104) In our considered opinion, the High Court
committed yet another error when it recorded the
finding that provisions of Arms Act is not applicable
to the case in hand and in any event are otherwise
not applicable by virtue of Section 45(a) and hence
no accused person can be prosecuted for any of the
offences punishable under the Arms Act. This
finding, in our considered view, is also not legally
sustainable and deserves to be set aside for more
than one reason.
(105) In the first place, this finding could not have
5been recorded by the High Court either way till the
prosecution and the defence had led their full
evidence. Secondly, it could be done only in the trial
and depending upon the decision rendered by the
Trial Court on this issue, the High Court in an
appeal arising out of final order of the Trial Court
could have examined this issue in its appellate
jurisdiction at the instance of accused or State, as
the case may be. Thirdly, interpretation made by the
High Court of Section 45(a) is wholly unsustainable.
(106) This takes us to the next question as to
whether the High Court was justified in properly
interpreting Section 45(a) of the Arms Act? In other
words, the question that needs to be examined is
what is the true interpretation of Section 45 of the
Arms Act and, in particular, clause (a) of Section 45.
(107) Section 45 of the Arms Act sets out certain
type of cases to which the provisions of Arms Act
are not made applicable. These cases are specified
in clause (a) to clause (d) of Section 45. In other
5words, if the case of the accused falls in any of the
clauses of Section 45 and he is able to satisfy the
requirement of such clause then such accused
cannot be prosecuted for commission of any offence
punishable under the Arms Act. He is then held
exempted from the applicability of the Arms Act.
Section 45 (a) with which we are concerned reads as
under:
“45. Act not to apply in certain cases. –
Nothing in this Act shall apply to –
(a) Arms or ammunition on board
any sea-going vessel or any aircraft
and forming part of the ordinary
armament or equipment of such vessel
or aircraft.”
(108) Mere perusal of the aforequoted section
would go to show that it applies only to those arms/
ammunition stored on board of any sea-going
vessel, which forms part of the “ordinary
armament or equipment of such vessel”. In other
words, in case if the accused seeks to place reliance
on Section 45(a) to avoid his prosecution under the
5Arms Act then it is necessary for him to prove that
arms/ammunition stored on the vessel were
"forming part of the ordinary armament or
equipment" of the vessel .
(109) The qualifying words to seek exemption are
"forming part of the ordinary armament or
equipment of the vessel."
(110) The question as to whether
arms/ammunition form part of the ordinary
armament or equipment of any vessel is a
question of fact. The accused has to, therefore,
satisfy that the arms/ammunition seized from the
vessel are, in fact, part of the ordinary armament or
equipment of their vessel and hence were exempted
from the operation of the Arms Act by virtue of
Section 45 (a) ibid.
(111) The object of Section 45(a) is to give
exemption from applicability of the Arms Act to
those arms/ammunition, which form part of any
ordinary armament or equipment of the vessel and
6not to all arms/ammunition on the vessel. It
cannot, therefore, be construed to mean that
Section 45(a) enable every vessel to carry any
number of arms/ammunition regardless of its
purpose, necessity and requirement to carry such
arms/ammunition on the vessel.
(112) Now coming to the facts of the case in hand,
we find that firstly, there was no evidence adduced
by the accused to prove that huge quantity of arms
and ammunition including prohibited category of
arms which were seized from the vessel formed part
of the ordinary armament or equipment of their
vessel within the meaning of Section 45(a) of the
Arms Act. Secondly, this stage had in fact not
reached and in the meantime, the High Court
interfered with causing prejudice to the rights of the
parties and especially to the prosecution, who were
unable to prove their case and lastly, in the absence
of any finding on this issue, the impugned order
cannot be sustained.
6(113) We are also of the considered view that the
issue involved in this case should have been tried
keeping in view the law laid down by this Court in
the case of Gunwantlal (supra) along with several
other legal provisions of Acts/Rules and
International Treaties.
(114) In the case of Gunwantlal (supra), while
upholding the framing of charge for an offence
punishable under Section 25(a) of the Arms Act,
this Court remanded the case to the Sessions Court
for trial. While examining this issue, this Court
interpreted the expression “possession” used in
Section 25(a) of the Act. Justice P. Jaganmohan
Reddy, speaking for the Bench held as under:
“4. The main question in this case is
whether on the facts alleged if true and at
this stage nothing can be said about the
truth or otherwise of that allegation, the
appellant can be said to be in possession of
the revolver for being charged with an
offence under Section 25(a) of the Act.
Section 25(a) insofar as it is relevant states:
“whoever acquires, has in his possession
or carries any firearm or ammunition in
contravention of Section 3… shall be
punishable with imprisonment for a
term which may extend to three years,
6or with fine or with both”.
5. What is meant by possession in the
context of this section? Is it that the person
charged should be shown to be in physical
possession or is it sufficient for the purposes
of that provision that he has constructive
possession of any firearm or ammunition in
contravention of Section 3 which prohibits
him to be in such possession without a
licence. It may be mentioned that under
Section 19 of the Arms Act, 1878, an offence
corresponding to Section 25(1)(a) is
committed if a person had in his or under his
control any arms or ammunition in
contravention of Sections 14 and 15 of that
Act. The word “control” under Section 25(1)
(a) has been omitted. Does this deletion
amount to the Legislature confining the
offence only to the case of a person who has
physical possession or does it mean that a
person will be considered to be in possession
of a firearm over which he has constructive
possession or over which he exercises the
power to obtain possession thereof when he
so intends? If the meaning to be given to the
word “possession” is that it should be a
physical possession only, then certainly the
charge as framed on the facts of the
prosecution case will not be sustainable but if
the meaning to be given to the word
“possession” is wider than that of actual or
physical possession then it is possible, if the
evidence produced by the prosecution is such
as would sustain a finding, that he had
constructive possession on September 17,
1966, when he handed it over to Miroo and
Miroo handed it over to Chhaganlal because if
it was not seized from Chhaganlal, the
appellant could have at any time got back the
physical possession of the revolver through
Miroo. The possession of a firearm under the
Arms Act in our view must have, firstly the
element of consciousness or knowledge of
that possession in the person charged with
6such offence and secondly where he has not
the actual physical possession, he has
nonetheless a power or control over that
weapon so that his possession thereon
continues despite physical possession being
in someone else. If this were not so, then an
owner of a house who leaves an unlicensed
gun in that house but is not present when it
was recovered by the police can plead that he
was not in possession of it even though he
had himself consciously kept it there when
he went out. Similarly, if he goes out of the
house during the day and in the meantime
some one conceals a pistol in his house and
during his absence, the police arrives and
discovers the pistol, he cannot be charged
with the offence unless it can be shown that
he had knowledge of the weapon being placed
in his house. And yet again if a gun or firearm
is given to his servant in the house to clean
it, though the physical possession is with
him nonetheless possession of it will be that
of the owner. The concept of possession is
not easy to comprehend as writers of
Jurisprudence have had occasions to point
out. In some cases under Section 19(1)(f) of
the Arms Act, 1878 it has been held that the
word “possession” means exclusive
possession and the word “control” means
effective control but this does not solve the
problem. As we said earlier, the first
precondition for an offence under Section
25(1)(a) is the element of intention,
consciousness or knowledge with which a
person possessed the firearm before it can be
said to constitute an offence and secondly
that possession need not be physical
possession but can be constructive, having
power and control over the gun, while the
person to whom physical possession is given
holds it subject to that power and control. In
any disputed question of possession, specific
facts admitted or proved will alone establish
the existence of the de facto relation of
control or the dominion of the person over it
6necessary to determine whether that person
was or was not in possession of the thing in
question. In this view it is difficult at this
stage to postulate as to what the evidence
will be and we do not therefore venture to
speculate thereon. In the view we have taken,
if the possession of the appellant includes
the constructive possession of the firearm in
question then even though he had parted
with physical possession on the date when it
was recovered, he will nonetheless be deemed
to be in possession of that firearm. If so, the
charge that he was in possession of the
revolver on September 17, 1966, does not
suffer from any defect particularly when he is
definitely informed in that charge that he
had control over that revolver. It is also
apparent that the words “on or before” were
intended to bring home to the accused that
he was not only in constructive possession of
it on September 17, 1966, but that he was in
actual physical possession of it prior to that
date when he gave it to Miroo. It is
submitted, however, that the word “on or
before” might cause embarrassment and
prejudice to the defence of the accused
because he will not be in a position to know
what the prosecution actually intends to
allege. From a reference of Form XXVIII of
Schedule 5 of the Code of Criminal
Procedure, the mode of charging a person is
that he “on or about”… did the act
complained of. In view of the forms of the
charge given in the Schedule to the Code, we
think that it would be fair to the appellant if
the charge is amended to read ‘on or about’
instead of ‘on or before’ which we accordingly
order.”
6(115) In our considered opinion, therefore, this was
a case where the High Court should have dismissed
the revision filed by the accused under Section 397
and also the petition filed under Section 482 of the
Code and remanded the case to the Trial Court to
proceed in the case to enable the prosecution to
adduce evidence on merits in support of the charge
sheet after framing of the charges and also allow the
defence to lead their evidence so as to bring the case
to its logical conclusion in accordance with law. In
other words, this was not a case falling in a category
of rare case requiring interference of the High Court
by invoking powers under Sections 397 or/and
Section 482 of the Code as laid down in the case of
Bhajan Lal (supra).
(116) Learned counsel for the respondents-accused,
however, vehemently contended that this is not a fit
case where an interference under Article 136 of the
Constitution is called for inasmuch as when the
High Court has extensively dealt with all the issues
6and given reasons. It was also urged that all the
accused (some Indian nationals and some foreign
nationals) are innocent having no connection with
the alleged seizure of arms/ammunition from the
vessel. We find no merit in this submission at this
stage.
(117) It is a settled principle of law that if a law
laid down by this Court was not applied properly by
the High Court then such order has to be set aside.
In this case, we find that the law laid down by this
Court in Bhajan Lal (supra) and S.B Johari's case
(supra) was not applied properly.
(118) In the light of foregoing discussion, we
cannot concur with the reasoning and the
conclusion arrived at by the High Court. As a result,
the appeals succeed and are accordingly allowed.
Impugned order is set aside resulting in dismissal of
two cases filed by the respondents (accused) before
the High Court out of which these two appeals arise.
6(119) The Trial Court, which has seized of the case
out of which these matters arise, is directed to
proceed with the case and decide the same on
merits in accordance with law. Let the trial be
completed by the Court concerned within six
months from the date of receipt of copy of this
judgment. Copy of this judgment be filed in the
Trial Court within two weeks.
(120) Before parting with the case, we consider it
appropriate to make it clear that we have not
decided any issue arising in these appeals on its
merits and nor has made any observation on merits
of controversy except to interpret Section 45 (a) of
the Arms Act to enable the concerned competent
Trial Court to decide the rights of the parties
accordingly in accordance with law while deciding
the case.
6(121) The Trial Court (competent Court) would,
therefore, decide the case strictly in accordance with
law uninfluenced by any of our observations and of
the High Court.
…….….……............................J.
[VIKRAMAJIT SEN]
…………..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
July 01, 2015.
6
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laid down by this Court was not applied properly by
the High Court then such order has to be set aside.
In this case, we find that the law laid down by this
Court in Bhajan Lal (supra) and S.B Johari's case
(supra) was not applied properly.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 836 OF 2015
(Arising out of S.L.P.(Crl.)No. 7082 of 2014)
The State rep. by the
Inspector of Police, ‘Q’
Branch C.I.D.,Tirunelveli
Range, Tamil Nadu Appellant(s)
VERSUS
Mariya Anton Vijay Respondent(s)
Decided On:
(2) These appeals are filed by the State against the
1common final judgment and order dated 10.07.2014
passed by the Madurai Bench of the Madras High
Court in Crl. R.C.(MD)No. 204 of 2014 and Crl. O.P.
(MD) No. 6719 of 2014 whereby the High Court
partly allowed the criminal revision case and the
criminal original petition filed by the accused
persons.
(3) The relevant facts giving rise to these appeals
though have been set out in great detail in the
impugned judgment of the High Court, have to be
recapitulated in order to enable us to give our own
reasons keeping in view the law laid down by this
Court in the decisions referred to hereinbelow. The
material facts mentioned herein are taken from
impugned judgment, charge sheet/final report and
the special leave petitions.
(4) The appellant is the State of Tamil Nadu
represented through the Inspector of Police “Q”
Branch of CID Tirunelveli Range and Thoothukudi,
Tamil Nadu whereas the respondents are the
2accused persons.
(5) On 11.10.2013, the Indian Coast Guard
Thoothukudi received an information that one
Vessel named "M. V. Seaman Guard Ohio" was
stationed at 10.8 Nautical miles from Vilangusuhi
Island of India/Thoothukudi Port and 3.8 Nautical
miles away from the baseline promulgated by the
Ministry of External Affairs, Government of India
vide Notification No. SO-1197 (E) 11.05.2009. The
Vessel was located within the territorial seawaters of
India. The information received also revealed that
one unidentified boat from Thoothukudi coast was
suspected to have sailed to the Vessel for doing
some kind of illegal activities on the vessel with the
connivance of crew members on the vessel.
(6) On the basis of information received, the
Indian Coast Guard Station Ship "Naikidevi"
intercepted the suspected vessel. On reaching there,
the sleuths of the Coast Guard questioned the crew
members and inquired as to whether they possessed
3any arms, ammunitions, guards etc. on the vessel?
On being questioned, the crew members candidly
admitted that they do possess and were carrying
with them arms and ammunitions on the vessel.
(7) On such disclosure being made admitting
therein that the vessel was carrying
arms/ammunition, the Coast Guard Ship directed
M.V. Seaman Guard Ohio to weigh anchor and
proceed to Tuticorin Port for further investigation by
the concerned agencies. The vessel was accordingly
escorted under the supervision of Captain KPP
Kumar along with 3 armed guards of Indian Coast
Guard Station. The vessel reached the port around
13.25 hrs on 12.10.2013.
(8) The joint interrogation team was accordingly
constituted comprising of representatives of Indian
Coast guard, Customs Department and other
agencies. The team members visited the vessel on
the same day, i.e.,12.10.2013 at 14.00 hrs. and
undertook thorough inspection of the vessel. The
4team members also interrogated the crew members
staying on the vessel. It continued till the next day
(13.10.2013), which inter alia revealed that the
vessel was carrying huge quantity of
arms/ammunition without any valid authorization
and documentation by the crew members. It was
further revealed that the vessel had received diesel
in bulk quantity from one Indian fishing boat
illegally few days back after the vessel entered in
Indian Sea waters.
(9) The vessel was accordingly handed over to
Coastal Security Group Thoothukudi on
13.10.2013. Mr. Narendran-Assistant Commandant
Boarding Officer of Indian Coast Guard Ship,
Naikidevi lodged a written complaint with the
Tharuvaikulam Marine Police Station, Tuticorin
stating the aforementioned facts with details, which
had come to their knowledge while inspecting the
vessel.
(10) On receipt of the report, immediately the
5Inspector of Police Marine PS Tharuvaikulam
registered a First Information Report (in short “FIR”)
in Cr.No. 18/2013 under Section 25 (1B) (a) and (f)
of the Arms Act, 1959 read with Section 3(b) and
Section 7 (1) (a) (ii) of the Essential Commodities
Act, 1955 read with Section 2(m) (5) of Motor Spirit
and High Speed Diesel (Regulation of Supply,
Distribution and Prevention of Malpractices) Order
1990.
(11) The registration of FIR led to deeper
investigation into the matter. However, looking to
the seriousness of the matter, the DGP Tamil Nadu,
by order dated 15.10.2013 in RC No 176936/crime/
IV (2)/2013 transferred the case to “Q” Branch, CID
for further investigation.
(12) The sleuths of CID Branch accordingly took
up the investigation and visited the vessel on
16.10.2013 (MV Seaman Guard Ohio Vessel), which
was by that time brought to the V.O.C. Thoothukudi
port. After inspecting the vessel, the team made
6necessary sketches and directed the vessel to
remain at the port under the custody of Port
authorities to enable them to carry out thorough
investigation. It was revealed that around 35 crew
members were stationed on the vessel out of which
11 were Indian national whereas remaining were
foreign nationals.
(13) On 17.10.2013, the investigation team again
visited the vessel to collect more information.
During this visit, it was found that 35 firearms,
5682 ammunition and 102 magazines were kept in
the vessel without any documents and authorization
certificates. These arms and ammunition were
accordingly seized after doing physical verification
on 18.10.2013. The investigating team also
intimated to the Court of Judicial Magistrate-II,
Thoothukudi about the factum of seizure of
arms/ammunition made by them. Independent
witnesses attested the seizure of arms/ammunition
made by the team members.
7(14) On 18.10.2013, three crew members on the
vessel described as A-4 A-6 and A-37 were arrested
whereas other two, A-3 and A-5, were allowed to
remain in vessel for doing maintenance work on
their request. These arrests were made after
observing necessary legal formalities.
(15) On 19.10.2013, the other two crew members,
A-3 and A-5, were also arrested, as none of the crew
members, namely, A-3 to A-37, including the
Captain of the vessel, who was under legal
obligation to carry with him the necessary
documents during voyage, were able to produce any
document such as licenses issued by the statutory
authorities or authorization orders issued by any
competent authority as required under the Arms Act
or/and any other law akin to Arms Act of any
country in relation to the seized arms/ammunition
to show that they were duly authorized to possess
and carry these arms/ammunition for their own use
while on the vessel.
8(16) The seized firearms and ammunition were
accordingly remanded to the judicial custody on
18.10.2013 and kept at the armory of CISF
Thoothukudi as ordered by the Court. On
19.10.2013, Maria Anton Vijay (A-38) was arrested
whereas Vijay (A-39), Ranjit Kumar (A-40), Murgesh
(A-41) and Selvam (A-42), crew members, were
arrested on 20.10.2013. On 24.10.2013, Paul
David Dennish Towers (A-4), Lalit Kumar Gurung
(A-6) and Radhesh Dhar Dwivedi (A-7) crew
members were taken to police custody for
interrogation where their voluntary confessions were
recorded. Later on, they were also arrested.
(17) Pursuant to the disclosure made, the
investigating team again visited the vessel on
27.10.2013 and recovered certain documents in
relation to the seized weapons movement and e-mail
transactions exchanged between the owner of the
vessel- Advanfort Company USA and the crew
members stationed at the vessel. The investigating
9team also seized about 2000 liter diesel kept in 10
barrels on the deck, which was purchased by the
crew members on 11.10.2013 when the vessel was
in territorial waters of India and anchored therein.
(18) It was further revealed that the owner of the
vessel had credited 40,476 US $ (around Rs.20
lakhs) from USA to India through HDFC, Chennai
account of A-43 bearing No. 50200000105782.
Thereafter, A-43 had credited Rs.10 lakhs in HDFC
account of A-41 (A/c No. 11041050004770) who, in
turn, had withdrawn Rs.7 lakhs on 09.10.2013 and
handed over the same to A-38 to enable him to
purchase the bulk quantity diesel, which was
transported to the vessel with the help of fishing
boats successfully.
(19) On 31.10.2013, the seized arms/ammunition
were sent to Tamil Nadu Forensic Sciences
Department, Chennai for analysis and diesel
samples collected from 10 barrels were sent to
Hindustan Petroleum Corporation Limited, Chennai
1for its analysis under the orders of the Court.
(20) On 08.11.2013 the ballistics report was
received which confirmed that out of 49 items of
arms/ammunition, item Nos. 16 to 21 were
prohibited arms/ammunition as defined under
Section 7 of the Arms Act whereas rest were
ordinary firearms.
(21) Investigation also revealed that the vessel in
question belongs to A-1, which is a company known
as "Advanfort Company” having its office at 1875
Eye Street, MW 5th floor Washington DC–2006, USA
and its Operations Director is A-2-Mr. Mohamed
Frajallah. Both A-1 and A-2 were responsible for all
clandestine acts and deeds done by them with the
connivance of crew members. Likewise, as
mentioned above, A-3, who was the Captain of the
vessel, and A-4, who was Tactical Deployment
Officer of the vessel were found in physical
possession of 35 illegal and unauthorized firearms
and other ammunition without any valid documents
1and were thus found directly involved in the entire
operation. Likewise, A-5 to A-37, who were crew
members on the Board, were equally found involved
in joint operation with A-3 and A-4 and were
accordingly found responsible for commission of
various offences registered against them so also
A-38 to A-45, who were found involved in supply of
bulk quantity of diesel and other items to the crew
members for running vessel and, therefore, found
responsible for commission of the offences
registered against them under various Acts as
detailed in the FIR.
(22) After completion of the investigation which
was based on spot inspection of the vessel and other
places as disclosed by the accused persons during
their interrogation, examination of witnesses,
seizure of documents, arms/ammunition, various
articles from the vessel and other places, opinion of
statutory authorities on seized items, opinion of
public prosecutor and sanction order obtained from
1competent authorities for filing prosecution case
under the Arms Act, a detailed charge sheet along
with several documents and other materials
collected during investigation was filed by the
investigation officer against the respondents herein
(A-1 to A-45) on 30.12.2013 before the Judicial
Magistrate Court No. 1 Thoothukudi bearing PRC
No. 1 of 2014 seeking prosecution of the accused
persons (A-1 to A-45) for commission of offences
punishable under Sections 33, 35 and 3 read with
Section 25 (1B) (a), Section 7 read with 25 (1-A),
Section 10 read with Section 25 (1-B) (f) of the Arms
Act 1959 and Rule 30 of the Arms Rules, 1962 ,
Section 36 (2) read with Section 30 of the Arms Act
and Section 3 (2) (d) read with Section 7(1)(a)(ii) of
the Essential Commodities Act, 1955 and Order 2(e)
(v)(vi) of the Motor Spirit and High Speed
diesel(Regulation of Supply Distribution and
Prevention of Malpractices) Order 1998 and Section
120-B of IPC.
1(23) On perusal of charge sheet and enclosed
materials, the Court took cognizance of the case and
accordingly on 20.01.2014 issued non-bailable
warrants against A-1 (Advanfort Company) and A-2
(Mohamed Frajallah Director Operations), who are
the resident of USA (Washington) for their arrest
and appearance in the Court in connection with the
commission of aforementioned offences along with
other accused named above. However, two accused
(A-1 and A-2) are still not apprehended despite
issuance of non-bailable warrants against them,
which remain unexecuted. Similarly, A-43, A-44
and A-45 are also not yet apprehended and
absconding.
(24) So far as the other accused, i.e., A-3 to A-41
are concerned, though they were arrested on
different dates, some were enlarged on bail by the
Trial Court and remaining by the High Court on
different dates on terms imposed on them.
(25) This led to filing of two criminal cases by the
1accused persons before the Madurai Bench of
Madras High Court. So far as accused A-38 is
concerned, he filed Criminal Revision(MD) No.
204/2014 under Section 397 of Criminal Procedure
Code, 1973 (hereinafter referred to as “the Code”)
wherein the challenge was to the cognizance taken
by the Judicial Magistrate of the charge sheet
seeking to prosecute A-38 for commission of several
offences detailed therein. So far as A-3 to A-37 are
concerned, they filed Crl.O.P. (MD) No. 6719 of 2014
under Section 482 of the Code wherein they also
sought quashing of the final report/charge sheet
filed seeking to prosecute them for commission of
various offences detailed therein.
(26) By common impugned judgment/order, the
learned Single Judge of the High Court partly
allowed both the cases. The High Court quashed
the charge sheet/final report filed against all the
accused persons insofar as it related to offences
punishable under the Arms Act are concerned. It
1was held that no prima facie case has been made
out on the facts set out in the charge sheet to
prosecute any of the accused persons for
commission of any offence punishable under the
Arms Act and hence charge sheet/final report filed
by the State prosecuting agency for commission of
various offences punishable under the Arms Act
against all the accused persons to that extent
deserves to be quashed at the threshold. It was
accordingly quashed to that extent.
(27) The High Court, however, upheld the filing of
the charge sheet against A-3 and A-38 for their
prosecution in relation to the offences punishable
for violating the Control Order, 2005 punishable
under Section 3 (ii) (d) read with Section 7 (1) (a) (ii)
of the Essential Commodities Act, 1955 (in short
“the EC Act”), holding that prima facie case against
these accused for commission of offences under the
EC Act is made out and hence these accused
persons have to face trial on merits insofar as the
1offences punishable under the said Act are
concerned.
(28) It is apposite to reproduce the operative
portion of the order of the High Court in paragraph
43 infra,
“In fine, I find that the prosecution of
the accused for the offences under the Arms
Act, 1959 is not maintainable. Hence, the
prosecution of the petitioners in both
petitions under the Arms Act, 1959 is
quashed. Mariya Anton [A38] will be liable for
prosecution for violating the Control Order,
2005 punishable under Section 3(ii)(d) r/w
7(1)(a)(ii) of the Essential Commodities Act,
1955. Dudinik Valentyn [A3], the Captain of
the Ship will be liable for abetment of the
offence committed by Mariya Anton [A38]
under the Essential Commodities Act within
the Indian territorial waters.
The cognizance taken by the learned
Judicial Magistrate for offences under the
Arms Act is set aside.
Accordingly, the Criminal Original
Petition and the Criminal Revision Case
stand partly allowed. Consequently, M.P.Nos.
1&2/2014 in Crl.R.C(MD) No. 204/2014 and
M.P.Nos. 1,2&4/2014 in Crl.O.P.
(MD)No.6719/2014 are closed.”
(29) The effect of the impugned order is that only
two accused namely A-3 and A-38 will have to face
prosecution in relation to the offences punishable
for allegedly violating the conditions of the Control
1Order, 2005 issued under the Essential
Commodities Act. In other words, all the accused
persons (A-3 to A-45) stand discharged insofar as
offences punishable under the Arms Act are
concerned whereas the charge sheet/final report
filed against two accused, A-3 and A-38, in relation
to offences punishable under the Essential
Commodities Act is held legal and proper and,
therefore, trial on merits would be held against A-3
and A-38 in relation to offences punishable under
the Essential Commodities Act.
(30) Aggrieved by the said judgment/order of the
High Court, the State has filed these appeals by way
of special leave before this Court.
(31) This is how the controversy is brought before
this Court to examine the legality and correctness of
the impugned order passed by the High Court.
(32) The question which arise for consideration in
these appeals is whether the High Court was
justified in quashing the charge sheet in part in
1exercise of powers under Section 397 or/and
Section 482 of the Code at the instance of accused
persons insofar as it related to the offences
punishable under the Arms Act?
(33) Heard Mr. K. Ramamoorthy, Mr. C.A.
Sundaran, learned senior counsel Mr. Hari Narayan
V.B and Mr. P.B. Suresh, learned counsel for the
parties.
(34) Mr. K. Ramamoorthy, learned senior counsel
for the State, the appellant herein while assailing
the legality and correctness of the impugned order,
urged several contentions. He contended that the
High Court erred in quashing the charge sheet in
relation to offences punishable under the Arms Act
against all the accused. According to him, the entire
approach of the High Court in entertaining the
criminal revision and petition filed under Section
482 of the Code seeking to quash the charge sheet
filed against the accused persons was per se illegal
and erroneous being against the well settled
1principle of law laid down by this Court in a catena
of decisions.
(35) Elaborating his submissions, learned senior
counsel contended that firstly, there was no basis
factually or/and legally to invoke the revisionary
power under Section 397 or/and inherent power
under Section 482 of the Code for quashing the
charge sheet at the threshold.
(36) Secondly, learned counsel contended that
having regard to the nature of controversy and the
materials collected during investigation coupled
with the admitted fact that huge quantity of
unlicensed, unauthorized arms/ammunition
including prohibited arms were recovered from the
vessel were sufficient to attract the provisions of the
Arms Act for prosecuting the accused persons as it
was enough for holding that prima facie these
accused persons have committed the offence
punishable under the Arms Act rendering them
liable to face the prosecution in accordance with
2law.
(37) In any case, according to learned counsel, the
issues involved in this case were such that it
required full trial on merits and for that the
prosecution should have been afforded an
opportunity to prove their case set up in the charge
sheet by adducing evidence in support of the
contents of the charge sheet.
(38) Thirdly, learned counsel contended that this
was not a case where the High Court could have
formed any opinion or as a matter of fact was in a
position to form any opinion by simple reading the
contents of the charge-sheet and perusing the
materials collected in support of the charge sheet
for holding that no prima facie case under the Arms
Act against any of the accused was made out or that
allegation made in the charge sheet were so absurd
that no trial on such facts was legally possible and
if it was allowed to be held then it would have
amounted to sheer abuse of exercise of powers and
2harassment to all accused.
(39) On the other hand, learned counsel
contended that mere reading of the charge sheet
running into several pages coupled with the
materials filed in support thereof and more
importantly, the admitted fact that unlicensed and
unauthorized arms/ammunition in huge quantity
were recovered from the vessel which was in
possession and control of crew members(accused
persons) fully justified prima facie that prosecution
of accused for the offences punishable under the
Arms Act was called for requiring them to face trial
on merits in accordance with law.
(40) Fourthly, learned counsel contended that the
High Court committed yet another jurisdictional
error when it decided the matter like an appellate
court and in this process appreciated the factual
allegations made in the charge sheet and
documents/materials filed along with the charge
sheet which were yet to be proved in evidence and
2further committed an error in proceeding to draw
inferences therefrom for holding that no prima facie
case was made out against any of the accused
persons for commission of the offences punishable
under the Arms Act. Such approach of the High
Court, according to the learned counsel, being
against the well settled principle of law laid down by
this Court in many decisions has rendered the
impugned order bad in law.
(41) Fifthly, learned counsel contended that the
High Court failed to keep in mind the subtle
distinction between the powers which are exercised
by the High Court while deciding criminal appeal
arising out of final order of conviction and the
powers which are exercised by the High Court while
deciding petition under Section 482 of the Code.
(42) In the former category of cases, according to
learned counsel, the High Court is fully empowered
to probe into the issues of facts and the law as also
empowered to appreciate the entire evidence for
2recording findings whereas in the later category of
cases, the High Court is empowered to examine only
jurisdictional issues arising in the case on admitted
facts without going into any appreciation of such
facts and evidence. Since the High Court, according
to learned counsel, failed to keep this well settled
distinction in mind and proceeded to decide the
matters like an appellate court, it has rendered the
impugned order wholly unsustainable.
(43) Sixthly, learned counsel contended that the
High Court failed to see that once the charge sheet
was filed and its cognizance taken, by the
magistrate, the case was required to be committed
to the Session Court for trial on merits in
accordance with law so that the issue is brought to
its logical conclusion one way or other, i.e., either
resulting in conviction or acquittal of the accused.
(44) In this case, according to learned counsel,
before this stage could arrive, the High Court
intervened without there being any justification by
2invoking its inherent jurisdiction under Section 482
and quashed the charge sheet in part. Such exercise
of jurisdiction by the High Court has rendered the
impugned order bad in law.
(45) Seventhly, learned counsel contended that
the High Court though mentioned the law laid down
by this Court in State of Haryana & Ors Vs Bhajan
Lal & Ors. (1992 supp (1) SCC 335) and State of
Madhya Pradesh Vs S.B. Johari & Ors. (2008) 2
SCC 57 but unfortunately failed to examine the
facts of the case in hand in the light of the law laid
down in these two cases much less in its proper
perspective.
(46) It was, therefore, his submission that if the
facts of the case in hand had been examined in the
light of law laid down in the case of S.B Johari's
case (supra) because the facts of the case in hand
and the one involved in S.B. Johari's case (supra)
were more or less identical on all material issues,
then the High Court would have upheld the charge
2sheet in its entirety.
(47) Eighthly, learned counsel contended that the
case in hand did not involve any jurisdictional issue
such as (1) despite there being a requirement to
obtain prior statutory sanction to file the charge
sheet, no sanction was obtained or (2) lack of an
authority of a person who has filed the charge
sheet or (3) the contents of the charge-sheet were so
vague, inadequate or/and absurd that even after
reading them as a whole it did not constitute prima
facie case against any accused under the Arms Act
etc. so as to enable the High Court to entertain the
petition under section 482 of the Code.
(48) According to learned counsel, these being
usually the grounds raised by the accused to
challenge the FIR/ charge sheet/final report in a
petition under Section 482 of the Code in the High
Court no such ground really existed even prima
facie in favour of any accused on facts/law so as to
enable the High Court to quash the charge sheet by
2invoking inherent jurisdiction of the High Court
treating this case to be the rarest of the rare.
(49) Ninthly, learned counsel contended that in
this case there should have been a trial which
would have enabled the prosecution to adduce
evidence in support of the charges and, in turn,
would have enabled the accused to lead evidence in
defence. This not having been done, has caused
prejudice to the prosecution because despite
collecting evidence against the accused, the
prosecution was deprived of their right to prove
their case against any accused on merits in trial.
This has also rendered the impugned order bad in
law.
(50) Tenthly, learned counsel contented that the
High Court erred in travelling into the factual matrix
of the whole controversy without there being any
evidence on record and, therefore, erred in recording
factual findings on several material factual issues
arising in the case such as whether the vessel in
2question was in Indian sea water and if so its effect,
what was the nature of business in which the vessel
was engaged, vessel's registration to do business
etc., the effect of registration on the controversy in
question, whether vessel was enjoying the benefit of
innocent passage as provided in (UNCLOS) in sea
waters and if so its effect, whether vessel was in
distress at any time and if so, whether it ensured
compliance of the relevant clauses of United Nations
Convention on the law of Sea (UNCLOS) providing
remedial measures to follow in such eventuality and
how these clauses were complied with, whether
there was any conspiracy to commit any offence and
if so, how?
(51) It was his submission that in no case the
High Court could have gone into any of the
aforementioned material factual issues arising in
the case in a petition filed under Section 482 of the
Code because all being purely factual issues, could
be gone into only in an inquiry made by the Trial
2Court on evidence in accordance with law.
(52) Eleventhly, learned Counsel contended that
the High Court further erred in not examining the
effect of recovery of unauthorized/unlicensed
arms/ammunition from the possession and control
of the accused lying in vessel and also the accused
persons not being able to produce any documents of
title in relation to the seized arms/ammunition
or/and any certificate/license issued by the
competent authorities to prove their right to possess
and carry along with them such arms/ammunition
on the vessel.
(53) Non-consideration of these material issues
and without recording any finding thereon has,
according to learned counsel, rendered the
impugned order bad in law.
(54) Twelfthly, learned counsel contended that the
High Court grossly erred in holding that the Arms
Act does not apply to the vessel in question and, in
consequence, cannot be applied against the accused
2persons. It was his submission that the
interpretation made by the High Court of Section 45
(a) was not in conformity with the Object of the Act.
According to learned counsel, due to erroneous
interpretation of Section 45 (a) made by the High
Court, the accused person got the benefit which
otherwise they were not entitled to get. The finding
on this issue, therefore, deserves to be set aside.
(55) Learned counsel further maintained that
Section 45 (a) does not apply to the case in hand
and in any event, according to him, the question as
to whether benefit of exemption as provided under
Section 45 (a) is available to the accused or not can
be decided only when the accused persons are able
to prove in their defence by adducing adequate
evidence that the ingredients of Section 45 (a) are
fully satisfied by them. This, according to learned
counsel, was not proved by the accused persons
because no documents were produced by them
during investigation and before they could be called
3upon to adduce evidence in trial, the High Court
invoked the inherent powers and interfered in the
investigation by quashing it. The finding on this
issue is, therefore, against the plain reading of
Section 45 (a) and renders the impugned order
legally unsustainable.
(56) Lastly, learned counsel placed reliance on the
decisions of this Court reported in Bhajan Lal case
(supra), S.B. Johari case (supra) and Gunwantlal
vs The State of Madhya Pradesh, (1972) 2 SCC
194 and prayed that applying the law laid down in
these cases to the facts of the case in hand, these
appeals deserve to be allowed by setting aside the
impugned order and remanding the case to the
concerned trial court for conducting full trial on
merits in accordance with law.
(57) In reply, learned senior counsel Mr. C.A.
Sundaram, and Mr. Hari Narayan V.B, and Mr. P.B.
Suresh appearing for the respondents-accused
supported the impugned order and contended that
3no case is made out to interfere in the impugned
order. Learned counsel elaborated their
submissions in support of the reasons recorded by
the High Court by referring to counter affidavits and
various documents on record.
(58) Having heard learned Counsel for the parties
at length and on perusal of the entire record of the
case, we find force in various submissions urged by
the learned senior counsel for the State.
(59) Before we deal with aforementioned various
submissions, we consider it apposite to take note as
to how and in what manner the High Court decided
the issues in the impugned order. Indeed, it is
necessary to keep this fact in mind in the light of
the submissions of the learned counsel.
(60) Out of 61 pages in which the impugned
judgment was rendered, first 4 Paragraphs (pages 1
to 14) were devoted by the learned Single Judge in
mentioning factual matrix of the case. This was
followed by mentioning submissions of the parties
3in Paras 5 to 9 (15 to 30 pages) followed by the
discussion, findings and conclusion in Paras 10 to
43 (pages 31 to 61).
(61) After narrating the submissions, the Single
Judge in Para 10 began his discussion with
following observations:-
“………Initially, this Court did not want
to even admit this quash petition and cross
the Lakshman Rekha in view of the caution
sounded by the Supreme Court in the
aforesaid judgment. But, the following
aspects prompted this Court to break away
from the self imposed barrier and peep to see
if there is any legitimacy in the prosecution.
Even according to the Police, M.V. Seaman
Guard Ohio is a Flag Ship registered in Sierra
Leone, a U.N. Member State.”
(62) Immediately, after the aforementioned
observations, the Single Judge set out the reasons
in the same para which, according to him, prompted
him to break the “Laxman Rekha” (expression used
in the impugned order) due to peculiar facts for
invoking inherent powers to interfere. These reasons
are reproduced in verbatim infra:
“(1) Even according to the police,
3M.V.Seaman Guard Ohio is a flag Ship
registered in Sierra Leone, a U.N.Member
State.
(2) The majority in the ship's crew are
Indian nationals with Indian passports (8
names are mentioned i.e. A-6 to A-13).
(3) The Chief cook, who hails from
Uttaranchal State, has also joined in the
conspiracy and made accused along with
others.
(4) As regards the security guards, four
are Indians (A-31, A-33, A-34, and A-37).
(5) The central Agencies like
Intelligence Bureau, DRI etc. got involved on
12 & 13.10.2013 and thereafter they handed
over the matter to the State Police to be
investigated as any other ordinary municipal
offence.
(6) The “Q” branch CID of the Tamil
Nadu Police is an elite investigating unit and
has got a very good track record of cracking
down terrorists and extremists. After their
investigation, they were able to file a final
report only for possession simplicter of
prohibited firearms and for violation of
control order under the Essential
Commodities Act and nothing more. In other
words, the final report does not even show
any needle of suspicion about the
involvement of the crew members and others
in the ship in any crime that is prejudicial to
the interest of this country.”
(63) After setting out 6 reasons, the learned Single
Judge in para 10 observed as under:-
“Therefore, for the aforesaid reasons, this
Court ventured to go into the final report and
the accompanying documents to find out,
even if by accepting the entire averments
found therein as gospel truth, would it
attract a prosecution under the Arms Act and
the Essential Commodities Act?”
3(64) Then in Para 11 the Single Judge rejected the
defence submission on the ground that the ship was
not within the Indian territorial Sea and holds that
it being a question of fact cannot be looked into
while deciding the petition under Section 482 of the
Code, which reads as under:-
“The learned counsel for the defence
submitted that the ship was not within the
Indian territorial sea. In my considered
opinion, this is a disputed question of fact
which cannot be looked into while dealing
with a petition under Section 482 Cr.P.C.
Therefore, this Court will go under the
premise that the ship was within 12 Nautical
Miles and was in the territorial sea of India.”
(65) Thereafter in para 12, the Single Judge
formulated the question for decision which reads as
under ;
“Now the line of enquiry is, can the
crew and the guards in the ship be
prosecuted for possession of prohibited arms
under the Arms Act?”
(66) Thereafter in Para 13, the Single Judge
observed that it is legitimate for the Court to take
3“judicial notice of certain notorious facts” and
then set out facts relating to piracy, which we
consider has nothing to do with the case in hand
being general in nature. However, it is worth
reproducing hereinbelow:
“13. It will be legitimate for this Court to
take judicial notice of certain notorious facts
and those facts are as follows:
Merchant vessels all over the world
are not permitted to carry arms.
Piracy in and around Indian Ocean,
especially by Somali Pirates, is a fact
which has been taken note of by the
Government of India, as could be
seen from the Preamble to the
circular dated 28.09.2011 issued by
the Director General of Shipping,
Ministry of Shipping, Government of
India [which is also a document
relied upon by the prosecution and
supplied to the accused], which runs
as under:
“The menace of piracy continues
unabated in spite of increased naval
presence in the Gulf of Aden region
and merchant ships being asked to
comply with best management
practices which includes
establishment of “Citadel”.
The Hon’ble Supreme Court has also
taken note of this, as could be seen from the
judgment in Republic of Italy through
Ambassador and others vs. Union of India and
others reported in (2013) 4 SCC 721:
“The past decade has witnessed a
sharp increase in acts of piracy on
the high seas off the coast of Somalia
and even in the vicinity of the
3Minicoy islands forming part of the
Lakshadweep archipelago.”
The Government of India has
recognized the fact that there are private
maritime security companies that provide
security for merchant vessels while they
traverse through pirate infested locations.
This is evident from the circular dated
28.09.2011 issued by the Director General of
Shipping, which is referred to above and is
being strongly relied upon by the
prosecution.
Apart from taking judicial notice of the
aforesaid facts, this Court is constrained to
bear in mind the following two facts that are
admitted by the prosecution. Even according
to the prosecution, M.V. Seaman Guard Ohio
is a ship, registered with Sierra Leone and
Registration Certificate is part of the final
report and is one of the documents that is
relied upon by the prosecution.
It is not the case of the prosecution
that M.V. Seaman Guard Ohio is an
unregistered vessel or a pirate vessel.”
(67) Then in Paras 14, 15 and 16, the Single
Judge took note of the issues relating to grant of
registration of vessel, the nature of business carried
on by the owner of the vessel with the use of vessel
and the effect of both the issues on the whole
controversy involved in this case.
(68) The Single Judge then proceeded to consider
these issue on merits after taking into account the
3entries in log book, GPS register, the registration
certificate, the statement of Captain recorded during
his interrogation by joint investigation team where
he had explained the functioning of the guards
posted in the ship, minutes of investigation team
drawn during inspection of the vessel, and lastly,
the names of Indian crew members.
(69) The Single Judge appreciated the aforesaid
material/documents and then after appreciation
concluded that the vessel in question is a ship
registered in Sierra Leone and is doing anti piracy
business.
(70) The concluding portion of Para 16 reads as
under:-
“………Therefore, I have no doubt in my
mind that M.V. Seaman Guard Ohio is a ship
registered in Sierra Leone and is into
Antipiracy business.”
(71) In Para 17, the Single Judge formulated the
question as to whether the Indian Arms Act applies
to the prohibited arms on the Board of the flagship.
3“The next line of enquiry is does the
Indian Arms Act apply to the presence of
prohibited arms on board the Flag Ship M.V.
Seaman Guard Ohio?”
(72) This issue was then considered by the
learned Judge in Paras 18 to 22 after referring to
Section 4 (2) of IPC, the law laid down by this Court
in Republic of Italy through Ambassador & Ors.
Vs U.O.I. & Ors. (2013) 4 SCC 721, and certain
Articles of UNCLOS 1982 and held that the crew
and guards of the vessel cannot be prosecuted for
the offence punishable under the Arms Act for
possessing simpliciter prohibited arms on board of
the vessel. This finding is recorded in Para 22 and it
reads as under:
“……..Therefore, I hold that the crew and the
guards of M.V. Seaman Guard Ohio cannot be
prosecuted for the offence under the Arms
Act for possession simpliciter of prohibited
arms on board their vessel.”
(73) Then in Para 23, the learned Judge observed
that the aforesaid issue could be examined from yet
another angle, namely, as to whether the vessel in
3question was in distress and secondly, whether it
was sailing in the innocent passage in the sea
waters?
(74) This issue was considered in Paras 23 to 29
after taking into account the entries in logbook, GPS
register, contents of final report, and applying
Section 4(1) of Territorial Waters, Continental Shelf,
Exclusive Economic Zone and other Maritime Zone
Act 1976, and Articles 18 (2) and 19 of UNCLOS.
(75) In Para 29, the Single Judge held that
anchoring of the vessel was within Indian territorial
seawaters and that the vessel was sailing out of
necessity and hence their action is saved by the
principle of "innocent passage" as defined in UN
Conventions (UNCLOS). The Single Judge held that
none of the crew members can, therefore, be
prosecuted for any of the offences punishable
under the Arms Act. Para 29 reads as under:
“To sum up, I hold that the anchoring of M.V.
Seaman Guard Ohio within our territorial sea
4was out of necessity and their action is saved
by the principle of ‘innocent passage’
contemplated by Section 4(1) of the
Territorial Waters, Continental Shelf,
Exclusive Economic Zone and Other Maritime
Zone Act, 1976 and Articles 18 and 19 of
UNCLOS and therefore, the Crew and the
Security Guards cannot be prosecuted for an
offence under the Arms Act.”
(76) In Para 30, the Single Judge then dealt with
the question as to whether the vessel (ship) violated
clauses 7.3 and 7.5 of Circular dated 28.09.2011
issued by Director General of Shipping and then
went into factual matrix of the whole controversy
and came to the conclusion on this issue in the
following words:
“……..That apart, this Circular would
apply only to a foreign ship visiting Indian
port. In this case, I have given a finding that
the said Ship was drifting and out of
necessity it had come into the Indian waters
and had anchored at the Outer Port Limits
(OPL) of Tuticorin Port. This Ship never had
the intention of visiting the Indian Ports,
because the Captain was waiting for further
instructions from its owners as to what the
next move should be for getting provisions
and fuel…...”
(77) After recording the aforesaid finding, the
learned judge held that the ship did not violate the
4requirements adumbrated in the said circular which
reads as under:-
“………Hence, I am of the opinion that the
Ship has not violated the requirements
adumbrated in the said Circular issued by the
Director General of Shipping.”
(78) The Single Judge then in Para 32 framed a
question viz.
"Assuming for a moment that the ship, which
has been registered as an “utility vessel” in
Sierra Leone has changed its status, can the
captain, crew members and others on board
the ship be prosecuted in India for violation
of the registration granted by Sierra Leone?
(79) The learned judge in the next sentence held
"The answer is an obvious "No". He then referred
to the statement of Mr. Senthil Kumar, Captain and
after appreciating the contents of the statement held
that breach of registration of the vessel will not give
any right to Indian prosecuting authorities to
prosecute the accused under Indian Laws but such
right is available only to prosecuting agencies to
prosecute the accused in Sierra Leone.
(80) The learned judge then proceeded to consider
4the next issue as to whether any case for breach of
condition of the Notification dated 20.04.2012
issued under Section 457 of the Merchant Shipping
Act, 1958 read with the Rules framed thereunder is
made out on the facts set out in the charge sheet?
(81) The learned Judge in Paras 33 and 34 dealt
with this issue and held that in the light of findings
already recorded in favour of the accused persons
and on interpretation of Rules 3 and 4 of the
Merchant Shipping Rules, no case for violation of
any of the conditions is made out against the
accused. In paragraph 34, the Single Judge held as
under:-
“(b) The maximum punishment is Rs. 1,000/
for the violation of this Notification.
Violation of this Notification cannot lead to
the inference that they have committed
offences under the Arms Act.”
(82) The learned Judge then considered the last
issue regarding applicability of Section 45 (a) of the
Arms Act in Para 36. Without any discussion, the
4learned judge held that in the light of finding
already recorded that the Indian authorities cannot
invoke Arms Act against the accused, the provisions
of Section 45 (a) of the Arms Act, in any event, will
otherwise protect the accused, i.e., crew members
and the guards on the vessel from being prosecuted,
under the Arms Act.
(83) The learned Judge then in Paras 37 and 38
held that in the light of findings already recorded,
no case is made out against any of the accused to
prosecute them for commission of any offence under
the Arms Act. However, the learned Judge went on
to hold against the two accused that A-3 and A-38
are liable to be prosecuted for commission of
offences punishable under the Control Order, 2005
read with Section 7 (1) (a) (ii) of the Essential
Commodities Act for purchase of fuel which was
alleged to have been purchased in violation of the
Control Order. While recording finding on this issue,
the learned Judge referred to Section 81 of the IPC.
4(84) We have purposefully mentioned supra in
detail the various findings recorded by the Single
Judge only with a view to show the approach and
the manner in which the learned Judge decided the
case and eventually allowed it in part in favour of
the accused.
(85) The question as to how, in what manner and
to what extent, the inherent powers of the High
Court under Section 482 of the Code are exercised
for quashing the registration of FIR/final
report/charge sheet/complaint etc. are no more res
integra and settled by several decisions of this
Court.
(86) One leading case on this question is Bhajan
Lal’s case (supra) and the other is S.B.Johari’s
case (supra) apart from many others.
87) So far as the case of Bhajan Lal (supra) is
concerned, following proposition of law is laid down:
“102. In the backdrop of the interpretation of
the various relevant provisions of the Code
4under Chapter XIV and of the principles of
law enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Article 226 or the
inherent powers under Section 482 of the
Code which we have extracted and
reproduced above, we give the following
categories of cases by way of illustration
wherein such power could be exercised either
to prevent abuse of the process of any court
or otherwise to secure the ends of justice,
though it may not be possible to lay down
any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of
myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not disclose a
cognizable offence, justifying an
investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same do
not disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but
constitute only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or
4complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal
proceeding is instituted) to the institution
and continuance of the proceedings and/or
where there is a specific provision in the
Code or the concerned Act, providing
efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on
the accused and with a view to spite him due
to private and personal grudge.
103. We also give a note of caution to the
effect that the power of quashing a criminal
proceeding should be exercised very sparingly
and with circumspection and that too in the
rarest of rare cases; that the court will not be
justified in embarking upon an enquiry as to
the reliability or genuineness or otherwise of
the allegations made in the FIR or the
complaint and that the extraordinary or
inherent powers do not confer an arbitrary
jurisdiction on the court to act according to
its whim or caprice.”
(88) As far as S.B. Johari (Supra) case is
concerned, following proposition of law is laid down:
“4. In our view, it is apparent that the entire
approach of the High Court is illegal and
erroneous. From the reasons recorded by the
High Court, it appears that instead of
considering the prima facie case, the High
Court has appreciated and weighed the
4materials on record for coming to the
conclusion that charge against the
respondents could not have been framed. It is
settled law that at the stage of framing the
charge, the court has to prima facie consider
whether there is sufficient ground for
proceeding against the accused. The court is
not required to appreciate the evidence and
arrive at the conclusion that the materials
produced are sufficient or not for convicting
the accused. If the court is satisfied that a
prima facie case is made out for proceeding
further then a charge has to be framed. The
charge can be quashed if the evidence which
the prosecutor proposes to adduce to prove
the guilt of the accused, even if fully
accepted before it is challenged by
cross-examination or rebutted by defence
evidence, if any, cannot show that the
accused committed the particular offence. In
such case, there would be no sufficient
ground for proceeding with the trial. In
Niranjan Singh Karam Singh Punjabi v.
Jitendra Bhimraj Bijjayya, (1990) 4 SCC 76,
after considering the provisions of Sections
227 and 228 CrPC, the Court posed a
question, whether at the stage of framing the
charge, the trial court should marshal the
materials on the record of the case as he
would do on the conclusion of the trial. The
Court held that at the stage of framing the
charge inquiry must necessarily be limited to
deciding if the facts emerging from such
materials constitute the offence with which
the accused could be charged. The court may
peruse the records for that limited purpose,
but it is not required to marshal it with a
view to decide the reliability thereof. The
Court referred to earlier decisions in State of
Bihar v. Ramesh Singh, (1977) 4 SCC 39,
Union of India v. Prafulla Kumar Samal,
(1979) 3 SCC 4 and Supdt. & Remembrancer
of Legal Affairs, W.B. v. Anil Kumar Bhunja,
(1979) 4 SCC 274 and held thus: (SCC p. 85,
para 7)
4“From the above discussion it seems
well settled that at the Sections
227-228 stage the court is required to
evaluate the material and documents
on record with a view to finding out if
the facts emerging therefrom taken at
their face value disclose the existence
of all the ingredients constituting the
alleged offence. The court may for this
limited purpose sift the evidence as it
cannot be expected even at the initial
stage to accept all that the prosecution
states as gospel truth even if it is
opposed to common sense or the broad
probabilities of the case.”
(emphasis supplied)
5…………………………………………………………..
6. In our view the aforesaid exercise of
appreciating the materials produced by the
prosecution at the stage of framing of the
charge is wholly unjustified. The entire
approach of the High Court appears to be as
if the Court was deciding the case as to
whether the accused are guilty or
not………………..”
(89) Keeping the aforementioned principles of law
in mind and applying the same to the facts of the
case in hand, we have no hesitation to hold that the
High Court erred in allowing both the criminal cases
filed by the accused persons thereby erred in
quashing the charge sheet at the threshold.
(90) In our considered opinion, both the cases out
of which these appeals arise, deserve to be
4dismissed thereby enabling the prosecuting agency
to prove the charges against the accused persons in
a trial on merits in accordance with law. This we say
for the following reasons.
(91) It is apparent from mere reading of the
impugned order that the entire approach of the High
Court while deciding the petition was illegal and
erroneous. It looks so apparent that instead of
considering the prima facie case, the High Court
appreciated and weighed the materials on record for
coming to the conclusion that the charge sheet
against the respondents could not have been filed
and if filed no charges could have been framed
against the respondents on the basis of such charge
sheet, for facing trial.
(92) As rightly argued by the learned senior
counsel for the appellant (State), the Single Judge
while deciding the matters virtually acted as an
appellate Court as if he was hearing appeals arising
out of the final order and proceeded to examine
5each and every issue mentioned in the charge sheet
by appreciating the material on record and applying
the relevant provisions of various Acts, Rules and
international treaties governing the controversy.
(93) This approach of the High Court while
hearing the case under section 482 of the Code, in
our considered view, was wholly unwarranted,
illegal and thus cannot be upheld. Having rightly
observed by the Single Judge in the beginning that
he cannot cross “barrier” while hearing the petition
under Section 482 yet committed an error by
crossing the barrier.
(94) As noted above, six reasons given by the High
Court, in our opinion, were not the reasons which
could be made basis to invoke the inherent
jurisdiction of the High Court. For quashing the
charge-sheet, those six factual reasons had nothing
to do with the jurisdiction of the court while
entertaining the charge sheet. Apart from the fact as
to whether such reasons were relevant or not, the
5fact remained that none of them were of any avail
unless each reason was proved by the evidence
adduced by both parties during trial.
(95) It cannot be disputed that prosecuting agency
had collected material during investigation to enable
the Court to frame appropriate charges for
commission of the offences punishable under the
Arms Act and such material was capable of being
proved in evidence in accordance with law to enable
the Trial Court to reach any conclusion as to
whether a case of conviction or acquittal is made
out or not?
(96) The very fact that huge quantity of arms and
ammunition were recovered from the possession
and control of the crew members from the vessel
and further during investigation, the crew members
were unable to satisfy their legal possession over
such arms/ammunition with them by not being
able to produce any evidence such as licenses,
certificates etc. it was sufficient to attract the
5provisions of Arms Act for initiating prosecution of
the accused for commission of the offences
punishable under the Arms Act, namely, for
possessing unlicensed and unauthorized
arms/ammunition on the vessel.
(97) The questions as to whether the vessel in
question was found in Indian sea waters, or outside
Indian territory, whether the vessel was in distress
and if so, for what reasons, what steps were taken
by the crew members on the vessel to come out of
the distress call given by them to the Indian
authorities at Indian port and whether steps
allegedly taken in that behalf were in conformity
with the relevant clauses of UNCLOS which govern
the subject, whether the accused persons were
having any valid licenses and certificates issued by
statutory authorities under the applicable laws so
as to enable them to possess and carry with them
the arms/ammunition including prohibited
categories of arms/ammunition on the vessel, what
5was the nature of business in which the vessel was
engaged and whether owner of the vessel was
having a license to do that business which enabled
them to possess and carry such arms/ammunition
in huge quantity, why amount of 40476 US dollars
(Rs. 20 lakhs in Indian currency ) was credited by
the owner of the vessel (A-1 & A-2) from US to the
accounts of some accused persons in their accounts
in India (HDFC Bank, Chennai), whether such
amount was used for purchase of diesel which was
recovered from the deck of the vessel or it was used
for doing some other illegal activity etc.
(98) These were some of the material questions,
which had a bearing over the issues involved in the
case. Admittedly, these factual questions could be
answered one way or other on the basis of evidence
to be adduced by the parties in the trial but not
otherwise.
(99) In other words, none of the aforementioned
questions were capable of being answered without
5the aid of evidence to be adduced by the parties, by
mere reading of FIR, Final report, charge sheet, for
the first time by the High Court in exercise of its
inherent jurisdiction. Similarly, the High Court had
no jurisdiction to appreciate the materials produced
like an appellate court while hearing the petition
under Section 482 of the Code or/and Revision
Petition under Section 397 abid.
(100) As rightly argued by the learned senior
counsel for the appellant, the law laid down by this
Court in S.B. Johari's case (supra) squarely applies
to the facts of the case in hand in favour of the
State.
(101) S.B. Johari's case (supra) was also a case
where the High Court had quashed the charge at
the instance of accused persons in exercise of its
inherent jurisdiction by appreciating the material
filed by the prosecution along with charge-sheet.
The High Court therein had held that no case was
made out on the basis of the contents of the charge
5sheet and the material filed in support thereof as in
the opinion of the High Court, it was insufficient to
frame the charge against the accused for their
prosecution for commission of offence punishable
under Section 5(1)(d) and (2) of the Prevention of
Corruption Act. The accused were accordingly
discharged by the High Court without compelling
them to face the trial on merits.
(102) In an appeal filed by the State against the
order of the High Court, this Court allowed the
State's appeal, set aside the order of the High Court
and upheld the charge sheet and the charges which
were framed by the trial court and laid down the law
which we have reproduced in para 88 above.
(103) Coming back to the facts of this case, the
High Court committed the same error which was
committed by the High Court in S.B. Johari's case
(supra) because in this case also the High Court
went into the questions of fact, appreciated the
materials produced in support of charge sheet,
5drawn inference on reading the statements of the
accused, and applied the law, which according to
the High Court, had application to the facts of the
case and then came to a conclusion that no prima
facie case had been made out against any of the
accused for their prosecution under the Arms Act.
This approach of the High Court, in our considered
view while deciding petition under Section 482 of
the Code was wholly illegal and erroneous.
(104) In our considered opinion, the High Court
committed yet another error when it recorded the
finding that provisions of Arms Act is not applicable
to the case in hand and in any event are otherwise
not applicable by virtue of Section 45(a) and hence
no accused person can be prosecuted for any of the
offences punishable under the Arms Act. This
finding, in our considered view, is also not legally
sustainable and deserves to be set aside for more
than one reason.
(105) In the first place, this finding could not have
5been recorded by the High Court either way till the
prosecution and the defence had led their full
evidence. Secondly, it could be done only in the trial
and depending upon the decision rendered by the
Trial Court on this issue, the High Court in an
appeal arising out of final order of the Trial Court
could have examined this issue in its appellate
jurisdiction at the instance of accused or State, as
the case may be. Thirdly, interpretation made by the
High Court of Section 45(a) is wholly unsustainable.
(106) This takes us to the next question as to
whether the High Court was justified in properly
interpreting Section 45(a) of the Arms Act? In other
words, the question that needs to be examined is
what is the true interpretation of Section 45 of the
Arms Act and, in particular, clause (a) of Section 45.
(107) Section 45 of the Arms Act sets out certain
type of cases to which the provisions of Arms Act
are not made applicable. These cases are specified
in clause (a) to clause (d) of Section 45. In other
5words, if the case of the accused falls in any of the
clauses of Section 45 and he is able to satisfy the
requirement of such clause then such accused
cannot be prosecuted for commission of any offence
punishable under the Arms Act. He is then held
exempted from the applicability of the Arms Act.
Section 45 (a) with which we are concerned reads as
under:
“45. Act not to apply in certain cases. –
Nothing in this Act shall apply to –
(a) Arms or ammunition on board
any sea-going vessel or any aircraft
and forming part of the ordinary
armament or equipment of such vessel
or aircraft.”
(108) Mere perusal of the aforequoted section
would go to show that it applies only to those arms/
ammunition stored on board of any sea-going
vessel, which forms part of the “ordinary
armament or equipment of such vessel”. In other
words, in case if the accused seeks to place reliance
on Section 45(a) to avoid his prosecution under the
5Arms Act then it is necessary for him to prove that
arms/ammunition stored on the vessel were
"forming part of the ordinary armament or
equipment" of the vessel .
(109) The qualifying words to seek exemption are
"forming part of the ordinary armament or
equipment of the vessel."
(110) The question as to whether
arms/ammunition form part of the ordinary
armament or equipment of any vessel is a
question of fact. The accused has to, therefore,
satisfy that the arms/ammunition seized from the
vessel are, in fact, part of the ordinary armament or
equipment of their vessel and hence were exempted
from the operation of the Arms Act by virtue of
Section 45 (a) ibid.
(111) The object of Section 45(a) is to give
exemption from applicability of the Arms Act to
those arms/ammunition, which form part of any
ordinary armament or equipment of the vessel and
6not to all arms/ammunition on the vessel. It
cannot, therefore, be construed to mean that
Section 45(a) enable every vessel to carry any
number of arms/ammunition regardless of its
purpose, necessity and requirement to carry such
arms/ammunition on the vessel.
(112) Now coming to the facts of the case in hand,
we find that firstly, there was no evidence adduced
by the accused to prove that huge quantity of arms
and ammunition including prohibited category of
arms which were seized from the vessel formed part
of the ordinary armament or equipment of their
vessel within the meaning of Section 45(a) of the
Arms Act. Secondly, this stage had in fact not
reached and in the meantime, the High Court
interfered with causing prejudice to the rights of the
parties and especially to the prosecution, who were
unable to prove their case and lastly, in the absence
of any finding on this issue, the impugned order
cannot be sustained.
6(113) We are also of the considered view that the
issue involved in this case should have been tried
keeping in view the law laid down by this Court in
the case of Gunwantlal (supra) along with several
other legal provisions of Acts/Rules and
International Treaties.
(114) In the case of Gunwantlal (supra), while
upholding the framing of charge for an offence
punishable under Section 25(a) of the Arms Act,
this Court remanded the case to the Sessions Court
for trial. While examining this issue, this Court
interpreted the expression “possession” used in
Section 25(a) of the Act. Justice P. Jaganmohan
Reddy, speaking for the Bench held as under:
“4. The main question in this case is
whether on the facts alleged if true and at
this stage nothing can be said about the
truth or otherwise of that allegation, the
appellant can be said to be in possession of
the revolver for being charged with an
offence under Section 25(a) of the Act.
Section 25(a) insofar as it is relevant states:
“whoever acquires, has in his possession
or carries any firearm or ammunition in
contravention of Section 3… shall be
punishable with imprisonment for a
term which may extend to three years,
6or with fine or with both”.
5. What is meant by possession in the
context of this section? Is it that the person
charged should be shown to be in physical
possession or is it sufficient for the purposes
of that provision that he has constructive
possession of any firearm or ammunition in
contravention of Section 3 which prohibits
him to be in such possession without a
licence. It may be mentioned that under
Section 19 of the Arms Act, 1878, an offence
corresponding to Section 25(1)(a) is
committed if a person had in his or under his
control any arms or ammunition in
contravention of Sections 14 and 15 of that
Act. The word “control” under Section 25(1)
(a) has been omitted. Does this deletion
amount to the Legislature confining the
offence only to the case of a person who has
physical possession or does it mean that a
person will be considered to be in possession
of a firearm over which he has constructive
possession or over which he exercises the
power to obtain possession thereof when he
so intends? If the meaning to be given to the
word “possession” is that it should be a
physical possession only, then certainly the
charge as framed on the facts of the
prosecution case will not be sustainable but if
the meaning to be given to the word
“possession” is wider than that of actual or
physical possession then it is possible, if the
evidence produced by the prosecution is such
as would sustain a finding, that he had
constructive possession on September 17,
1966, when he handed it over to Miroo and
Miroo handed it over to Chhaganlal because if
it was not seized from Chhaganlal, the
appellant could have at any time got back the
physical possession of the revolver through
Miroo. The possession of a firearm under the
Arms Act in our view must have, firstly the
element of consciousness or knowledge of
that possession in the person charged with
6such offence and secondly where he has not
the actual physical possession, he has
nonetheless a power or control over that
weapon so that his possession thereon
continues despite physical possession being
in someone else. If this were not so, then an
owner of a house who leaves an unlicensed
gun in that house but is not present when it
was recovered by the police can plead that he
was not in possession of it even though he
had himself consciously kept it there when
he went out. Similarly, if he goes out of the
house during the day and in the meantime
some one conceals a pistol in his house and
during his absence, the police arrives and
discovers the pistol, he cannot be charged
with the offence unless it can be shown that
he had knowledge of the weapon being placed
in his house. And yet again if a gun or firearm
is given to his servant in the house to clean
it, though the physical possession is with
him nonetheless possession of it will be that
of the owner. The concept of possession is
not easy to comprehend as writers of
Jurisprudence have had occasions to point
out. In some cases under Section 19(1)(f) of
the Arms Act, 1878 it has been held that the
word “possession” means exclusive
possession and the word “control” means
effective control but this does not solve the
problem. As we said earlier, the first
precondition for an offence under Section
25(1)(a) is the element of intention,
consciousness or knowledge with which a
person possessed the firearm before it can be
said to constitute an offence and secondly
that possession need not be physical
possession but can be constructive, having
power and control over the gun, while the
person to whom physical possession is given
holds it subject to that power and control. In
any disputed question of possession, specific
facts admitted or proved will alone establish
the existence of the de facto relation of
control or the dominion of the person over it
6necessary to determine whether that person
was or was not in possession of the thing in
question. In this view it is difficult at this
stage to postulate as to what the evidence
will be and we do not therefore venture to
speculate thereon. In the view we have taken,
if the possession of the appellant includes
the constructive possession of the firearm in
question then even though he had parted
with physical possession on the date when it
was recovered, he will nonetheless be deemed
to be in possession of that firearm. If so, the
charge that he was in possession of the
revolver on September 17, 1966, does not
suffer from any defect particularly when he is
definitely informed in that charge that he
had control over that revolver. It is also
apparent that the words “on or before” were
intended to bring home to the accused that
he was not only in constructive possession of
it on September 17, 1966, but that he was in
actual physical possession of it prior to that
date when he gave it to Miroo. It is
submitted, however, that the word “on or
before” might cause embarrassment and
prejudice to the defence of the accused
because he will not be in a position to know
what the prosecution actually intends to
allege. From a reference of Form XXVIII of
Schedule 5 of the Code of Criminal
Procedure, the mode of charging a person is
that he “on or about”… did the act
complained of. In view of the forms of the
charge given in the Schedule to the Code, we
think that it would be fair to the appellant if
the charge is amended to read ‘on or about’
instead of ‘on or before’ which we accordingly
order.”
6(115) In our considered opinion, therefore, this was
a case where the High Court should have dismissed
the revision filed by the accused under Section 397
and also the petition filed under Section 482 of the
Code and remanded the case to the Trial Court to
proceed in the case to enable the prosecution to
adduce evidence on merits in support of the charge
sheet after framing of the charges and also allow the
defence to lead their evidence so as to bring the case
to its logical conclusion in accordance with law. In
other words, this was not a case falling in a category
of rare case requiring interference of the High Court
by invoking powers under Sections 397 or/and
Section 482 of the Code as laid down in the case of
Bhajan Lal (supra).
(116) Learned counsel for the respondents-accused,
however, vehemently contended that this is not a fit
case where an interference under Article 136 of the
Constitution is called for inasmuch as when the
High Court has extensively dealt with all the issues
6and given reasons. It was also urged that all the
accused (some Indian nationals and some foreign
nationals) are innocent having no connection with
the alleged seizure of arms/ammunition from the
vessel. We find no merit in this submission at this
stage.
(117) It is a settled principle of law that if a law
laid down by this Court was not applied properly by
the High Court then such order has to be set aside.
In this case, we find that the law laid down by this
Court in Bhajan Lal (supra) and S.B Johari's case
(supra) was not applied properly.
(118) In the light of foregoing discussion, we
cannot concur with the reasoning and the
conclusion arrived at by the High Court. As a result,
the appeals succeed and are accordingly allowed.
Impugned order is set aside resulting in dismissal of
two cases filed by the respondents (accused) before
the High Court out of which these two appeals arise.
6(119) The Trial Court, which has seized of the case
out of which these matters arise, is directed to
proceed with the case and decide the same on
merits in accordance with law. Let the trial be
completed by the Court concerned within six
months from the date of receipt of copy of this
judgment. Copy of this judgment be filed in the
Trial Court within two weeks.
(120) Before parting with the case, we consider it
appropriate to make it clear that we have not
decided any issue arising in these appeals on its
merits and nor has made any observation on merits
of controversy except to interpret Section 45 (a) of
the Arms Act to enable the concerned competent
Trial Court to decide the rights of the parties
accordingly in accordance with law while deciding
the case.
6(121) The Trial Court (competent Court) would,
therefore, decide the case strictly in accordance with
law uninfluenced by any of our observations and of
the High Court.
…….….……............................J.
[VIKRAMAJIT SEN]
…………..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
July 01, 2015.
6
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