Meredith, A.C.J:— These two rules have been issued upon the application of two persons who have been convicted under section 19(f) of the Arms Act. The first petitioner Mohan Lahiri has been found to have been in possession of an unlicensed revolver, cartridges and two toy pistols, and has been sentenced, to one year's rigorous imprisonment and a fine of Rs. 200. The other petitioner Tulsi Sao has been convicted for the possession of an unlicensed revolver and cartridges with which he was said to have threatened the police, and has been sentenced to two years' rigorous imprisonment.

The principal point taken on behalf of both petitioners is that the proceedings are null and void by reason of the fact that the sanction of the District. Magistrate was not obtained in sufficient time. In the case of Mohan Lahiri, he was arrested after search of his house on the 12th of July, 1948. On the 26th of July a Magistrate admitted him to bail. On the 25th of August sanction for prosecution was given by the District Magistrate, and on the 17th of September the police submitted charge-sheet.

In the case of Tulsi Sao, the search and arrest) took place on the 30th of August, 1948. The sanction was obtained on the 4th of November, 1948, and the charge-sheet was submitted and cognizance taken by the Magistrate on the 25th of November.

section 29 of the Arms Act provides that where an offence punishable under section 19, clause (f), has been committed, no proceedings shall be instituted against any person in respect of such offence without; the previous sanction of the Magistrate of the district, or, in a presidency town, of the Commissioner of Police. There can be no gainsaying the fact that; proceedings taken in the absence of a sanction required by law are a complete nullity. It is not a question of a technical defect which can be remedied by a belated sanction—see Basdeo Agarwalla v. Emperor. But the real question is what is meant by the “institution of proceedings” in section 29: Is the word “proceedings” used in a very wide sense so as to include an investigation before the police, as argued for the petitioners, or is it used in the narrower sense of judicial proceedings before a Court?

Taking the common sense view, it is difficult to hold that the law could have contemplated that no proceedings of any sort, even an enquiry by the police, could be taken unless a previous sanction had been obtained; for, how is the District Magistrate to determine whether to accord sanction or not unless he has some prima facie materials before him? And how are those materials to be obtained unless some enquiry be held? Moreover, what are the police to do if the find a man in possession of arms for which he cannot produce a license? Are they to stay their hands and do nothing until they have run off and obtained sanction from the District Magistrate? That would be an impossible position. And it is indeed conceded by Mr. Mukherji for the petitioners that in such a case the police could arrest, and taking the man into custody could not be regarded as the institution of proceedings within the meaning of section 29. But he attempts to make a distinction between the actual arrest and the police investigation.

These practical considerations seem to suggest that the words must have been used in the sense of judicial proceedings, and the only case of this Court directly in point takes that view. I refer to King-Emperor v. Ghulam Nabi. In that case a Division Bench laid down that the word “proceedings” in section 29 of the Arms Act meant legal proceedings in Court and not searches or arrests or investigations made by the police in exercise of the powers conferred upon them by the Criminal Procedure Code or any other law. This case being directly in point, it is binding upon us. If there was any case of this Court, also directly in point, where the contrary view was taken, the only course would be to refer the matter to a Full Bench. But no such case has been cited. Reliance has been placed on Girija v. King-Emperor*. But though there may be certain observations in that, decision which seem to support the contentions for the petitioners, it was a case where the sanction was not obtained until after the charge-sheet had been submitted and cognizance had been taken. Thus, this was a, case where, in any view, the sanction had not been given in time, and the proceedings were null and void as was held by the Bench in that case.

It is sought to draw an analogy between section 29 of the Indian Arms Act and section 211 of the Penal Code, and decisions have been cited, for example, Emperor v. Johri, in which it was held that when a man lodges a false charge before the police he initiates criminal proceedings. But analogies are dangerous things, and what might be true of section 211 is not necessarily correct in the case of section 29 of the Arms Act. This analogy has been considered and rejected in Ismail Khan v. King Emperor. In that case a Division Bench held that entering a case in the case book and making out a charge is not institution of proceedings under section 29. The proceedings really start when the accused is placed before the Court. The word “proceedings” in section 29 does not mean that no action can be taken by any officer, police or otherwise, in the matter without the previous sanction of the Commissioner of Police. In that case a man had been arrested in possession of arms, and their Lordships said:

“The meaning which is sought to be attached to the word ‘proceeding’ is that no action can be taken by any officer, police or otherwise, in the matter without a previous sanction of the Commissioner of Police. It is difficult to see what the arresting inspector was expected to do in the circumstances of this case; but it is suggested that he might, if the offence was a cognizable one, have taken the accused into custody and, without entering a charge in the diary book, asked for the sanction of the Commissioner of Police and on receipt of it made the necessary entries in the station books. We feel no hesitation in saying that this argument is far fetched and that it has never been the intention of the legislature to lay down such an awkward procedure and make the prosecution open to the charge that no entry equivalent to a first information was made immediately after the arrest.”

In reference to section 211 they said:

“In support of the view urged on behalf of the appellant reliance has been placed on the Full Bench decision of this Court in the case of Karim Buksh v. The Queen-Empress. There it was held that the lodging of a false information with the police of a cognizable offence is instituting a criminal proceeding within the meaning of section 211, I.P.C Wilson, J., who delivered the judgment of the Full Bench, took particular care to say that the meaning which he gave to the words ‘institution of criminal proceedings’ in section 211, I.P.C must be limited to the scope of that section. No analogy can be drawn by putting section 211, I.P.C, alongside section 29, Arms Act, which deals with totally different matters.”

I agree with those observations.

Section 29 has also been construed in Emperor v. Kutru, where their Lordships, in construing the meaning of the word as used in section 30, referred to section 29 and said that the word must be used in the same sense in both sections. And in section 29 it was clearly used with reference to proceedings before a Court.

It has been held by a Full Bench of this Court in Gopal Marwari v. King-Emperor* that a judicial proceeding against an accused person only commences after the Magistrate has taken cognizance of a case and made the accused person a party to the proceedings by taking some action against him, such as, a summons. In the case before us it seems to me clear that judicial proceedings could not be said to have been started until after charge-sheet was submitted and the Magistrate decided to institute a case in Court. Therefore, in my judgment, the first contention for the petitioners must fail.

It is further argued with reference to the first petitioner that the Magistrate made an order granting bail on the 26th of July before the sanction had been obtained, and this means that a judicial proceeding had been instituted since proceedings for bail are judicial proceedings. In a sense proceedings for bail may be judicial proceedings where a Magistrate applies his judicial mind to the question of whether bail should be granted. Manikam Mudali v. The Queen is an authority to this effect. But if so, that would be a separate judicial proceeding, quite apart from the actual prosecution for an offence under the Arms Act, and, therefore, the mere consideration of the question of bail in the initial stage when the accused is sent up in custody could not amount to the initiation of proceedings in the sense of a Court prosecution for the offence in respect of which the sanction is required. In the Full Bench case to which I have just referred, I pointed out at page 482 that in police cases judicial proceedings cannot necessarily be said to have commenced merely because a person is sent up and remanded to custody. The proceedings at that stage are still administrative. There may still be no judicial case against the accused. It is significant that, under section 167 the police may have obtained an order for a remand to custody from a person who is not empowered to take cognizance of the case. A remand to custody, if it does not exceed fifteen days, certainly does not mean cognizance has been taken. If it exceeds fifteen days, it may mean that cognizance has been taken, but does not necessarily mean that any judicial proceedings, have been commenced against any one, giving him vested rights in any particular mode of trial. At that stage the police may have sent up a man in custody. He may have been remanded to custody pending police investigation, but his prosecution has not started, and does not start, in my judgment, (as I then said) until the Magistrate makes up his mind to act upon a charge-sheet, and takes some overt action to implement his decision. Such an order may be an order to produce the accused from custody on a particular date to stand his trial.

A third legal point has been urged, namely, that, having regard to the provisions of section 30 of the Arms Act, the search, was illegally held. It is unnecessary to consider whether it was legally held or not because, quite obviously, that has no bearing on the question of the petitioners' guilt—see Emperor v. Kutru, wherein it was pointed out that a conviction for an offence under the Indian Arms Act may be perfectly sound notwithstanding that the evidence, upon which it is based may have been procured as the result of an illegal search of the accused's house. There is nothing in this point.

In the application of Mohan Lahiri a point has been taken upon the merits. It is pointed out that the petitioner is a man of fifty with an adult son and a nephew living in his house. A defence witness gave evidence to that effect, and he does not appear to have been disbelieved. On the other hand, there is no finding that the petitioner was personally and consciously in possession of the weapons. He has been convicted merely on the view that being admittedly the karta of the family, he must be held responsible for the possession of the unlicensed weapons. That principle of responsibility, however, is not enough in cases under the Arms Act. The position has been clearly laid down by a Full Bench in Emperor v. Santa Singh.

“The words ‘possession and control’ in section 19(f) mean something more than mere constructive or legal possession and control. Possession and control required to constitute offences under the aforesaid, section must mean conscious possession and actual control, and as under those sections mere possession of incriminating articles constitutes serious criminal offencec, there must be mens rea or guilty knowledge, before a person can be convicted of such possession. Consequently, where incriminating articles are recovered from a place in the occupation or possession of more persons than one and it is not possible to fix the liability of any particular individual, a Court is not bound to hold that the said articles were in possession or under the control of the head of the family.”

This principle has been followed in several decisions of this Court, for example in Bhekha Ahir… v. Emperor. In the case of Mohan Lahiri there is no finding of conscious possession or the necessary mens rea on his part. In my opinion, therefore, his application should succeed on the merits, and I would set aside his conviction and sentence and acquit him.

In the case of the other petitioner Tulsi Sao, there is no point on the merits, and, as the points of law fail, I would maintain the conviction and sentence and discharge the rule.

Sarjoo Prasad, J.:— I agree.

K.D

Order accordingly.