1. The appellant Ismai Khan has been convicted by the Chief Presidency Magistrate of Calcutta under s. 19(f) of the Arms Act (XI of 1878) and sentenced to two years' rigorous imprisonment. The first and the only substantial ground taken on his behalf is, that proper sanction not having been obtained before the proceedings against the petitioner were instituted, the trial and the conviction are bad in law. The facts of the case are that, the Prosecuting Inspector on receipt of certain information arrested the accused with a pistol and 23 live cartridges in the presence of search witnesses on Prem Chand Boral Street, about 7 P.M on the 6th September last. Thereafter he took the accused to the Muchipara Police Station and entered a case against him under the Arms Act and searched his house. The charge was entered in the crime sheet. Sanction was secured on the 7th and the man was then sent up with a challan and placed before the Court. The argument on his behalf is that under s. 29 of the Arms Act no proceedings should have been instituted against the accused without the previous sanction (in this case) of the Commissioner of Police. It is urged that entering a case in the case book and making out a charge is institutions of proceeding under s. 29, and, therefore the absence of proper sanction previous to the entry in the Thana Book has vitiated the entire trial. We do not think that this argument has any substance in it. Section 29 says that no proceedings should be instituted against any person in respect of an offence under s. 19(f) of the Arms Act without the sanction of the Commissioner of Police, if the offence is committed in a Presidency town.
2. 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 excepted 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 enter ing 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 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 Baksh v. Queen-Empress(1). There it was held that the lodging of a false information with the Police of cognizable offence is instituting a criminal proceeding within the meaning of s. 211, Indian Penal Code. 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 s. 211, Indian Penal Code, must be limited to the scope of that section. No analogy can be drawn by putting s. 211, Indian Penal Code, alongside s. 29 of the Arms Act which deals with totally different matters. Under s. 211, Indian Penal Code, the complainant is said to institute a proceeding if he prefers a false charge of a cognizable offence to the Police who are expected to move in the matter and if they are satisfied that there is a prima facie case against the accused will send him up for trial. It was pointed out in that case that there are two sorts of institutions of criminal proceedings— one was by giving information to the Police which would in all probability move them into action and the other by filing a complaint in Court with the idea that the Court will take action in the matter. In either case the Police or the Court may refuse to proceed further but the complainant has done all he could to charge his adversary with the alleged offence. It was in this view held that making a false charge to the Police of a cognizable offence is the institution of criminal proceedings within the meaning of s. 211, Indian Penal Code. In a sister piece of, legislation, that is the Explosive Substances Act, a similar sanction is provided for by s. 7 of Act VI of 1908. Section 7 of that Act, runs as follows:— “No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the Local Government or the Governor-General-in-Council.” There is no much difference between consent and sanction, the absence of either of them being bar to the initiation of prosecutions under the Acts. Section 7 of the Explosive Substances Act provides that consent to the prosecution should be obtained before the Court proceeds with the trial of the accused. The idea underlying s. 29 of the Aims Act is the same. By entering the, charge in the office diary or preparing the charge-sheet no criminal proceedings are instituted the Acts being really routine and administrative. The proceedings really start when the accused is placed before the Court. In s. 195 and the following sections of the Criminal Procedure Code which speak of sanction, it, is laid down that proper sanction should be obtained before the Court takes cognizance of the case By obtaining sanction a bar is removed to prosecution for a particular offence; in other words, in order to enable the Court to take cognizance of it proper sanction must be obtained from proper-quarters. An objection similar to this was taken in the case of Ahmed Hossein v. Queen-Empress(2). In that, case, the objection was not particularly dealt with in the judgment of the learned Chief Justice but it was overruled. We are accordingly of opinion, that no error of procedure has been made in the present case and that sanction was properly obtained from the Commissioner of Police before the accused was placed on his trial.
3. It is next urged by Mr. Mrityunjoy Chatterjee for the accused that possession found with the accused by the Magistrate was not sufficient for a conviction under s. 19(f). That clause says that any person who has in this possession or under his control any arms etc. We fail to understand what the real ground of objection is; but it is probably based on the case for the defence which we are asked to accept as true. The defence case is that the bundle which contained the pistol and ammunitions was the property of a friend of the accused named Idu who was proceeding with him along the street and had just made Over the bundle to him and gone away on the pretext of answering a call of nature. The Police in the meantime came up and arrested the applicant. The suggestion is that the case was a manufactured one and that the Police had engaged Idu to decoy the accused. There is no evidence worth the name to support the defence story. Two witnesses have been examined on behalf of the appellant. The first witness says that the accused came to his shop one day to bring some offerings and the next day he came to him and told him that he had been arrested. While the witness was weighing the offerings, an old man came and called the accused and took him away. The old man had a bundle wrapped in cloth in his own hand. The second witness says that he saw the accused and another man in the street and the other man had a bundle in his hand and told the accused “hold this for a few minutes as I have to answer a call of nature.” Within five minutes the accused was arrested. It is not contested that the accused was found in possession of a bundle containing articles. The story now set up by the accused was not put before the Police at the time of the arrest and in the cross-examination of the prosecution witnesses the case for the defence was not put to them in the way in which it has now been attempted to he put. We think that the story set up on behalf of the accused was an after-thought. In his statement the accused named only one person by the name of Elahi who saw the appellant going with an old man; but this man Elahi was not examined and two other persons were produced to support the defence story. In these circumstances we have no hesitation in holding that the appellant has failed to prove his case, and that, he being found in possession of the articles is liable to be convicted under the Arms Act.
4. Then it is urged that the sort of possession found is not inconsistent with the innocence of the accused. The possession found by the lower Court is that the accused was arrested with a bundle containing those articles. He was employed on board a sea-going vessel and had shortly before the occurrence come to the town. The weapon found is of foreign make which is not ordinarily to be found in the city. Taking these and other circumstances into consideration the learned Magistrate found that the appellant was possessing those articles with a guilty knowledge and we think’ that he has been rightly convicted. The appeal fails and is dismissed.
5. Appeal dismissed.