Posted On by &filed under High Court, Rajasthan High Court - Jodhpur.


Rajasthan High Court – Jodhpur
{1} vs Unknown on 28 January, 2015
                            {1}


IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                     JODHPUR
                      

                         :ORDER:

S.B. Criminal Misc. Petition No.131/2015
(Salman Khan Vs. State of Rajasthan)

28.01.2015

Hon’ble Mr. Justice Banwari Lal Sharma

Mr. Mahesh Bora, Sr. Advocate with Mr. HM Saraswat and
Mr. Arpit Mehta, for the petitioner.

Mr. Pankaj Avasthi, Public Prosecutor.

This miscellaneous petition has been filed against the

order dated 14.01.2015 passed by the learned District &

Sessions Judge, Jodhpur District dismissing the Criminal

Revision Petition No.52/2014 preferred against the order

dated 18.12.2014 passed by the learned Chief Judicial

Magistrate, Jodhpur District in Criminal Case No.68/2011

whereby the application filed by the petitioner under

Section 311 Cr.P.C. for calling Shri Dalbir Bharti, DCP

Headquarter and District Magsitrate, Mumbai as defence

witness was dismissed.

The brief facts of the case are that on 15.10.1998,

one Shri Lalit Bora filed a report at P.S. Luni, Jodhpur

against the petitioner stating that the petitioner hunted

two black bucks by using illegal fire arms in the mid-night
{2}

of 1-2 October, 1998 at Village Kakani. On the basis of the

above report, an FIR was registered against the petitioner

for the offences under Sections 3/25 and 27 of the Arms

Act. After investigation, charge-sheet was filed and charges

were framed. After examination of 16 prosecution

witnesses, the statements of petitioner-accused were

recorded under Section 313 Cr.P.C. and after examination

of one Berisal Singh (DW-1) as defence witness, the

defence evidence was closed and the matter was fixed for

16.12.2014 for final arguments, on that date, an

application under Section 311 Cr.P.C. was moved on behalf

of the petitioner before the learned trial court stating

therein that on 29.09.1999, the licensing authority issued

show cause notice to the petitioner to the effect as to why

his Arm License No.MU-926/August/96 should not be

cancelled to which the petitioner filed reply. It was

submitted that as per the notice, the license of the

petitioner was valid till 29.09.1999 and was in force. Thus,

it was prayed that the said authority, viz., Shri Dalbir

Bharti, DCP, Police HQ and District Magistrate, Mumbai be

called as defence witness. The said application was

dismissed and revision petition was also dismissed. Hence,

this miscellaneous petition.

{3}

I have heard the learned counsel for the petitioner

and the learned Public Prosecutor.

Learned counsel for the petitioner submits that the

charges against the petitioner are that he kept in

possession and used unlicensed fire arms, therefore, to

prove that the license was effective on the date of

offence, it is necessary in the interest of justice that notice

issued by the licensing authority be proved before the

learned trial court after calling Shri Dalbir Bharti, DCP,

Police HQ and District Magistrate, Mumbai. Both the

learned courts below have wrongly dismissed the

application. In absence of examination of the said witness,

it is not possible for the petitioner to defend himself.

Therefore, this miscellaneous petition may be allowed.

In the alternative, the learned counsel for the

petitioner submits that if the prosecution admits the

genuineness of the notice and the trial court considers the

same during final arguments, then this miscellaneous

petition may be decided accordingly.

The learned Public Prosecutor opposed this

miscellaneous petition and submitted that so far as the

genuineness of notice is concerned, he does not dispute it
{4}

and also submitted that if the trial court considers the

notice during final arguments with the provisions of the

Arms Act and the Arms Rules, then State has no objection

and the miscellaneous petition may be decided

accordingly.

Having considered the above, since the notice was

said to be issued in the year 1999 and the matter is pending

since 2000 and after a lape of about 15 years, the address

of the said witness Shri Dalbir Bharti was given of the place

when he was posted at the time of issuing notice in the

year 1999, therefore, a prudent person can take a clear

notice that the officer, who was posted before 16 years on

the above post, may not be continuing on the same post

and it seems that the whereabouts of that witness is even

not known or traced by the petitioner himself and allowing

the application for calling such a witness on the given

address will be futile exercise. Hence, both the courts

below have rightly dismissed the application under section

311 Cr.P.C., which does not require any interference by

this court.

But, since the learned Public Prosecutor did not

dispute the genuineness of the notice issued by the DCP,

Police HQ and District Magistrate, Mumbai and it relates to
{5}

the license of the petitioner-accused and the offence is

related to the arm license itself and the learned Public

Prosecutor also did not dispute for considering the same at

the time of final arguments, therefore, without calling the

witness, the trial court may, after marking the notice as

exhibit, as its genuineness was not disputed, consider it at

the time of final arguments. However, it is made clear that

it is the domain of the learned trial court to decide, after

considering the notice, that whether on the date of offence

the license was in force or not without prejudice by this

court.

This miscellaneous petition stands disposed of

accordingly.

[Banwari Lal Sharma],J.

/skm/
I.No.107


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