{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
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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.
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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
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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
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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