1. By virtue of present petition, filed under Section 482 Cr.P.C., the quashing of FIR No.126 dated 20.04.2019 Police Station Sector-5, District Panchkula has been sought, qua the petitioners. The above-mentioned FIR has been lodged for the commission of offences, punishable under Sections 25(1-B)(A) & 29(B) Arms Act 1959. The extraordinary jurisdiction vested in this Court has been sought on the ground that without any legal basis, and purely on account of political vendetta, the petitioners are being prosecuted in the present case.

2. In nut-shell the facts emerging from record are that the FIR pertaining to this case came into being when on the facebook account four photographs were posted by a user, namely vikas vaid. In the abovesaid photograph he was seen in possession of different kind of weapons. In view of above-mentioned photographs on social media an enquiry was conducted by Hisar police. During enquiry it was found that the person shown in the photographs was Vikas son of Prem Kumar, resident of Agroha.

3. It is the case of the prosecution that in the enquiry it was also found that the above-said person namely Vikas was a driver of Bajrang Dass, Ex-Chairman, Vaypar Mandal Haryana. As per prosecution, Vikas was joined in the enquiry and on joining of enquiry when his statement was recorded, the above-said Vikas told the enquiry officer that his employer Bajrang Dass and his son Akhil Garg, both were having two separate .32 bore revolvers, and that few days ago both father and son had cleaned their respective arms in their house in Sector-21, Panchkula. As per statement of above-named person, both the revolvers were lying on the bed in the house of Bajrang Dass Garg, and that he took selfies with both the revolvers & cartridges, and posted the photographs on social media.

4. It was also revealed by the above-named person that on one occasion Bajrang Dass Garg had visited the residence of his friend Mahinder Pal in Sector-7, Panchkula, and that in the house of Mahinder Pal a trial gun like AK-47 was hanging on the wall. As per abovenamed Vikas, Bajrang Dass handed over his revolver to him and went to toilet, and that in the meantime, he (Vikas) clicked photographs with AK-47 and uploaded the same, on his facebook account.

5. With regard to his photographs with 12 bore gun, it was stated by Vikas that his maternal uncle was working as a security guard and that he had a licence for the gun. As per statement of Vikas on one occasion when he went to meet his maternal uncle at Presidium School, where his maternal uncle was employed as security guard, he took photographs with 12 bore gun and posted the same, too, on his social media account.

6. It is the case of the prosecution that pursuant to above-mentioned statement an intimation was sent to Panchkula Police, which led to registration of FIR against Vikas and the owners of the weapons, namely Bajrang Dass Garg and Akhil Garg. Now Bajrang Dass Garg and Akhil Garg are aggrieved of the above-mentioned FIR, and therefore, they have preferred the instant petition.

7. Heard.

8. It has been contended on behalf of petitioners that petitioners are well known political figure in the Sate of Haryana, and member of opposition party, i.e. Indian National Congress. As per learned counsel for the petitioners, the petitioner No.1 has been the chief spokesperson of ‘Haryana State Congress Committee’ and also the secretary of ‘Akhil Bhartiya Vaypur Mandal’ since 1996, and that in the past, he had also been the member of ‘Election Campaigning Committee’, ‘Ticket Distribution Committee’ and ‘Election Manifesto Drafting Committee’ of ‘Haryana State Congress Committee’.

9. According to learned counsel for the petitioner, the instant case is one of the strange case, wherein there is no complaint with regard to misuse of any arm or ammunition belonging to the complainant nor there is any complaint with regard to threat on account of posting of pictures by Vikas on his social media account, but because the petitioner belongs to a political party, presently in opposition, a false story has been concocted that his weapon has been used for clicking the photographs and posting the same on social media platform, by an unauthorized person. According to learned counsel for the petitioners the victimization of petitioners due to political vendetta can be gazed from the fact that in the present case four photographs with four different weapons have been allegedly posted by Vikas, but the owner of two weapons only, i.e. the petitioners, have been prosecuted under Section 29 and 25 of Arms Act. As per learned counsel for the petitioners against the owner of other two weapons, identified in the enquiry, no action has been taken.

10. It has also been contended by learned counsel for the petitioners that in the present case any offence under Section 25 is not made out against the petitioners as they are the license-holders of the weapons and have never been found in possession of any weapon without any licence. It has been further contended that with regard to misuse of their weapons there is no complaint. While alleging that the weapons kept inside the house have been used for clicking photographs by the driver and that the abovementioned act does not amount to offence under Section 29 of Arms Act, it has been contended by learned counsel for the petitioners that one of the most essential component of Section 29 of Arms Act is the use of weapon. As per learned counsel for the petitioners, in the present case, there is no use of any weapon belonging to the petitioners, in any manner whatsoever. In view of above the learned counsel for the petitioners has contended that essential ingredient for the commission of abovementioned offence, i.e. mens rea, is missing in the present case, and therefore, no case against the petitioners is made out.

11. The learned State counsel has controverted the above-said arguments. It has been contended by learned State counsel that in the present case the trial is in progress and in the trial, prosecution will be adducing evidence to shows that the weapon used by the accused Vikas Vaid, for clicking the photographs, belonged to the petitioners. It has been further contended by learned State counsel that once the use of weapon of petitioners by Vikas Kumar is established and Vikas Kumar is found to be an unauthorized person, for using/carrying the weapon, the offence against the petitioners under Section 29 of Arms Act is made out. According to learned State counsel, the petitioners being the license-holder of the weapons had the duty to ensure that their weapons were not used or possessed by any person, who was not authorised to handle the above-mentioned weapons. As per learned State Counsel, in the instant case the clicking of photographs with the weapons, by Vikas Vaid, show that the weapon was in unauthorized possession of Vikas and thus, the petitioners cannot wriggle out of the responsibility of handing over their licensed weapons to an unauthorized person.

12. The record has been perused carefully.

13. With regard to instant FIR, it is relevant to mention here that the FIR has been lodged for the commission of offence punishable under Section 25(1B) (a) and Section 29(B) of Arms Act. Section 25(1B)(a) of the Act prescribes that:-

                   “Whoever acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3 of Arms Act shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine”.

14. In the present case the entire prosecution case no where shows that there is any allegation against the petitioners that they had acquired, in their possession or carried any firearm or ammunition in violation of Section 3 of Arms Act. Rather the entire case of the prosecution has been built upon the foundation that the petitioners were the licensed-holder of revolvers being used by co-accused Vikas. Thus, in the present case it stands established that any offence punishable under Section 25(1-B)(a) is not made out against the petitioners.

15. With regard to offence under Section 29 (B) Arms Act it shall be significant to look into the definition of abovesaid offence. Section 29 provides that;-

                   “Whoever delivers any arms or ammunition into the possession of another person without previously ascertaining that such other person is entitled by virtue of this act or any other law for the time being enforce to have or is not prohibited by this act or such other law for having in his possession the same shall be punishable with imprisonment for a term which may extend to three years.

16. In the present case if the facts as projected by the prosecution are analyzed and accepted as a gospel truth, it transpires that (as per allegations contained in the FIR itself) the acts of the accused Vikas can be divided into four events, each of the above-mentioned events pertains to one photograph posted by the above-named accused on the social media platform.

17. In one photograph the above-named accused is stated to be in possession of replica of AK-47. The above-said replica is stated to be owned by Mohinder Pal but he has not been implicated as an accused in this case, and rightly so because Mohinder Pal was having only replica and not the weapon in his possession.

18. In other photograph the accused Vikas Vaid is seen with a 12 bore gun. It is the case of the prosecution that the 12 bore gun belongs to the maternal uncle of Vikas, namely Vijender. It is the case of the prosecution that the licence for the above-mentioned gun was issued in the name of Vijender, but the photographs with the above-mentioned gun was clicked by the accused Vikas. However, the above-named accused Vijender has not been prosecuted in the present case and there is no justification on record to show how the case of Vijender stands on a different footing than the case of the petitioners. Thus, it is apparent in the present case, that a discriminatory attitude has been adopted by the Investigating Agency and there is no justification for the same.

19. With regard to third photograph, the most crucial aspect to be noted is that the entire prosecution case is resting upon the plea that on social media account, the accused Vikas had posted the photograph, and on the basis of above-mentioned photographs this inference has been drawn by the Investigating Agency that the petitioners whose weapons can be seen in the photographs have committed the offence under Section 29-B of Arms Act.

20. Qua above-mentioned stand of the prosecution, at the very out-set, it is pertinent to mention that the prosecution case itself is resting upon the disclosure statement of Vikas and in his disclosure statement the main accused Vikas has stated before the police that he clicked the photographs when the weapons and cartridges were lying on the bed at the residence of petitioner No.1. Since the above-mentioned photographs no where shows that the weapons were in actual physical possession of accused Vikas and the case of the prosecution itself is that the photographs were clicked when the weapons were lying inside the bedroom on the bed, the question of delivery of weapon by the license-holder, i.e. petitioners, to the main accused, namely Vikas, does not arise at all. Rather the case built up the prosecution itself shows that there was no actual delivery of weapons, depicted in the photographs, to the accused Vikas. Thus, it is hereby held that the essential ingredients meant for the offence under Section 29-B of Arms Act are not made out qua above-mentioned photograph.

21. As far as the forth photographs, wherein the main accused can be seen with a revolver on his waist belt and the replica of AK-47 in his hand, is concerned, qua that photograph also. It is relevant to mention here that firstly the above-mentioned photographs no-where shows that it was actually the revolver of petitioner No.1 only and secondly qua that photograph there is a valid explanation of accused Vikas, recorded by the Investigating Agency itself. The abovesaid explanation discloses that while going to washroom the petitioner No.1 handed over the same to the accused Vikas. Since there is no prima facie evidence to show that the revolvers seen in the photographs belonged to the petitioners, and if the plea of the prosecution is accepted, then there is a valid explanation, it is hereby held that qua this photograph also no offence against the petitioner No.1 is made out.

22. It is also relevant to mention here that this is basic jurisprudence of criminal law that for the commission of offence there must be the existence of mens rea. In the present case neither there is any instance nor even allegations that the weapon found in possession of Vikas was handed over with an intention to commit an illegal act. Thus, the element of mens rea, too, is missing in the present case.

23. With regard to present case, the principles of law laid down in the case of State of Telangana v. Habib Abdullah Jeelani AIR 2017 SC 373 are relevant, wherein the law propounded in the case of ‘State of Haryana Vs Bhajan Lal 1992 AIR SC 604 ’ has been reiterated. It has been observed that the quashing of FIR can be ordered in the following cases:-

                   a. 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.

                   b. 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 115(2) of the Code.

                   c. 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.

                   d. 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.

                   e. Where the allegations made in the FIR or complaint 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.

                   f. Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

                   g. Where a criminal proceeding is manifestly attended with mala fides 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."

It is worthy to note here that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where the Court’s inherent power can be exercised.

24. If the cumulative effect of all the above discussed factors is cojointly taken into consideration, it transpires that in the present case, the case built up by the prosecution does not come within the ambit of Section 25(1-B)(a) or Section 29-B of Arms Act qua petitioners. Hence, it is hereby held that the FIR against the petitioners is nothing but an abuse of process of law and deserves to be quashed.

25. In the light of above-mentioned observations if the background of the case is analyzed it transpires that the petitioner No.1, who is a political figure, and presently member of political party in opposition, was involved in the present prosecution only few months prior to the general election. The abovementioned fact-situation supports the claim of the petitioners that on account of political vendetta the present FIR has been slapped against the petitioners. Thus, it is hereby held that the present case is squarely covered by the guidelines prescribed by Hon’ble Supreme Court of India in the case of Bhajan Lal (supra).

26. In view of above-mentioned observations by allowing the present petition, the FIR in question is hereby quashed qua the petitioners.