Using Sword, Sans Notification, No Offence?

Conflicting decisions of two co-ordinate benches of the High Court of Kerala creates doubts regarding the proper application of the Arms Act, 1959 (the Act), in Kerala. First one is that held in Azzi vs State of Kerala [2013(4) KLT 439] and the other one is in Jinu vs State of Kerala [2017 (4) KLJ 787]. Both by single benches. In the former one, the court held as follows:

“I am of the opinion that though the accused has not inflicted injuries with arm on any person, the act of threatening or intimidating or alarming another person by showing any arm or brandishing a knife or sword or any arm of such description and design with an intend to cause fear of death in the mind of another person or alarming him would come under the expression 'use' of arm, constituting the offence under Section 5(1) r/w. Section 27 of the Arms Act. Arms, particularly, in the description or design of knife or sword may have several usages. But, when the accused threatened and caused fear of death in the mind of passengers by the act of brandishing the sword in his hand and shouting that he would stab each of them to death it can be held that he used the sword in violation of Section 5 of the Arms Act and thereby committed the offence there under.”

In the latter case, the court held that: “Thus, on reading of Section 5 along with Section 4 of the Arms Act, it can be seen that Section 5 will not be applicable in cases of arms coming under the purview of Section 4 of the Arms Act for which licence is not required. As long as the area wherein the sword used is not a notified area, an offence under Section 27 will not lie.” 

In the first case, there was no contention that offence under section 27(1) of the Act would not form if arms other than a firearm or ammunition is used without licence in a non-notified area, but in the second case, the main dispute was that unless the place where the use of arm was held is a notified area there will be no such offence. In both the cases similar acts were done by the accused and both the places are somewhere in and around Kochi. And there is no dispute that the places are not notified areas.

Though apparently the considerations were not exactly the same, both the decisions run around the question whether licence is required to use the arms other than a firearm or ammunition in a non-notified area.

Objects of the Arms Act, 1959

The Arms Act, 1959, came into being on 01/10/1962 by repealing the Indian Arms Act, 1878. The Arms Rules 1962 also came into effect. The Act mainly focuses on regulating the possession, availability and the use of firearms, ammunition and arms other than firearms and ammunition. As per the 1878 Act, almost all the types of weapons were included in the definition of arms. As expressed in the object and reasons of the Act, 1959 the 1878 Act was intended to disarm the entire nation, but it was found that, in certain situations, it is necessary to permit the law abiding citizens to have in possession and use firearms. Hence, the Act came into effect. The object and reasons of the present Act intended to exclude knives, spears, bows and arrows etc from the definition.

Possession not prohibited of certain arms

The possession and acquisition of firearms and ammunition are regulated by section 3 of the Act. According to which no one can have the possession of such arms without licence. Primarily the possession of arms other than firearms and ammunition require no licence.  But in case of special situation prevailing in any area, if the Central government is of opinion that arms other than firearms are also be regulated, that Government can issue a notification under section 4 of the Act. Thereupon acquisition, possession and carrying of arms of such class or description also are offences, unless the person, who acquires or possesses holds licence. Section 25 (1-B) (b) penalizes the violation of possession of arms of such description in the notified area.

Let’s now go though the ambit of notification under Section 4 of the Act first.

"4. Licence for acquisition and possession of arms of specified description in certain cases - If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under."

Rule 4 of the Arms Rules, 2016, explicitly provides that for the possession etc. of arms other than firearms and ammunition no licence is required in a non-notified area, which says as follows: “4. Licence for arms other than firearms and applicability of section 4.─ (1) Unless the Central or the State Government by notification in the Official Gazette so directs, no licence shall be required for the manufacture, sale, possession for sale or test, of arms of category V in Schedule I except in the areas notified under section 4.

(2) In any area specified in the notification issued by the Central Government under section 4 of the Act, licence for acquisition, possession or carrying in that area of arms of such class or description as may be specified in that notification may also be granted or renewed as provided in Schedule II, subject to such conditions as may be specified in these rules, that Schedule and in the licence.”

Notification in the State of Kerala

No notification is issued under section 4 of the Arms Act 1959 so far in Kerala, whereas the notification issued by the then Madras Government under section 17 of the Act of 1878 vide Notification No.222 in respect of the then Malabar District is still in effect in areas covered under the then Malabar District. By explaining the provisions of section 46 of the Act of 1959 and section 24 of the General Clauses Act, the High Court of Kerala in Jithu vs The State of Kerala (2014 (3) KLT 243) has settled this position.

Use of arms of every kind in any area is offence

What is obvious from Section 4 of the Act is that, if the Central Government makes a notification in terms of that section the acquisition, possession or carrying of arms other than firearms will also be regulated. Notification has nothing to do with the use of such arms. Use of arms is regulated by Section 27 r/w Section 5 of the Act. The language in section 4 is clearly comprehensible.

Decision in Jinu’s case

Juxtaposing section 4 with section 5 of the Act, the Court in Jinu’s case (supra) observed that in order to attract section 5 of the Act arms other than fire arms it should be “such class or description as may be prescribed" and therefore, held that as long as the area wherein the sword used is not a notified area, an offence under Section 27 will not lie. In order to understand the nuances of the problem let’s go through the Section 5 of the Act. Punishment under Section 27 of the Act is provided for the contravention of what is stipulated in section 5 thereof.

“5. "Licence for manufacture, sale, etc., of arms and ammunition - (1) No person shall—

(a) use, manufacture, sell, transfer, convert, repair, test or prove, or

(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:

****

****” (emphasis added)

And the relevant part of section 27 reads as follows: “27. Punishment for possessing arms, etc.,--

  (1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Sword, an arm of prescribed description

One and only hypothesis deriving out of the above provisions is that the use, among other things, of arms of such class or description as may be prescribed, in any area, is offence. Next is to see whether the ‘sword’ is an arm of such class or description as ‘prescribed’. The word "prescribed" is defined under section 2 (g) of the Act to mean prescribed by rules made under this Act. A schedule is attached to the Arms Rules, 2016 (previously the Arms Rules, 1962) made under the Act.

This aspect is more specifically expressed under Rule 2 of the 2016 Rules, which is as follows: “2. Classification of arms and ammunition.─ For the purposes of the Act and these rules, arms and ammunition shall be of the categories specified in columns (2) and (3) respectively of Schedule I and references to any category of arms or ammunition in these rules shall be construed accordingly.”

Sword is one among the categories specified therein. Hence it can be seen that sword is a prescribed arm. In the light of the above, it is apparent that prescription of certain class or description of any arm in addition to the inclusion of such arm in the schedule is not necessary. Sword being an item included in the schedule its use is an offence under section 27(1) of the Act, even in a non-notified area.

Jinu’s Case, a wrong proposition

Since the sword, being a prescribed arm within the meaning of section 5 of the Act, its use is an offence under section 27(1) of the Act, irrespective of the fact whether the area is notified or not. In Azzi’s case, it has held that brandishing a sword is using it.  Hence, it seems that, the reasoning in Jinu’s case holds no water and the same needs to be corrected.

Conclusion

As the law is uncertain at times it is the duty of the judges to expound it. Respecting the function of judges, Lord Denning, in the preface to his book The Changing Law, says: “The truth is that the law is often uncertain and it is continually being changed, or perhaps I should say developed, by the judges. In theory the judges do not make law. They only expound it. But as no one knows what the law is until the judges expound it, it follows what they make it.”

The controversies on the application of law of arms have been the concern of law enforcing agencies since long. As the decisions referred to supra reflect incongruous propositions the lower courts and law enforcing agencies would be put to uncertainty. To say less, the judgment in Jinu’s case is another decision to be corrected by the appropriate forum of the court.