Section 28 of the Arms Act, 1959: Use of Firearm or Imitation Firearm to Resist Lawful Arrest
Section 28 of the Arms Act, 1959 creates a specific offence where a person uses or attempts to use a firearm or an imitation firearm with the intention of resisting or preventing the lawful arrest or detention of himself or another person. The punishment may extend to seven years of imprisonment and fine.
Section 28: Punishment for use and possession of firearms or imitation firearms in certain cases
Whoever makes or attempts to make any use whatsoever of a firearm or an imitation firearm with intent to resist or prevent the lawful arrest or detention of himself or any other person is punishable with imprisonment for a term which may extend to seven years and with fine.
Explanation: For Section 28, the expression "imitation firearm" has the same meaning as in Section 6 of the Arms Act, 1959.
| Element | Requirement under Section 28 |
|---|---|
| Object involved | A firearm or an imitation firearm |
| Conduct | Making or attempting to make any use of the firearm or imitation firearm |
| Required intention | To resist or prevent lawful arrest or detention |
| Person whose arrest or detention is resisted | The accused himself or any other person |
| Maximum punishment | Imprisonment up to seven years and fine |
Essential ingredients of an offence under Section 28
For Section 28 to apply, the alleged conduct must involve a firearm or an imitation firearm, and there must be use or attempted use of that object. The provision is not limited to an actual discharge of a firearm because it expressly covers an attempt to make any use whatsoever.
The required mental element is also specific. The use or attempted use must be accompanied by an intention to resist or prevent an arrest or detention. Further, the arrest or detention being resisted or prevented must be lawful.
What is an "imitation firearm"?
Section 28 adopts the definition contained in Section 6. Under that explanation, an imitation firearm means anything which has the appearance of being a firearm, whether it is capable of discharging any shot, bullet or other missile or not.
Accordingly, for purposes of Section 28, an object may fall within the statutory expression even though it is not capable of actually firing a projectile, provided it has the appearance of a firearm.
How Section 6 is connected with Section 28
Section 6 deals with a licence for shortening the barrel of a firearm or converting an imitation firearm into a firearm. Its explanation supplies the meaning of "imitation firearm" used by Section 28.
The definition is therefore important when determining whether an object that merely resembles a firearm can still fall within Section 28.
1983 amendment to the punishment
The punishment wording in Section 28 was amended by the Arms (Amendment) Act, 1983. The earlier phrase permitting imprisonment, fine, or both was replaced so that the section now provides imprisonment for a term which may extend to seven years and fine.
The substitution took effect on 22 June 1983.
Official legal sources
The consolidated Arms Act, 1959 is available through the India Code Arms Act, 1959 page. An official copy is also available from the Ministry of Home Affairs.
This article is intended as a legal information resource. In an individual criminal case, the applicable charge, ingredients, evidence, defences, procedural provisions and punishment depend on the facts and the law applicable on the date of the alleged offence.