Madhya Pradesh High Court
Gajendra Singh vs The State Of Madhya Pradesh on 14 February, 2020
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
W.P. No. 6137/2019
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : HON'BLE MR. JUSTICE S.A. DHARMADHIKARI
W.P. No. 6137 of 2019
Gajendra Singh
Vs.
State of M.P. & Ors.
Whether reportable :- Yes /No
____________________________________________________
For Petitioner : Shri B.M. Patel, Advocate.
For Respondents : Shri H.D. Mishra, Govt. Advocate
/State
ORDER
(Delivered on this Day of 14th February, 2020) With the consent of parties, this petition is disposed of finally.
2. The petitioner has filed this petition being aggrieved by the order dated 22/01/2019 passed in case No. 319/2017-2018/appeal (arms) by the Commissioner, Chambal Division, Bhind, whereby, appeal of the petitioner has been dismissed affirming the order dated 20/02/2018 passed in case No. 57/2011 (Arms) 356 by the District Magistrate, Bhind, whereby, the petitioner's Arms License of a 12 bore gun bearing No. M.P./Bhind/G/1/227/03 and the second arms license of revolver bearing No. MP/BHD/G/11/168/08B have been cancelled on the ground that 2 W.P. No. 6137/2019 the criminal case Nos. 152/2014 and 153/2014 are still pending against him before the trial court.
3. Brief facts leading to filing of this case are that the petitioner is a citizen of India and is a bonafide resident of Madhya Pradesh and belongs to a family of agriculturist and has every right of self- defence. The petitioner has applied for grant of arms license and vide order dated 05/06/2008, the aforesaid two arms license were granted in favour of the petitioner and thereafter, the same was renewed by him from time to time. Subsequently, vide order dated 08/05/2014 passed in case No. 57/2011 (Arms) 356 by the District Magistrate, Bhind exercising the powers conferred under section 17 of the Arms Act, 1959 (hereinafter referred to as the 'Act') and based on the recommendation made by the Superintendent of Police, District Bhind cancelled the arms license of the petitioner on account of registration of one criminal case bearing No. 84/2011 for the offence punishable under section 353, 332, 506, 186, 34 of IPC as well as on the ground of apprehension of disturbance in the public peace and breach of law. Being aggrieved, the petitioner has assailed the order dated 08/05/2014 by filing an appeal bearing No. 50/2013-14/Appeal (Arms) before the Additional Commissioner, Chambal Division, Morena on the 3 W.P. No. 6137/2019 ground that criminal case No. 84/2011 on the basis of which, the gun license of the petitioner was cancelled, the petitioner has been acquitted from the said criminal case. After taking into consideration the said fact, the Additional Commissioner, Chambal Division vide order dated 25/08/2015 has quashed the order passed by the District Magistrate, Bhind and remitted the matter back with the observation that the District Magistrate, Bhind may first seek fresh status report from the Superintendent of Police, District Bhind with respect to the petitioner and after taking into consideration of the same and after affording full opportunity of hearing to the petitioner pass the order afresh in accordance with law. The petitioner immediately approached the District Magistrate, Bhind with order dated 25/08/2015, but the District Magistrate, Bhind delayed the matter for more than two years. The District Magistrate, Bhind again rejected the claim of the petitioner vide order dated 20/02/2018 on the ground that at present two criminal cases bearing No. 152/2014 and case No. 153/2014 are still pending before the trial court and the petitioner has misused the arms license granted in his favour. He has also interfered in the discharge of the official duties of the employees and has disturbed the public peace and tranquility, therefore, the 4 W.P. No. 6137/2019 said two arms license have been cancelled.
4. Thereafter, being aggrieved by the order dated 20/02/2018, the petitioner had filed W.P. No. 10730/2018 before this Court, which was disposed of by this Court vide order dated 08/08/2018 with the following directions:-
"In view of the above, this Court declines interference and relegates the petitioner to avail statutory remedy of appeal before the Commissioner (Revenue) Chambal Division, Morena, which if filed within a period of 15 working days from today shall be entertained and decided without being dismissed on the limitation alone.
Accordingly, the present petition stands dismissed with the aforesaid observation and liberty."
5. As per the said direction of this Court, the petitioner has filed an appeal bearing No. 319/2017-2018/appeal (arms) before the respondent No. 2, which was also dismissed vide order dated 22/01/2019 (Annexure P/1) affirming the order dated 20/02/2018 (Annexure P/2) passed by the District Magistrate, Bhind. Being aggrieved by the order dated 22/01/2019 (Annexure P/1) and order dated 20/02/2018 (Annexure P/2), the petitioner has challenged the same in the instant writ petition.
6. Learned counsel for the petitioner contended that both the authorities have failed to consider the fact that petitioner had never misused any of the condition of the arms license since he has 5 W.P. No. 6137/2019 already deposited the arms in the police station concerned. The authorities have not assigned any reason as to how and in what manner the petitioner has not maintained the public peace or public safety, therefore, the impugned orders are without application of mind. Merely, on account of pendency of the criminal cases, the arms license cannot be cancelled since there is no allegation of misusing the arms license or conditions for grant of arms license. In such circumstances the impugned orders (Annexures P/1 & P/2) are liable to be set aside.
7. Per contra, learned State counsel for the respondents by filing return has contended that order passed by the District Magistrate, Dist. Bhind is just and proper. The impugned orders have been passed by exercising the powers conferred under Section 17 of the Act. The powers conferred under Section 17 of the Act are wide enough. It is provided that if the licensing authority deems it necessary for the security of the public peace or for public safety may suspend or revoke the arms license. It is further provided under Section 17 (d) of the Act that if any of the conditions of the arms license are contravened by the license holder, the licensing authority is again well within the powers to terminate the same. The petitioner is unable to point out a single 6 W.P. No. 6137/2019 instance, whereby, both the authorities have exceeded their jurisdiction in passing the impugned orders. It is further submitted that the petitioner is a history sheeter and right from the year 2011 till date number of criminal cases have been registered against him which is apparent from the memorandum received from the office of Superintendent of Police dated 09/02/2018 which also finds place in the impugned order. It is further submitted that five criminal cases have been registered against the petitioner between 2011 - 2016, out of which, two criminal cases bearing Nos. 152/2014 & 153/2014 are still pending. In view of the aforesaid, it is clear that the petitioner is a habitual offender and the arms in his hand may be unsafe for public safety. The authorities have not committed any error in rejecting the claim of the petitioner. In such circumstances, no interference is required at this stage and prayed for dismissal of the writ petition.
8. Heard learned counsel for the parties and perused the FIR of the two criminal cases.
9. The allegation against the petitioner is that he along with other co-accused persons have participated in the public agitation and reached the spot armed with iron rod and disturbed the public tranquility causing unnecessary traffic jam thereby disturbed the 7 W.P. No. 6137/2019 public life at large. Admittedly, there is no allegation against the petitioner that he has used his gun/revolver for commission of the alleged offence registered against him, which is still pending. Except the aforesaid two criminal cases, no other criminal case is pending against the petitioner.
10. Section 17(3)(a) of the Act gives power to the licensing authority to suspend or revoke an arm licence on certain grounds. The relevant section is as under :-
"17(3)(a). The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence- (a) if the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act."
11. The Full Bench of Patna High Court in the case of Kapildeo Singh vs. State of Bihar and others, AIR 1987 Patna 122, has held as under in regard to revocation or suspension of arm licence, on account of registration of a criminal case :-
"A strong note of caution, however, must be sounded in this context. It is not the pendency of any and every criminal case which would inflexibly warrant the suspension or revocation of a licence validly granted. A criminal case may range from a paltry traffic offence to the most horrendous capital crime. Whilst the pendency of the former may hardly 8 W.P. No. 6137/2019 provide an adequate basis under section 17(3), in the case of the latter after notice and hearing of the explanation such action may well become necessary. Equally the use or employment of the licensed weapon in the alleged crime might well of a relevant and added factor for consideration in the exercise of the discretion by the licensing authority. There is no gainsaying that licensed weapons are not to be allowed to degenerate into crime weapons."
12. On the basis of Full Bench decision of Patna High Court, it is clear that use or employment of the licensed weapon in the alleged crime, might be a relevant factor in deciding the revocation or suspension of arm licence.
13. In the present case, there is no allegation or evidence against the petitioner that he had used his gun in the commission of offence.
14. The correct interpretation of the Act, 1959 is that under its provisions an application for a prohibited arms is not to be ordinarily allowed, whereas, an application for a non-prohibited arm is ordinarily to be allowed. Such an interpretation will be in consonance with the Statement of Objects and Reasons, as well as the prevailing social conditions. Hence the word 'unfit' in Section 14 roust be interpreted to mean that the applicant for some exceptional and strong reason has disqualified himself from holding a licence e.g. if he is a hardened criminal or is involved in 9 W.P. No. 6137/2019 heinous crimes, otherwise all applications for licences for non- prohibited arms must be allowed. The aforesaid interpretation is also in consonance with Sections 96-106, I.P.C. which gives the right of self defence.
15. In the case of Ganesh Chandra Bhatt vs. District Magistrate, Almora and Ors. reported in AIR 1993 Allahabad, 291, the High Court has held as under :-
"64. Even in cases of heinous crimes a note of precaution must be struck. Very often persons are falsely implicated and hence the authority must consider all the relevant facts carefully refusing, suspending or cancelling the licence. Also, it often happens (particularly in villages), that to kill a person who has a licensed weapon a false first information report is first filed against him and then on the basis of this false first information report he is deprived of his licence and made to surrender his gun and then being unarmed he is killed.
65. I am informed that in one case there was fight between two armed groups in a village. In the first group of five persons there were two persons who had licensed arms, while the other three had no arms. The three unarmed persons in this group were killed in this fight, while in the second group (of 5 or 6 persons) one person was killed. The authorities suspended the licensed arms (and who alone had survived in the fight), while no action was taken to delicence and disarm the members of the second group. In my opinion, this action of the authorities was wholly arbitrary as it would make the two 10 W.P. No. 6137/2019 remaining members of the first group easy targets for attack by the members of the second group."
16. The plain reading of impugned orders reveals that there is no ground meeting the provisions of section 17 of the Act.
17. As far as the discretion of the licencing authority in regard to maintenance of public peace or public safety is concerned, there should have been some elements of discussion as to conduct of the petitioner which would have thrown light to his conduct being dangerous to the security of the public peace or for public safety. Even there is no such discussion that after obtaining the licence, petitioner's conduct has been such so to cause threat to security of the public peace or public safety. In view of such fact, it can be conveniently inferred that the impugned order passed by the Collector is cryptic and is devoid of any reasons and, therefore, on the touch stone of reasonableness it cannot be sustained. In fact, it is in clear violation of the provisions of the Act so also it violates the provisions of the Article 14 of the Constitution of India. Even the Commissioner has failed to appreciate these facts in the appeal as the Commissioner has acted as a post office while deciding the appeal. There is lack of application of mind while deciding the appeal and, therefore, even appellate order cannot be sustained.
18. In the case at hand, it is to be noted that except two criminal 11 W.P. No. 6137/2019 cases, the petitioner has been exonerated from other four criminal cases as pointed out by the respondents in their return. The pending criminal cases are also not of heinous crime and the same can be termed as petty offences.
19. In view of aforesaid foregoing discussions, the impugned orders dated 22/01/2019 (Annexure P/1) and dated 20/02/2018 (Annexure P/2) cannot be allowed to stand and accordingly the same are hereby quashed. The petition stands allowed.
(S.A. Dharmadhikari) JUDGE (14/02/2020) Durgekar* SANJAY N DURGEKAR 2020.02.14 17:29:48 +05'30'