Rajasthan High Court - Jodhpur
Bhagwana Ram vs State Of Raj on 22 July, 2016
Author: Sangeet Lodha
Bench: Sangeet Lodha
BHAGWANA RAM VS. STATE OF RAJASTHAN
(S.B.CIVIL WRIT PETITION NO.8749/12)
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BHAGWANA RAM VS. STATE OF RAJASTHAN
(S.B.CIVIL WRIT PETITION NO.8749/12)
Dated:- 22.7.16.
HON'BLE MR.JUSTICE SANGEET LODHA
Mr.Rajesh Shah, for the petitioner.
Mr.O.P.Boob, Government Counsel.
1. This writ petition is directed against order dated 12.6.12 passed by the District Magistrate, Sirohi, rejecting the application of the petitioner for restoration/renewal of his arms license.
2. The petitioner was issued arms license by the competent authority for an ML Gun DB 7633 on 24.10.02, which was renewed upto 31.12.07. The petitioner submitted an application on 28.12.07, for further renewal from 1.1.08 to 31.12.10 before the licensing authority. According to the petitioner, while his application for renewal was pending, he was served with a notice by the District Magistrate, Sirohi under Section 21 of the Arms Act, 1959 ( for short "the Act") read with Rule 46 of the Arms Rules, 1962, informing that he should take appropriate steps for renewal of the license within a period of 15 days, else the license issued shall be cancelled. The petitioner responded to the notice and clarified that he has already made an application for renewal of the license on 28.12.07. However, the petitioner was served with yet another notice dated 10.7.08 informing that the BHAGWANA RAM VS. STATE OF RAJASTHAN (S.B.CIVIL WRIT PETITION NO.8749/12) 2 concerned Police Station has forwarded the license issued in favour of the petitioner for cancellation inasmuch as, he was found indulged in commission of offence under Sections 307, 325, 223 IPC wherein he was acquitted by the competent court on 3.5.03. The license was proposed to be cancelled in exercise of the power conferred under Section 17 of the Act. The petitioner filed a reply to the notice taking the stand that in the criminal case, he already stands acquitted and no other criminal case is pending against him before any court nor he has been ever punished by any criminal court and therefore, the proceedings initiated may be dropped. The petitioner's application for renewal of the license was rejected by the District Magistrate, Sirohi vide order dated 23.6.09. Aggrieved thereby, an appeal preferred by the petitioner before the Divisional Commissioner, Jodhpur, which was allowed and the matter was remanded to the District Magistrate, Sirohi, to pass the appropriate order after consideration afresh. Pursuant to the remand order, after due consideration, the District Magistrate, Sirohi, again rejected the application preferred by the petitioner seeking renewal of the arms license vide order dated 4.2.11. The petitioner questioned the legality of the order passed by the District Magistrate, Sirohi, as aforesaid, by way of an appeal before the Divisional Commissioner, Jodhpur. The appeal was BHAGWANA RAM VS. STATE OF RAJASTHAN (S.B.CIVIL WRIT PETITION NO.8749/12) 3 allowed by the Divisional Commissioner, vide order dated 10.1.12 and the matter was again remanded to the District Magistrate, Sirohi, with the direction to pass the order afresh, after due inquiry and giving an adequate opportunity of hearing to the petitioner herein. Pursuant to the remand order, the application preferred by the petitioner has again been rejected by the District Magistrate, Sirohi vide order dated 12.6.12. Hence, this petition.
3. Learned counsel appearing for the petitioner contended that as per provisions of Section 17 (1) of the Act, the Licensing Authority is empowered to revoke a license if it deem necessary for the security of public peace or public safety, but such power has to be exercised after objective consideration of the material on record. Learned counsel submitted that it is true that the petitioner was found indulged in commission of an offence but, after filing of the charge sheet and due trial, he already stands acquitted of the charges and therefore, the same cannot be made basis for rejection of the application seeking renewal of the arm license. Learned counsel submitted that the order impugned does not indicate as to how the cancellation of the arms license issued in favour of the petitioner was necessary for security of public peace or for public safety. Learned counsel submitted that even after the matter being remanded by the Appellate Authority BHAGWANA RAM VS. STATE OF RAJASTHAN (S.B.CIVIL WRIT PETITION NO.8749/12) 4 twice, the District Magistrate has not cared to apply the mind judiciously and has proceeded to pass a cryptic order. Learned counsel submitted that in absence of any material suggesting that the cancellation of the license issued in favour of the petitioner is necessary for security of the public peace or for public safety, the renewal as prayed for, could not have been rejected by the District Magistrate and therefore, the order impugned deserves to be set aside.
4. On the other hand, learned Government Counsel submitted that on the renewal application being submitted by the petitioner, the Sub Divisional Magistrate, Mount Abu, called for the report from the police. It is submitted that the SHO, Police Station, Sarupganj furnished the information regarding the criminal case being registered against the petitioner for various offences under IPC as also under Section 30 of the Arms Act. Learned counsel submitted that keeping in view the involvement of the petitioner in commission of the offences and use of the arms in commission of the offence, the order impugned passed by the District Magistrate, refusing to renew the license and cancelling the same, cannot be faulted with. Learned counsel would submit that the order impugned is appealable before the Divisional Commissioner and therefore, there is no reason why the petitioner should be permitted to invoke the extra ordinary BHAGWANA RAM VS. STATE OF RAJASTHAN (S.B.CIVIL WRIT PETITION NO.8749/12) 5 jurisdiction of this court under Article 226 of the Constitution of India.
5. I have considered the rival submissions and perused the material on record.
6. It is true that the order impugned passed by the District Magistrate, Sirohi is appealable before the Divisional Commissioner, Jodhpur under Section 18 of the Act but then, a perusal of the various orders passed on record, reveal that despite the matter being remanded by the Appellate Authority twice, the District Magistrate has not cared to pass a speaking order after objective consideration of the material on record and therefore, on the facts and in the circumstances of the case, this court is not inclined to relegate the petitioner to the remedy of appeal available under the relevant statute.
7. It is true that the petitioner was found indulged in commission of the offence wherein he is alleged to have used the firearms but then, the fact remains that he stands acquitted of the charges. It is true that mere acquittal of the petitioner of the charges, shall not make him entitle for the renewal of the license but then, while refusing the renewal and cancelling the license invoking the power under Section 17 of the Act, the licensing authority was under an obligation to record a categorical finding supported by reasons as to why it is necessary for security of the BHAGWANA RAM VS. STATE OF RAJASTHAN (S.B.CIVIL WRIT PETITION NO.8749/12) 6 public peace and for public safety to cancel the license issued in favour of the petitioner and refused the renewal thereof. A bare perusal of the order impugned reveals that the District Magistrate has rejected the application preferred by the petitioner seeking renewal by merely recording its ipse dixit that in view of the criminal case registered against the petitioner and challan filed, the continuance of the license of the petitioner would be harmful for the persons of the lower echelon and the society. Needless to say that the discretion with the licensing authority in terms of provisions of Section 17 of the Act, has to be exercised in fair and reasonable manner, on arriving at the definite conclusion that the continuance of the license of the licensee shall be against the security of the public peace and the public safety.
8. In view of the discussion above, the writ petition deserves to be allowed and the matter deserves to be remanded to the District Magistrate, Sirohi for passing a speaking order afresh, after objective consideration of the material on record and giving an opportunity of hearing to the petitioner.
9. Accordingly, the writ petition is allowed. The order impugned dated 12.6.12 is quashed. The matter is remanded to the District Magistrate, Sirohi with the directions to pass a speaking order afresh, after objective consideration of the BHAGWANA RAM VS. STATE OF RAJASTHAN (S.B.CIVIL WRIT PETITION NO.8749/12) 7 material on record and giving an opportunity of hearing to the petitioner in accordance with law, within a period of three months from the date of receipt of certified copy of this order. The parties shall appear before the District Magistrate, Sirohi on 10.8.16. No order as to costs.
(SANGEET LODHA),J.
Aditya/