Madras High Court
V.P.Kalairajan vs The Commissioner Of Police on 3 June, 2008
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3-6-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.157 of 2008 and M.P.No.1 of 2008 V.P.Kalairajan ... Petitioner Vs. The Commissioner of Police, Egmore, Chennai - 8 ... Respondent Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified mandamus calling for the records relating to the proceedings in Rc.No.EII(2)/377/103423/2006, dated 11.12.2007 on the file of the first respondent and quash the same and direct him to grant petitioner a revolver licence. For Petitioner : Mr.R.Karuppan For Respondent : Mr.C.Ramesh, Addl.Govt.Pleader O R D E R
By consent of both parties, the writ petition itself is taken up for final disposal.
2. Prayer in the writ petition is to quash the order dated 11.12.2007 passed by the respondent and direct the respondent to grant revolver licence to the petitioner and award costs and damages.
3. The case of the petitioner is that he is a practising advocate since 1987 and he was elected as MLA from T.Nagar Constituency in the year 2006 and he is also the District Secretary of Students Wing of AIADMK, South Madras. According to the petitioner, as he is a member of the Legislative Assembly belonging to the opposition party, he has got apprehension of his life and he is receiving anonymous calls and for his personal protection, he applied for arms licence to possess a revolver. Petitioner states that his house in his native place at Thanjavur was destroyed recently by hooligans and his aged father, who was at home, was also assaulted and a cow was also stabbed, apart from damages to the movables in the house. Petitioner's application for the grant of revolver licence was rejected by the impugned order stating that he is involved in three criminal cases in Chennai City and therefore as per the report of the Field Officer and the Local Police, there is compelling reasons to deny licence. The said order is challenged in this writ petition on the ground that the respondent, who is a quasi judicial authority, has not applied his mind independently and solely relied on the report of the Field Officer and Local Police and the impugned order is without any other reason to deny the revolver licence and the petitioner is entitled to get the same under section 13 of the Arms Act, 1959, and the licence can be refused only on certain contingencies specified under section 14 of the Act.
4. The respondent filed counter affidavit by stating that the petitioner applied for Arms Licence on 1.11.2006 for his protection, for safety of his personal belongings and official documents. The application was referred to D3-Ice House Police Station, Chennai. The Local Police not recommended for the issue of Fire Arms Licence on the ground that the petitioner is involved in three criminal cases and the address of the petitioner is temporary. A show cause notice dated 9.7.2007 was issued asking the petitioner as to why his application shall not be rejected as he is involved in criminal cases and 15 days time was given to submit his explanation. It is further stated in the counter affidavit that in spite of giving time, petitioner has not submitted any explanation within the stipulated time and consequently the impugned order dated 18.8.2007 was passed. Insofar as the incident said to have taken place at Thanjavur, petitioner's home town, respondent states that he is not aware of the same as it is not within his purview. Petitioner requested for personal hearing through his advocate on 23.8.2007 and accordingly he was informed to appear personally on 27.10.2007 at 15.30 hours and he was given audience as Member of the Legislative Assembly and not for re-opening his case. In the counter it is further stated that the following three cases are pending against the petitioner:
Sl.
No. Name of the Police Station Crime No. & Section of Law Date of Occurrence Present stage of the case
1.
R-4 Pondy Bazaar P.S. Cr.No.665/2006 u/s.143, 341, 332, 353, 506(II) IPC 13-10-2006 Letter addressed to Secretary, Tamilnadu Legislative Assembly for obtaining permission of the Hon'ble Speaker
2. D-4 Zam Bazaar P.S. Cr.No.760/2007 u/s.143, 147, 188, 341 IPC r/w 412 CP Act.
20-5-2007 Charge sheet sent to Government Advocate for approval
3. D-1 Triplicane P.S. Cr.No.1207/2007 u/s.143, 147, 341, 188, 285, 153, 294(b) IPC, 41 CP Act r/w.7(1)a CLA Act.
7-6-2007 Charge sheet sent for approval of the Deputy Director of Prosecution.
Citing the above said three cases, petitioner was denied of the revolver licence.
5. The learned counsel appearing for the petitioner submits that all the three cases against the petitioner cited above, relate to his political activities and participation in the agitations, as a Member of the Legislative Assembly belonging to the main opposition party and in no case charge sheet is filed even though the date of occurrence is stated as 13.10.2006, 20.5.2007 and 7.6.2007 respectively and therefore the said political cases registered against the petitioner cannot be a ground to deny Fire Arms Licence to possess a revolver, which the petitioner requires for his personal safety.
6. The learned Additional Government Pleader, on the basis of the averments contained in the counter affidavit stated that only because of the three cases pending against the petitioner, he is denied of the revolver licence.
7. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Additional Government Pleader.
8. Admittedly petitioner is an advocate and also an elected Member of the Legislative Assembly from May, 2006, representing T.Nagar constituency of Chennai City. Petitioner applied for revolver licence on 1.11.2006 for his self-protection and for personal safety. Whether the petitioner is in actual need of revolver licence for his self protection, is the question to be decided in this writ petition.
9. Petitioner's house at his native place at Thanjavur District was destroyed by hooligans and the movables kept in the house were also damaged. Petitioner's aged father was assaulted and a cow owned by the petitioner was also stabbed. The said facts are stated by the petitioner in his affidavit filed in support of the writ petitioner. There is no denial of the said facts in the counter affidavit filed by the respondent, except stating that the said incident does not come under the purview of the respondent. It is also stated by the petitioner in the affidavit that the said incident was raised on the floor of the Tamil Nadu Legislative Assembly and the Honourable Chief Minister gave an assurance to the petitioner that immediate action would be taken against the culprits.
10. The reason stated by the respondent in the impugned order dated 11.12.2007 is the petitioner's involvement in three criminal cases viz., Cr.Nos.665 of 2006 of R-4 Pondy Bazaar P.S.; Cr.No.760 of 2007 of D-4 Zam Bazaar P.S.; and Cr.No.1207 of 2007 of D-1 Triplicane P.S. All the above cases are registered against the petitioner for his taking part in the agitations launched by the opposition political party in which the petitioner is a member. Petitioner being an elected MLA belonging to the opposition party, cannot be blamed for taking part in the agitations launched by the party to ventilate the grievances of the general public. Further, no charge sheet is laid in any of the said criminal cases, even though the said cases were registered on 13.10.2006, 20.5.2007 and 7.6.2007 respectively.
11. Petitioner being a native of Thanjavur District, a police report ought to have been obtained from the jurisdictional police, where the petitioner permanently resides. From the perusal of the impugned order it is evident that the Local Police alone are directed to submit report and based on the registration of three criminal cases, the impugned order of rejection is passed.
12. Section 13 of the Arms Act, 1959 (Act 55 of 1959), deals with the grant of licence. The said section contemplates not only calling for report from the the nearest police station, but also conducting of enquiry, if any, as it may consider necessary, the Licensing Authority is bound to pass order. Section 14 deals with the grounds on which the licence can be refused, which is extracted hereunder:
"14. Refusal of licences.-
(1) Notwithstanding anything in section 13, licensing authority shall refuse to grant-
(a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;
(b) a licence in any other case under Chapter II,-
(i) where such licence is required by a person whom the licensing authority has reason to believe-
(1) to be 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 (2) to be of unsound mind, or (3) to be for any reason unfit for a licence under this Act; or
(ii) Where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.
(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.
(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement."
From the perusal of the said section 14, it could be seen that licence could be refused if the Licensing Authority has reason to believe that the applicant is prohibited from getting the licence, is of unsound mind or to be for any reason unfit for a licence or where the Licensing Authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. None of the above reasons are stated for rejection of licence to the petitioner. Section 17 of the Act deals with variation, suspension and revocation of licence. Under Section 17(7) if a person is convicted in a criminal case, on conviction licence can be suspended or revoked by the Licensing Authority. The above provisions establish the fact that mere involvement in criminal cases is not a disqualification for getting Fire Arms Licence to possess a revolver.
13. Here in this case, the criminal cases registered against the petitioner is due to his taking part in the political agitations. No charge sheet is filed in any one of the criminal case till date. Petitioner's apprehension about his personal safety for which the petitioner is seeking revolver licence was not considered by the respondent. In view of the attack on the petitioner's house in his native place at Thanjavur whether the petitioner is required to have a revolver licence for his personal safety is also not considered by the respondent. The respondent herein, who is the Licensing Authority, exercising his quasi judicial powers, is bound to consider all these aspects and if he has got any doubt, he is bound to conduct enquiry by giving opportunity to the petitioner. In this case, the respondent without conducting any enquiry, has passed the impugned order of rejection. Hence the principles of natural justice is also violated in this case. If really the respondent conduct enquiry and find out the reasons for the request of the petitioner, then only the respondent would be in a position to know whether the petitioner actually requires revolver licence for his personal safety or not. No adverse report other than the three criminal cases registered against the petitioner for his participation in the political agitation is also available against the petitioner. Hence I am of the view that the impugned order passed by the respondent, solely relying on the said criminal cases registered against the petitioner for participating in the political agitation is unsustainable and the respondent is required to consider the request of the petitioner on the fact about the genuine need of the petitioner to have revolver licence for his personal safety or not on the background of the petitioner, wherein he is living and also in accordance with section 14 of the Arms Act, 1959.
14. In the result, the impugned order dated 11.12.2007 is set aside and the respondent is directed to consider the request of the petitioner afresh in the light of my above observations and pass fresh orders within a period of four weeks from the date of receipt of copy of this order. No costs. Connected miscellaneous petition is closed.
vr To The Commissioner of Police, Egmore, Chennai 8