Madras High Court
The Commissioner Of Police vs / on 30 September, 2008
Author: F.M.Ibrahim Kalifulla
Bench: F.M.Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30..09..2008 CORAM HONBLE Mr.A.K.GANGULY, CHIEF JUSTICE and HONBLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA W.A.No.774 of 2008 & M.P.No.2 of 2008 ----------- The Commissioner of Police, Egmore, Chennai 8. ..Appellant. /Vs./ V.P.Kalairajan, A5, Lloyds Colony, Royapettah, Chennai 14. ..Respondent. PRAYER: Appeal filed against the order-dated 03.06.2008 made in W.P.No.157 of 2008 on the file of this Court. ------------ For Appellant ::Mr.Raja Kalifulla, Govt. Pleader For Respondent :: Mr.R.Karuppan ----------- J U D G M E N T
The Honble The Chief Justice This appeal by the Commissioner of Police, Chennai City impugning the judgment and order dated 03.06.2008 passed by a learned Judge of the writ court came up for hearing before this Court on 13.08.2008. On that date, learned counsel for the appellant was present, but nobody appeared for the respondent. As such, the appeal was taken up for hearing. This Bench heard the matter and found that the order-dated 11.12.2007, passed by the appellant, was challenged in the writ petition. By the said order, the appellant refused to grant arms licence to V.P.Kalairajan, the sole respondent inter alia on the ground that there are three criminal cases pending against him in various police stations in the City of Chennai. Against the said order of refusal to grant licence, there is a specific provision for filing an appeal under Section 18 of the Arms Act (hereinafter referred to as the Act). Without filing any appeal, the writ petition was entertained and this Bench held when a specific right is created under the statute namely, the right to get an arms licence, and in case of denial of such right, a special remedy under Section 18 has been provided under the statute, that remedy should be exhausted first before filing a writ petition. The Court further held that such rights are given uno flato. Therefore, without exhausting the said remedy, filing of the writ petition is not permissible, and as such, the order passed on the writ petition was set aside and liberty was given to the sole respondent to file an appeal before the appellate authority within 30 days and if such an appeal is filed, the appellate authority was directed to consider the same without insisting on the period of limitation, since the matter was kept pending before this Court. Inter alia with the aforesaid finding, the appeal was disposed of.
2. After the disposal of the appeal, learned counsel for the respondent filed a petition for restoration, being M.P.No.2 of 2008. Thereafter, on the restoration petition being filed, the matter was restored and was heard on merits in the presence of the parties.
3. When the appeal was heard after restoration, the facts in detail, which were not placed or noticed when the order was passed by this Bench on 13.08.2008, came to be noticed and were considered by this Court and that is why this Bench is now taking a different view.
4. From the materials placed on record, it appears that the writ petitioner, the respondent herein is a practising lawyer since 1987 and is an elected M.L.A from T.Nagar constituency in 2006 and he is also the District Secretary of Students Wing of AIADMK, South Madras. It was stated that since the respondent was receiving some threatening and anonymous calls, he had applied for arms licence to possess a revolver. It was his case that a couple of months back his house was attacked by some hooligans in Thanjavur and some of the movable properties were taken away and his aged father was assaulted and his cow was also injured. It has been stated in view of such incident, the Honble Chief Minister gave an assurance on the floor of the assembly that action would be taken against the culprits, but, according to him, no action was yet taken. It is further alleged that the miscreants raided his house with the target on his life. Since the respondent was not there, he was saved. It is, further, stated that the respondent thought that after this happening, his licence would be granted for protection of his life. But to his shock and surprise, his application was rejected without affording him an opportunity of hearing. The case of the respondent is that the said rejection was based only on the ground that there are three criminal cases pending against him. But, however, ultimately an oral hearing was given to him and the respondent went and appeared before the licencing authority. His further case is that the criminal cases relate to political incidents and they are false cases. According to the respondent, the first case was slapped on him when the respondent went to stop rigging in some Corporation Election, and his allegation is that he was beaten up by the police and kept in custody. The second case is one relating to public demonstration in front of Government Hospital and it was a case of slogan shouting only for 20 minutes. The third case was slapped upon him when he went to meet his party men who were arrested for having done the scavenging work due to the failure of the state machinery. His further allegation is that since all the cases are bailable in nature he was released immediately, and for these cases his licence should not be refused. Under such circumstances, the writ petition was filed and as he belongs to the opposition party, the departmental appeal, if filed, will be in vain.
5. Learned Government Pleader, who appeared before us in support of the appeal, very fairly produced the entire file. From the file it appears that the order of rejection dated 18.08.2007 was made on the following ground: -
Rc.No.EII(2)/377/103423/2006 Office of the Commissioner of Police, Chennai Police, Chennai 8. Dated. 18.08.2007 REJECTION ORDER Sub: Chennai Police Arms Act & Rules Grant of fresh arms Licence requested by Tr.V.P.Kalai- rajan, MLA Rejection Order Issued Regarding. Ref: Application dated 27.10.2006 of Tr.V.P.Kalairajan, MLA Received by this Office on 01.11.2006. 2) This Office Show Cause Notice in even no. dated 09.07.2007
Tr.V.P.Kalairajan, MLA residing at No.A-5,Lloyds Road, Royapettah, Chennai 14 has applied for the grant of fresh Arms Licence to possess one N.P.Bore Revolver/Pistol for his self protection.
2. As the applicant is involved in three criminal cases in various Police Stations in Chennai City, the applicant was issued with a Show Cause Notice as to why his request for grant of fresh Arms Licence should not be rejected in view of his involvement in three Criminal Cases and calling upon him to submit his explanation within 15 days from the date of receipt of the notice, failing which orders would be passed ex-parte on merits.
3) The applicant has received the Show Cause Notice on 11.07.2007 and he has not given any explanation so far, for the Show Cause Notice issued to him.
4) Since the applicant is involved in three criminal cases and that he has not sent any reply for the Show Cause notice served on him on 11.07.2007 itself, his request for Arms Licence is rejected.
Sd/ G.NANCHIL KUMARAN Commissioner of Police The order of rejection was received by the wife of the respondent namely, K.Vinotha on 19.08.2007.
6. Dealing with the said order of rejection, the respondent replied by a letter dated 22.7.2007 explaining the facts of the three criminal cases and also sent a lawyers letter on 23.8.2007 in which a prayer for personal hearing was made. Thereafter, the respondent was asked to appear for a personal hearing on 27.10.2007 in the Office of the Commissioner of Police. The respondent attended the hearing , and after giving him a hearing, a further order was passed on 11.12.2007, which runs as follows: -
PROCEEDINGS OF THE COMMISSIONER OF POLICE, CHENNAI POLICE EGMORE, CHENNAI 8.
PRESENT: Tr.G.NANCHIL KUMARAN, I.P.S Rc.No.EII (2)/377/103423/2006 Dated : 11.12.2007 Short Title : Chennai Police Arms Act and Rules Issuance of Fresh Arms Licence Orders Issued Read : 1. His application dated 27.10.06(Received by this Office on 1.11.06) 2. Show Cause Notice even no.dated 9.7.2007 3. This Office order even no. dated 18.8.2007 4. The applicant petition dated 23.8.2007(Received by this Office on 24.8.07) 5. This Office letter even no.dated 28.9.07. *******
Thiru V.P.Kalairajan, MLA, T.Nagar Constituency had applied for fresh Arms licence for self protection and also for the safety of his personal belongings and official documents. His request was rejected on the grounds that he is involved in 3 Criminal Cases in various police stations in Chennai City. Following it, based on the request of the applicant, the applicant was granted permission to appear for personal hearing on 27.10.2007 at 15.30 hours at the Office of the Commissioner of Police.
2. Accordingly, the applicant appeared for personal hearing at 15.30 hours on 27.10.2007 and put forth the following points: -
i.All the three cases in which he is involved are bailable cases.
ii.Orders rejecting his request was passed without considering his explanation.
iii.The three cases in which he is involved relate to only public causes.
3. His above submissions were considered. As per the report of the field officers, the local police is having compelling reasons to deny the licence. Considering the same, the request of the applicant for the grant of fresh arms licence is rejected.
Sd/ G.NANCHIL KUMARAN, Commissioner of Police, Chennai City.
To Thiru V.P.Kalairajan, MLA A-5, Lloyds Road, Royapettah, Chennai 14 Through Inspector of Police D-3 Ps- for Service and return the back.
Copy to CPO immediately.
Copy to Inspector of Police D 3 Ps.
Copy to AC Royapettah Copy to DC Mylapore Copy to JCOP South
7. Before the learned writ court, a counter affidavit was filed by the Commissioner of Police, the Licensing Authority. In the said affidavit, it has been stated that the local police did not recommend for the issuance of fire arms licence on the ground that the respondent is involved in three criminal cases and his address is temporary (see paragraph-6 at pages 36 & 37 of the typed set) and therefore, a show cause notice was issued to the respondent asking him to show cause why his prayer should not be rejected as he is involved in three criminal cases. Even though the show cause notice is acknowledged by the respondent, he did not give any reply within 15 days time and as such the rejection order was passed. Thereafter, the respondent made a request for personal hearing through his advocates letter and accordingly, he was asked to appear for a personal hearing on 27.10.2007 in the Office of the Commissioner of Police. In the said counter affidavit, in paragraph-7, it has been stated by the Commissioner of Police that the said hearing was given as the petitioner was a member of the Legislative Assembly and there was no question of reopening or reconsidering the application.
8. In paragraph-8, the same stand is reiterated stating that the petitioner is involved in three criminal cases, the particulars of which were given. In paragraph-9, it has been stated that the licencing authority has to evaluate the report submitted by the police authority objectively with due care and caution and also the entire law and order in the locality and safety of the general public. Thereafter, it has been stated the subjective satisfaction of this respondent based on sound reasoning cannot be questioned by the petitioner. The petitioner has no locus standi to question the reasoned order or has he got any fundamental right to hold a weapon. (See page 38 of the typed set). In paragraph-10, it has been stated that the pendency of three criminal cases in which the petitioner is involved is the compelling reasons for rejection of his application. In the said paragraph it has also been stated that the rejection of the petitioners application was passed as this respondent (the licensing authority) deemed it necessary for the safety of the public peace and public safety (See page 39 of the typed set)
9. On these facts, the learned Judge of the writ Court found that all the criminal cases against the respondent are due to his participation in political agitations and no charge sheet was filed in any of the criminal case, and also came to the finding that in view of the attack on the respondents house at his native place the requirement of the respondent to have a licence was never considered by the Licensing Authority. The learned Judge also held that before passing the impugned order, as no enquiry has been held, the principles of natural justice has been violated. Therefore, the learned Judge held that the impugned order, which has been passed by solely relying on the criminal cases registered against the respondent in view of his participation in political agitations cannot be sustained, and the police authorities are required to consider the matter afresh, on the need of the respondent to have a revolver licence for his personal safety, in accordance with Section 14 of the said Act. The learned Judge also held that none of the reasons enumerated in Section 14 of the said Act for rejection of licence applies in the case of the respondent. The learned Judge also held that under Section 17 of the said Act, it is provided that a licence can be validly suspended or revoked, if the applicant is convicted in any criminal case, and therefore, on the respondents conviction the licence can be suspended or revoked by the Licensing Authority, and as such, the learned Judge set aside the impugned order and directed the authorities to consider the request of the respondent for a licence afresh in the light of the observations made and pass an order within a certain time frame.
10. From the aforesaid material, which have been considered by this Bench, the following positions emerge.
(i)the respondent is a member of Legislative Assembly and an advocate of Madras High Court, and he requires a licence for a revolver for his personal safety in the background of the facts relating to attack on his house, elderly father and his cattle these facts have not been denied in the counter.
(ii)He has made an application for licence of a non-prohibited arm and it was rejected initially on the ground that the respondent did not file reply to the show cause notice.
(iii)Thereafter, the respondent made a detailed representation by sending a lawyers notice dated 23.08.2007, in which a prayer was made for personal hearing.
(iv)Pursuant to that, a personal hearing was given, but the prayer of the respondent for licence was again rejected in view of his alleged involvement in those criminal cases.
11. In the counter affidavit, which has been filed in this case, the stand taken by the Licensing Authority is that the said hearing was given, as the petitioner was a member of the Legislative Assembly, but the said hearing was not given to him for the proper reconsideration of the respondents case. In this connection, the exact stand taken by the Licensing Authority in paragraph 7 of the counter affidavit is set out below:-
..The petitioner has made a request for personal meeting through his advocates on 23.08.2007. Accordingly, he was informed to appear personally on 27.10.2007 at 15.30 hrs. at office of the Commissioner of Police, Chennai Police, Chennai 600 008. the averments contrary to the above facts are denied. Since, already final orders have been passed, the question of re-opening or reconsidering the application did not arise. He was given audience as a member of the Legislative Assembly.
12. From the aforesaid stand of the Licensing Authority, it is clear that the hearing which was given is just an empty formality and was given out of deference to the applicants status as a member of the Legislative Assembly. It was not given for the purpose of reconsidering the matter afresh. Therefore, such a hearing is no hearing in the eye of law. This Court comes to this conclusion in view of the stand taken by the appellant in his own counter affidavit. The further stand taken in the affidavit is that the application for licence filed by the applicant was rejected on the ground of public safety and public peace. (See paragraph 10 of the counter at page 39 of the typed set).
13. The details of those three criminal cases had been disclosed before us. The gist of those cases is set out herein below.
(i) Gist of the case pending in D1 Triplicane Police Station:
On 07.06.2007 at about 10.00 hours when D1 Triplicane Station Inspector and other policemen are doing bondobust duties under the supervision of DC Triplicane District and Asst. COP at Walajah Road, Anna Road Junction (Near Anna Statute), Tr.V.P.Kalairajan, MLA, AIADMK South Chennai District Secretary and other AIADMK volunteers under his leadership suddenly without obtaining police permission assembled as Anti-law Mob to protest against the news items appeared in the Murasoli newspaper in connection with AIADMK Ex Chief Minister and shouted against the government. They also burnt the Murasoli newspaper at public places and prevented the vehicles and public to pass on, thereby creating danger to the peaceful movement of vehicles and pedestrians in Anna Salai. Due to this traffic in Anna Salai came to a halt. Thereafter, Tr.V.P.Kalairajan, MLA was informed that yourself and your party men without obtaining police permission and intimation assembled here is against law since city police Act 41 is in force, and they were asked to disperse at once otherwise they will be arrested. But inspite of repeated requests, they agitated near Anna Statue and shouted against the government using filthy language. Since they shouted with the intention to create lawlessness, as a precautionary measure Tr.V.P.Kalairajan, MLA and 407 others including 17 women total 408 persons were arrested and name listed. A case in D1 Triplicane Police Station in Crime No.1207/07 u/s.143, 147, 341, 188, 285, 153, 1294(b) IPC 41AP Act r/w 7(1) & CLA Act was registered against them and they were produced before 13th Metropolitan Magistrate Court on the same day.
The Honble Judge released them on own bail on that day itself.
The case is pending trial in the Court.
(ii) Gist of the case pending in D4 Zambazaar Police Station:
On 19.05.2007 night, a girl named Roopika, aged 8 year admitted in the Kasthuriba Gandhi Hospital, Triplicane for treatment due to her deteriorating health conditions and inspite of the treatment given, the child was expired. The opponents staged road roko agitation in Bharathi Salai on 20.05.2007 from 16.35 hrs to 16.50 hrs. stating that the girl died due to lack of treatment and the carelessness of the doctors and agitation made was a crime.
(iii) Gist of the case pending in R4 Pondy Bazaar Police Station:
The opponents Kalairajan and 28 others on Chennai Corporation Election day have involved in a crime by preventing voters to cast their votes thereby fear and causing obstructions and not allowing government servants to do their duties.
14. The status of these three cases had been disclosed in paragraph 8 of the counter affidavit filed by the Licensing Authority.
S.No. Name of the P.S. Crime No. Date of occurrence Present stage & Section of law
1. R4 Pondy Bazaar Cr.No.665/06 13.10.2006 Letter addressed u/s.143, 341, 332 to Secy. T.N. 353, 506(ii) IPC Legislative Assembly forobtainingpermission of the Honble Speaker.
2. D4 Zam Bazaar Cr.No.760/07 20.05.2007 Chargesheet sent to u/s.143, 147, 188, Govt. Advocate for 341 IPC approval.
r/w. 41 CP Act
3. D1 Triplicane Cr.No.1207/07 07.06.2007 Chargesheet sent for u/s.143, 147, 341, approval of the Deputy 188, 285, 153, 294(b) Director of Prosecution.
of IPC, 41 CP Act r/w. 7(1) of CLA Act.
15. It is clear from the aforesaid particulars that the cases are petty cases and most of the offences are bailable and in none of these cases charge sheets have been filed against the applicant. This was the position when the counter affidavit was filed by the Licensing Authority before this Court in January, 2008 and the said position still continues. In the impugned order dated 11.12.2007, which had been passed by the Licensing Authority refusing licence and which had been set out above, the only reason given is about those three cases. The reasoning of the said order is as follows:
His above submissions were considered. As per the report of the field officers, the local police is having compelling reasons to deny the licence. Considering the same, the request of the applicant for the grant of fresh arms licence is rejected.
16. This Court has not been informed as to what are the compelling reasons. In the counter affidavit of the Licensing Authority, it has been stated that the pendency of three cases in which the applicant is involved is the compelling reasons for rejection of his application. (See paragraph 10 at page 39 of the typed set). So, apart from the applicants alleged involvement in those three cases, there is nothing against the applicant for which the licence has been denied.
17. In these factual background, let us examine the provisions of Section 14 of the said Act, and for a better appreciation of the points which have come up for consideration. The provisions of Section 14 of the said Act is set out below:
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.
18. It is nobodys case that the petitioner has made an application for grant of licence for prohibited arms or prohibited ammunition. Prohibited arms and prohibited ammunition are defined under Section 2(h) and 2(i) of the said Act. The petitioners application is for a licence for a revolver. It is a non-prohibited arms, and the said licence has been asked by the petitioner for his personal safety. Prayer for such a licence can be refused by the Licensing Authority in accordance with the provisions under Section 14(1)(b) of the said Act. In Section 14(1)(b) there are sub-Clauses (i) and (ii). Sub-Clause (i) is further divided into (1),(2) and (3). Before any application for licence can be refused by the Licensing Authority under these categories the Licensing Authority must have reasons to believe that the applicant falls in any of those categories of Clauses (1), (2) and (3) of Section 14(1)(b)(i). The concept of reasons to believe will govern cases of refusal of licence under Section 14(1)(b)(ii).
19. The expression reasons to believe which is the governing words in the said statute has been interpreted by different courts in the context of different statutes. This expression has already acquired a jurisprudential connotation.
20. This Court is of the opinion that when exercise of power of a statutory authority has to be based on certain reasons which such authority must believe to exist, such exercise of power cannot be left to the subjective satisfaction of the authority. Therefore, an erroneous stand has been taken by the Licensing Authority in his counter affidavit by saying in paragraph 9 the subjective satisfaction of this respondent based on sound reasoning cannot be questioned by the petitioner. This stand is totally wrong. First of all, the satisfaction of the Licensing Authority cannot be subjective and secondly, the applicant for such licence has always the right to question it, and the right of appeal under Section of the said Act recognizes such a statutory right of an applicant to question the exercise of power by the Licensing Authority. Therefore, it is clear that the Licensing Authority has proceeded on an erroneous basis in the exercise of his power under Section 14 of the said Act.
21. The expression reasons to believe has come up for consideration before the Honble Apex Court in connection with several cases, some of which are noted hereinunder.
22. In S.Narayanappa and Others Vs. The Commissioner of Income-tax, Bangalore, AIR 1967 SC 523 the learned Judges held while considering the said expression reasons to believe in Section 34 of the Income-tax Act, 1922 that the said expression does not mean a purely subjective satisfaction on the part of the authorities. The learned Judges held that such belief must be held in good faith and cannot be a mere pretence, and also went to the extent of saying that it is open to Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section. While formulating the said principles, the learned Judges also relied on a decision of the Supreme Court in the case of Calcutta Discount Co. Ltd. Vs. Income-tax Officer, AIR 1961 SC 372.
23. In the case of Sheo Nath Singh Vs. The Appellate Assistant Commissioner of Income-tax (Central) Calcutta and others, reported in AIR 1971 SC 2451 the learned Judges held that the words reasons to believe must be that of an honest and reasonable person based upon reasonable grounds. In forming the reasonable belief the officer cannot act on a mere suspicion, gossip or rumour. The learned Judges held that the officer will be acting without jurisdiction if the reasons for his belief are not relevant or not material within the meaning of the Section and the Court can always examine this aspect though the sufficiency of the reasons cannot be investigated by the Court. (See paragraph 10 at page 2454 of the report).
24. The same principles have been reiterated by the Supreme Court in the case of Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam, Kerala Vs. M/s.T.P.Rantasabhapaty, etc., AIR 1981 SC 1362. The learned Judges held that the words reasons to believe are stronger than the words is satisfied and the belief entertained by the officer must not be arbitrary or irrational, but it must be on reasons which are relevant and material. Of course, the Court cannot go into the sufficiency of the reasons, but the Court can certainly examine whether the reasons are relevant and have a bearing on the matters in regard to which the officer is required to entertain the belief. So, there must be some rational and intelligible nexus between the reasons and the belief, so that, anyone properly instructed on facts and law could reasonably entertain the belief. (See paragraph 6 at pages 1366 and 1367 of the report)
25. In the case of Dr.Pratap Singh and another Vs. Director of Enforcement, Foreign Exchange Regulation Act and others, reported in AIR 1985 SC 989 the learned Judges held in paragraph 10 that the expression reasons to believe is not synonymous with subjective satisfaction of the officer. The belief must be held in good faith; it cannot be merely a pretence, and it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section. In coming to this conclusion, the learned Judges relied on the decision of the Apex Court in Calcutta Discount Co. Ltd. Vs. Income-tax Officer, (supra) and also the decision in Gopikrishan Agarwal Vs. R.N.Sen, Assistant Collector of Customs, AIR 1967 SC 1298.
26. In the case of A.S.Krishnan and another Vs. State of Kerala, AIR 2004 SC 3229 the learned Judges have held in paragraph 9 at page 3234 of the report that the expression reasons to believe is a state of mind and it is not the same thing as suspicion or doubt. Reasons to believe is a higher level of state of mind. The learned Judges held that a person is presumed to have a reason to believe if he has sufficient cause to believe a thing but not otherwise.
27. In the instant case, the Licensing Authority in his affidavit, as noted above, has proceeded on the basis that it is within its subjective satisfaction to decide, and the hearing which was given to the respondent was nothing but an empty formality, as no hearing was given. This Court is of the opinion that such exercise of power by the Licensing Authority is wholly without jurisdiction.
28. In AIR 1968 Allahabad 383 a Division Bench of the Allahabad High Court in the case of State of U.P. Vs. Jaswant Singh Sarna held that even though there is no express requirement under Section 14 of the said Act on the part of the Licensing Authority to afford a hearing to the applicant before renewal of licence, the obligation to hear is a necessary concomitant of the power to refuse, since the power is a quasi-judicial in nature, and such a requirement of hearing must be imported in the exercise of power. (See paragraph 10 at pages 385 & 386 of the report)
29. In Dr.Harisingh Harnamsingh Khalsa Vs. E.F.Deboo and another, reported in AIR 1969 Gujarat 349 a similar view has been taken in respect of the provisions of the said Act and the learned Judge held that the Arms Act being post-constitutional statute must follow the mandate of Article 19(1) of the Constitution. The learned Judge further held that the Licensing Scheme under the said Act must be interpreted on the basis that it confers a discretion on the authority, and such authority must act in accordance with the essential principles of natural justice of prior notice and reasonable opportunity to be heard, and on the objective existence of the grounds the power can be exercised. Learned Judge further held that the Parliament has not intended to provide an arbitrary power of summary interference with the rights of a licensee to get a licence. Such a construction would amount to unreasonable restriction on the fundamental right of a citizen to hold the firearm, which is a property right guaranteed under the Constitution. (See paragraphs 5 to 8 of the report)
30. This Court is in respectful agreement with the aforesaid propositions laid down by the Allahabad and Gujarat High Courts.
31. In the context of the aforesaid legal position about the provision of the Licensing Scheme and the said Act, the action of the Licensing Authority has to be judged. Here the licence has been denied to the applicant on the ground of public safety and public peace.
32. Public safety and public peace has not been defined under the said Act. But, in the case of Romesh Thappar Vs. The State of Madras, AIR 1950 SC 124 public safety has been equated with the concept of public order (See paragraph 7 of the judgment at page 127).
33. In the case of Dr.Ram Manohar Lohia Vs. The State of Bihar and another, AIR 1966 SC 740 the decision in the case of Romesh Thappar (supra) was relied upon. In the said decision it was held that public order is an expression of wide connotation and signifies the state of tranquility which prevails among the members of the political society. The learned Judges in paragraph 51 of the judgment distinguished the concept of public order from law and order. Learned Judges said that every breach of peace does not lead to public disorder and does not come within the concept of public order. The learned Judges explained the same by saying when two drunkards quarrel and fight there is disorder but not public disorder. Even if two fighters were of rival communities and one of them tried to raise communal passions, the problem is one of law and order but it raised the apprehension of public disorder. In paragraph 52 of the said judgment the learned Judges explained the three concepts namely., public order, law and order and security of State by saying as follows:-
One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
34. The aforesaid formulation in the case of Ram Manohar Lohia (supra) is followed subsequently by the Supreme Court also in the case of Kishori Mohan Bera Vs. The State of West Bengal reported in (1972) 3 SCC 845 and various other cases.
35. Going by those principles, it appears that since public safety and public peace is equated with the public order, so the Licensing Authority must have reasons to believe that by allowing the respondent the licence to possess a revolver, public order will be disrupted. Disruption of public order means a disruption in the even tempo of life of the community. But, the admitted facts of the case do not show the respondents alleged involvement in those petty cases amounts to any disruption in the general tempo of life of the community. The cases are, obviously, petty cases and most of them are bailable, and in none of the cases the respondent has been chargesheeted and they are kept pending for months together.
36. This Court is, therefore, of the confirmed opinion that mere participation of the respondent in those cases cannot bring about a disruption of public order and for such participation his application for arms licence cannot be refused on the ground of public safety and public peace. Therefore, the decision of the Licensing Authority is wholly illegal and cannot be sustained.
37. On the question of non-exhaustion of statutory remedy, this Court finds from the affidavit filed by the Licensing Authority that the hearing which was given to the applicant was just an empty formality, and it was not an effective hearing, whereas from the cases discussed above, it appears that such a hearing is called for.
38. Apart from that the statutory function which has been discharged by the Licensing Authority was done on a subjective satisfaction as was stated in the affidavit. This Court is unable to accept the said contention. The statutory function must be on an objective basis and the Licensing Authority must act in a quasi-judicial manner, which he has failed to do, as it appears from the affidavit filed by the Licensing Authority itself. This Court also holds that the applicants participation in those petty criminal cases for a public cause cannot constitute a violation of public peace and public safety. So, the entire perception of the Licensing Authority and the exercise of his power are wholly contrary to the statutory scheme of licence and also in violation of the principles of natural justice. In such a case, where the authority is acting wholly without jurisdiction and such action goes to the root of the matter, and the existence of statutory remedy cannot be a bar. It is, equally, well settled that existence of statutory remedy does not take away the jurisdiction of the Court. It only operates as a restraint on the exercise of discretion by the writ Court. But, in the facts and circumstances of this case, this Court feels that having regard to the totally erroneous perception of the Licensing Authority, which has acted in denial of the principles of natural justice, the writ petition should be entertained. In coming to the said conclusion, this Court relies on the Constitutional Bench judgment of the Supreme Court in the case of State of U.P. Vs. Mohammad Nooh, AIR 1958 SC 86 . Explaining the principles where the Court should entertain a writ petition despite the existence of statutory remedy, Chief Justice S.R.Das expressed himself in such a felicitous language that I can only quote His Lordships words:
11. . there may be conceivably be cases and the instant case in point where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior courts sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available (Para 11, Page 94 of the report)
39. The said principles in Mohammad Nooh have been followed by the Supreme Court in a large number of cases even as late as in Whirlpool Corporation Vs. Registrar of Trade Marks, (1998) 8 SCC 1.
40. For the reasons above stated, this Court cannot uphold the order passed by the Licensing Authority. The appeal is dismissed. The impugned order of the Licensing Authority is quashed. This Court directs the Licensing Authority, the appellant herein, to consider the respondents application for grant of licence afresh, and if there is no other criminal cases except the ones which have been mentioned herein above, the respondents application for licence must be favourably considered on merits within a period of four weeks from date. M.P.No.2 of 2008 filed for the restoration of the appeal is ordered. No costs.
(A.K.G., C.J.) (F.M.I.K., J.)
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Index: Yes /No Internet: Yes / No pv/sm Note to Office: Issue a copy of this order urgently.
THE HONBLE THE CHIEF JUSTICE and F.M.IBRAHIM KALIFULLA, J.
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sm/ Pre Delivery Judgment in W.A.No.774 of 2008
30..09..2008.