Anil Kumar vs State of U.P. and Others

M. Katju, J.—This writ petition has been filed for a writ of certiorari against the impugned orders dated 15-2-92 and order dated 27-6-92.

I have heard Shri Noor Ullah holding the brief of Sri A.S. Diwekar counsel for the Petitioner and learned standing Counsel. On 1-9-92 this Court granted one months time to the standing counsel to file counter affidavit but no counter affidavit has been filed In the circumstances I am treating allegations in the petition to be correct

The Petitioner had applied for licence for a revolver in 1990 before District Magistrate Firozabad. This application was rejected by the District Magistrate by order dated 22-12-90. Thereafter the Petitioner filed an appeal before the Commissioner. Agra Division, who allowed the appeal on 22-10-90 and reminded the matter to the District Magistrate vide Annexure No. 2. Thereafter the District Magistrate again dismissed the application on 15-2-92 vide Annexure 3 and his order was upheld in appeal on 27-6-92 vide order Annexure No. 6. Aggrieved this petition has been filed before this Court.

A perusal of the order of the District Magistrate dated 15-2-92 shows that (here was BO averment or material Indicating that there was any dacoity murder or any other heinous crime committed in the house of the applicant. Hence in view of the relevant G.O. of the government dated 23-3-90 the order of the District Magistrate was affirmed in appeal by the Commissioner on 27-6-92 who has held that the application cannot be allowed. A perusal of this government order dated 23-3- 90 (a copy of which has been annexed with this petition) shows that the government has directed that arm licences be granted only to such person who was victim of a heinous crime because of which he was feeling unsafe or the heirs of such licence-holder who are physically unlit, or to the government officials who needed the arm in connection with the performance of official duties

A supplementary affidavit has also been filed by the Petitioner annexing government order dated 31-3-92 in which guidelines for grant of arm licence had been prescribed Clause 5, 6 and 7 of this G.O. is substantially similar to the Government order dated 23-3-90.

In my opinion the G.Os dated 23-3-90 and 31-3-92 are unconstitutional as being violative of Article 14 and 21. of the Constitution.

I have already held in Ganesh Chandra Bhatt v. D.M. Writ Petition No. 4723/91 decided on 12-3-93 that the right to carry arras is a fundamental right under Article 21. In the aforesaid judgment I have discussed the matter in great detail and have noticed the fact that now-a-days most of the criminals are armed with Ore arms of all kinds whereas decent persons are unarmed. The contents of Article 21 of the Constitution have beers explained by the Supreme Court in its recent decisions which I have discussed in detail in my aforesaid judgment, and hence, I need not repeat or elaborate on the same.

I have also observed that it is unfortunate that the State authorities are not now-a-days providing adequate protection to the law abiding citizens. It is the duty of the State to provide adequate protection to the citizens, but since that is not being properly done the citizens must defend themselves.

The right of self defence is to be deemed part of Article 21 of the Constitution, and this right is also contained in Section 97 of IPC.

This right must be an effective right and It cannot be effective if the criminals are armed with fire arms while the law abiding citizens are unarmed.

In my aforesaid judgment I have quoted the Statement of Objects and Reasons for enacting this Arms Act, 1959. The very first paragraph of the Statement of Objects and Reasons states:

The Indian Arms Act, 1978, was intended to disarm the entire nation. Even after independence, the law declaring "swords, daggers, spears, spearheads, bows and arrows'' as ''arms'' has been allowed to continue unaltered on the Statute Book. The rigours of the Arm Act and rules thereunder continue to make it difficult for law abiding citizen to possess fire-arms for self defence whereas terrorists dacoltgangs and other anti-social or anti-national elements are using not only civilian weapons but also bombs, hand grenades, Bren guns, sten guns 303 bore service riflles and levolvers of a military type, for perpetrating heinous crime against society and the State

It further states:

The objects of this Bill are:

(a) to exclude knives, spears, bows and arrows from the definition of ''arms'';

(b) to classify fire-arms and other prohibited weapons so as to ensure--

(i) that dangerous weapons of military patterns are not available to civilians, particularly the anti-social elements;

(ii) that weapons for self-defence are available for all citizens under licence unless their antecedents or propensities do not disentitle them for the privilege; and

(iii) that fire arms required for training purposes and ordinary civilian use are made more easily available on permits

In my aforesaid judgment I have held that the policy of the Arms Act, 1959 was that applications for non prohibited arms should normally be allowed and this must be done within three months of the application and it is only for very strong reasons that an application should be rejected. If the application is not disposed of within three weeks, it is deemed to be allowed. In the present case the application was rejected on the ground that no henious crime in the house of the applicant was committed This is a wholly arbitrary ground, and such ground cannot be upheld as it will mean that a person can obtain a licence only when in his house some family members are killed by the criminals or he or his family members are seriously assaulted. Such an unreasonable view cannot be accepted by this Court In my opinion the G.Os. dated 23-3-90 and 31-3-92 are wholly arbitrary and hence violative of Article 14 of the Constitution. They are also violative of Article 14 of the Constitution. They are also violative of Article 21 in view of the decision in Ganesh Chandra Bhatt''s case (supra). Also these G.O s are illegal because there is no provision of the Arms Act under which they could have been issued, and hence they are without jurisdiction.

In view of the above discussion the petition is allowed. The impugned orders dated 15-2-1992 and 27-6-1992 as well as the government orders dated 23-3-90 and 31-3-1992 are hereby quashed No order as to costs.