Chhotey Lal vs State of U.P. and Another

A.P. Sahi, J.—Heard learned Counsel for the Petitioner and the learned standing Counsel.

The ground taken for cancellation of the Arms licence of the Petitioner is the pendency of two criminal cases.

During the pendency of this writ petition and after the disposal of the appeal by the Commissioner, it is contended that the Petitioner has been acquitted in both the cases. It is, therefore, obvious that these subsequent events cannot in any way control the decision making process of the District Magistrate or the Commissioner. Accordingly, the same cannot be a ground for quashing of the order. Apart from this, the authority may have to consider as to whether the word ''conviction means final conviction'' as held by this Court in the decision of Kunwar Bahadur Vs. Union of India (UOI) and Others, The Petitioner will have to satisfy as to whether any appeal has been preferred or not and as to whether any further proceedings have been taken in this regard or not.

There is another aspect which deserves attention. The presumption of innocence comes to an end once a conviction is recorded. The position does not improve further even if the judgment is put in jeopardy in appeal. An appellate Court at the best during appeal either grants bail or exercises power to stay the execution of the sentence. It does not have the inherent power to stay or suspend the sentence itself. See B.R. Kapur v. State of Tamil Nadu 2001 (7) SCC 231 Para 34.

Conversely, on acquittal of a criminal charge a person can be presumed to have not been found guilty of an offence deserving punishment and can also be presumed to have not committed the offence at all. In other words he can be absolved of being not involved at all or because of having been falsely implicated. There are yet other circumstances of being acquitted on account of want of evidence or upon being given the benefit of doubt. The principles that have been enunciated are primarily rested on two broad propositions.

Every man is innocent unless he is proved to be guilty, and Every man is suspect unless he proves himself to be not guilty.

It is necessary to clarify the law on the impact of an acquittal in a criminal case. This aspect is no longer res-integra and is settled by some celebrated decisions of the Apex Court. To quote a couple of them, reference may be had to the view of Hon''ble Y.V. Chandrachud and Hon''ble Bhagwati, JJ., in para 9 and that of Hon''ble Sarkaria, J. in Paras 32 and 33 in the decision of Dilip Kumar Sharma and Others Vs. State of Madhya Pradesh, as follows:

When a person who is sentenced to imprisonment for life commits a murder, the previous conviction assumes a graver proportion and becomes an aggravating circumstance. But the aggravation is on the assumption that the previous conviction is lawful and valid. An order of acquittal in regard to the previous offence wipes out the guilt and turpitude attaching to the previous conviction, for, the true implication of an acquittal is as if the offender did not commit the offence for which he was tried, no matter whether the acquittal is founded on benefit of doubt or rests upon an overall rejection of the prosecution case.

The sequiter that the order of acquittal implies the innocence of the accused is not dependent upon the stage of the Court proceeding at which the order was passed but it depends, plainly, upon the fact of acquittal itself. Therefore, if a Court, whether of the first instance or otherwise, finds on the date on which it records its decision that the accused before it is no longer under a sentence of life imprisonment, it cannot u/s 303 sentence him to death. On the date when the subsequent offence of murder was committed, the accused might have been under a sentence of life imprisonment but such a sentence would cease to have existence in the eye of law if at any subsequent stage the conviction on which the sentence of life imprisonment is founded is set aside or the conviction is maintained but the sentence of life imprisonment is reduced to a lesser sentence.

One wrong assumption led to another infirm deduction, viz., that an order of acquittal passed in appeal does not operate to obliterate a sentence with effect from the date on which it was originally awarded.

There is authority for the proposition that an order of acquittal particularly one passed on merits, wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or avoiding a conviction operates from nativity. As Kelson puts it, "it is a true annulment, an annulment with retroactive force." So when the conviction of Rohit for Prabhu''s murder was quashed, the High Court - to borrow the felicitous words of Krishna Iyer, J. -''killed the conviction not then, but performed the formal obsequies of the order which had died at birth''.

Almost the same view has been followed in the case of B.R. Kapur (supra) as follows:

In much the same vein, it was submitted that the presumption of innocence continued until the final judgment affirming the conviction and sentence was passed and, therefore, no disqualification operated as of now against the second Respondent. Before we advert to the four judgments relied upon in support of this submission, let us clear the air. When a lower Court convicts an accused and sentence him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate Court and the accused released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that is not to say that the presumption of innocence continues after the conviction by the trial Court. That conviction and the sentence it carries operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well.

Acquittal from a criminal case is only one shade of the matter. There might be other considerations relating to the conduct of a person as well as attending circumstances that may be necessary to assess the entitlement of a person to have a licence to bear firearms. It is for this reason that the licensing authority has been invested with wide powers as contained in Sections 9, 13 and 14 of the Act. Sub-section (1)(b)(i) (3) of Section 14 empowers the authority to refuse licence on a ground of such width which reads as follows:

Refusal of licences.-(1) Notwithstanding anything in Section 13, licensing authority shall refuse to grant-

(a) ....

(b) a licence in any other case under Chapter II-....

(1) ....

(2) ....

(3) to be for any reason unfit for a licence under this Act.

Proceeding upon a consideration of these tenents of law the licensing authority has to proceed to envision the capacity of the person upon an assessment of his antecedents, to consider the grant or otherwise of an arms licence. This would involve objectivity in assessing the existing material on record and a subjective satisfaction also about the disposition, temperament, character and general reputation of the person concerned. The assessment, it goes without saying has to conform to the broad principles of natural justice which also includes the necessity of mentioning the grounds in the notice to the concerned person on which the action is proposed to be taken. If this is not done, then it would violate the principle. "The benefit of presumption of good faith belongs to every man, until rebutted". State of Punjab and Another Vs. Gurdial Singh and Others, per V.K. Krishna Iyer, J.

The provisions under the Arms Act relating to variation, suspension and cancellation are contained in Section 17 of the Act. There also the authority can u/s 17(1)(b) cancel a licence if it has reason to believe that a person is unfit to possess such a licence. True, such belief has to proceed on reason, and not on mere whim or caprice or something which is logically obnoxious to reason. The authority will have to exercise its discretion in a way that conforms to the rules of discretion as explained in Reliance Airport Developers Pvt. Ltd. Vs. Airports Authority of India and Others,

A Full Bench of the Patna High Court in the case of Kapildeo Singh Vs. State of Bihar and Others, has also considered the powers of a licensing authority in such matters.

There is yet another angle, and viewed therefrom, the authority cannot be expected to act mechanically. There might be a case where a licensee, even though involved in a criminal case, might be ultimately found to have used his firearm in self-defence. The licensee in such a situation, upon such finding, can be said to have used it for the purpose for which the licence has been granted, namely protection of life, and property, either for himself or for someone whom he intended to protect. Such a circumstance would therefore oblige the authority to take a different view from that which is ordinarily expected. Accordingly the facts and circumstances of a case may alter the consideration by the authority based on the variety of symptoms that may demand a particular diagnostic opinion.

In view of this, the Petitioner will have to move a fresh application before the District Magistrate who shall examine the matter afresh and shall pass an order in accordance with law.

The writ petition stands disposed of.