Jagdish Prasad vs State of U.P. and others

Ritu Raj Awasthi, J.—Heard Shri Rajiv Dubey, learned counsel for the petitioner as well as learned Chief Standing Counsel and perused the record.

By means of this writ petition, the petitioner has challenged the order dated 4.10.2006 passed by the Commissioner, Lucknow Division, Lucknow in Appeal No.566 of 200304 and the order dated 15.6.04 passed by the District Magistrate, Lakhimpur Kheri in Case No.695/163/102 whereby the Armslicence No.404/111 of D.B.B.L. Gun of the petitioner has been cancelled and the appeal preferred under Section 18 of the Arms Act, 1959 has been rejected by the Commissioner, Lucknow Division, Lucknow.

Learned counsel for the petitioner has vehemently urged that the impugned order cancelling the arms licence has been passed without proper application of mind and without appreciating the fact that the weapon in question was not used in the offence said to have been committed in which the petitioner alongwith other family members were named and the F.I.R. under Crime No.112/998 under Section 498A and 304 I.P.C. read with Section 3/4 of Dowry Prohibition Act was lodged. It has been further submitted that the petitioner is the fatherinlaw of deceased Smt. Pushpa Devi who had committed suicide by hanging herself from the Ceiling fan in the house of the petitioner and in this regard, the aforesaid criminal case was lodged against the petitioner and other family members. The petitioner does not have any criminal history and no other case was ever lodged against him and he has never misused his weapon. It has been further submitted that the authority concerned while passing the impugned order failed to consider the relevant material fact that the arms licence was not misused by the petitioner and in the alleged offence the weapon in question was not used in any manner.

The learned counsel for the petitioner has vehemently urged before this Court that in the case Crime No.12/1998 registered under Section 498A, 304 IPC read with Section 3/4 of Dowry Prohibition Act, the petitioner has been honourably acquitted and no other criminal case is pending against him on the basis of which he can be denied the armslicence. It has been stated by the learned counsel for the petitioner that the petitioner is a villager and posted as Head Master in Senior Basic Vidyalaya, Shankerpur, Block Behjam, District Lakhimpur Kheri and he had obtained the licence of D.B.B.L. Gun for his personal safety and protection of the property. The reasons for which the armslicence was granted still exist and the impugned order has been passed in a most arbitrary and illegal manner without proper application of mind.

In the appeal filed under Section 18 of the Arms Act before the learned appellate authority i.e. the Commissioner, Lucknow Division, Lucknow the petitioner had raised several grounds including the ground that the armslicence of the petitioner was not used in the alleged offence said to have been committed Under Section 498A, 304 IPC read with Section 3/4 of Dowry Prohibition Act. Mere filing of the FIR for the commission of the alleged offence did not construe the ground for cancellation of the armslicence.

Learned Standing Counsel on the basis of the counter affidavit filed by the opposite parties has tried to justify the impugned orders and has submitted that the daughterinlaw of the petitioner had died unnatural death and in this regard, the FIR in case Crime No.112/1998 under Section 498A and 304 IPC read with Section 3/4 of Dowry Prohibition Act was registered against the petitioner as well as the other family members. The petitioner was acquitted in the said case as the witnesses had turned hostile. However, they do not deny the fact that the daughterinlaw of the petitioner had died unnatural death and, therefore, it is not proper to allow the petitioner to have armslicence of D.B.B.L. Gun.

I have considered the various submissions made by the learned counsel for the parties and have perused the record.

It appears that the petitioner was granted armslicence No.404/111 D.B.B.L. Gun for his personal safety and protection of property. In the year 1998, an FIR in case Crime No.112/1998 under Section 498A and 304 IPC read with Section 3/4 of Dowry Prohibition Act was registered at Police Station Fardhan, District Lakhimpur Kheri by the complainant namely; Kashi Ram who was said to be father of deceased Smt. Pushpa Devi wife of Santosh Kumar alleging therein that her daughter was harassed for dowry by the inlaws and she has been killed by them.

From the perusal of the record, it is evident that by the judgment and order dated 14.8.2002, the learned Sessions Judge had acquitted the petitioner and other coaccusedpersons. The judgment of the trial Court clearly shows that the death of deceased Smt. Pushpa Devi was caused due to hanging from the ceiling fan and the complainant i.e., the father of the deceased had himself given an affidavit on the basis of which the petitioner was acquitted.

It is apparent from the record that the weapon for which the armslicence was given to the petitioner was not used in any manner in the aforesaid alleged offence.

It appears that after filing of the aforesaid FIR, the armslicence of the petitioner was suspended by order dated 12.7.1999. From the suspension order, it is evident that the said order was passed merely because the case Crime No.112/1998 under Section 498A and 304 IPC read with Section 3/4 of Dowry Prohibition Act was registered against the petitioner. The petitioner had submitted his reply and thereafter by the impugned order dated 15.6.2004, the District Magistrate had passed the order cancelling the armslicence of the petitioner. However, no effort was made by the competent authority to find out as to whether the petitioner in any manner had misused his weapon and whether in spite of being acquitted in the offence alleged to have been committed by the petitioner, his armslicence can still be cancelled. The case Crime No.112/1998 under Section 498A and 304 IPC read with Section 3/4 of Dowry Prohibition Act was registered against the petitioner and other family members on the alleged unnatural death of deceased Smt. Pushpa Devi. It is admitted case that deceased Smt. Pushpa had died due to hanging from the ceiling fan in the house. It is no one''s case that the armslicence of the petitioner was used in any manner in the commission of the said alleged offence. As such, there is no reason or justification for the authority concerned to come to the conclusion that the armslicence of the petitioner shall be cancelled. It is also to be noted that the petitioner does not have any criminal history and there is no material on record to show that his armslicence was ever misused.

The learned appellate court while considering the impugned cancellation order did not address itself on the point as to whether the armslicence was mis used by the petitioner or any other persons and whether the licence for the D.B.B.I. Gun should not be given to the petitioner in public interest. Learned appellate court has merely relied on the submission made by the learned Government Advocate without appreciating the fact that when the petitioner was acquitted in the criminal case which was the sole basis for suspension of his armslicence then why he should not be allowed to have the said armslicence.

�Section 17(7) of the Arms Act, 1959 provides that;

�A Court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence;

Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.�

Meaning thereby, that the suspension or revocation of the armslicence directly relates to the out come of the criminal offence if in the opinion of the authority concerned, the armslicence was to be suspended due to lodging of a criminal offence against the licensee. In the present case, since the petitioner has already been acquitted of the criminal offence which was the sole basis for suspension of the armslicence and subsequent cancellation of the armslicence and there is no other reason for cancellation of the armslicence, I am of the considered view that the opposite party No.2 had wrongly cancelled the armslicence of the petitioner.

In support of his submission, learned counsel for the petitioner has relied on the case of Krishna Autar v. Commissioner, Jhansi Division, Jhansi and another, 1990 All. L.J. 930, wherein it has been held that:

�It is settled law that where the initiation of a criminal case and that too of serious nature is made the basis of cancellation/suspension of Arms Licence and the licenceholder gets an acquittal, the very foundation of the action of the cancellation would be treated as nonexisting. Therefore, unless there is some other report or material the only ground of initiation of the said criminal case against the petitioner cannot sustain an order of revocation of the Arms licence.�

In the case of Khagendra Pal Singh v. Commissioner, Agra Division, Agra and another, 2006 (54) ACC 419, this Court has held that mere registration of a criminal case, there cannot be a ground for cancellation of the licence. The relevant observation is quoted below:

�Merely, because a case was registered against the petitioner and thereafter the witnesses did not turn up and the petitioner had been acquitted, cannot be a ground for cancellation of his arms licence. The impugned orders are based only on the ground that a case was registered against the petitioner and since the witnesses had turned hostile and the petitioner had been acquitted, hence it would be detrimental to the interest of the public to permit the petitioner to hold the arms licence. The said reasoning does not appear to be justified. Accordingly, the impugned orders are liable to be set aside.�

In view of the settled legal proposition as emerges from the aforesaid judgment and looking into the facts and circumstances of the case, I am of the considered opinion that the impugned order dated 15.6.2004 passed by the District Magistrate, Lakhimpur Kheri in Case No.695/163/102 and the appellate order dated 4.10.2006 passed by the Commissioner, Lucknow Division, Lucknow in Appeal No.566/200304 are not sustained in the eyes of law and are liable to be set aside.

Therefore, the impugned order dated 15.6.2004 passed by the District Magistrate, Lakhimpur Kheri in Case No.695/163/102 and the appellate order dated 4.10.2006 passed by the Commissioner, Lucknow Division, Lucknow in Appeal No.566/200304 are hereby, set aside.

Accordingly, the writ petition is allowed.

No orders as to costs.

(Petition allowed)