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2014 DIGILAW 1799 (BOM)

Vijay Dinkarrao Patil v. State of Maharashtra

2014-08-13

A.S.CHANDURKAR, A.S.OKA

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JUDGMENT A.S. CHANDURKAR, J. 1) Rule. Rule made returnable forthwith and heard finally with the consent of parties. 2) The challenge in both these writ petitions is to orders dated 3rd April, 2014 issued by the Additional District Magistrate, Satara directing the petitioners to deposit their licenced weapons with the concerned police station in view of then ensuing elections to the Loksabha in May, 2014. Since similar issue arises in both these writ petitions they are being decided by this common judgment. 3) In Writ Petition No. 4171 of 2014 both the petitioners were issued licence under the Arms Act, 1959. The licences of both the petitioners were subsisting. According to the petitioners, in the first week of April, 2014 they were informed by the police authorities that there was a directive from the office of the Collector for depositing their weapons with the concerned police station. On 3rd April, 2014 a communication was issued by the Additional District Magistrate, Satara respondent No.2 calling upon them to deposit their weapons with the concerned police station. According to the petitioners, they made a representation to the Sub Divisional Officer and Assistant Election Officer as well as to the Senior Inspector of Police that there was no general direction requiring all licenced holders to deposit their weapons. However, there was no response from the authorities. The aforesaid communication dated 3rd April, 2014 is the subject matter of challenge in the said writ petition. Similarly, the decision of the Screening Committee arrived at pursuant to the meetings held on 20th March, 2014 and 3rd April, 2014 is also under challenge. 4) In Writ Petition No.4243 of 2014, it is the case of the petitioner that she is holding a licence under the Arms Act, 1959 which licence is subsisting. The petitioner was issued communication dated 3rd April, 2014 by respondent No.2 calling upon the petitioner to deposit her weapon with the concerned police station. The petitioner made a representation on 12th April, 2014 to the Sub Divisional Officer and Assistant Election Officer as well as to the Senior Inspector of Police. As according to the petitioner such general directions could not have been given to all licenced holders to deposit their weapons, she has challenged communication dated 3rd April, 2014 issued by the Additional District Magistrate dated 3rd April, 2014. As according to the petitioner such general directions could not have been given to all licenced holders to deposit their weapons, she has challenged communication dated 3rd April, 2014 issued by the Additional District Magistrate dated 3rd April, 2014. Similarly, the decision of the Screening Committee taken pursuant to the meeting held on 20th March, 2014 and 3rd April, 2014 is also under challenge. 5) Shri V.P. Sawant, the learned Advocate appearing for the petitioners in Writ Petition No.4171 of 2014 has submitted that the direction issued by the Additional District Magistrate is contrary to law and in breach of the directions issued by the Division Bench of this Court in the case of Govind @ Bhai Ganesh Tilve Vs. Vikram Kumar and others reported in 2009 (3) Mh.LJ (Cri) 471. It is submitted that the Screening Committee without examining the necessity of issuing a direction to the petitioners to deposit their weapons has proceeded to issue general directions to all licenced weapon holders to deposit their weapons without there being any justification for the same. It was further urged that the aforesaid action was in contravention of the directives issued by the Election Commissioner in its letter dated 13th March, 1996. It was, therefore, submitted that the impugned decision dated 3rd April, 2014 taken in the meetings of the Screening Committee is illegal and is required to be set aside. 6) Shri Nikhil Chavan, the learned Advocate for the petitioner in Writ petition No.4243 of 2014 has reiterated the submissions made on behalf of the petitioner in Writ Petition No.4171 of 2014. He has also submitted that without screening the case of the petitioner, a general direction has been issued to deposit the licenced weapon. It is further urged that no such blanket directions had been issued in other adjoining districts of Satara District and the impugned action was, therefore, arbitrary and discriminatory. 7) Shri A.B. Vagyani, the learned Government Pleader appearing for the respondents in both the writ petitions has urged that the impugned communication calling upon the petitioners to deposit their licenced weapons has been taken pursuant to the decision taken by the Screening Committee. It is submitted that the judgment in the case of Govind @ Bhai Ganesh (supra) was taken into account by the Screening Committee and thereafter the aforesaid directions came to be issued. It is submitted that the judgment in the case of Govind @ Bhai Ganesh (supra) was taken into account by the Screening Committee and thereafter the aforesaid directions came to be issued. The learned Government Pleader also relied upon Guidelines dated 17th August, 2009 issued by the Home Department as well as communication dated 20th June, 2014 issued to all Police Commissioners and District Magistrates directing them to follow guidelines dated 17th August, 2009 scrupulously. 8) The decision to direct deposit of arms by licence holders has been taken pursuant to the directions issued under Article 324 of the Constitution of India by the Election Commission of India. On 13th March, 1996 said directions were issued by the Election Commission for the purposes of holding free and fair elections. The said directions read as under : “In exercise of the powers conferred on the Commissioner under Article 324 of the Constitution of India and all other powers enabling it in this behalf and in super-session of all other instructions, the Commission hereby orders that the following instructions shall be observed during all future elections; 1. Issue of licence for arms will be totally prohibited during the period commencing with the date of announcement of elections. This ban will continue to be operative till the completion of the election as notified. 2. The police should be directed to be vigilant and asked to start mopping up operations of the areas infested with known goonda and other bad elements right from the date of announcement of elections. During such mopping up operations special attentions should be paid to unearth and seize unlicensed arms and ammunition. A very thorough search and seizure by the State Police of unlicensed arms and places of indigenous manufacture of arms and ammunition shall be carried out and persons involved shall be arrested. While unearthing and seizure of unlicensed weapons is a normal ongoing responsibility of the police, it shall be vigorously intensified during the election period. Interstate and intra State movements of trucks and commercial vehicles shall be strictly checked with a view to preventing smuggling of arms and ammunition and antisocial elements. Raids should be carried out regularly and intensively on underground arms factories. 3. Interstate and intra State movements of trucks and commercial vehicles shall be strictly checked with a view to preventing smuggling of arms and ammunition and antisocial elements. Raids should be carried out regularly and intensively on underground arms factories. 3. Immediately after the announcement of elections, District Magistrates shall make a detailed and individual review and assessment (in accordance with the prevalent state laws) of all licence holders so that licensed arms in those cases where they consider it essential are impounded in order to ensure maintenance of law and order so essential for ensuring free and fair elections. These arms should be deposited with the district authorities. Among cases which may need to be reviewed are the following. (1) persons released on bail; (2) persons having a history of criminal offences; and (3) persons previously involved in rioting at any time any but especially during the election period. (The above categories are only illustrative and not exhaustive). 4. After such review, all such licence holders who are identified, shall be directed to deposit their arms with the District Administration during the period of one week from the last date for withdrawal of candidatures. 5. The District Administration shall make fool proof arrangements for keeping the deposited fire arms in safe custody. Proper receipt must be given to the licence holders depositing the fire arms. It shall be the bounden duty of the District Administration to ensure that all fire arms deposited with the Administration are returned to the licence holders immediately after one week after the declaration of results. 6. Prohibitory orders under Section 144 of the Criminal Procedure Code, 1973, shall be issued banning the carrying of licensed arms as soon as an election is announced and should be effective till the declaration of results.” 9) A perusal of aforesaid directions reveals that the District Magistrate is required to make a detailed and individual review and assessment of all license holders so as to consider the impounding arms of such licence holders as found necessary to ensure maintenance of law and order during elections. Certain categories of cases has been enumerated and it has been stated that said cases would be required to be reviewed. As aforesaid directions have been issued in exercise of powers conferred by Article 324 of the Constitution of India the same have binding effect. Certain categories of cases has been enumerated and it has been stated that said cases would be required to be reviewed. As aforesaid directions have been issued in exercise of powers conferred by Article 324 of the Constitution of India the same have binding effect. 10) In the case of Govind @ Bhai Ganesh Tilve (supra) the Division Bench of this Court considered the aforesaid directions issued by the Election Commission in its letter dated 13th March, 1996. It was noted that under said directions a detailed individual review and assessment of all licence holders was necessary so as to enable the District Magistrate to consider cases where it was essential to direct the licence holders to deposit the arms. It was emphasized that there could not be a blanket directions to all arms licence holders to deposit their weapons. After noticing that there was no screening committee to review cases for issuing directions to deposit arms in terms of directions issued by the Election Commission and that there was no prior review and assessment of individual cases various guidelines were laid down by this Court. A Screening Committee consisting of a District Magistrate and the Superintendent of Police was directed to be constituted. It was further directed that cases of all licence holders should be placed before the Screening Committee and after conducting the exercise of screening, the concerned licence holder could be directed to deposit his arms forthwith. The guidelines issued in Govind @ Bhai Ganesh Tilve (supra) read as under : “a) There shall be a Screening Committee in every District and in every Commissionerate area. In the District the Screening Committee shall consist of the District Magistrate and the Superintendent of Police. In the Commissionerate area it shall consist of the Commissioner of Police and Joint/Additional Commissioner of Police (Admn.) b) The Screening Committee shall commence the work of screening from the day of declaration of dates of election by the Election Commission. c) Cases of all the license holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee. The categories are : i) Persons released on bail. ii) Persons having a history of criminal offences; and iii) Persons involved in rioting at any time but especially during the election period. The Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive. The categories are : i) Persons released on bail. ii) Persons having a history of criminal offences; and iii) Persons involved in rioting at any time but especially during the election period. The Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive. d) The Screening committee shall complete the exercise of screening in respect of licences placed before it as far as possible before the 1st date of filing of nominations. e) On receipt of report from the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual licence holder for depositing his arms and inform the licence holder that failure to deposit the arms as directed would result in prosecution under Section 188 of the I.P.C. as stated in clause (h). f) The licence holder thereafter shall deposit his arms forthwith and in any case within a period of seven days from the date of receipt of the notice. The licensing Authority shall give proper receipt to the license holder. g) The decision taken by the Screening Committee shall be final. h) Any licence holder who fails to deposit arms within the period specified above shall be liable for prosecution under section 188 of Indian Penal Code. i) All the arms so deposited with the administration be returned to the licence holder within a period of one week after declaration of election results. j) The above timeframe should be adhered to as far as possible. 11) Pursuant to the aforesaid judgment, the Home Department of the State of Maharashtra has issued certain guidelines on 17th August, 2009. The said guidelines read as under : “a) There shall be a Screening Committee in every District and in every Commissionerate area. In the District the Screening Committee shall consist of the District Magistrate and the Superintendent of Police. In the Commissionerate area it shall consist of the Commissioner of Police and Joint/Additional Commissioner of Police (Admn.) b) The Screening Committee shall commence the work of screening from the day of declaration of dates of election by the Election Commission. c) Cases of all the license holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee. The categories are : (i) Persons released on bail. c) Cases of all the license holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee. The categories are : (i) Persons released on bail. (ii) Persons having a history of criminal offences; and (iii) Persons involved in rioting at any time but especially during the election period. The Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive. d) The Screening committee shall complete the exercise of screening in respect of licences placed before it as far as possible before the 1st date of filing of nominations. e) On receipt of report from the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual licence holder for depositing his arms and inform the licence holder that failure to deposit the arms as directed would result in prosecution under Section 188 of the I.P.C. as stated in clause (h). f) The licence holder thereafter shall deposit his arms forthwith and in any case within a period of seven days from the date of receipt of the notice. The licensing Authority shall give proper receipt to the license holder. g) The decision taken by the Screening Committee shall be final. h) Any licence holder who fails to deposit arms within the period specified above shall be liable for prosecution under section 188 of Indian Penal Code. i) All the arms so deposited with the administration be returned to the licence holder within a period of one week after declaration of election results. j) The above timeframe should be adhered to as far as possible.” 12) In the meetings of the Screening Committee held on 20th March,2014 and 3rd April, 2014 a blanket decision was taken calling upon about 732 arms licence holders to deposit their arms with the concerned authority. The said minutes indicate that each case was not independently reviewed as per the directions issued by the Election Commission on 13th March, 1996 and the guidelines issued in terms of the judgment of this Court in Govind @ Bhai Ganesh Tilve's case. Pursuant to the aforesaid meetings, the impugned orders have been issued in both these writ petitions directing the petitioners to deposit their arms with the police authorities. Pursuant to the aforesaid meetings, the impugned orders have been issued in both these writ petitions directing the petitioners to deposit their arms with the police authorities. It is, therefore, obvious that the screening committee without examining the individual cases of the petitioners has directed them to deposit their arms. The object behind directing deposit of arms is to ensure holding of free and fair elections and maintenance of law and order. It is with that object that a direction has been issued to review each case individually. It is, therefore, clear that the impugned orders issued in both these writ petitions are in contravention of the directions dated 13th March, 1996 issued by the Election Commission as well as guidelines dated 17th August, 2009 issued by the Home Department pursuant to the judgment in Govind @ Bhai Ganesh Tilve's case (supra). On this short ground, the impugned orders are required to be set aside. 13) It is to be noted that the directions issued by the Election Commission on 13th March, 1996 are clear that it is necessary to make a detailed individual review and assessment of all licence holders. In the said directions some categories have been illustrated and cases falling in the said categories are required to be reviewed. Said directions were reiterated in the guidelines laid down by this Court in Govind @ Bhai Ganesh Tilve's case (supra). Despite guidelines dated 17th August, 2009 having been issued it is noticed that the same are not at all being followed in their true letter and spirit. Blanket orders are being passed directing all licence holders to deposit their arms with the police authorities. As observed by this Court in Govind @ Bhai Ganesh Tilve's case (supra) a law abiding citizen who has been issued a licence to possess arms can consider the order directing him to surrender his arms as an affront to his dignity and status. Despite clear directions being issued by the Election Commission it is to be noted that the Screening Committee has failed to implement the same. Similarly, guidelines dated 17th August, 2009 are also not being scrupulously followed. 14) At this stage, it would be necessary to note the anomaly in the guidelines dated 17th August, 2009 issued by the Home Department. Despite clear directions being issued by the Election Commission it is to be noted that the Screening Committee has failed to implement the same. Similarly, guidelines dated 17th August, 2009 are also not being scrupulously followed. 14) At this stage, it would be necessary to note the anomaly in the guidelines dated 17th August, 2009 issued by the Home Department. In direction No.3 dated 13th March, 1996 issued by the Election Commission, while emphasizing the need to make an individual review and assessment of all licence holders it has been directed that there are category of cases in which review would be necessary. (emphasis supplied). It is further stated that said categories were only illustrative and not exhaustive. Guideline (c) issued on 17th August, 2009 reads as under: c) Cases of all the license holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee. The categories are : (i) Persons released on bail. (ii) Persons having a history of criminal offences; and (iii) Persons involved in rioting at any time but especially during the election period. The Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive.” 15) The guidelines merely categorize persons released on bail, persons having history of criminal offences and persons involved in rioting especially during election period. It has not been mentioned in the said guidelines that cases of persons falling in such categories are required to be reviewed. Thus, the emphasis placed by the Election Commission on the need to review cases of such license holders falling in the aforesaid categories has been lost sight of by the Home Department while issuing guidelines dated 17th August, 2009. The aforesaid categories comprise of such persons who though are issued arms licences could be involved in acts resulting in law and order situation. Hence, directions in that regard have been issued by the Election Commission that cases of such persons are required to be reviewed. The Home Department would therefore be required to modify the said guidelines to bring them in tune with direction No.3 issued by the Election Commission on 13th March, 1996. This will ensure compliance with the aforesaid directions in their true letter and spirit. 16) It is further noticed that the State Government has not framed any guidelines whatsoever with regard to functioning of the screening committee. This will ensure compliance with the aforesaid directions in their true letter and spirit. 16) It is further noticed that the State Government has not framed any guidelines whatsoever with regard to functioning of the screening committee. Though the Screening Committee has been constituted in terms of guidelines issued in Govind @ Bhai Ganesh Tilve's case (supra) there are no guidelines with regard to manner in which the said Screening Committee shall function. The Screening Committee will have to peruse the record of all licence holders. The Committee should have access to the police record of all the licence holders. The guidelines18 should provide that a detailed review and assessment of individual cases be made. Considering its nature of work and the duty assigned to it, it is necessary that the State Government frames appropriate guidelines with regard to functioning of the Screening Committee. As the Screening Committee has been assigned the duty of individual review and assessment of cases of all licence holders, it would be appropriate if the State Government issues guidelines to enable the Screening Committee to function in a responsible and transparent manner. This would also ensure compliance with the directions issued by the Election Commission under Article 324 of the Constitution of India. 17) In view of the aforesaid, we pass the following order: ORDER (A) Both the writ petitions are allowed; (B) The impugned orders dated 3rd April, 2014 issued by the Additional District Magistrate, Satara in both the writ petitions is quashed and set aside; (C) The Home Department of the State of Maharashtra shall take all necessary steps to reframe guideline (c) issued on 17th August, 2009 in terms of observations made in paragraphs 14 and 15 of this judgment; (D) The Home Department of the State of Maharashtra is directed to issue guidelines in the matter of functioning of the Screening Committee constituted for review of the cases of licenced arms holders within a period of six weeks from today; (E) Both the writ petitions shall stand disposed of in the aforesaid terms with no order as to costs; (F) For reporting compliance in the matter of framing of guidelines with regard to functioning of the Screening Committee, the matter shall be placed on board on 22nd September, 2014 under the caption of “directions”.