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Madhya Pradesh High Court · body

2015 DIGILAW 437 (MP)

Heeralal Mishra v. State of M. P.

2015-04-16

PRAKASH SHRIVASTAVA

body2015
ORDER : PRAKASH SHRIVASTAVA, J. 1. This writ petition has been filed by the petitioner challenging the order dated 18-12-2014 rejecting the petitioner's application for grant of licence to run the security agency and also seeking a direction to the respondents to permit the petitioner to run the security agency business and praying for quashing of the criminal case registered against him. In brief, the case of the petitioner is that his Firm "Himachal Security Services" was registered with the Registrar of Firms since 13-6-2002 and the petitioner was running the business of security agency. The petitioner on coming into force of the Act of 2005 and M.P. Rules of 2012 had filed the application for grant of licence in the prescribed format on 25-9-2012. During the pendency of application, the respondent No. 3 on 17-10-2014 had visited the office of the petitioner and the petitioner was forced to close down his business. The criminal case was also registered against the petitioner by the respondent No. 4 on 13-11-2014 as one of the security personnel was on duty at BCM City, Navlakha, Indore. No order on the petitioner's application for grant of licence was passed, therefore, the petitioner had approached this Court, but after filing the writ petition, the order dated 18-12-2014 rejecting the petitioner's application for grant of licence was communicated to the petitioner, therefore, by amending the writ petition the petitioner has challenged the same. 2. A reply has been filed by the respondents taking the stand that the petitioner's application has been considered by duly following the prescribed procedure and since the petitioner was running the security agency without licence, therefore, Criminal Case No. 901/2014 under section 419 of the Indian Penal Code read with section 4/20 of the Private Security Agency (Regulations) Act, 2005 was registered against the petitioner and in the said criminal case, challan has already been filed. The respondents have supported the impugned order dated 18-12-2014 rejecting the petitioner's application for grant of licence. 3. Learned counsel for petitioner submits that the action of the respondents forcing the petitioner to close down the business during the pendency of the application is unsustainable and application for license has been rejected on erroneous premises and the criminal case has wrongly been registered against the petitioner. 4. As against this, learned counsel for State has supported the impugned order. 5. 4. As against this, learned counsel for State has supported the impugned order. 5. I have heard the learned counsel for parties and perused the record. 6. The Private Security Agencies (Regulation) Act, 2005 (for short "Act of 2005") has been passed to provide for me regulation of private security agencies and for matters connected therewith or incidental thereto. The Act has been brought in force with effect from 14-3-2006. The section 4 of the Act requires a person of private security agency to obtain the licence and section 7 provides for the filing of the application and the manner of grant of licence. Sections 4 and 7 of the Act are reproduced below for ready reference:-- "4. Persons or Private Security Agency not to engage or provide private security guard without licence. -- No person shall carry on or commence the business of private security agency, unless he holds a licence issued under this Act: Provided that the person carrying on the business of private security agency, immediately before the commencement of this Act, may continue to do so for a period of one year from the date of such commencement and if he has made an application for such licence within the said period of one year, till the disposal of such application: Provided further that no private security agency shall provide private security abroad without obtaining permission of the Controlling Authority, which shall consult the Central government before according such permission. 7. Application for grant of licence. -- (1) An application for grant of licence to a private security agency shall be made to the Controlling Authority in such form as may be prescribed. (2) The applicant shall submit an affidavit incorporating the details in relation to the provisions contained in section 6, ensure the availability of the training for its private, security guards and supervisors required under sub-section (2) of section 9 fulfillment of conditions under section 11 and of cases registered with police or pending in a court of law involving the applicant. (3) Every application under sub-section (1) shall be accompanied by a fee of-- (a) rupees five thousand if the private security agency is operating in one district of a State; (b) rupees ten thousand if the agency is operating in more than one but up to five districts of a State; and (c) rupees twenty-five thousand if it is operating in the whole State. (4) On receipt of an application under sub-section (1), the Controlling Authority may, after making such inquiries as it considers necessary and obtaining no objection certificate from the concerned police authority, by order in writing, either grant a licence or refuse to grant the same within a period of sixty days from the date of receipt of application with complete particulars and the prescribed fee: Provided that no order of refusal shall be made unless-- (a) the applicant has been given a reasonable opportunity of being heard; and (b) the grounds on which licence is refused is mentioned in the order, (5) A licence granted under this section-- (a) shall be valid for a period of five years unless the same is cancelled under sub-section (1) of section 13; (b) may be renewed from time to time after the expiry of five years, for a further period of five years on payment of such fee as may be prescribed; and (c) shall be subject to such conditions as may be prescribed." 7. The State of Madhya Pradesh has framed the Rules namely The Madhya Pradesh Private Security Agencies (Regulations) Rules, 2012 in exercise of the powers conferred by section 25 of the Act. In terms of section 7(1), the application for grant of licence is to be made to the controlling authority in the prescribed from. Under Rule 8(1), for the first time the postal address on which the application for licence was to be sent has been prescribed. Even the form in which the licence is to be granted in terms of Rule 9 has been prescribed for the first time under the Rules. Section 2(e) of the Act defines "prescribed" to mean prescribed by Rules made in the Act. The "Form" has been defined under Rule 2(d) of the Rules to mean a form appended to these Rules. Section 2(e) of the Act defines "prescribed" to mean prescribed by Rules made in the Act. The "Form" has been defined under Rule 2(d) of the Rules to mean a form appended to these Rules. The Rule 3(1) of the Rules provides that the application for licence under section 7 or 8 will be made in Form (i) to the controlling authority along with the information in Form (iv). Rule 3 further prescribes the procedure which is to be followed on receipt of the application. The Rule 2(c) defines the "controlling authority" to mean the authority so declared under the Act. The Rules of 2012 have been published in the gazette on 16-3-2012. 8. Thus, before coming into force of the Rules of 2012 the petitioner security agency has genuine difficulty in filing the application for grant of licence. 9. In the present case, it is the specific case of the petitioner that it was running the security agency on the coming into force of the Act and undisputedly the petitioner had filed the application for grant of licence in the form prescribed in the Rules of 2012 on 25-9-2012. The application filed by the petitioner was required to be decided within 60 days from the date of its receipt in terms of section 7(4) of the Act, but the said application was kept pending. The petitioner was forced to close his business on 17-10-2014 and during the pendency of the application on 13-11-2014 an offence under section 419, Indian Penal Code read with section 4/20 of the Act of 2005 being Crime No. 901/2014 has been registered in Police Station Bhanwarkuan on the ground that the petitioner does not possess the licence under the Act. Such an act of the respondents cannot be approved since initially there was delay in framing the rules and prescribing the procedure, thereafter, on the one hand the petitioner's application for grant of licence was not decided within the prescribed period and on the other hand the action has been taken against the petitioner on the ground that he does not possess the licence. 10. 10. By the impugned order dated 18-12-2014 the petitioner's application for grant of licence has been rejected on the sole ground that offence under section 419, Indian Penal Code read with section 4/20 of the Act 2005 has been registered against the petitioner without appreciating that the offence was registered during the pendency of the application for grant of licence and on account of the delay in deciding the application. The said action of the respondents was clearly an action contrary to the provisions of the Act and the Rules. 11. In these circumstances, the impugned order dated 18-12-2014 cannot be sustained and is hereby set aside with a direction to the controlling authority to consider the petitioner's application afresh in accordance with law within a period of two months from the date of receipt of certified copy of this order. The petitioner is directed to appear before the controlling authority on 20th April, 2015. The writ petition is accordingly allowed.