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2019 DIGILAW 1456 (ALL)

Pankaj Kumar Mishra v. State of U. P.

2019-05-28

J.J.MUNIR

body2019
JUDGMENT : J.J. MUNIR, J. 1. Heard Sri Ravindra Prakash Srivastava, learned counsel for the petitioner and learned Standing Counsel appearing for the State. 2. The petitioner was the holder of fire arm license No. 768 of 2009, the cancellation of which was recommended by the Police of P.S. Paikoliya, District Basti on ground that the petitioner was an accused in two criminal cases, numbered as Case Crime No. 210 of 2012, under Section 353,120-B I.P.C. and Case Crime No. 215 of 2012, under Section 447 I.P.C., Section 198 U.P.Z.A.&L.R. Act and Section 3 Prevention of Damages to Public Property Act, both registered at P.S. Paikoliya aforesaid. The report also said that for the present, the petitioner is embroiled in offences governed by Chapter 16, 17 and 23 of the Penal Code and his actions in the locale have led to fear being struck amongst members of the public in general, particularly, the weaker sections of the society. It was also reported that the petitioner brandishes his weapon in public to strike fear and bearing all that in mind his license should be cancelled. The report of the Thana Police was endorsed by the S.P. Basti. It was on that basis that the District Magistrate issued a show cause notice to the petitioner, why his license be not cancelled. 3. The petitioner, in reply, said that he has been falsely implicated in the two cases. He urged that he has no criminal history and that his weapon for the time being is under repairs with Rajpoot Gun House, Faizabad, since 17.06.2012. He prayed for revocation of the show cause notice before the District Magistrate. At the hearing, the allegations were denied and a specific plea was raised that the S.H.O. and the S.D.M. wanted a drain to be forcefully constructed over his private land and that it was on account of this motivation that the criminal cases under reference against him were registered. Lateron, these have been made the basis of a story to weave around the recommendation for cancellation of his fire arm license. 4. A perusal of the order passed by the District Magistrate shows that he has looked into the cases registered against the petitioner on the face of the record but has not at all cared to go behind the motivations that may have worked. 4. A perusal of the order passed by the District Magistrate shows that he has looked into the cases registered against the petitioner on the face of the record but has not at all cared to go behind the motivations that may have worked. The District Magistrate has recorded a finding that he used his weapon to lay obstruction in the discharge of government duties by public servants, and that there is fear struck by him in the neighbourhood. The said finding apparently is based on no evidence, and may be, the fall out of an issue over the constructions of a drain by the S.D.M. and the S.H.O. on the petitioner's private land. It could be anything, but about all that this Court does not wish to comment. 5. The petitioner preferred an appeal to the Commissioner, Basti Division, Basti that was numbered on the file of the Commissioner as Case No. 638 of 2012-2013. The said appeal has come to be dismissed by the impugned order dated 24.01.2019. 6. A perusal of the appellate order shows that the Commissioner too has mechanically repeated the findings of the Licensing Authority, with no critical look to those findings on the foundation of grounds of appeal raised by the petitioner. The Commissioner has recorded a finding, like the District Magistrate that says ^^foi{kh ds fo:) 'kL= ykblsal ds 'krksZ ds vosgyuk djus ds Bksl lcwr i=koyh ij miyC/k gSA^^ However, both the authorities have not indicated what that evidence is. 7. A reading of the two orders leaves a lurking impression that on account of some issue or dispute between the petitioner on the one hand and the S.H.O. and the S.D.M. on the other at the relevant time over the construction of a drain on the petitioner's private land or that he considers to be his private property, some ego issues have led to these cancellation proceedings. But again, this Court does not consider it appropriate to pronounce upon those issues with any finality. But again, this Court does not consider it appropriate to pronounce upon those issues with any finality. What is important is that for the mere registration of criminal cases and in the background of a dispute as the Court has indicated hereinabove to be somewhat personal to the incumbents, peeping behind their official action, the petitioner's fire arm licence ought not to be cancelled; a more objective look ought to have been taken at the record by the Authorities before cancelling the petitioner's license. The mere fact that criminal cases are pending, is no ground to cancel a fire arm license. That is a proposition of law far to well settled to require elucidation. In this connection, reference may be made to the decision of this Court in Surya Narain Mishra Vs. State of U.P. and Others, (2015) 91 AllCriC 186 where after review of a wealth of authority on the point, answering the precise question that is involved in this case and on facts almost similar, it was held thus: "5. Thus, the trivial question involved in this writ petition is as to whether licensing authority is vested with the power under the Arms Act to revoke/cancel the license of a public person mere on involvement in a criminal case or pendency of a criminal case. ........... 7. The aforesaid view has been reiterated in Hridaya Narain Tiwari v. State of U.P. and others, (2014) 4 ADJ 744 (LB) Rama Kushwaha vs. State of U.P. & others, (2011) 29 LCD 1045 Hiramani Singh vs. State of U.P. & others, (2011) 29 LCD 829 and Rajendra Singh vs. Commissioner, Lucknow Division, Lucknow and others, (2011) 29 LCD 1041 wherein it has been propounded that involvement in criminal case or pendency of criminal case cannot be a ground for cancellation/revocation of firearm license. 8. In the case of Jageshwar Vs. State of U.P. and others, (2009) 67 AllCriC 157 it has been held that mere involvement in criminal case cannot in any way affect the public Security or public interest. ............... 12. As averred above, in the case at hand, the District Magistrate, has not recorded any finding that it was necessary to cancel the licence for the security of public peace or for public safety. All that he has done is, have referred to some applications and reports lodged against the petitioner. ............... 12. As averred above, in the case at hand, the District Magistrate, has not recorded any finding that it was necessary to cancel the licence for the security of public peace or for public safety. All that he has done is, have referred to some applications and reports lodged against the petitioner. The mere fact that some reports had been lodged against the petitioner could not form basis of cancelling the licence. The order passed by the District Magistrate and that passed by the Commissioner cannot, therefore, be upheld on the basis of anything contained in Section 17(3) of the Act." 8. The same view was expressed by this Court in Harprasad Vs. State of U.P. and Others, (2005) 5 AWC 4939 it was held thus in paragraph-5 of the judgment: "5. The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Section 17 of the Arms Act has been considered by a Division Bench of this Court in Sheo Prasad Misra Vs. District Magistrate, Basti and others, (1979) 16 AllCriC 6 (sum), wherein the Division Bench relied upon the earlier decision in Masi Uddin v. Commissioner, Allahabad, (1972) AllLJ 573. In both the aforesaid cases it has been held that mere involvement in a criminal case cannot in any way affect the public security or public interest. In view of this proposition of law the order cancelling or revoking the licence of the petitioner on the aforesaid ground of involvement and pendency of a criminal case is not tenable." 9. In view of what has been said above, the impugned orders passed by the Authorities below are not sustainable and are liable to be quashed with a remit of the matter to the District Magistrate, Basti to pass fresh orders, in accordance with law, including consideration of the petitioner's prayer for the renewal of his fire arm license, in the event, the District Magistrate does not find good ground to again come to the same conclusion. 10. The District Magistrate is ordered to take a decision in the matter within six weeks from the date of receipt of a copy of this order after hearing the petitioner and in accordance with law, bearing in mind what has been said in the body of this judgment. 11. 10. The District Magistrate is ordered to take a decision in the matter within six weeks from the date of receipt of a copy of this order after hearing the petitioner and in accordance with law, bearing in mind what has been said in the body of this judgment. 11. The writ petition is allowed in terms of the above orders. There shall be no order as to costs.