Vinay Kumar vs State Of U.P. And Others
2011 Latest Caselaw 5116 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(AFR)
 
Reserved on 01.09.2011 
 
 Delivered on 14.10.2011
 

 
Case :- WRIT - C No. - 40817 of 2011
 

 
Petitioner :- Vinay Kumar
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- R.N. Yadav,Ashok Khare
 
Respondent Counsel :- C.S.C.,Rajesh Kumar Pandey
 

 
Hon'ble Sudhir Agarwal,J.

1. This writ petition has been filed by one Vinay Kumar assailing the order dated 27.5.2011, passed by Additional District Magistrate, City, Allahabad revoking show cause notice dated 30.1.2010 under Section 17(3) of the Indian Arms Act, 1959 and consigning proceedings initiated against Sri Ram Kishore Yadav, respondent no.7 .

2. In brief submission of counsel for the petitioner is that respondent no.7 is a convict in two criminal cases for an offence under Section 302 read with Section 34 IPC yet proceedings for cancellation of his arms licence has been revoked by respondent no.3 in a wholly illegal and perverted manner. It is alleged that the impugned order has been passed by respondent no.3 with antedating when an application for transfer of the case was moved before the District Magistrate on 9.6.2011.

3. Respondents no. 2 and 3 have filed counter affidavit sworn by Sri Hansraj Sub-Divisional Magistrate, Sadar, Allahabad and respondent no.7 himself has filed counter affidavit through his counsel Sri Anil Tiwari. Pursuant to this Court's order dated 25.7.2011 original record of cases no. 56 of 2010 and 57 of 2010 wherein impugned order has been passed was also produced before the Court.

4. Sri Anil Tiwari has raised a preliminary objection regarding maintainability of writ petition at the instance of petitioner, a stranger contending whether an arms licence should be granted or should be allowed to continue is a matter within the statutory discretion of the licensing authority i.e., the District Magistrate concerned and once such discretion has been exercised, no third person including a complainant if any, can be said to have a grievance entitling him to challenge the action of licensing authority and, therefore, the writ petition at the instance of the petitioner being not maintainable deserves to be dismissed in limine.

5. Learned counsel for the petitioner sought to repel the argument of Sri Tiwari contending that respondent no.7 is a proven criminal having been convicted in two cases of heinous crime under section 302 read with Section 34 IPC. He is misusing his firearm by threatening local people including the petitioner at whose instance proceeding under Section 17 was initiated by the authority concerned but respondent no.3 to whom the District Magistrate transferred the matter passed the impugned order for wholly extraneous and collateral reasons and, therefore, the petitioner is an aggrieved person and can maintain the writ petition for assailing an order passed under a statute but in utter disregard thereof and law on the subject. It is contended while in other cases on account of mere registration of criminal cases, firearm licences already granted have been cancelled but respondent no.7 has been singled out for the reason of his high access and approaches.

6. Though the petitioner has pleaded that a large number of criminal cases from time to time were registered against respondent no.7 but from record, what this Court finds to be admitted fact is that respondent no.7 is a convict in two criminal cases, namely S.T. No. 23 of 1984 under Section 302/34 IPC decided on 15.12.1987 and S.T. No. 514 of 1985 under Section 302/34 IPC decided on 18.4.1990 wherein he has been sentenced to undergo life imprisonment. Appeals in both the matters are said to be pending before this Court. Respondent no.7 had two licence no. 551 of 1983 for rifle no. NB 811784 NPB-315 bore and another licence no. 5469 for Pistol No. 236061. Inspector in Charge Dhoomanganj, Allahabad submitted a report dated 20.10.2009 recommending cancellation of licence no. 551 of 1983 (new number 8113, P.S. Colonelganj) which was endorsed by D.I.G., Allahabad vide his report dated 4.11.2009. A similar report in respect of licence no. 8112 was also submitted by the police authorities. The District Magistrate, Allahabad on 6.11.2009 registered both the matters and authorised respondent no.3 for further proceedings. Show cause notices under Section 17(3) were issued in respect of both the licences on 30.1.2010. After service of notice upon respondent no.7 hearing concluded on 30.3.2010 and 6.4.2010 was fixed for delivery of order. In the order sheet of both the cases there is pasting of separate piece of paper on some already transcribed order. When I tried to see through light it appears that an order was transcribed regarding passing of order by respondent no.3 on 6.4.2010 but thereafter the same has been changed and a different order was mentioned on a small piece of paper posted on back of paper no. 2/1 in the record of Case No. 56 of 2010 and 57 of 2010. The order sheet further shows that thereafter on several occasions arguments were heard and date was fixed for delivery of order but the order was not delivered. For example on 20.8.2010 hearing in both the matters concluded and 3.9.2010 was fixed for orders. The order was not delivered on 3.9.2010 having been declared public holiday due to last Friday of Ramzan. Then a long adjournment was given fixing 28.9.2010. On the next day also the order was not delivered on the pretext that there is a decision of no adverse order and the case was fixed for re-hearing on 15.10.2010. Again hearing concluded on 7.12.2010 and 14.12.2010 was fixed for orders. On 14.12.2010 order was not delivered on the ground of Presiding Officer being busy in administrative work and the same reason was assigned for the next date i.e., 21.12.2010. The further next date 28.12.2010 also did not see the order and the reason assigned is the decision of "no adverse order" and the matter was fixed again for hearing on 18.1.2011. Lastly after dozen of dates hearing took place on 20.5.2011 and order was delivered on 27.5.2011.

7. In the counter affidavit respondents no. 2 and 3 have relied upon the said record to plead that there is nothing irregular on the part of respondent no.3 in passing the impugned orders. Dispatch number has been entered by the Reader of the office of respondent no.3 on 6.6.2011 and parties applied for certified copy of the order only on 10.6.2011 and onwards.

8. The petitioner stated in para 22 of the writ petition that though the matter was heard on 20.5.2011 but the order was not delivered and hence he filed application before the District Magistrate, Allahabad on 9.6.2011 seeking transfer of both the cases to some other Court levelling certain allegations against respondent no.3. This fact of filing of application is not in dispute.

9. Licence file of respondent no.7 which has also been produced before the Court shows that respondent no.7 had a direct connection with Senior Administrative Officer inasmuch as on his application for change of address from P.S. Dhoomanganj to P.S. Colonelganj verification of address has been made by the then A.D.M. (Finance & Revenue) stating that he personally knows respondent no.7 and accordingly verified his change of address at New Katra, P.S. Colonelganj.

10. The manner in which record of two cases has been kept and the matter has been dealt with by respondent no.3 leaves much scope to say something which presently I am refraining myself so that the order which I propose to pass may not prejudge the issue and cause prejudice to anyone. Ex facie, I have no manner of doubt that respondent no.3 in the impugned order has relied on the proposition that mere registration of criminal case does not justify proceedings for cancellation of firearm licence, completely misdirecting himself and ignoring the fact that here is not a case of mere registration but the person concerned had been convicted twice by the Trial Courts in cases involving heinous crime under Section 302 read with section 34 IPC and, therefore, the proposition relied by respondent no.3 had no application whatsoever. What prompted him to misread such proposition to this extent deserves an inquiry particularly in the light of the fact that the order sheet has some manipulation in the form of pasting of a piece of paper for hiding an earlier written order by changing the same.

11. Though I am inclined to uphold preliminary objection of learned counsel for respondent no.7 that the petitioner is a mere complainant hence cannot be allowed to challenge the order passed by the licensing authority withdrawing show cause notice and dropping the proceedings under Section 17(3) of the Arms Act 1959 but exercising the powers in constitutional extraordinary jurisdiction under Article 226 this Court cannot remain a silent spectator if it comes to the knowledge of the Court that the executive authorities in sensitive matter like regulation of firearm are acting in a dubious manner which if allowed to perpetuate may result in more serious consequences to the detriment of public at large. In the circumstances, I decline to interfere in the order impugned in the writ petition at the instance of the petitioner but dispose of the writ petition with the following directions:

(I) This judgment shall not preclude the State Government from making appropriate inquiry in the manner and the circumstances, the impugned order has been passed by respondent no.3.

(II) The Chief Secretary, U.P. Government shall get appropriate inquiry into the matter and if necessary, through vigilance establishment or CB CID, as the case may be, and submit progress report on 16.1.2012.

(III) In case the State Government finds it necessary to pass order relating to continuation of firearm licences no 551/1983 and 5469 possessed by respondent no.7, it can take such action as permissible in law and this judgment shall not come in its way.

(IV) Registrar General is directed to send a copy of this order forthwith to Chief Secretary U.P. Government for information and compliance.

(V) This writ petition stands disposed of for all purposes except for perusal of the progress report for which it shall be listed on 16.1.2012.

Dated: 14.10.2011

Akn.