Prempal Singh vs State Of U.P. And Another
2021 Latest Caselaw 2326 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 37
 

 
Case :- WRIT - C No. - 18026 of 2020
 

 
Petitioner :- Prempal Singh
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Ajay Kumar Pathak
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajiv Joshi,J.

Heard Sri Ajay Kumar Pathak, learned counsel for petitioner and learned Standing counsel for respondents.

Petitioner in the present case has merely prayed for the following reliefs:-

"i) Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 1.11.2019 passed by respondent no.2 in representation No. 04 of 2019 (Annexure no. 7 to the writ petition).

ii) Issue a writ order or direction in the nature of mandamus directing the respondent no.2 to restore the arm Licence No. 10002/1998 D.B.B.L. Gun No. 54727 forthwith and also release the arm of the petitioner."

It reflects from the record that earlier the petitioner was granted arm licence, which was cancelled on the ground of implication in Criminal Case No. 299/2004, under Sections 147, 148, 149, 307, 302 of IPC, Section 3(2)(5) of SC/ST Act and also Section 7 of Criminal Law Amendment Act, Police Station Sasni, District Hathras. The said order was affirmed by the appellate authority i.e Commissioner, Agra Division Agra, on 14.8.2006. Against that order Writ-C No. 60825 of 2006 (Prem Pal vs. State of U.P. and Others) was filed, which was allowed by this Court vide order dated 10.4.2019. The said order is quoted as under:-

"Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

Submission is that the arm licence of the petitioner was cancelled on account of implication in Case Crime No.299 of 2004, under Sections 147, 148, 149, 307, 302 I.P.C and 3(2)(5) of SC/ST Act and Section 7 of Criminal Law Amendment Act, Police Station Sasni, District Hathras.

Learned counsel for the petitioner has brought on record the judgment and order dated 24.03.2012 passed by Additional District and Sessions Judge, Court no.3rd / Special Judge SC/ST Act in Sessions Trial No.441 of 2007, whereby petitioner has been acquitted of the charges in the aforesaid case. Learned counsel for the petitioner has submitted that the arm licence of the co-accused, Mahendra Kumar, was also cancelled and his appeal against the same was dismissed by the Commissioner Agra Division, Agra. He has approached this Court by way Writ-C No.65346 of 2006. After acquittal of the co-accused in the aforesaid case, the aforesaid writ petition has been allowed by order dated 11th March, 2019. It has been submitted that in view of the fact that petitioner had been acquitted in only case on the basis of which licence was cancelled, therefore, arms licence of the petitioner may be directed to be restored and the order passed by the Collector as well as Commissioner may be quashed.

Learned Standing Counsel has gone through the Supplementary affidavit and the order passed in Writ-C No.65346 of 2006 but could not dispute the fact as submitted by the learned counsel for the petitioner.

In view of the facts and circumstances of the case, the order 14.8.2006 passed by Respondent no.2 / Commissioner, Agra Division, Agra and the order dated 08.08.2005 passed by respondent no.3 / District Magistrate, Hathras (Mahamaya Nagar) are hereby quashed.

The Court, however, is not aware of the fact as to whether the petitioner has been involved thereafter in any criminal activities. It would, therefore, be proper for competent authority to consider the matter afresh and pass appropriate order on the arms licence of the petitioner after calling for a fresh report in accordance with law within a period of six months from the date of production of certified copy of this order before him. The release of gun to the petitioner would be subject matter of enquiry and fresh orders passed by the licensing authority.

The writ petition is allowed to the extent indicated above."

The orders passed by the District Magistrate as well as Commissioner, cancelling the firearm licence of the petitioner have been quashed and liberty was given to the concerned District Magistrate to examine as to whether the petitioner is involved in any subsequent case, which may justify the denial of his firearm licence.

However, the District Magistrate has passed the impugned order observing that from the last 15 years, there was no instance of threat to the petitioner's life and liberty, as such, the firearm licence is not required to be issued to him. The said order is impugned in the writ petition.

It is contended by learned counsel for the petitioner that the impugned order is passed on non-application of mind and the order passed by this Court has been misconstrued.

This Court while entertaining the present petition has passed the following order on 9.11.2020, which is quoted as under:-

"Order passed by the District Magistrate, Hathras dated 1.11.2019 is assailed on the ground that the same is inconsistent with the directions issued by this Court in Writ Petition No. 60825 of 2006 decided on 10.4.2019 inasmuch as after passing of the earlier order petitioner has not been implicated in any fresh criminal case and the previous implication has already been examined by this Court while deciding the earlier writ petition. It is also urged that the respondent cannot sit in appeal over the order passed by this Court.

Matter requires consideration.

Learned Standing Counsel may obtain instructions or file a counter affidavit within three weeks.

Rejoinder affidavit, if any, may be filed within a weeks thereafter.

List in the additional cause list on 15.12.2020. "

Despite the specific order of this Court, no counter affidavit has been filed from the side of the respondents.

Personal affidavit of the District Magistrate, Hathras, has been filed in pursuance to the earlier order of this Court dated 5.12.2020, in which it is stated that since there was no recommendation of the Superintendent of Police to revive firearm licence of the petitioner, and therefore, the District Magistrate has not issued firearm licence in favour of the petitioner. Paragraph nos. 7 to 9 of the personal affidavit of the District Magistrate, Hathras, are quoted as under:-

"7. That it is submitted that as per report submitted by the Superintendent of Police Hathras several criminal cases, which were pending before competent court of law and have been decided in favour of the petitioner by acquitting him but there is no danger in life to the petitioner, hence license granted earlier in favour of the petitioner may not be revive.

8. That since the Superintendent of Police, District Hathras has not recommended to revive the license of arms of the petitioner, hence the deponent has not issued license of arms in favour of the petitioner.

9. That it is submitted that if Hon'ble Court thinks fit to revive of license of arms of the petitioner and any direction may be issued to the deponent, then the deponent will comply with the orders, if any, passed by this Hon'ble Court."

Rejoinder affidavit to the said affidavit is filed today, which is taken on record.

Record reflects that the order passed by the District Magistrate is against the fact and also observation made by this Court in the earlier writ petition but the District Magistrate has failed to apply its judicial mind.

After the orders passed by the authorities were quashed by this Court, the limited scope of inquiry available at the level of the District Magistrate was to ascertain whether the petitioner is implicated in any fresh case, which may justify denial of firearm licence of the petitioner.

Admittedly, from the last 15 years there is no fresh criminal case against the petitioner, which may justify the denial of the firearm license of the petitioner.

Under these circumstances, the order impugned dated 1.11.2019 cannot be sustained and is, accordingly, quashed. Direction is issued to District Magistrate, Hathras, to restore the firearm licence of the petitioner (Arm Licence No. 10002/1998 D.B.B.L. Gun No. 54727), forthwith and also release the firearm of the petitioner within a month.

With the above, the writ petition is allowed. No order as to costs.

Order Date :- 17.2.2021

S.K.