Indrajeet Singh vs State Of U.P. And 4 Others
2021 Latest Caselaw 11229 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                        A.F.R.
 
Judgment reserved on 8.9.2021.
 
Delivered on  22.10.2021.
 
Court No. - 19
 
Case :- WRIT - C No. - 4947 of 2019
 
Petitioner :- Indrajeet Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Vikram Yadav,P.K. Upadhyay
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. The issue for consideration in this writ petition is:-

''Whether an aquittal in a criminal case/cases of a licensee (under the Arms Act, 1959) itself is relevant and sufficient ground to alter/set-aside/review the order of suspension/cancellation of the arms licence passed (under Section 17 of the Arms Act, 1959) due to pendency of said criminal case/cases on the ground that very basis is now wiped out'? or

''Whether the nature of acquittal i.e. honorable acquittal/acquittal granting benefit of doubt/prosecution unable to prove case beyond reasonable doubt, would still be relevant and sufficient ground for subjective satisfaction of the licensing authority to continue suspension/revocation of the arms licence specifically in cases where there was allegation of misuse of fire arm or offences of serious nature such as offences are against the State, offence against public tranquillity, offences affecting human body, offences affecting life, and sexual offences etc.?

2. P.K. Upadhyay, learned counsel for the petitioner has submitted that since subsequently there was an acquittal in the criminal case, the basis of the notice for cancellation of arms licence itself disappears, therefore, the nature or manner of the acquittal was immaterial and consequently the order of cancellation of arms licence ought not to have passed. In support of his submission he has relied upon following judgments, Ram Murat Vs. State of U.P. and others, 2002 (2) AWC 1079, Virendra Singh Vs. Station Officer, P.S. Kabrai and others, 2002 (2) AWC 1080, Anil Kumr Singh Vs. District Magistrate, Pratapgarh and others, Writ Petition No;878 of 1979 decided on September 22, 1994, Lalji Vs. Commissioner, Kanpur and another, 1999 (4) A.W.C. 2952 , Raj Bahadur Singh Vs. State of U.P. and others, 2009 (3) AWC 2130.

3. In the present case, the licensing authority had taken note of nature of acquittal i.e. petitioner was granted benefit of doubt and considered that licensed arm was used in occurrence and injured remained under medical treatment, therefore, cancelled the fire arm licence as it deemed necessary for security of public peace and for public order.

4. Per contra, Mrs. Archana Tyagi, learned Additional Chief Standing Counsel has vehemently argued that Section 17 (3) of the Arms Act, 1959 (hereinafter referred to as "Act of 1959") provides that the licensing authority may by order in writing suspend a licence for such period or to revoke the arms licence as it deem necessary for security of the public peace or for public safety. The satisfaction of the licensing authority is in the nature of subjective satisfaction, therefore, the nature of acquittal i.e. whether the acquittal is honorable acquittal or on the basis of benefit of doubt or prosecution failed to prove the case beyond reasonable doubt would be a relevant factor for consideration/ subjective satisfaction that still it would be necessary for the security of public peace or for public safety to revoke/suspend the arms licence or not.

5. The licensing authority while granting licence may take note of applicant's criminal antecedent, general behaviour in public, social reputation, family background, threat to person or family to ascertain as to whether there is a reasonable possibility of misuse of fire arm in future, therefore, she further submitted that acquittal in a criminal case itself, ignoring the nature of acquittal would not be a sufficient ground for consideration of grant of licence or to set-aside the order of suspension/revocation of arms licence, in case the said order was passed due to pendency of a criminal case where subsequently order of acquittal was also passed. The nature of acquittal i.e. by granting benefit of doubt or prosecution failed to prove the guilt beyond reasonable doubt or honorable acquittal would still be relevant and material factor for subjective satisfaction of the licensing authority to arrive at a conclusion with regard to the security of public peace or for public security to grant arms licence/or to continue order of cancellation of arms licence or not.

6. Heard learned counsel for the parties, perused the record and written submission filed by the rival parties.

7. Acquiring of a arms licence is only a privilege and is not a fundamental right of a citizen. In this regard relevant part of para 42 of Five Judges Bench of this Court in Rana Pratap Singh Vs. State of U.P. 1995 All LJ 200 is relevant to mention hereinafter that:

"It follows, therefore, that the right to carry firearms does not come within the purview of Article 21 of the Constitution."

8. The licensing authority has a power for refusal of licence under the provisions of Section 14 of the Arms Act, 1959, that the licensing authority shall refuse to grant a licence under the circumstances provided under sub-section 1 (a) (b) (i) (1) (2) (3) and (ii) of Section 14, where it deems necessary for the security of public peace or for public safety or has a reason to believe for any reason that the applicant is unfit for a licence under the Act, 1959.

9. Arms Act, 1959 does not specifically provide refusal, suspension or revocation on the ground of registration of a criminal case or on conviction or on the basis of a nature of acquittal, but if there exists subjective satisfaction of the licensing authority that it has reason to believe or it thinks fit for the reasons referred in Section 14, it may refuse, suspend or revoke the licence even for any reason which renders the applicant/licensee unfit for a licence under the Act, 1959 or it deems necessary for the security of public peace or for public safety.

10. In all the judgments relied upon by the learned counsel for the petitioner, the co-ordinate benches of this Court have held that if the licence of the fire arm is cancelled on the ground of involvement of licensee in a criminal case and thereafter if the licensee is acquitted in those cases, then there remains no material for revocation of the arm licence. These judgments have not considered the question arisen in the present case i.e. effect of nature of acquittal, particularly when the allegations are serious in nature in the light of various provisions of the Act of 1959 and the Arms Rules, 2016.

11. Acquittal per se does not result into disappearance of ground for suspension or revocation of arms licence. The licensing authority on the basis of its subjective satisfaction after considering the material available can still determine as to whether revocation could be continued or on the basis of nature of acquittal particularly in the cases where the allegations are serious in nature such as murder, rape, dacoity, robbery, offence involving attempt to murder etc. On the basis of the provisions mentioned under Section 17 (3) (a), (b), (c), (d) and (e) of the Act, 1959, a decision may be taken for continuation of revocation of licence or for any reason unfit for the licensee or if it necessary for security of public peace or for public safety.

12. Sub-section 5 of Section 17 of the Act, 1959 casts an obligation on the licensing authority to pass a reasoned order. However, it further provides that in the public interest, it may not provide reason for revocation/suspension of arms licence. Even the reasons recorded for revocation of licence will be furnished to the holder of the licence on demand in a form of a brief statement and such statement can be denied if the licensing authority is of the opinion that it will not be in public interest.

13. For reference, relevant sections 13 (Grant of licences), 14 (Refusal of licences) and 17 (Variation, suspension and revocation of licences)- are mentioned hereinafter:

"13. Grant of licences.―(1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.

1 [(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.

(2A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same:

Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.]

(3) The licensing authority shall grant--

(a) a licence under section 3 where the licence is required―

(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection:

Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or

(ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;

(b) a licence under section 3 in any other case or a licence under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same.

14. Refusal of licences.―(1) Notwithstanding anything in section 13, the licensing authority shall refuse to grant―

(a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;

(b) a licence in any other case under Chapter II,―

(i) where such licence is required by a person whom the licensing authority has reason to believe--

(1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or

(2) to be of unsound mind, or

(3) to be for any reason unfit for a licence under this Act; or

(ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.

(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.

(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.

17. Variation, suspension and revocation of licences.―(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice.

(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.

(3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence,―

(a) if the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act; or

(b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or

(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or

(d) if any of the conditions of the licence has been contravened; or

(e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.

(4) The licensing authority may also revoke a licence on the application of the holder thereof.

(5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.

(6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.

(7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence:

Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.

(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.

(9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof.

(10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation."

14. The nature of acquittal i.e. honorable acquittal or acquittal on the basis of benefit of doubt are terminologies not mentioned in the Criminal Procedure Code. However, the Apex Court has discussed these terminologies in Deputy Inspector General of Police and another Vs. S.Samuthiram, 2013 (1) SCC 598, relevant paragraph 24 of which is reproduced below:

"24. The meaning of the expression ''honourable acquittal' came up for consideration before this Court in RBI Vs. Bhopal Singh Panchal, (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions ''honourable acquittal', ''acquitted of blame', ''fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression ''honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."

(Emphasis Added)

The Apex Court in a recent case of State of Rajasthan and Ors. Vs. Love Kush Meena, 2021 SCC Online SC, 252. has also observed in this regard: Relevant paragraph 15 of which is mentioned hereinafter:

15. It is pointed out that various nuances arising in this judgment has been considering even in the subsequent judgments. In Union Territory, Chandigarh Administration & Ors. v. Pradeep Kumar & Anr., (2018) 1 SCC 797, a two Judge Bench of this Court dealt with the expression "honourable acquittal". It was opined that acquittal in a criminal case was not conclusive for suitability of the candidate concerned and it could not always be inferred from an acquittal or discharge that the person was falsely involved or has no criminal antecedents. Thus, unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. No doubt, it was mentioned by relying on the earlier judgment of this Court in Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598, that while it was difficult to define precisely what is meant by the expression "honourable acquittal", an accused who is acquitted after full consideration of the prosecution evidence and prosecution has miserably failed to prove the charges levelled against the accused...."

15. Considering the scheme to grant, refuse, suspension and revocation of arms licence under the Act, 1959 and the subjective satisfaction of the licensing authority on the basis of material available after taking into consideration various factors mentioned in Sections 13,14 and 17 of the Act, 1959 and also medical certificate, threat perception, genuine requirement, no objection, police report, antecedent verification report, undertaking for safe storage of fire arms etc., by way of filling of requisite forms prescribed under schedule of Arms Rule, 2016 subject to restrictions provided under Rules 32 and 112 etc., the important considerations while granting or revoking the arms licence is likelihood or actual misuse of firearm and it is important for the licensing authority to take appropriate decision considering the factors mentioned above including the nature of acquittal to form a reasoned opinion whether to refuse, grant, suspend or revoke the licence. The nature/manner of acquittal is very relevant factor in disciplinary proceedings as well as in selection on various posts such as police, judiciary and army etc. As referred above, antecedent verification report is also a very important consideration to grant or to refuse arms licence, such report includes general behaviour of the applicant and his involvement in the criminal cases etc.

16. The words "public peace and public order" are normally considered to maintain peace and order at public at large. However, there may be instances where though the immediate danger may be to an individual, but it may have threat to the public at large. For example a fire arm licensee entered inside the house of a neighbour and threatened him or undertook blank firing by licensed weapon or otherwise, though it may be itself be violative or not violative of conditions fire arm license, but this act is not only a threat to an individual, but is definitely likely to cause disturbance of public peace and public order to public at large, therefore, in these circumstances for security of public peace or for public order, the licensing authority may suspend or revoke the arms licence under Section 17 (3) of the Act, of 1959. Similarly, a person/licensee who is involved in a case of murder or attempt to murder or any offence affecting human body or any other serious offence, there may be likelihood of breach of public peace or public order.

17. The words used in Section 17 (3) (b) of the Act, 1959 is "deems it necessary for the security of the public peace or for public safety" i.e. in order to secure public peace or for public safety, the licensing authority if deems necessary, may suspend or revoke the licence. It is not necessary that actual disturbance of public peace or public safety may take place to revoke or suspend the arms licence. The licensing authority on the basis of material available, if deems necessary for security of public peace or for public safety may revoke the arms licence. Therefore, at this stage subjective satisfaction of the licensing authority comes into picture and if the licensing authority finds that due to certain act whether it is affecting to an individual or public at large, may for the security of public peace or for public safety, may suspend or revoke the arms licence. This is a precautionary measure, therefore, it is not necessary that actual disturbance of public peace or public safety may occur. Therefore, even the criminal antecedent of the licensee are very important factor for consideration for granting license. In these circumstances, even pendency of a criminal case involving serious offence may be sufficient to suspend or revoke the arms licence. Similarly, even after the acquittal, the nature of acquittal may be an important factor to consider whether there may be a likelihood of disturbance of public peace and safety especially in cases where the offences are against the State, offence against public tranquillity, offences affecting human body, offences affecting life, and sexual offences etc.

18. The licensing authority is in the field, therefore, is the best judge who can assess the situation on the basis of material which are before him. Such an assessment cannot be substituted by this Court which is no way connected or does not have any inkling of situations. This Court cannot undertake any exercise to determine the facts leading to the subjective satisfaction of the licencing authority on the basis of situation then existing, except there are material to show as to how the satisfaction is perverse or based on no material. (See Jagat Pal Singh Vs. State of U.P. 1997 (34) ACC 499).

19. There must be subjective satisfaction of the licensing authority that the licensee is not fit to continue holding of licence. If the licensing authority is satisfied of the fact that a continued existence of fire arms licence with a person charged with various offence may endanger security of public peace and public safety then revocation of licence under Section 17 cannot be said to arbitrary or without jurisdiction. (See 1999 SCC Online Pat 206, (1999) 3 PLJR 203, Tej Narayan Singh Vs. State of Bihar and others.)

20. In view of above discussion, the issue under consideration is decided in following terms. The arms licence suspended/cancelled on the ground of pendency of a criminal case/cases against the licensee, the subsequent acquittal itself be not a sole ground for restoration of the arms licence, but the nature of acquittal would still remain a ground for consideration to continue with the suspension/cancellation particularly where the offences are against the State, offence against public tranquillity, offences affecting human body, offences affecting life, and sexual offences etc.

21. In view of the above, the Court proceeds to consider the present case on the basis of its facts.

22. Undisputedly, a show cause notice was issued to the petitioner to revoke his arms licence on the ground of pending criminal case. However, despite the petitioner was granted acquittal in the said criminal cases, the licensing authority revoked the arms licences issued to the petitioner vide order dated 30.5.2012 on the basis of allegations made in the said criminal case that the fire arm issued to the petitioner was misused and that nature of acquittal was not honourable but due to grant of benefit of doubt. The appeal filed by the petitioner against the said order before the respondent no.2 was also dismissed vide order dated 17.12.2018 confirming the finding of the licensing authority.

23. In view of the above discussions, considering that there was misuse of firearm and that basis of acquittal was granting of benefit of doubt and it was not a case of honorable acquittal and above all it was a case of attempt to murder, the licensing authority has sufficient material to hold that it was not in the interest of public order and for security of public peace to continue the arms licence with the petitioner and it was rightly cancelled.

24. The writ petition is dismissed.

Order Date :- 22.10.2021

SB