Upendra Kumar Singh vs The State Of Bihar And Ors
2021 Latest Caselaw 6296 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                Civil Writ Jurisdiction Case No.9891 of 2007
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UPENDRA KUMAR SINGH, Son of Tribhuwan Narayan Singh, Resident of Village Masrak, Police Station - Masrak, District Saran ... ... Petitioner/s Versus

1. THE STATE OF BIHAR

2. The Commissioner, Saran Division, Chapra

3. The District Magistrate, Saran, Chapra ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Vindhya Keshari Kumar, Sr. Advocate For the Respondent/s : Mr. Harish Kumar, Govt. Pleader No. 8 ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date :21-12-2021

In this application, under Article 226 of the Constitution

of India, the petitioner has sought for quashment of the order

dated 22.06.1995/01.07.1995 passed in Arms Case No. 02 of 1995

whereby respondent no.3-the District Magistrate, Saran at Chapra-

cum-Licensing Authority has cancelled the Arms Licence No. 113

of 1989 relating to D.B.B.L. Gun No. 15302 of the petitioner. The

petitioner has further sought for quashment of the ex parte order

of the Appellate Authority (respondent no. 2) dated 08.04.2006

passed in Arms Appeal No. 33 of 1995-96 (Upendra Kumar Singh

Versus the State of Bihar) whereby the Commissioner affirmed the

order of the District Magistrate-cum-Licensing Authority. The

petitioner prays for issuance of mandamus to the respondent-

authorities to restore the Arms Licence No. 113 of 1989. Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

2. The case and claim of the petitioner is that to protect

his life and property from invaders, the petitioner applied for

Arms Licence of a D.B.B.L. Gun and, after proper police

verification, Arms Licence No. 113 of 1989 was issued in favour

of the petitioner. Petitioner has stated on oath that the said Arms

was never misused and the same was kept by the petitioner only

for the self defence of his person and property. No criminal

prosecution was ever instituted against the petitioner prior to a

case of property dispute. The petitioner and his family members

were monitoring the ongoing construction on Plot No. 113 under

Khata No. 227. At the same time, Tara Singh and others came

heavily armed and forcefully stopped the construction. On protest,

Tara Singh and others made indiscriminate firing and caused

injury to several persons. The petitioner escaped and went to the

police station and lodged Ishuapur P.S. Case No. 109 of 1993

under Section 307 of the Indian Penal Code and Section 27 of the

Arms Act besides other ancillary sections of the Indian Penal

Code.

In retaliation, one Ram Ayodhya Singh lodged

Ishuapur P.S. Case No. 110 of 1993 against the petitioner and

others alleging therein that his nephew Tara Singh had purchased

the above referred Plot No. 113, under Khata No. 233, area 2 Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

Katha 10 Dhur. The petitioner and others were forcefully making

construction on that and when Ram Ayodhya Singh and others

stopped, the petitioner and others made indiscriminate firing.

However, Ayodhya Singh escaped and lodged FIR.

This Ishuapur P.S. Case No. 110 of 1993 was

main consideration by respondent no. 3 to cancel the licence of the

petitioner besides report of the Superintendent of Police, Saran at

Chapra submitted therewith.

It would be worth to notice that Ram Ayodhya

Singh, the informant of Ishuapur P.S. Case No. 110 of 1993, was

examined during trial (in Sessions Trial No. 179 of 1995, a copy

of the judgment at Annexure-1) and stated that, in fact, he had not

lodged any FIR. His signature was obtained on blank papers. The

trial resulted in acquittal.

3. The report of the Superintendent of Police, Saran,

dated 31.12.1994, at Annexure-B, would reveal that he had simply

forwarded the report of the Officer-in-Charge, Ishuapur

(Annexure-B). The Superintendent of Police, Saran reported as

follows:-

"In the matter of cancellation of licence of

accused Upendra Singh (the petitioner) of his

double barrel gun, the Investigating Officer Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

has submitted a proposal which is enclosed in

original. The accused has wrongfully used his

gun and caused injury. The accused is hot

headed man and off and on takes out his

gun."

4. The Investigating Officer reported that the petitioner

wants to use his gun on simple quarrel but he could not cite any

instance wherein the petitioner was found using his gun nor any

witness came forward to substantiate the aforesaid statement.

5. It is worth to note that there is no allegation in the

FIR of Ishuapur P.S. Case No. 110 of 1993 that the petitioner had

used his licensee gun or had caused injury to anyone. Thus, the

report of the authority on which the Licensing Authority relied

was based on conjectures and surmises.

6. The Licensing Authority rejected the show cause of

the petitioner for the reason that the petitioner did not produce any

evidence that he had not used his gun in the occurrence for which

Ishuapur P.S. Case No. 110 of 1993 was registered. The Licensing

Authority did not properly consider that from the statement made

in the case and counter case, it was evident that land dispute was

there between the parties and even if it is assumed that the Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

petitioner used the gun, the act of the petitioner cannot be treated

as an act beyond the area of protection of his right to property.

7. Mr. Vindhya Keshri Singh, learned Senior Counsel

for the petitioner contends that the order of the Licensing

Authority is based on surmises and conjectures and suffers from

non-application of mind. Moreover, the order has been passed in

mechanical manner, arbitrarily without giving opportunity of

hearing to the petitioner. The petitioner was not supplied with the

copy of the FIR or the report of the Superintendent of Police,

Saran. Hence, proper opportunity to defend was not given to the

petitioner.

8. The respondents have filed counter affidavit and, Mr.

Harish Kumar, learned G.P.-VIII appearing for the respondents

contends that mere institution of a criminal case against the holder

of licence is a good ground for cancellation of the Arms Licence.

This has been settled by a Full Bench of this Court in Kapildeo

Singh v. State of Bihar & Ors. reported in AIR 1987 Patna

122. However, learned counsel does not controvert the statement

on oath of the petitioner that report of the Superintendent of Police

etc. was never supplied to the petitioner while asking for cause to

be shown.

Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

9. Section 17(1) of the Arms Act, 1959 empowers the

licensing authority to vary the conditions of licence. Such

variation is possible on application of the holder of a licence also

under sub-section (2) of Section 17 of the Arms Act. Section 17(3)

of the Arms Act empowers the licensing authority to suspend or

revoke a licence on the ground mentioned in Clause (a) to (e) of

sub-section (3). Sub-section (5) of Section 17 of the Arms Act

provides that where the licensing authority makes any 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.

10. It is not the fundamental right of a citizen to acquire,

carry or possess the firearm. The licence for the aforesaid purpose

is granted under the provisions of the Arms Act and Rules made

thereunder on fulfillment of the conditions for the grant of licence.

11. On a bare perusal of Section 17 of the Arms Act, it is

clear that a wide discretion has been conferred on the Licensing

Authority to grant or not to grant licence under the Arms Act. This

does not mean that the Licensing Authority has to exercise power Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

whimsically or arbitrarily but this shows that the power is to be

exercised by the authority on fulfillment of the certain conditions

for grant of licence. In fact, it is a statutory privilege given to the

citizens to hold or carry a licence in accordance with the

provisions of the Arms Act and Rules. "While revoking the

licence, the only requirement from the Licensing Authority is

recording of reason in writing". Thus, by necessary implication,

the reason must be supported by cogent and trustworthy material

on the record. Moreover, opportunity of hearing to the affected

party must be given before resorting to the exercise of power of

revocation of the licence. An identical issue was there before a

Division Bench of this Court in Jagdamwa Singh @ Markandya

Singh Vs. The State of Bihar & anr. reported in 1993(2) PLJR

107.

12. The question before the Division Bench was whether

the Licensing Authority can suspend the licence and ask the

licensee to deposit the firearm without affording opportunity of

hearing during the pendency of the cancellation/revocation

proceeding. Paragraph 9 of the judgment is being reproduced

below:-

"9. It is well settled that if a statutory authority has

power to do any Act which adversely affect the citizen,

then, although there are no two parties apart from the Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

authority and the contest is between the authority

deciding the matter and the person opposing it the final

determination by the authority will be a quasi judicial act

provided the authority is required by the statute to act

judicially (See AIR 1950 SC 222- Province of Bombay v.

Khushaldas S. Advani). In other words an administrative

proceeding will assume the nature of quasi judicial

proceeding if the authority is required to adopt a judicial

approach. However, it is not necessary to deal this issue

in detail for the reason that the distinction between the

quasi judicial proceeding and the administrative

proceeding has practically obliterated. In this connection

reference may be made to the case of A.K. Kraipak v.

Union of India (AIR 1970 SC 150). In that case the

Supreme Court observed as follows:-

"The aim of the rules of natural justice is to

secure justice or to put negatively to prevent

miscarriage of justice. These rules can operate only

in areas not covered by any law validly made. In

other words they do not supplant the law of the

land but supplement it. The concept of natural

justice has undergone a great deal of change in

recent years. In the past it was thought that it

included just two rules, namely, (1) no one shall be Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

judge in his own cause (Nemo debet case judex

propria causa) and (2) no decision shall be given

against a party without affording him a reasonable

hearing (audi alteram partem). Very soon

thereafter a third rule was envisaged and that is

that quasi judicial enquiries must be held in good

faith, without bias and not arbitrarily or

unreasonably. But in the course of years many

more subsidiary rules came to be added to the rules

of natural justice. Till very recently it was the

opinion of the Courts that unless the authority

concerned was required by the law under which it

functioned to act judicially there was no room for

the application of the rules of natural justice. The

validity of that limitation is not questioned. If the

purpose of the rules of natural justice is to prevent

miscarriage of justice one fails to see why those

rules should be made applicable to administrative

enquiries.

Often times it is not easy to draw the line that

demarcates administrative enquiries from quasi

judicial enquiries. Enquiries which were

considered administrative at one time are now

being considered quasi judicial in character.

Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

Arriving at a just decision is the aim of both quasi-

judicial enquiries as well as administrative

enquiries. An unjust decision in an administrative

enquiry may have more far reaching effect than a

decision in a quasi-judicial enquiry."

Recently in the case of Km. Neelima Misra v. Dr.

Harinder Kaur Paintal and Ors. (AIR 1990 SC 1402) it

has been held that :-

"The shift now is to a broader notion of

"fairness" or "fair procedure" in the

administrative action. The administrative officers

are concerned, the duty is not so much to act

judicially as to act fairly. .... For this concept of

fairness, adjudicative setting are not necessary, nor

it is necessary to have lites inter parties. There need

not be any struggle between two opposing parties

giving rise to a 'lis'. There need not be resolution of

lis inter parties. The duty to act judicially or to act

fairly may arise in widely different circumstances.

It may arise expressly or impliedly depending upon

the context and considerations. All these types of

non-adjudicative administrative decision making

are now covered under the general rubric of

fairness in the administration. But when even such Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

an administrative decision unless it affects one's

personal rights or one's property rights, or the loss

of or prejudicially affects something which would

judicially be called at least a privilege does not

involve the duty to act fairly consistent with the

rules of natural justice. We cannot discover any

principle contrary to this concept."

Thus, from the aforesaid decisions it is clear that the

shift in the present days is to adopt the notion of fair

procedure in the administrative action and if an order,

whether it is called quasi-judicial or an administrative

one affects the right of the parties or visits with civil

consequences or affects even the privileges then a duty is

cast on the authority to act fairly consistent with the rules

of natural justice. No doubt, the rules of natural justice

are not embodied rules. Application of these rules

depends upon the statutory frame-work under which a

jurisdiction has been conferred upon the authority. It can

operate in an area not covered by any law validly made.

Its application can be excluded either expressly or by

implication in the public interest or in an emergent and

urgent situation. As noticed above, Section 17 of the

Arms Act itself does not provide for giving an opportunity

of hearing before suspension or revocation of licence, Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

but, from perusal of Sub-section (5) of Section 17 it is

clear that recording of reasons is a must. The

requirement of giving reason, in my opinion, requires the

authority to act judicially or fairly in the matter and this

requirement cannot be complied with unless the affected

person is given an opportunity of hearing before passing

the order of suspension/revocation. Nobody can dispute

the fact that the cancellation or suspension of licence

leads to a grave consequence. The licence of arms is

granted to the person for the protection of his life and

property and withdrawal of the said privilege without

observing the principles of natural justice will deprive the

holder of the licence to carry arms for protection and

safety of his life and property as well as the life and

properties of others, as permissible in law."

13. Thus, it is well settled that before revoking the

licence, the holder of the licence must have fair opportunity of

hearing and that includes supply of all the materials which was to

be relied upon by the Licensing Authority for revocation of the

licence. The petitioner categorically asserted that the police report

nor a copy of the FIR, which were basis for revocation of the

licence, were never supplied to the petitioner.

14. Moreover, as referred above, the police report does

not reveal that the same was based on any substantive and tangible Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

material, rather the same was based on conjectures and surmises.

The FIR of Ishuapur P.S. Case No. 110 of 1993 or its counter case

clearly depicts that whatever was alleged in the FIR was due to

claim and counter claim on the same property and there was no

allegation to make a case of misuse of the licence. Even the

informant disowned the FIR as noticed above and the FIR does

not show that the petitioner was using his licensee gun.

15. Therefore, in my view, there was no tangible material

before the Licensing Authority to make out a case that discretion

was exercised judicially. There is no denial that proper

opportunity to defend was not given to the petitioner by supply of

entire materials which were relied by the Licensing Authority for

revocation of the licence, hence, authority did not act fairly.

Therefore, the impugned orders suffers from arbitrariness which

cannot be allowed to be sustained. Consequently, the orders, under

challenge, are hereby quashed.

16. The respondent-authorities are directed to restore the

licence and gun in favour of the petitioner at once. The petitioner

would be liable to pay the licence fee from the date of restoration

of the licence only and not for the period in between the date of

revocation of licence and restoration of licence.

Patna High Court CWJC No.9891 of 2007 dt.21-12-2021

17. With the aforesaid observation, this application

stands allowed.

(Birendra Kumar, J)

Kundan/-

AFR/NAFR                A.F.R.
CAV DATE                16.12.2021
Uploading Date          21.12.2021
Transmission Date       21.12.2021