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MAHESHWARI PRASAD versus COMMISSIONER CHITRAKOOT DHAM & ANOTHER

High Court of Judicature at Allahabad

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Maheshwari Prasad v. Commissioner Chitrakoot Dham & Another - WRIT - C No. 33474 of 2003 [2005] RD-AH 1887 (10 August 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Civil Misc. Writ Petition No. 33474 of 2003

Maheshwari Prasad

Vs

Commissioner, Chitrakootdham Mandal, Banda & another

~~~~~

Hon'ble Rakesh Tiwari, J.

1. Heard counsel for the parties and perused the record.

2. This writ petition has been filed for quashing the order dated 1.7.1999 passed by the Commissioner, Chitrakootdham Division, Banda (respondent no. 1) and the order dated 29.4.1998 passed by the District Magistrate, Hamirpur (respondent no. 2).

3. By order dated 29.4.1998 the licence of the petitioning was cancelled and vide order dated 1.7.1999 his appeal no. 116/9/98 under Section 18 of the Indian Arms Act (Maheshwari Prasad Vs State) has also been dismissed by the Commissioner, Chitrakootdham Mandal, Banda.

4. From the record it appears that the petitioner was granted licence of SBBL Gun No. 10289. A show cause notice under Section 17(3) of the Arms Act issued by the District Magistrate, Hamirpur was served upon him on 24.7.1996 for cancellation of his arms licence no. 2765/III-C alleging that Case Crime No. 498/92 P.S. Rath under Section 29/30 of the Arms Act was registered against him.

5. The petitioner filed reply to the show cause notice on 20.2.1997 before the District Magistrate, Hamirpur. Subsequently the petitioner was acquitted in the aforesaid Case Crime No. 498/92. It is, however, alleged that in spite of the fact that a copy of the judgment and order of the Chief Judicial Magistrate, Hamirpur dated 19.1.1998 acquitting the petitioner for the offence punishable under Section 29/30 of the Arms Act was filed before the District Magistrate, Hamirpur, the gun licence of the petitioner was cancelled by him.  

6. Aggrieved by the order of cancellation of licence in Case No. 58 of 1993-96 under Section 17 of the Arms Act the petitioner filed Appeal No. 116/IX/98 before the Commissioner, Chitrakootdham Division, Banda (respondent no. 1) under Section 18 of the Arms Act. However, the appeal was also dismissed by the Commissioner vide his judgment and order dated 1.7.1999.

7. The counsel for the petitioner states that both the judgments and orders passed by the District Magistrate, Hamirpur and the Commissioner, Chitrakootdham Division, Banda, impugned to this writ petition, are wholly illegal and against the provisions of law as the petitioner had already been acquitted in Case No. 812/93 (State Vs Maheshwari Prasad) arising out of Case Crime No. 498/92 P.S. Rath under Section 29/30 of the Arms Act. It is further submitted that in the aforesaid facts and circumstances of the case the licence of the petitioner cannot be cancelled as the finding recorded by the respondents are against the evidence on record and are liable to be set aside.

8. It appears from the record that Police Station Rath submitted a report to the Superintendent of Police, Hamirpur according to which while investigating case no. 474/92 under Section 302/120-B I.P.C. the witnesses in that case Surendra Bhatnagar and Anoop Bhatnagar stated that Raju Teli had borrowed the gun of the petitioner on 17.11.1992 at about 7.30 A.M. and had committed murder of one Ravi Udeniya by the gun of the petitioner. On enquiry by the police the petitioner had admitted that Raju Teli had borrowed his gun. It was also stated in the report of the Police Station Rath that Case Crime No. 474/92 under Section 302/120-B I.P.C. had been registered against the accused in which Raju Teli and Bhoopendra Yadav are accused who are absconding and the gun had not been recovered till then, as such the petitioner was not eligible to hold gun licence as it would not be in the interest of public peace harmony. The District Magistrate, Hamirpur thereafter issued a show cause notice to the petitioner.

9. It appears that thereafter the petitioner was acquitted in Case No. 812/93 (State Vs Maheshwari Prasad) P.S. Rath under Section 29/30 of the Arms Act. The Chief Judicial Magistrate, Hamirpur passed the order of acquittal of the petitioner on the ground that both the eye witnesses produced by the prosecution, i.e., P.W. 1 Surendra Bhatnagar and P.W. 2 Anoop Bhatnagar had turned hostile and had not supported the case of the prosecution in their examination-in-chief stating, inter alia, that they had not seen the petitioner giving his licenced gun to Raju Teli. The order is as under:

^^vfHk;kstui{k }kjk dfFkr nksuksa p'enhn lk{khx.k ih0MCyw 1 lqjsUnz HkVukxj ,oa ih0MCyw 2 vuwi HkVukxj dks ijhf{kr djk;k x;k] ftUgksus viuh eq[; c;ku esa ?kVuk dk leFkZu ugha fd;k gS vkSj dgk fd egs'ojh ;kno dks eSaus ykblsalh cUnwd jktw rsyh dks nsrs gq, ugha ns[kk gSA bl izdkj bu lk{khx.k ds mijkUr c;ku ds vk/kkj ij vfHk;qDr }kjk vius ykblsalh 'kL= dk nq:I;ksx djuk lkfcr ugha gksrk gS vkSj vfHk;qDr nks"k eqDr dj cjh fd;s tkus ;ksX; gSA

vkns'k

vfHk;qDr egs'ojh izlkn iq= Jh d<+ksjs flag ;kno fuoklh xzke fcxok Fkkuk jkB ftyk gehjiqj dks /kkjk 29@30 vk;q/k vf/k0 ds vkjksi ls nks"keqDr fd;k tkrk gSA cU/ki= fujLr fd;k tkrk gS rFkk izfrHkwx.k dks mUeksfpr fd;k tkrk gSA

fnukad% 19-1-98                                     g0 v0

                                            ¼ ih0ds0 JhokLro ½

                                          eq[; U;kf;d n.Mkf/kdkjh]

                                                 gehjiqjA**

10. In the mean time the District Magistrate, Hamirpur in Case No. 58 of 1993-96 under Section 17 of the Arms Act relying upon the police report and admission of the petitioner that he was not having his licensed gun and Raju Teli had taken the same and had not returned, held that the petitioner was unable to safeguard his licensed gun and as such there was strong possibility of misuse of his licensed gun by the criminals and cancelled the arms licence no. 2765/111-C belonging to the petitioner.

11. The court also disbelieved the version of the petitioner in his reply dated 20.2.1997 that his licensed gun was taken by the S.H.O. for checking his licence. The District Magistrate has also taken note of the order of the Chief Judicial Magistrate in holding that due to turning of the eye witnesses as hostile the prosecution could not prove its case and the petitioner got benefit of doubt.

12. Thereafter the Commissioner, Chitrakootdham Division, Banda has also dismissed the appeal of the petitioner under Section 18 of the Arms Act vide his judgment and order dated 1.7.1999. The Commissioner while dismissing the appeal has held as under: -

^^eSus vihydrkZ ds vf/koDrk ,oa foi{kh LVsV dh vksj ls ofj"B vfHk;kstu vf/kdkjh dh cgl lquh rFkk i=koyh dk HkyhHkkafr voyksdu fd;k A vihydrkZ dh vksj ls ;g rdZ fn;k x;k fd vihydrkZ us 'kL= dk nq;i;ksx ugha fd;k rFkk v/khuLFk U;k;ky; dk fu.kZ; dsoy lEHkkoukvksa ij vk/kkfjr gS tks dkuwuh n`f"V ls xyr gS ,oa fujLr fd;s tkus ;ksX; gSA LVsV dh vksj ls vfHk;kstu i{k }kjk ;g dgk x;k fd vihydrkZ }kjk viuh cUnwd jktw rsyh uked vfHk;qDr dks ns nh xbZ Fkh ftlds }kjk bl 'kL= dk iz;ksx gR;k djus ds vijk/k esa fd;k x;k ftlds lEcU/k esa eqdnek vijk/k la[;k 474@92 /kkjk 302@120  ch vkbZ0ih0lh0 ntZ fd;k x;k rFkk foospuk ds nkSjku mDr vijk/k esa foi[kh@vihydrkZ ds 'kL= ykbZlsal ds nq;Ik;ksx dh fLFkfr Li"V gksus ij vihydrkZ ds fo:)  eq0v0la0 498@92 /kkjk 29@30 'kL= vf/kfu;e dk;e fd;k x;k vr% v/khuLFk U;k;ky; }kjk tks vkns'k ikfjr fd;k x;k gS] og iw.kZr% fof/kd gSA

eSaus v/khuLFk U;k;ky; ds fu.kZ; dks ns[kk v/khuLFk U;k;ky; us lkf{k;ksa ds vk/kkj ij ;g fu"d"kZ fudkyk gS fd ykbZlsalh }kjk viuk 'kL= ,sls O;fDr dks fn;k x;k ftlus gR;k tSls t?kU; vijk/k dks dkfjr fd;kA v/khuLFk U;k;ky; us vihydrkZ }kjk fn;s x;s bu rF;ksa dks vLohdkj dj fn;k fd mUdh cUnwd Fkkuk/;{k }kjk ys yh xbZ Fkh tgka rd vihydrkZ ds fo:) nk;j fd, x;s 'kL= vf/kfu;e ds ekeys dk iz'u gS] blesa ;|fir vihydrkZ nks"keqDr gks x;k gS] ijUrq v/khuLFk U;k;ky; }kjk fudkyk x;k ;g fu"d"kZ lgh gS fd ;g nks"keqfDr xq.knks"k ds vk/kkj ij ugha gS D;ksafd lkf{k;ksa dh Ik{knzksfgrk ds dkj.k gh og nks"keqDr gqvk gSA eSa v/khuLFk U;k;ky; }kjk fudkys x;s fu"d"kZ ls Lo;a dks lger ikrk gwWa ,oa v/khuLFk U;k;ky; ds fu.kZ; esa dksbZ =qfV izrhr ugha gksrh gSA ,slk O;fDr tks viuh ykbZlsalh cUnwd dks vijk/k dkfjr djkus ds fy;s nwljksa dks ns ldrk gks] ml O;fDr ds ikl 'kL= ykblsal dk jguk tu lqj{kk ,oa tufgr esa ugha gS rFkk izLrqr vihy Bksl rF;ksa ij vk/kkfjr u gksus ds dkj.k Lohdkj fd, tkus ;ksX; ugha gSA

mijksDr foospuk ds vk/kkj ij izLrqr vihy cyghu gksus ds dkj.k fujLr dh tkrh gSA bl vkns'k dh ,d izfr ewy i=koyh lfgr voj U;k;ky; dks Hksth tk,A i=koyh ckn vko';d dk;Zokgh vfHkys[kkxkj esa laxzfgr gksA

fnukad tqykbZ 01] 1999                                    g0v0

                                                   ¼ fot; 'kadj ik.Ms; ½

                                                         vk;qDr

                                               fp=dwV /kke e.My] ckankA**

     

13. Relying upon the decisions rendered in Writ Petition No. 25411 of 1998 (Virendra Singh Vs Station House Officer, P.S. Kabrai & Others); Writ Petition No. 33441 of 1998 (Siya Ram Vs Commissioner, Chitrakootdham Mandal, Banda & another) both based upon a Division Bench decision of this Court rendered in Sheo Prasad Misra Vs The District Magistrate, Basti & Others (1978 A.W.C. 122); and Writ Petition No. 30437 of 2001 (Udai Pratap Singh Vs Commissioner, Chitrakootdham Mandal, Banda & another); the counsel for the petitioner contends that since the petitioner has been acquitted by the Chief Judicial Magistrate for the offence punishable under Section 29/30 I.P.C. his licence cannot be cancelled as the very basis of  cancellation has been washed away by the acquittal. He has submitted that it is settled law that if the accused is acquitted in the criminal case his licence cannot be cancelled on the ground that he was an accused in the criminal case and mere pendency of a criminal case is not a good ground for cancellation/suspension or revocation of the arms licence.

14. I have considered the submissions of the counsel for the petitioner and the Standing Counsel. The Standing Counsel submits that the courts below have rightly relied upon the admission of the petitioner in their judgments that he had not been in possession of his licensed gun while police went to him in connection with investigation of Case No. 474/92 under Section 302/120-B I.P.C. The petitioner had admitted that Raju Teli had borrowed his gun on 17.11.1992 at about 7.30 A.M. and had not returned back till then. This gun was recovered by the police of P.S. Mahobkanth on 12.1.1993 from one Shyam Singh S/o Chintole Singh R/o Bahadurpura P.S. Panwari against whom Case Crime no.7/93 under Section 25 Arms Act P.S. Mahobkanth State Vs Shyam Singh) had been registered. Even though the petitioner has been acquitted by the Chief Judicial Magistrate on the ground that the eye witnesses Surendra Bhatnagar and Anoop Bhatnagar had turned hostile and stated that they had not seen the petitioner giving his gun to Raju Teli but it is also not denied that the licensed gun of the petitioner was not found in his possession which according to his own version he had given to Raju Teli who had not returned the same back to him. This admission of the petitioner which was later on denied by him concocting a false story that the gun was taken up by the S.H.O. Rath for checking his licence does not hold water and his admission is sufficient ground for cancellation of the gun licence. A person who admittedly gives his gun to a criminal and the same gun is involved in a murder of a person, cancellation of gun licence of such person cannot be faulted with.  

15. In so far as the cases cited by the counsel for the petitioner are concerned they are not applicable to the facts of the present case in view of the admission of the petitioner. Moreover, with the passage of time the needs and values of society have been changed. It is high time that the law settled earlier that if a person is acquitted his licence should not be cancelled/suspended/revoked needs a pragmatic and new approach. The increase in violation and rampant use of fire arms and the mentality of showing power of barrel has raised serious questions and doubts about the rationale of the judgments given earlier in the circumstances they were delivered. Nowadays the musclemen, Mafias and such other criminals have become so strong that they have become nuisance and a force to be reckon with. Time has come that this nuisance is to be dealt with iron hand by the judiciary, otherwise the society and the law and order would be ransacked at the barrel of the gun if no effective measures are taken immediately. The alarming position can be visualized from the day to day experience of the law courts that even eye witnesses turn hostile and no witness of an incident is easily available to give true account of an incident against criminals specially when the police are ill equipped to properly investigate into the matter. The police are also easily influenced by the influential Mafisos who get elected or adorn high posts as well as by the high ranked officers to shaken their investigation. Such cases are not unknown. If there is an iota of evidence that the arms of the licence holder has been misused or he is of criminal nature it would be sufficient ground for revocation of his licence to save the future generation from Jungle Raj of Mafisos and Dons. Acquittal in criminal cases because witnesses have turned hostile or police have not properly investigated the matter etc. should not benefit person of ill repute.  

   

16. In my opinion this petition is liable to be dismissed and is accordingly dismissed.

Dated: 10.8.2005

Rpk/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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