High Court quashed orders rejecting an arms licence application due to missing police report. Court held licensing authority must record reasons for refusal and cannot mechanically approve rejection where report is absent.
impugned orders under annexure b and 5 are quashed and set aside; fresh decision to be made within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.23109 of 2013
=========================================================== Munna Jaiswal S/O Late Jagat Narayan Jaiswal Residence Of Mohalla- Badhai Tola, P.S- Alamganj, District , Patna .... .... Petitioner Versus 1. The State Of Bihar Through Home Secretary, Govt. Of Bihar. 2. District Magistrate, Patna. 3. District Arms Magistrate,Patna. 4. Additional District Magistrate, (Arms), Patna. 5. Divisional Commissioner, Patna Division, Patna. 6. Sr. Superintendent Of Police, Patna .... .... Respondents =========================================================== Appearance : For the Petitioner : Mr. MD. SHAKIR AHMAD, Mr. Vishwa Nath Pandey and Ms Manisha Pandey, Advocates For the State : Mr. Ashok Kumar Dubey, AC to AAG 4
=========================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL JUDGMENT Date: 09-11-2015
I have heard learned counsel for the petitioner and the State. Petitioner seeks quashing of communication dated 21.10.2009 contained in Annexure 5, issued by the Arms Magistrate, Patna informing him that the police report as demanded by the licensing authority, was yet to be received and as directed he has stated that the District Magistrate has been pleased to reject his application for grant of arms licence after due consideration.
It is contended on behalf of the petitioner that the ground of rejection is wrong and erroneous inasmuch the petitioner does not have any control over the police authority so that he could have ensured the submission of the police report within the prescribed time
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before the licensing authority.
A detailed counter affidavit has also been filed on behalf of the respondent nos. 2, 3 and 4 appending therewith the copies of the relevant records of the case initiated upon the application filed for grant of arms licence by the petitioner.
It appears therefrom that on 09.10.2009 the District Arms Magistrate, Patna addressing the Additional District Magistrate, Patna has made a recommendation which is extract as under:
ÞmDr ifjfLFkfr e a vkosnd ds “kL= vkosnu ij iqfyl izfrosnu 6 ekg ls vf/kd fnuks a ls vizkIr jgus ds vkyksd es a vLohd`r fd;k tk ldrk gSA rRl a c a /kh lwpuk lo a f/kr Fkkuk/;{k@ojh; iqfyl v/kh{kd] iVuk dks Hkh nh tk ldrh gSA vkosnd vxj pkgs a rks u;k vkosnu u, rF;ks a ds lkFk ftyk “kL= “kk[kk es a ns ldrs gS a Aß
It is apparent from the above that he has made recommendation for rejection of the application of the petitioner on the ground of non-furnishing of any report by the police authority and also that the petitioner may be given liberty to file a fresh application on new facts.
Thereafter, there appears to be an order passed by the District Magistrate stating that the recommendation made by the Arms Magistrate is being approved.
In my view, the present proceeding suffers from several lacunae. The first and foremost being erroneous exercise of the
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jurisdiction by the Authorities. There is no provision in the Arms Act, 1959(hereinafter to be referred to be as “the Act”) empowering the Arms Magistrate to make a recommendation and then its approval by the District Magistrate either for granting or refusing the application for grant of arms licence. Sub-section (2-A) of section 13 of the Act lays down in clear terms that it is the licensing authority itself which has to pass order granting licence or refusing the licence upon such inquiry which he deems necessary and considering the report of the police in terms of sub-section (2) of section 13 of the Act. Of course, the proviso to sub-section (2A) of section 13 of the Act lays down that if 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 make such order after the expiry of the prescribed time without further waiting for that report. That does not necessary mean that in the case of non-receipt of the report of the police, the application for grant of arms licence is to be rejected only. A decision or order means that an order is to be passed in accordance with law after application of mind by the licensing authority. Section 14(3) of the Act lays down that where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal. He may direct the Arms Magistrate to make an enquiry,
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however, upon submission of a report, he would have to pass a reasoned order specially when he is refusing arms licence. In the case in hand, there is no enquiry by the Arms Magistrate. He has merely noted down in the case file that the police authority has not sent its report and, then has recommended that the application may be rejected. Under the relevant statute, if asked by the licensing authority, he can make an enquiry and submit a report. The licensing authority, thereafter, has to apply its mind and is not required to mechanically approve the recommendation.
From the perusal of Annexure B appended with the counter affidavit, it does not appear at all that the licensing authority has applied its mind and has recorded its reasons for refusal of the application for grant of licence to the petitioner.
If the police does not send the report, it does not mean that the claim of the applicant is essentially to be refused.
Thus, in my considered view, the communication impugned or the order passed by the District Magistrate contained in Annexure B cannot be sustained in law.
Learned counsel for the State has submitted that the petitioner should be relegated to the appellate authority as there is statutory provision of appeal under section 18 of the Act.
In my view, since the order impugned, as I have already
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discussed above, suffers from serious error and, as such, no useful purpose would be served in relegating the matter to the appellate authority.
Accordingly, this application is allowed and the impugned order as contained in Annexure B as well as contained in Annexure 5 both are quashed and set aside. The District Magistrate-cumLicensing Authority, Patna would be required to make a fresh decision in the matter in accordance with law within a period of three months from the date of receipt/production of a copy of this order.
(Dr. Ravi Ranjan, J)
SC/U
3 issues framed by the court
whether the authorities exercised jurisdiction erroneously by rejecting an arms licence application solely due to non-receipt of a police report without recording reasons.
whether the licensing authority was required to pass a reasoned order refusing the application.
whether the impugned order could be quashed rather than appellate remedy being deferred.
2 provisions across 1 enactments
munna jaiswal
the state of bihar through home secretary
district magistrate, patna
district arms magistrate, patna
additional district magistrate, arms, patna
divisional commissioner, patna division, patna
ravi ranjan
As recorded by the court registry
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