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Udaiveer Singh Vs. D.M. Farrukhabad and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 6830 of 1974
Judge
Reported inAIR1981All244
ActsArms Act, 1959 - Sections 17 and 18(1); Code of Criminal Procedure (CrPC) - Sections 107 and 117; Arms Rules, 1962 - Rule 55
AppellantUdaiveer Singh
RespondentD.M. Farrukhabad and anr.
Appellant AdvocateR.C. Srivastava, Adv.
Respondent AdvocateV.K.S. Chaudhury, Adv.
DispositionPetition allowed
Excerpt:
.....of petitioner - appeal filled within 30 days of issuance of cancellation of license order - appeal within limitation - lower appellate was wrong in holding appeal time barred. (ii) criminal - revocation of a gun license - section 17 of arms act,1959 - proceedings initiated against license holder under sections107 and 117 of criminal procedure code,1898 - proceeding could not continue as matter was compromised - sub-divisional magistrate stated in his findings that there is no further apprehension of breach of peace - subsequently district magistrate ordered for cancellation of arms license on same ground - held, order for cancellation is without merit and no reason exist to support order - writ allowed and order canceling license set aside. - - he recorded a categorical finding..........of, the government.(2) no appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor:provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the opellate authority that he had sufficient cause for not preferring the appeal within that period.(3) the period prescribed for an appeal shall be computed in accordance with the provisions of the indian limitation act, 1908, with respect to the computation of periods of limitation thereunder'.3. there are two striking features of the above provisions which must be taken into account in deciding whether the appeal preferred by the petitioner could be dismissed on the ground of limitation. sub-section (3) of section 18 makes the provisions of the.....
Judgment:

M.N. Shukla, J.

1. The petitioner held a licence for SBBL gun. A notice dated 20-7-1972 was served on him to show cause why his licence may not be cancelled on the ground that he was involved in proceedings under Section 107/ 117 of the Criminal Procedure Code. It is true that such proceedings were commenced against the petitioner but the most important fact to be noticed is that the parties to that case entered into a compromise and in pursuance thereof the proceedings were dropped by an order dated 3-2-1973 filed as Annexure 4 to the writ petition. The order was passed by the Sub-Divisional Magistrate concerned. He recorded a categorical finding -- 'I am satisfied that there is no apprehension of breach of peace. The notice against the opposite parties is withdrawn and they are let off.' Still, however, the District Magistrate by his order dated 17-9-1973 cancelled the licence of the petitioner. The petitioner filed an appeal on 17-12-1973 which was dismissed by the appellate authority, namely, the Commissioner. Allahabad Division on 1-6-1974. The petitioner has challenged the orders passed by the District Magistrate as well as the Commissioner. As far as the appellate order is concerned it proceeds on two grounds. Firstly, it says that the appeal had been field beyond the period of limitation and was therefore liable to be dismissed on that preliminary ground. Secondly, it also deals with the merits of the case and reiects the appeal on merits.

2. We have heard the counsel of the petitioner as also the Standing Counsel on behalf of the respondents. We find ourselves unable to sustain the impugned appellate order on any of the grounds stated therein. It has been clearly averred in the writ petition, and this material assertion has not been controverted in the counter-affidavit, that the order of the District Magistrate was issued by the office of the District Magistrate on 17-11-1973 and it was communicated to the petitioner on the same date. Thereafter he applied for a certified copy of the order on 19-11-1973 and the copy was ready according to the allegations in the counter-affidavit on 21-11-1973 but the petitioner took delivery of the same on 30-11-1973. In order to answer the first question, namely whether the petitioner's appeal was barred by limitation it is necessary to refer to the provisions of Section 18 of the Arms Act, 1959. which in so far as relevant for the purpose of this case reads:--

'18 (1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority or the authority to whom the licensing authority is subordinate suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:

Provided that no appeal shall lie against any order made by, or under the direction of, the Government.

(2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor:

Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the opellate authority that he had sufficient cause for not preferring the appeal within that period.

(3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Indian Limitation Act, 1908, with respect to the computation of periods of limitation thereunder'.

3. There are two striking features of the above provisions which must be taken into account in deciding whether the appeal preferred by the petitioner could be dismissed on the ground of limitation. Sub-section (3) of Section 18 makes the provisions of the Indian Limitation Act applicable with respect to the computation of period of limitation prescribed for filing an appeal under the Arms Act. From this it follows that the provisions of Section 12 of the Indian Limitation Act would also be attracted and the time requisite for obtaining a certified copy of the order must be excluded for the purpose of computing the limitation. Besides, the rigour of limitation prescribed for preferring an appeal under the Arms Act has been whittled down by the Legislature by inserting Sub-section (2) in Section 18. It permits an appeal being admitted even after the expiry of the period prescribed therefor, provided the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.

4. We have already referred to the various dates from which the time spent by the petitioner in obtaining the certified copy of the order would be clear. If this time is excluded, then, certainly as we shall presently show, the petitioner's appeal could not be said to be barred by limitation. This, however, must be clearly understood as to what is the date from which the period of 30 days prescribed for filing an appeal under Section 18 should be computed. Rule 55 of the Arms Rules, 1962 which lays down the procedure relating to the appeal runs as follows:--

'55. In any case in which an authority issues an order--

(a) refusing to grant or renew a licence or to give no objection certificate for such grant or renewal, or

(b) varying any condition of a licence or suspending or revoking a licence under Sub-section (1), or Sub-section (3) or Sub-section (6) of Section 17, the person aggrieved by such ,order may, within thirty days from the date of issue of the order, and subject to the proviso to Sub-section (2) of Section 18 prefer an appeal against that order, to the concerned appellate authority.'

5. The crucial words occurring in the above rule are those which say that the appeal is directed against an order issued by the authority concerned. It savs 'in any case in which an authority issues an order'. Clause (b) also repeats the same language and provides that the person aggrieved may file the appeal within thirty days 'from the date of issue of the order.' Some argument was raised before us as to what meaning should be assigned to the words 'issue of the order' and whether that phrase is synonymous with 'making of the order' or it bears a different connotation. We do not consider it necessary on the facts and pleadings of the instant case to enter into that controversy. Suffice it to say that the petitioner made a categorical averment in paragraph 17 of the writ petition that the appellate order was issued by the office of the District Magistrate on 17-11-1973. This allegation was not denied in the counter-affidavit. Computing from this date, even without excluding the time spent in obtaining a certified copy of the order, the appeal was filed within 30 days from the date of issuance of the order of cancellation. Therefore, the Commissioner was apparently wrong in holding that the petitioner's appeal was barred by limitation.

6. We may add that the reason stated in the appellate order for dismissing the appeal on merits is also devoid of substance. We have already referred to the order passed by the Sub-Divisional Magistrate dated 3-2-1973 which expressly says that a compromise had been effected in proceedings under Section 107/117 Cr. P. C. and that there was no apprehension of breach of peace. It is noteworthy that this order was passed prior to the order of cancellation of licence and certainly much prior to the order of the appellate authority. Hence, on the date of the impugned orders the grounds alleged for cancellation of licence were non-existent. The other two grounds mentioned in the order of appellate authority are wholly irrelevant and extraneous to the show cause notice issued to the petitioner which stated the grounds on which the revocation of licence was contemplated.

Thus, the appellate order as well as the first order cancelling the licence were apparently illegal and cannot be sustained. They are accordingly quashed and this writ petition is allowed with costs.


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