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Ganesh Pradhan Vs. Addl. District Magistrate Ganjam - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1961CriLJ263
AppellantGanesh Pradhan
RespondentAddl. District Magistrate Ganjam
Cases ReferredSingh v. District Magistrate
Excerpt:
.....lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - (i) according to rules of natural justice the petitioner should have been given an opportunity of being heard before such a drastic action like the cancelling of the gun license was passed, (ii) in any case, section 18(a) of the indian arms act, requires the district magistrate to record in writing the reason for cancelling the gun license and further requires that such cancellation should be made only if the competent authority considers it necessary for the security of the public peace. the law gives the party a right of appeal to the superior authority and for effectively exercising that right, he must know the reasons why his license was cancelled......police, ganjam, in his demi-official letter no. 12234/cr. dated 22nd december, 1959, requested the district magistrate to cancel the gun license of the petitioner. the demi-official letter may be quoted in full,-d. o. no. 12234/cr.chatrapurthe 22nd december, 1959.my dear venkataramani,as desired by you, i looked into case no. 58/59 under section 143/379 i.p.c. of gangpur p. s. and jointly enquired with the district forest officer, gangpur. my supervision note is enclosed for your information. i think, it is necessary to recommend to you that in view of the ill feeling and much party faction in the village, the gun license of shri ganesh pradhan, accused in case no. 58/59 of gangput p. s. has to be cancelled as he has assulted a forest guard for which offence he is being charge-sheeted.....
Judgment:

R.L. Narasimham, C.J.

1. This is a petition under Article 226 of the Constitution challenging the validity of an order passed by the District Magistrate of Ganjam, on 24-12-59, cancelling the gun license of the petitioner.

2. The Petitioner was prosecuted under Section 25 of the Madras Forest Act and under Section 353 I.P.C. for assaulting a forest guard and charge sheet was submitted. Soon afterwards the Superintendent of Police, Ganjam, in his demi-official letter No. 12234/Cr. dated 22nd December, 1959, requested the District Magistrate to cancel the gun license of the petitioner. The demi-official letter may be quoted in full,-

D. O. No. 12234/Cr.

Chatrapur

The 22nd December, 1959.

My dear Venkataramani,

As desired by you, I looked into case No. 58/59 under Section 143/379 I.P.C. of GangPur P. S. and jointly enquired with the District Forest Officer, Gangpur. My supervision note is enclosed for your information. I think, it is necessary to recommend to you that in view of the ill feeling and much party faction in the village, the gun license of Shri Ganesh Pradhan, accused in case No. 58/59 of Gangput P. S. has to be cancelled as he has assulted a forest guard for which offence he is being charge-sheeted under Section 353 I.P.C.

Sd. K. Rajagopalan

Shri C. Venkataramani, I. A. S.

trict Magistrate, Ganjam

On receipt of the aforesaid letter, the District Magistrate passed the following order:

Cancel at once.

Sd. C. Venkataramani

24-12-59

District Magistrate, Ganjam.

Admittedly no notice was issued on the Petitioner calling upon him to show cause why his license should not be cancelled. Intimation of this order of cancellation, passed by the District Magistrate, was communicated by the Additional District Magistrate to the Police of Gangpur and the S. I. in-charge was directed to seize the gun license. In due course the license was seized on the 6th February, 1960. On the 9th February, 1960, the petitioner applied to the District Magistrate for a copy of the demi-official letter of the Superintendent of Police on the basis of which the gun license was cancelled, but his application was rejected, in the office of the District Magistrate on 27th February, i960. In the meantime, on 17th February 1960, the petitioner preferred an appeal before the Re' venue Divisional Commissioner against the order of the District Magistrate, under Rule 41-A or trie Indian Arms Rules but that appeal was dismissed as time-barred by the Commissioner's order dated the 20th February, 1960.

3. Mr. Panda on behalf of the petitioner raised, the following contentions against the validity of the District Magistrate's order cancelling the gun license.

(i) According to rules of natural justice the petitioner should have been given an opportunity of being heard before such a drastic action like the cancelling of the gun license was passed,

(ii) In any case, Section 18(a) of the Indian Arms Act, requires the District Magistrate to record in writing the reason for cancelling the gun license and further requires that such cancellation should be made only if the competent authority considers it necessary for the security of the Public peace. According to Mr. Panda the order of the District Magistrate does not conform to the aforesaid requirements of Section 18-A of the Indian Aims Act.

(iii) The order of cancellation was not communicated to the petitioner and consequently he could not file an appeal before the Revenue Divisional Commissioner within thirty days from the date of the District Magistrate's order. Moreover, by denying to the petitioner a copy of the aforesaid report of the Superintendent of Police on the basis of which the gun license was cancelled, the District Magistrate had practically rendered ineffective the right of appeal conferred by Section 41-A of the Arms Rules.

4. So far as the first contention is concerned there seems to be some conflict amongst the decisions of High Courts as to whether a licensee is entitled to be heard before his license is cancelled under Section 41-A of the Act, The leading Madras decision on the subject is In re State of Madras, (S) : AIR1957Mad692 which lays down that such an order of cancellation cannot be made unless the licensee is given an opportunity of being heard. But in Kshirode Chandra Pal v. District Magistrate, Howrah, (S) : AIR1956Cal96 a different view has been taken. It is, however, not necessary in this application, to decide this question because it can be disposed of on other grounds,

5. As regards the second contention of Mr. Panda there can be no doubt that the order of cancellation must be a 'speaking' order, that is to say, it must give reasons in writing as to why the District Magistrate thought it necessary to Cancel the gun license and must also show that such cancellation was necessary for security of the public peace. But these reasons, though, not expressly mentioned ii the order, may follow in appropriate cases by necessary implication.

For instance, the District Magistrate may receive a full report from either a subordinate Magistrate or the Superintendent of Police giving clear reason for recommending such cancellation and also saying that such Cancellation is necessary for the security of the public Peace. If, on receipt of such report, the District Magistrate ex-presses his. concurrence with the recommendation for the cancellation of the gun license, there may be substantial compliance with Section 18(a) of the Anns Act as pointed out in Godha Singh Jabra

Singh v. District Magistrate, FerozePore AIR 1956 Punj 33.

But in such a case the aggrieved party must be supplied with a copy of the report of the Officer on the basis of which the District Magistrate Passed his order of cancellation. The law gives the party a right of appeal to the superior authority and for effectively exercising that right, he must know the reasons why his license was cancelled. If the District Magistrate himself does not choose to give reasons and merely endorses the recommendation made by the Superintendent of Police or any other Officer, he must furnish a copy of the report of the Officer concerned to the aggrieved party so as to enable him to place that report before the appellate authority. In this case, the refusal of the District Magistrate's office to grant a copy of the demi-official Ierer of the Superintendent of Police amounted Practically to a denial of the right of appeal conferred by Rule 41-A of the Indian Arms Rules.

6. Apart from this objection, it does not appear that a copy of the District Magistrate's order cancelling the gun license was served on the Petitioner, Doubtless, if this order though cryptic had been passed in the Presence of the petitioner after he was heard, it may be reasonable to hold that the petitioner was aware of the order of the cancellation and he should have exercised his right of appeal within the statutory period of 30 days after the passing of that order. But if, as in this case, the order was passed without giving any notice to the petitioner he should have been given a copy of that order so that he may exercise his right of appeal within the period of limitation prescribed in Rule 41-A of the Arms Rules.

The said Rule requires an appeal to be filed1 within one month from the date of passing of the order and unless the order is communicated to the party concerned he will not be in a Position to file the same within the period prescribed by rule. Hence, by omitting to serve a copy of his order on the petitioner the District Magistrate, by his own conduct, has prevented the petitioner from filing an appeal within the statutory period and thus Practically deprived him of his right of appeal.

7. I would, therefore, allow this petition, and quash the order of the District Magistrate dated the 24th December, 1959, cancelling his gun license. It is open to the authorities to take further action according to law if so advised. But if the District Magistrate intends to rely on the report of the Superintendent of Police or any other officer for the Purpose of cancelling the license, a copy of that report must be promptly supplied to the petitioner along with a copy of his own order cancelling the license. It is also desirable that the order must show that he applied his mind to the question and that he came to an independent decision bearing in mind the requirement of Section 18-A of the Indian Arms Act. There will be no order for costs.

R.K. Das, J.

8. I agree.


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