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Kshirode Chandra Pal Vs. District Magistrate, Howrah and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 655 of 1953
Reported inAIR1956Cal96,59CWN373
ActsArms Act, 1878 - Section 18; ;Constitution of India - Article 226
AppellantKshirode Chandra Pal
RespondentDistrict Magistrate, Howrah and anr.
Appellant AdvocateArun Kumar Dutt, Adv.
Respondent AdvocateAnil Kr. Das Gupta and ;D.N. Basu, Advs.
DispositionApplication dismissed
Cases ReferredKishore Singh v. State of Rajasthan
- .....and 3 (b) have been satisfied. it is argued that the license was cancelled because of an adverse police report and the order sets out that reason quite explicitly. giving the matter my very anxious consideration, i am unable to accept this argument.i may refer to a case which i relied on for the decision mentioned above, namely, the case of -- 'beni chand v. district magistrate, banda', : air1953all476 . there, the s.o. kotwali had recommended that the licenses should be suspended and this report was forwarded to the district magistrate by the superintendent of police, stating that he agreed with the s.o.'s report that there was no justification in leaving fire-arms with the accused, when they were being prosecuted for a callous and heinous offence. the district magistrate thereupon.....

Sinha, J.

1. The petitioner is a resident of Pansila, P. S. Shyampur in the district of How-rah. He was a holder of fire-arm license No. 1167 in respect of a 12 bore DBBL gun No. 5383. This gun was sold by him to Sri Pan-chanan Adhikary, another license holder in the town of Tamluk on 15-1-1953. On 16-1-1953, he appears to have informed the District Magistrate of this fact and forwarded a copy of the letter to the Officer-in-charge of Shyampore Police station. On 26-1-1953, he received a notice or a communication from the Sub-Inspector of Police, Shyampore Police station, set out in para 5 of the petition.

It appears from this document, which is described as a notice that it is recorded that the fire-arm license of the petitioner had been seized, having been cancelled under the How-rah District Magistrate's office Memo No. 1697-C dated the 24-12-1952 and S. P./D.I.B. office Memo No. 3 (2)/34-48 (2) 419 dated 30-12-1952. On 2-2-1953, the petitioner wrote a letter to the District Magistrate, Howrah, complaining of this so-called notice. The grievance was that in the notice no reasons had been recorded in writing as to why the license had been cancelled.

It was further stated that unless the reasons were communicated, it would not be possible for the petitioner to make any representation to the appropriate authority against the seizure or cancellation of the license. The petitioner requested the District Magistrate to Intimate to him at his earliest convenience the reasons in writing for the cancellation of the license and to give him an opportunity of making a representation against the reasons communicated to him. There was no reply to this letter.

2. This Rule was issued on 9-3-1953 calling upon the opposite parties to show cause why a writ in the nature of Mandamus should not issue to the opposite parties directing them to cancel, withdraw and/or revoke the order of cancellation of the fire-arm license of the petitioner as embodied in the Howrah District Magistrate's office Memo No. 1697-C dated 24-12-1952, and S. P./D.I.B. office Memo No. 3 (2)/ 34-48 (2)/419 dated 30-12-1952 complained of in the petition, or why such other or further order or orders should not be made as to this Court may seem fit and proper.

3. From the affidavits filed it appears that the notice complained of is not an order of cancellation at all. What happened was as follows:

4. On 20-12-1952 the court Inspector, Ulu-beria, made a report to the District Magistrate, Howrah, through the Superintendent of Police, Howrah, to the effect that there was very great tension prevailing in Pansila area and there was every likelihood of a riot breaking out. According to the report, there were two party factions in the village, one led by the petitioner and another led by Janab Basirul Huq of the Muslim-para. It was also mentioned that one Razaqul Huq, an undesirable person, had joined the party led by the petitioner and there was a certain incident of firing of the petitioner's gun.

There were several Criminal proceedings pending in consequence, but the emergent situation was that there was an apprehension of a riot breaking out. This report prayed that the license of the petitioner should be cancelled and the local police should be directed to seize his gun and ammunitions for sending them to the Court.

The Superintendent of Police. D.I.B., How-rah, also endorsed this view, adding that the petitioner had been threatening people with his gun and that it was not safe to allow this man to possess a gun any longer. It was recommended that he should be directed to deposit his gun with the license at the Police Station at once. Upon this, on 24-12-1952. the District Magistrate, Howrah, made the following order:

'I am satisfied from the materials contained in the report submitted by the police that it would be undesirable, in the interest of the security of the public peace, to allow Sri Kshi-rode Chandra Pal, son of late Bhutnath Pal of Pansila, P. S. Shyampur, to possess any firearms.

On the above grounds the fire-arms license issued in his name is hereby directed to be cancelled.

O C. Arms Act Department will please take necessary action for the cancellation of the license in question and direct the police to seize the weapon and deposit the same into the Court Malkhana or such other custody as may have been prescribed for the purpose of keeping such weapons.

Sd. S. Mullick,

District Magistrate, Howrah',

5. The first point taken in this application is that this order is not in compliance with the provisions of Section 18, Arms Act, 1878, (11 of 1878) inasmuch as no reasons have been re-corded in writing by the District Magistrate, as is imperative under that section.

This is a provision of law which I have already had occasion to interpret in a recent case -- 'Haji Md. Vakil v. The Commr. of Police' : AIR1954Cal157 . I have laid down there that there were three things essential to make an order under Section 18 valid:

1. The Officer, Authority, Magistrate or Commissioner, cancelling or suspending the license, must have reasons for which he deems it necessary for the security of the public peace to cancel or suspend such licence;

2. The person cancelling or suspending the license must himself record the reasons in writing;

3. The order on the face of it should show

(a) that it was passed because it was necessary for the security of the public peace to cancel or suspend such license;

(b) that the reasons for thinking so have been recorded in writing by the person mak-ing the order.

6. The question is whether these three essential pre-requisites for the validity of the cancellation order have been satisfied in this case. So far as (I) is concerned, the language of the order clearly shows that the Magistrate felt that he had reasons for which he deemed it necessary for the security of public peace to cancel such license.

Also 3 (a) has been satisfied, but the more difficult question is whether (2) and 3 (b) have been satisfied. It is argued that the license was cancelled because of an adverse police report and the order sets out that reason quite explicitly. Giving the matter my very anxious consideration, I am unable to accept this argument.

I may refer to a case which I relied on for the decision mentioned above, namely, the case of -- 'Beni Chand v. District Magistrate, Banda', : AIR1953All476 . There, the S.O. Kotwali had recommended that the licenses should be suspended and this report was forwarded to the District Magistrate by the Superintendent of Police, stating that he agreed with the S.O.'s report that there was no justification in leaving fire-arms with the accused, when they were being prosecuted for a callous and heinous offence. The District Magistrate thereupon passed the following order:

'Licenses are suspended pending the disposal of the case. They should be deposited'.

7. This order was set aside on the ground that there had clearly not been a compliance with the pre-requisites of Section 18, the District Magistrate not having either recorded his reasons or expressed that it was necessary for the security of public peace to cancel or suspend the license.

In this case, the facts go a little further, namely, that the District Magistrate has mentioned and/or referred to the police report in his order and it is quite abundantly clear that the grounds upon which he was passing his order were the materials contained in the police report. The police report, however, has not been appended to the order and such report is not a public document.

Consequently, anyone reading the order but without- access to the police report, would be In the same position as if the police report had not been mentioned therein at all. If the statute requires that reasons should be recorded, the intention is that it should convey to anyone reading the reasons, as to the grounds upon which the order had been made.

It must be remembered that the Rules now give a right of appeal to the License holder whose license had been cancelled, to. appeal against the order. How is a man to exercise his right of appeal unless he is apprised of the grounds upon which the cancellation order has been made? To say that the grounds are contained in a document which is not accessible to him, is to keep him in ignorance thereof.

The statute contemplates that the person making the order should record the reasons himself and a mere reference to reasons given by others is not enough. This does not of course mean that the District Magistrate should have been as prolific in setting out reasons as the Court Inspector.

It would be quite sufficient to indicate the grounds briefly, which have appealed to the District Magistrate and the reasons which have Impelled him to pass the order. The District Magistrate speaks about the 'materials' contained in the report. Without further elucidation, It would be impossible for anyone to decide as to which of the materials appearing in the report appealed to the District Magistrate, and which are the reasons that did not appeal to him.

It is quite clear that the reasons have to be recorded and they have not been recorded in this order. As these cases are now frequently coming to Court, officers entrusted with the administration of the Indian Arms Act should be more careful in making their orders, which must be in compliance with the statute.

Before I consider as to what should Col-low from this finding of mine, I should like to refer to one aspect of the law. The Indian Arms Act does not anywhere make any provision for an appeal. Under the rules (as amended) contained in the Indian Arms Rules 1924, there was an appeal against an order of cancellation of license. Those rules were superseded by the Indian Arms Rules 1951 (which were published on 8-8-1951).

Under Rule 41 of these Rules it was provided that in any case in which the prescribed authority refused to grant or renew a license, the applicant for such grant or renewal might appeal to the immediate superior officer of the authority so refusing. It will be observed that the Rule makes orders refusing to grant or renew a license appealable, but the cancellation of the license is not made appealable.

It appears, however, that the Rules have been amended and a new Rule has been introduced being Rule 41 (A), by Notification No. S. R. O. 1874 dated 3-10-1953. Under that Rule, which came into operation on 3-10-1953, orders of cancellation are now appealable, provided however that the appeal was preferred within 30 days from the date of the passing of the order.

8. The position, therefore, is as follows:

9. An order of cancellation under Section 18 of the Act need not be on notice to the holder of the license. It is said that the order need not also be communicated to him by the authorities because there is no provision in the Act or the Rules for doing so.

The first communication that the petitioner got was more than a month after the order had been made. The question arises as to how a citizen can exercise his right of appeal within the time limit if the order need not be upon notice to him or after hearing him or If it is not necessary to be communicated to him. This is an aspect of the matter that will have to be considered in an appropriate case. In this case, however, at the time when the order was made, there was no right of appeal from an order of cancellation and therefore the point does not arise.

The following cases may also be noticed. 'Narasimha Reddy v. District Magistrate, Cud-dapah', : AIR1953Mad476 , where it was held that the right to possess a gun is a right to hold property as contemplated by Article 19(1)(f) of the Constitution, but that the restrictions imposed thereon by the Arms Act and the Rules made thereunder, were reasonable restrictions.

That was a case of refusal to grant a license and it was held that inasmuch as there was a provision for an appeal to the Board of Revenue, it was a judicial act. On the other hand in a case decided by the Rajasthan High Court, -- 'Kishore Singh v. State of Rajasthan', , which was a case of cancellation, it was held that there was no appeal and the matter was purely administrative and that consequently there was no duty to give a hearing to a person whose license was cancelled and the principle of natural justice was not to be imported.

10. At the relevant time, as I have already pointed out, the petitioner did not have a right of an appeal against an order of cancellation, and neither the Act nor the Rules lay down that officers making such cancellation should hear the holder of the license. Such an order it is argued is a mere administrative order. Mr. Dutt, however, rightly points out that even in the case of administrative orders, public officers must be kept within the four corners of the law. I think this a well-established principle and it is incumbent upon public officers to keep within Jhe four corners of the law.

The question, therefore, is as to what is to be done in this matter. A writ of mandamus is not a writ of right. No doubt in an ordinary case, where the provisions of a statute are infringed, the Court will see that the erring officers are made to obey the law. In doing so, however, the Court cannot be oblivious to the facts of a particular case. The Court has of course nothing to do with the policy of Government in issuing or cancelling licenses for fire-arms.

During the British regime, the issue of licenses for fire-arms was very strict and exceedingly restricted. After independence, it is to be expected that the Government will take a more liberal attitude but it does not mean that a citizen should be allowed to have firearms or be permitted to continue possessing them, if the circumstances render it perilous and unwise that he should do so. What are the facts here? The holder of this license has already sold his gun.

The license itself has expired, and the facts that have now been placed before me, as contained in the police report are such, that no administrative authority can possibly act otherwise than to cancel the license of the holder for the time being. It appears that there exists a very tense situation in the village of Pansila and the police authorities apprehend that a riot may break out at any time. The petitioner has not disputed the fact that he had been shooting off his gun on his roof, although he justifies it by saying that under the circumstances it was a very wise thing to do.

What might have been wise under ordinary circumstances might well have precipitated a very serious situation. Under the circumstances, the District Magistrate had no other alternative but to make this order. Now that all the facts are before me, I do not see how it is possible for me to make an order asking the District Magistrate to revoke the order of cancellation and to place the petitioner in a position to get another license.

From one point of view, such an order would scarcely place the petitioner in a better position because the license having already ex-pired he would have to apply again to the District Magistrate for a fresh license and if similar circumstances continue, no license would be granted.

On the other hand, if the circumstances have altered, then the reason for cancellation being a temporary one, the application will undoubtedly be considered on its merits, and nothing will be advanced by making any order on this application. On the facts and circumstances of this case, I do not think that this Court should interfere and make an order of the nature prayed for.

11. As the order made by the District Magistrate was not in accordance with law, it is reason enough to deprive the respondents of their costs.

12. I, therefore, dismiss this application and discharge the Rule without any order as to costs.

13. Copies of the police report have been annexed to the Supplementary Affidavit. The original police reports were called for by the petitioner for inspection but it is said by the learned Advocates on behalf of the respondents that the records have been displaced and could not be traced for the moment

I am informed that the records came up to the lawyers for the respondents but after the affidavit was filed, they have for the moment been misplaced and cannot be found. However, copies have been filed as annexures to the affidavit and I see no reason to disbelieve them.

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