IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6727 of 2010 Raj Kumar Singh S/O Surendra Prasad Singh R/O Mohalla-Sidharthpuri Colony, Post Office- Buniadganj, P.S. Mufassil, Distt. Gaya.Petitioner. Versus 1. The State Of Bihar 2. The Chief Secretary, State of Bihar, Patna 3. The Home Secretary, State of Bihar, Patna 4. The Commissioner, Magadh Range, Gaya 5. The District Magistrate, Gaya 6. The Superintendent of Police, Gaya 7. The Sub Divisional Officer, Sadar, Gaya 8. The District Arms Magistrate, Gaya. Respondents. ---------------------------------- For the petitioner : Mr.Kumar Dhirendra Pratap Singh Advocate. For the State : Mr.J.S.Arora, S.C.6. ------------- 4. 25.10.2011. With the consent of learned counsel for the parties, the matter has been taken up for final disposal at the stage of admission. Heard learned counsel appearing on behalf of the parties. The petitioner is aggrieved by the order dated 7.1.2010 passed by the Commissioner, Magadh Division, in Arms Appeal Case No.11 of 2008, whereby the appeal preferred by the petitioner has been dismissed and the order dated 28.9.2007 passed by the District Magistrate, Gaya as contained in Memo No.1059 dated 17.10.2007 rejecting the application of the petitioner for grant of arms licence under 2 the provisions of the Arms Act, 1959 and the Rules framed thereunder, has been upheld. The ground assigned by the Licensing Authority being the District Magistrate, while rejecting the application of the petitioner for grant of licence, is absence of perceptible threats to the petitioner. It is the stand of the Licensing Authority that there has to be a subjective satisfaction as to the circumstances assigned by the applicant necessitating an arms licence and which has to be based on material facts and not on assumptions or perceptible fears. It is contended that in absence of sufficient reasons mentioned in the application as well as in the police report, the application of the petitioner was rejected. The order was affirmed by the Appellate Authority in its order dated 7.1.2010 passed in Arms Appeal Case no.11 of 2008 and hence, the present writ petition. As the facts are not disputed, it need not be gone into. The only issue that falls for consideration before this court is whether the subjective satisfaction of the Licensing Authority as evinced in the order dated 3 28.9.2007 placed at Annexure-1 series to the writ petition, is supported by the statutory provisions of the Act and the rules framed thereunder. Learned counsel for the petitioner, in support of his case has relied upon a bench decision of this court rendered in the case of Amrendra Kumar Singh Vs. The State of Bihar and ors, reported in 2007 (4) BBCJ 244 and submits that the case of the petitioner is fully covered by the judgment of this court. A counter affidavit has been filed by the District Magistrate, Gaya in support of the impugned orders and in which a stand has been taken that there is no fundamental right to grant of arms licence and that this Court in its writ jurisdiction may not interfere with the order passed by the Licensing Authority in exercise of discretionary power vested under the Act, unless it suffers from patent illegality, lack of jurisdiction or having been passed in gross violation of the principles of natural justice. Mr. J.S.Arora, learned Standing Counsel No.6 appearing on behalf of the State, advancing 4 the stand taken by the District Magistrate, Gaya, the Licensing Authority, submits that a licence under the Arms Act is not a fundamental right. It is submitted that the provisions of Section 13 (3)(b) of the Act, in no uncertain terms, vests the Licensing Authority with the discretion to accept or refuse licence upon appreciation of the circumstances set out in the application for grant of licence. Learned counsel, with reference to the application filed on behalf of the petitioner placed at Annexure-2 of the writ petition, more particularly, to Clause-8 thereof, submits that save and except that a plea of self defence has been taken by the applicant for obtaining the arms license, no circumstance has been set forth requiring any such licence. Learned counsel, with reference to the grounds set out in column 3 of the application, submits that the applicant being a business man, the circumstances so mentioned, does not satisfy the requirement for an arms licence. Learned counsel, in support of his submission, has relied upon a Full Bench judgment of this court rendered in the case of Kapildeo Singh Vs. The 5 State of Bihar and ors since reported in 1987 PLJR 383 (para-3). It is submitted that the Full Bench of this Court, while considering different provisions of the Arms Act including the provisions of Section 13 and 14 thereof, has held that the discretion vested in the Licensing Authority is untrammelled and if the Licensing Authority has reasons to believe that the applicant is unfit for licence, he shall be well within his jurisdiction to refuse the same. Learned counsel has also relied upon another bench decision of this court rendered in the case of Tej Narayan Singh Vs. The State of Bihar and ors, reported in 1999 (3) PLJR 203, more particularly, paragraph no.8 thereof, wherein it has been held that there was no fundamental right to the petitioner for an arms licence and if the Licensing Authority was satisfied for any reason that the applicant was unfit to hold licence, its decision in this regard may not be interfered with by the High Court in exercise of discretionary jurisdiction unless it suffers from, patent illegality, lack of jurisdiction, errors of law or violation of the principle of natural justice. 6 Mr. Arora, thus supporting the impugned order passed by the Licensing Authority as affirmed by the Appellate Authority, submits that the Act itself vests the statutory authorities to have a subjective satisfaction on an application made by any applicant for grant of licence before passing any order and which relevant circumstance was missing in the present case, hence, the application of the petitioner was refused and which suffers from no illegality, infirmity or perversity and thus does not call for any interference. It was further submitted that although the petitioner had raised a ground of threat to his life by reason of institution of a criminal case giving rise to Gaya Mufassil P.S.Case No.64 of 2005, which was instituted in the year 2005 but even though the application was submitted subsequent thereto, no such ground was set out there and thus, this circumstance never fell for consideration before the Licensing Authority at the stage of exercise of discretion. It is further submitted that whereas the petitioner has mentioned his occupation as business in his application, but in the appeal filed before the 7 Appellate Authority, at Ground-g thereof, it is mentioned that he is the operator and Principal of the School having no criminal antecedent. Mr. Arora, while responding to the bench decision relied upon by the learned counsel for the petitioner, submits that the learned Single Judge, while passing the judgment in the case of Amrendra Kumar Singh (supra), has not taken into consideration the judgment of the Full Bench rendered in the case of Kapildeo Singh (supra). I have heard learned counsel for the parties and perused the materials on record of the proceedings. Undoubtedly, the Act vests the Licensing Authority with the discretionary powers to consider or reject an application for grant of an arms licence. It also does not require reference to any judicial pronouncement to hold that there is no fundamental right to obtain an arms licence under the Act. Nonetheless there is definitely a legal right in every citizen of this country to make an application under the provisions of the Act for grant of an Arms Licence subject to the parameters as set out in Section 13 of the Act 8 and without falling within the exclusionary provisions of Section 14. The Licensing Authority while considering an application filed for grant of licence under Section 13 of the Act and exercising discretion, has to test the claim of an applicant against the circumstance set forth by him in the application, keeping in mind the statutory provisions of Section 14 of the Act which outlines the circumstances for refusal of licence. The discretion thus vested in the Licensing Authority, is circumscribed by the provisions of Section 14 of the Act. The requirement of an arms licence for self protection is not a circumstance which can be brushed aside easily. Every citizen has a right to protect himself and if the right is supported by legal provisions, the same has to be respected. There is no gain saying that no specific instance as to threat to life was set out by the applicant in his application save and except that he was engaged in business and required the licence for his self protection but it is equally true that the criminal case had been instituted by the petitioner and was pending consideration before the competent court 9 on the said date. It is not the case of the respondents that the criminal case was instituted subsequently to develop the cause shown in the application rather it was a condition which led to the filing of the application. It is quite surprising that the circumstances having been brought to the notice of the appellate Authority, which necessitated the requirement of an arms licence and having been mentioned very specifically at Ground-f of the appeal, the same was not taken note of and the Appellate Authority proceeded to reject the appeal affirming the order of the Licensing Authority. The Full Bench judgment and the bench decision of this court as relied upon by the learned counsel for the State undoubtedly upholds the discretionary power vested in the Licensing Authority in considering an application for grant of arms licence, however, the issue remains whether the discretion so vested under the Act has been appropriately exercised. It is not the stand of the Licensing 10 Authority that the petitioner falls within either of the category as set out in Section 14 of the Act. The law is well settled that when a statute prescribes an action to be taken in a particular manner, it has to be performed in that manner alone. In the present case, the provisions of Section 14 of the Act categorizes the circumstance in which an arms licence can be refused and also vests power in the authority to exercise discretion while refusing the licence under the provisions of Section 14(b)(3) of the Act holding a person unfit for grant of licence. It is not a case where the petitioner has been held unfit for grant of licence. The stand taken by the respondents relying upon the discretionary power vested in the Licensing Authority under Section 14 of the Act, cannot be expanded to such an extent so as to render the very provisions redundant. The power vested in the Licensing Authority and the provisions of Section 14(3) of the Act to refuse licence for the reasons recorded in the order has to be read in consonance and stipulation as set out in sub section (1) thereof. The exercise of discretion by a 11 Licensing Authority in refusing to grant licence in absence of cogent and documentary evidence came up for consideration before this court in the case of Amrendra Kumar Singh (supra) when this court held that refusal to grant of licence on grounds of absence of cogent materials supporting the contents of the application, or absence of perceived threats was not sufficient grounds for refusing an arms licence. For the reasons aforesaid, the impugned orders dated 28.9.2007 as contained in Memo No.1059 dated 17.10.2007 passed by the District Magistrate, Gaya as well as the order passed by the Appellate Authority dated 7.1.2010 in Arms Appeal Case No.11 of 2008 placed at Annexure-1 series of the writ petition, are quashed and set aside. The writ petition is allowed. The Licensing Authority is directed to act accordingly. ahk (Jyoti Saran, J.)