IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3949 of 2000 1. Gorakh Nath Tiwary son of late Nepal Tiwary. 2. Sheo Shankar Tiwary son of Shri Gorakh Nath Tiwary. Both are resident of Village- Tehgra, P.S. Behea, District- Bhojpur – Petitioners. Versus 1. The State of Bihar. 2. The Divisional Commissioner, Patna Division, Patna. 3. The District Magistrate, Bhojpur, at Arrah --- Respondents. ********* For the petitioners: Mr. Vijay Kumar Sinha, Adv. For the State : Mr. Indeshwari Pd. Mandal, A.C. to G.A.7. ********* 5/ 02-02-2011 Heard learned counsel appearing on behalf of the petitioners and learned A.C. to G.A.-7 appearing on behalf the respondents. 2. The petitioners, who are father and son respectively, have approached this Court under Article 226 of the Constitution of India by filing the present writ petition, raising a grievance against the order dated 08.10.1991 (Annexure-6) passed by respondent-District Magistrate, Bhojpur, whereby Arms Licence No. 129 of 1984 issued in favour of petitioner no.1 under the provisions of the Arms Act, 1959 (hereinafter referred to as “the Act” only) for holding a D.B.B.L. gun and the order of appointment of petitioner no.2 as the retainer for holding such arm issued under the provisions of the Arms Rules, 1962 have been cancelled and the D.B.B.L. Gun bearing No. 13409-A/8 B.S.A. 84, belonging to the petitioners, has been seized. The petitioners are also aggrieved by the 2 appellate order dated 16th May, 1997 (Annexure-„1‟) passed by Respondent-Divisional Commissioner, Patna, whereby the appeal preferred against the impugned original order dated 08.10.1991 has been dismissed and the order passed by respondent-District Magistrate has been affirmed. 3. The factual matrix of the case is not in much controversy. Petitioner no.1 was granted Licence No. 129 of 1984 for holding D.B.B.L. gun under the provisions of the Act. Since he was in government service, petitioner no.2 was appointed as retainer by the competent authority under the provisions of the Rules. 4. It is submitted by learned counsel for the petitioners that Title Suit No. 48 of 1987 was going-on between the petitioners at one side and their agnates at the other side and there was some bonafide land dispute between the parties. For that reason on 09.02.1991 an altercation is said to have taken place between both sides. For the aforesaid occurrence dated 09.02.1991, Bihia P.S. Case No. 19 of 1991 was lodged by one Dewanand Tiwari in which petitioner no.2, besides others, were arrayed as accused. However, for the same occurrence petitioner no.2 also lodged Bihia P.S. Case No. 20 of 1991, dated 09.02.1991 in which his agnates including aforesaid Dewanand Tiwari were arrayed as accused. 3 5. Learned counsel for the petitioners submits that resorting to firing by petitioner no.2 was in self- defence because his agnates were aggressors and were responsible for the whole occurrence. In his submission, merely on the ground of pendency of a criminal case, in the back ground referred to above, respondent- District Magistrate was not justified in cancelling/ revoking the arms licence of the petitioners by exercising his powers under section 17(3) (b) of the Act. In the same vein, it is submitted that respondent- District Magistrate had not applied his independent judicial mind to the facts of the case and in a mechanical way, merely because of pendency of a criminal case, impugned order, as contained in Annexure-6, has been passed. It is also urged on behalf of the petitioners that although previous appellate order dated 13th October, 1992 was set aside by a Bench of this Court in C.W.J.C. No. 13066 of 1993, vide order dated 13.04.1995 (Annexure-7) and the matter was remitted to the appellate authority for fresh decision in accordance with law, but the learned appellate authority has once again committed same and similar mistake and has rejected the appeal of the petitioners on mechanical ground. 6. Learned counsel appearing on behalf of the State has supported the impugned orders passed by the 4 respondent-authorities and has submitted that the criminal case lodged against petitioner no.2 is still pending in the court below and, therefore, it would not be appropriate to direct the respondent- authorities to renew arms licence of the petitioners at this stage, after setting aside the impugned orders. It is also submitted that the question as to whether the arm used by petitioner no.2 was in his self-defence or he exceeded his right of private defence is yet to be determined by the trial court in that pending criminal case. 7. After having heard the parties and considering the submissions made on their behalf, this Court finds that a criminal case lodged against petitioner no.2 is still pending in which he is alleged to have misused his arms for causing injuries to certain persons. This Court is of the considered opinion that till the criminal case lodged against petitioner no.2 is not finally concluded, it would not be appropriate for this Court to direct the respondent-authorities to renew/restore the arms licence of petitioner no.1 or retainership of petitioner no.2 for holding/retaining such arms. 8. In the facts and circumstances of the case, this Court is not inclined to interfere with the impugned orders, as contained in Annexures-1 and 6. However, if the criminal case lodged against petitioner no.2 is finally 5 concluded by the learned trial court and he is acquitted in that criminal case, then in that event petitioners would be entitled to approach the respondent- District Magistrate for renewal/restoration of the arms licence. If after decision in the criminal case, the petitioners approach the respondent- District Magistrate with a certified copy of the judgment of that criminal case for renewal of their arms licence, then the respondent- District Magistrate shall be obliged to consider their case in the light of the observation given in the present order and shall decide the same by speaking order in accordance with law. However, if he is not inclined to renew arms licence of the petitioners, then he would disclose the reasons for doing the same. 9. Accordingly, this writ petition stands disposed of with the aforesaid observation/direction. BTiwary/ ( Birendra Prasad Verma, J.)