IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3126 of 2008 Nizamuddin Khan, son of Late Tasaur Khan, resident of Village-Mathila, P.S.-Koran Sarai, District-Buxar. -Petitioner. VERSUS 1. The State of Bihar through the Commissioner-cum-Secretary, Department of Home, Government of Bihar, Patna. 2. Director General of Police, Bihar, Patna. 3. Superintendent of Police, Bhagalpur. 4. Superintendent of Police, Begusarai. 5. Superintendent of Police, Buxar. 6. Investigating Officer, Koran Sarai, P.S. Case No.33/92, Koran Sarai, Buxar. ----------- 03 30.11.2009 The petitioner is aggrieved by directions issued to him to surrender his arms. The sole ground for the challenge is that the direction has been issued by an authority, who has no such power under the Arms Act. It is not the Licensing Authority under the Arms Act, who has issued such a direction. Counter affidavits have been filed and an intervention application has also been filed. The intervention is on behalf of the person on whose instance such orders are being passed. Heard the parties and with their consent the writ petition is being disposed of at this stage itself. Petitioner is a Sub-Inspector of Police posted at Bhagalpur and is permanent resident of Buxar. He has an arms licence and arms thereunder, duly issued by the District Magistrate-cum-Collector, Buxar. It appears that in 1992 intervener’s mother was shot by inter alia the petitioner’s son at Buxar. Police investigation was taken up and pursuant to charge sheet filed son of petitioner was put to trial along with others. Some were acquitted but so far as petitioner’s son is concerned, he - 2 - was held guilty of using fire arms to kill the deceased and thus convicted. Criminal appeal preferred by petitioner’s son is pending before this Court. In the trial even though chance was available to the prosecution and State including the informant, who is intervener here, no evidence was brought on record to show that it was the gun of the petitioner that had been used by the son of the petitioner. The finding is that the son of the petitioner has used a fire arm to kill the deceased. Now, once the trial was over at the behest of the intervener various steps are being taken to coerce the petitioner into surrendering his gun. Earlier, directions were issued to him by the Police Department itself, to surrender the gun or face disciplinary proceedings. He came to this Court and this Court by a detailed judgment and order as passed in C.W.J.C. No.7709 of 2004, being judgment dated 19.04.2006, allowed the writ petition and clearly held that unless an order is issued by a competent authority to surrender the gun, the petitioner cannot be coerced to do the same much less on threat of departmental proceedings. This order having been passed, intervener, informant now sought further help from the police. Police then filed a petition before the Trial Court, which has virtually become functus officio, the trial having been concluded, to re-open investigation in terms of Section 173 (8) of the Cr. P. C. alleging that the petitioner had not surrendered his gun in the case and that required investigation. The Trial Court issued notice to the petitioner. Because trial was already over, it - 3 - was not pending before any Court except an appeal before this Court. Petitioner has shown cause and the matter is still pending, thus, there is no order from any Court to surrender the gun. Still petitioner is being asked by higher Police Officials to surrender the gun nor has any further investigation been ordered/permitted. What surprises this Court is that the appropriate authority, as pointed by this Court earlier also, was the Licensing Authority under the Arms Act, who is the Collector-cum-District Magistrate, Buxar. All authority, the Police, the intervener informant have avoided approaching the proper authority in the matter. In view of this Court, keeping arms is a privilege conferred by the provisions of the Arms Act. The provisions with regard to acquisition, holding and dispossess arms are all contained in the Arms Act. The power to suspend the arms licence or power to require the person to deposit his arms for safe custody is to be found in the Arms Act. Thus, there being exhaustive provision in that relation, no other authority can act in a manner as has been prescribed under Arms Act. The only exception being where arms is found to be used in committing a cognizable offence then in course of investigation the police, in course of trial the Court has jurisdiction to deal with the custody of the arms. In the present case, neither is there any investigation pending nor is any trial pending. Learned counsel for the State submits that the provisions of Section 91 of the Code of Criminal Procedure gives authority to - 4 - any Officer in-charge of Police Station to issue summons to produce documents or things that is necessary at any stage. I am afraid the argument is noted only to be rejected. If one reads the provisions of Section 91 of the Cr. P. C., the power is not uncontrolled or unbridled. Power is to be exercised in course of any investigation, enquiry or trial or other proceedings under Code. As noticed above, there is no proceeding, enquiry, investigation or trial pending under the Code. Resort Section 91 Cr. P. C. is totally misconceived. On the facts aforesaid, it is once again held, as earlier held by this Court also in the petitioner’s writ petition that except in course of procedure established by law, petitioner cannot be coerced to surrender his arm. Regrettably, the same is the position once again. this is well established by the judgment of the Apex Court in the case of Hukum Chand Shyam Lal Vs. Union of India and others since reported in AIR 1976 Supreme Court 789 and in particular paragraph-18 thereof, which is quoted hereunder:- “………It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power - 5 - is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice………” Thus, the directions impugned, as contained in Annexures-9 & 10, being order of Director General of Police and consequential order of the Superintendent of Police, Bhagalpur, being orders dated 23.11.2009 & 24.11.2009 respectively are set aside. The writ petition is allowed. Trivedi/ (Navaniti Prasad Singh, J.)