CIVIL WRIT JURISDICTION CASE No.11773 OF 1993 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------ SHYAM BIHARI TIWARI S/O SURENDRA TIWARY R/O VILLAGE RATANPUR, BIRTA TOLI, P.S. RAMGARHWA, DISTT- EAST CHAMPARAN---- ------------PETITIONER Versus 1. THE STATE OF BIAHR 2. THE COMMISSIONER, TIRHUT DIVISION, MUZAFFARPUR 3. THE DISTRICT MAGISTRATE, EAST CHAMPARAN,MOTIHARI 4. DAYA SHANKAR PRASAD S/O LATE GOPI SAH R/O VILLAGE- AHIRAULIA, TOLA CHIUTAHA, PS. RAMGARHWA, DISTRICT- EAST CHAMPARAN--------- RESPONDENTS ----------- For The Petitioner :Mr. U.Shukla, Advocte For The Respondent :Mr. Alok Kumar JC to GA-1 ---------- P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI A.K.Tripathi,J Based on a fardbeyan of respondent no. 4 Ramgarhwa P.S. Case No. 36 of 1991 under several sections of the Indian Penal Code including 307 and Arms Act came to be instituted against large number of persons including the petitioner. As per the fardbeyan this petitioner is alleged to have carried his licensee gun and it is alleged to have been used against one Ram Chandra Sah causing injury. The police during the investigation did not find the allegation made against the petitioner to be supported by any evidence. A final form was therefore submitted not sending the petitioner for trial, meaning thereby prima facie the allegation made against the petitioner was false. Contention of learned counsel for the petitioner is that the respondent no.4 having failed to fix the petitioner in the criminal case lodged a complaint with the District Magistrate alleging that the petitioner’s fire arm was used in the crime by yet another person, namely, Tripurari Tiwari. Accepting the statement to be gospel truth and - 2 - ignoring the investigation made by the police the license of arms in question was cancelled by the Collector vide order dated 24.1.1992 which is annexure-2 to the writ application. The appellate authority has only confirmed the order passed by the Collector holding that the enquiry by Sub-Divisional Police Officer revealed this fact. When a categorical statement is made with regard to the petitioner and the misuse of his gun in an offence while lodging FIR then it has rightly been contended on behalf of the petitioner that third case cannot be alleged to be made out merely to settle score. There is nothing to show from the order that the investigation and enquiry made by the police in relation to Ramgarhwa police station case in question was taken into consideration by the District Magistrate in accepting the new version that it was not the petitioner but only his gun was used in the crime. It is a case of non- application of mind to the issue and the matter has not been considered in its entirety. Since an error committed by the Collector has been accepted by the appellate authority, both annexures 1 and 2 requires interference. This writ application is allowed. Annexures 1 and 2 are quashed. Needless to say that the consequence in favour of the petitioner will now flow. (Ajay Kumar Tripathi,J.) Patna High Court, Patna Dated the 4th December, 2008 NAFR (RPS)