IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7342 of 2003 Maheshwar Prasad Singh @ Malo Singh, son of Anirudh Prasad Singh, resident of village- Chautham, P.S.- Chautham, District- Khagaria --- Petitioner. Versus 1. The State of Bihar. 2. The Commissioner, Munger Division, Munger. 3. The District Magistrate, Khagaria, District- Khagaria, 4. The Arms Magistrate, District- Khagaria. 5. The Superintendent of Police, Khagaria. --- Respondents. ----------- For the petitioner: Mr. Dhirendra Kumar(Munna) with Smt. Vibha Singh, Advocates. For the Respondents: Mr. A. Amanullah, G.A. 9 with Mr. Anuj Kr., A.C. to G.A. 9. ********* 8/ 14-12-2010 Heard the parties. 2. The petitioner has filed the present writ petition before this Court with a prayer to set aside the order dated 25.04.2003 passed in Arms Appeal No. 14 of 2002-03 by the respondent Divisional Commissioner, Munger (Annexure-3), whereby the aforesaid arms appeal filed by the petitioner has been dismissed and the original order dated 28.09.2002 passed in Case No. 101 of 1987 (Annexure-1) passed by respondent District Magistrate has been affirmed. 3. It appears that Case No. 101 of 1987 was initiated by the respondent District Magistrate in view of the petition filed by the petitioner for grant of licence for possessing arms under the provisions of the Arms Act, 1959. After due enquiry, the petitioner was granted Arms Licence No. 2 of 1989 for his personal safety and security 2 of his property. The aforesaid licence granted to the petitioner was renewed time to time by the licensing authority. 4. In the year 1996 one Paitish Paswan, a labourer of the petitioner, was found killed in the house of the petitioner and for that the petitioner lodged Chauthan P.S.Case No. 80 of 1996 dated 23.06.1996 under section 302/34 I.P.C. and 27 Arms Act and in that case two other persons were named as accused. Obviously the petitioner was the informant. After close of investigation, police submitted final report in that case and FIR named accused persons were not sent up for trial. But prior to that a protest petition was filed by the petitioner in that criminal case. 5. It is submitted by learned counsel for the petitioner that on the basis of the aforesaid protest petition, learned court below directed to make further investigation in the criminal case, where-after the police submitted charge sheet showing the petitioner in the category of accused and accordingly cognizance was taken against the petitioner under section 302/34 of the Indian Penal Code. The petitioner, thereafter, moved this Court under section 482 Cr. P.C. in Cr. Misc. No.19370 of 2003. A Bench of this Court by order dated 01.04.2004 (Annexure-6) quashed the order dated 05.04.2003, taking 3 cognizance against the petitioner in the aforesaid criminal case and the court below was directed to proceed in the matter on the basis of protest petition filed by the petitioner. It is further submitted that thereafter cognizance was taken against original F.I.R. named accused persons and they were put on trial, but finally they have been acquitted by learned trial court by judgment and order dated 4th August, 2010 passed by learned Additional District & Sessions Judge, F.T.C.-3, Khagaria. While assailing the impugned order passed by the respondent District Magistrate, learned counsel for the petitioner submits that whole basis for cancellation of arms licence of the petitioner, was the pendency of criminal case vide Chautham P.S. Case no. 80 of 1996, but now admittedly that criminal case is no loner pending against the petitioner. His array as an accused in that criminal case has also been quashed by a Bench of this Court. Therefore, in his submission, there was no justification for the respondent District Magistrate to cancel the arms licence of the petitioner in exercise of his power under section 17(3) of the Arms Act. In the same vein, it is submitted that respondent Divisional Commissioner has not applied his independent judicial mind to the facts of the case and has mechanically 4 dismissed the appeal filed on behalf of the petitioner on merit as also on the ground of limitation. 6. Learned counsel appearing on behalf of the respondents has supported the impugned orders passed by the authorities and submits that in view of pendency of the aforesaid criminal case, the respondent District Magistrte was justified in cancelling the arms licence of the petitioner. However, he has not disputed the claim of the petitioner that order taking cognizance was quashed by this Court and thereafter the petitioner was no longer accused in that criminal case. It has also not been pointed out by the State that the petitioner was an accused in any other criminal case, excepting the case referred to above. 7. After having heard learned counsel for the parties and on perusal of the materials available on record, this Court is satisfied that in the facts and circumstances of the case, set forth above, the impugned orders cannot be sustained in the eye of law. The very basis of cancellation of arms licence of the petitioner was the pendency of Chauthan P.S. Case No.80 of 1996, which, in fact, was lodged by the petitioner himself. On perusal of the impugned order this Court further finds that respondent District Magistrate has merely expressed his apprehension that the petitioner might has misused his arms. He has not recorded any finding of fact that at any point of time, the 5 petitioner actually misused his arms. In absence of any finding of facts recorded by the original authority, the impugned order became vulnerable on that count also. It is true that the subsequent developments could not have been taken into consideration either by the respondent District Magistrate or by the respondent Divisional Commissioner. 8. In the aforesaid facts and circumstances of the case, the impugned order dated 28.09.2002 (Annexure- 1) passed by respondent District Magistrate and the impugned appellate order dated 25.04.2003 passed by respondent Divisional Commissioner are hereby set aside and the matter is remitted to respondent District Magistrate, Khagaria to pass a fresh order in the matter after giving reasonable opportunity of hearing to the petitioner and by taking into consideration all the relevant facts, which have been recorded above in the present order or which may be brought by the petitioner to his notice for his consideration. The petitioner is directed to appear before the respondent District Magistrate within one month from today with a certified copy of this order and file a detailed representation giving all the facts in support of his case for revival of arms licence. If such a representation is filed, then the respondent District Magistrate will be obliged to pass a fresh order within a period of three 6 months from the date of filing such representation by giving reasonable opportunity of hearing to the petitioner and all other concerned persons. The question of revival of the arms licence of the petitioner shall abide by the fresh decision taken by the respondent District Magistrate. It is made clear that if the petitioner does not appear before the respondent District Magistrate within the aforesaid stipulated period of one month from today, then it would be construed that the present petition filed by the petitioner has stood rejected by this Court. There shall be no order as to costs. BTiwary/ ( Birendra Prasad Verma, J.)