# Hemant Kumar and another v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 685
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-24
- **Case number:** Civil Misc. Writ Petition No.37400 of 2006
- **Bench:** Devi Prasad Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hemant-kumar-and-another-v-state-of-u-p-and-others-41422
- **Pages:** 5

## Headnote

Arms Act Section-14-Grant of license of
Non
Prohibited
fire
arms-licensee
authority endorsed single word-refused
without
disclosing
any
reason
for
refusal-held-arbitrary exercise of powereven administrative authority is bound to
record reasons.

Held: Para 18

It is a basic principle of rule of law in a
democratic society that a person against
whom an adverse order is passed by
administrative
or
quasi-judicial
authorities, it must be reasoned so that
the person must be aware of the grounds
on which he has been denied his
statutory right.
Case law discussed:
AIR 1978 SC 597, AIR 1991 SC 101, AIR 1978
Supreme Court 851.

## Text

2 All] Hemant Kumar and another V. State of U.P. and others

685
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2009

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.

Civil Misc. Writ Petition No.37400 of 2006

Arvind Kumar Rai

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Awadh Narain Rai

Counsel for the Respondents:
Sri Arvind Kumar
SC

Arms Act Section-14-Grant of license of
Non
Prohibited
fire
arms-licensee
authority endorsed single word-refused
without
disclosing
any
reason
for
refusal-held-arbitrary exercise of powereven administrative authority is bound to
record reasons.

Held: Para 18

It is a basic principle of rule of law in a
democratic society that a person against
whom an adverse order is passed by
administrative
or
quasi-judicial
authorities, it must be reasoned so that
the person must be aware of the grounds
on which he has been denied his
statutory right.
Case law discussed:
AIR 1978 SC 597, AIR 1991 SC 101, AIR 1978
Supreme Court 851.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel
and perused the record.

2. With the consent of the parties'
counsel, the writ petition is finally
disposed of at admission stage.

3. The petitioner Arvind Kumar Rai
has applied for grant of fire arm licence to
the District Magistrate, Ghazipur. The
application has been rejected, hence the
present writ petition.

4. In brief, the petitioner has applied
for grant of fire arm licence (revolver)
along with a certificate given by the
Pradhan of his village with regard to grant
of licence. The application was kept
pending by the respondents without
taking a decision. Hence, the petitioner
had approached this Court under Article
226 of the Constitution of India by
preferring writ petition No2001 of 2006
which was decided finally vide judgment
and order dated 11.5.2006. A mandamus
was issued to the District Magistrate,
Ghazipur
to
decide
the
petitioner's
application for grant of fire arm licence
within one week.

5. In pursuance to the judgment of
this
Court,
the
District
Magistrate,
Ghazipur had considered the petitioner's
application and rejected the application by
impugned order dated 29.4.2006. A
perusal of the impugned order indicates
that a report was submitted by the
Superintendent of Police and revenue
authorities indicating therein the criminal
cases which were pending against the
petitioner's uncles and father. The report
indicates that the family members of the
petitioner were involved in serious
offences. It appears that the District
Magistrate without recording a finding at
his end made an endorsement on the said
686 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

report on 29.4.2006 with the word,
"Aswikrit" (refused).
6. The submission of the petitioner's
counsel is two-fold; firstly pendency of
criminal cases against the petitioner's
father or other family members should not
be considered as a hurdle in grant of arm
licence. The petitioner's case should be
considered on merit keeping in view the
necessity of arm licence in pursuance to
power conferred by Sections 13 and 14 of
the Arms Act, 1959, in short Act.

7. The second limb of argument is
that the District Magistrate should have
passed speaking order by applying his
mind keeping in view the provisions
contained in Sub Section (3) of Section 14
of the Act.

8. It shall be appropriate to consider
the provisions contained in Section 13 and
14 of the Act which provides that after
receipt of application for arm licence, the
licensing authority shall call for a report
of the officer incharge of the police
station and after receipt of such report, it
shall be open for the licensing authority to
hold an enquiry as it may consider
necessary. After receipt of the report, the
licensing authority may either grant a
licence or refuse to grant the same. For
convenience, relevant portion of Section
13 is reproduced as under :

"13. Grant of licences.-(1) An
application for the rant of a licence under
Chapter II shall be made to the licensing
authority and shall be in such form,
contain
such
particulars
and
be
accompanied by such fee, if any, as may
be prescribed.
[(2) On receipt of an application, the
licensing authority shall call for the
report of the officer in charge of the
nearest police station on that application,
and such officer shall send his report
within the prescribed time.

(2A)The licensing authority, after such
inquiry, if any, as it may consider
necessary, and after considering the
report received under sub-section(2),
shall, subject to the other provisions of
this Chapter, by order in writing either
grant the licence or refuse to grant the
same :
Provided that where the officer in
charge of the nearest police station does
not send his report on the application
within the prescribed time, the licensing
authority may, if it deems fit, make such
order, after the expiry of the prescribed
time, without further waiting for that
report.]

9. Thus, from a plain reading of
Section 13 shows that a citizen has got
statutory right to apply for grant of arm
licence and such application should be
considered by the licensing authority
keeping in view the para-meters given in
Section 13 of the Act. The category of
arm licence for which a licence may be
granted by the licensing authority and its
nature has been given in Sub Section (3)
of Section 13 of the Act.

10. Apart from statutory right, while
considering the application for grant of
fire arm licence, the licensing authority
shall also keep in mind that right to life is
a fundamental right guaranteed under
Article 21 of the Constitution of India. In
case a person lacks criminal history and
there is imminent danger to his life and
liberty or grant of arm licence is
necessary to save the property and life,
then ordinarily, the licence should be
granted to the citizen.
2 All] Arvind Kumar Rai V. The State of U.P. and others

687

11. Section 14 of the Act deals with
contingency with regard to refusal of arm
licence. Sub Section (1) provides that in
case the licensing authority has got reason
to believe that the grant of arm licence is
prohibited by law or a person or applicant
is of unsound mind or or for any reason is
unfit for a licence under the Act or the
licensing authority deems it necessary for
the security of the public peace or for
public safety, then he can refuse such
licence.

12. There cannot be refusal to grant
licence only on the ground that the person
does not possess sufficient property. It
shall be obligatory on the part of the
licensing authority while refusing to grant
licence to apply his own mind giving a
brief statement of facts which persuaded
him
to
refuse
the
licence.
For
convenience, Section 14 of the Act is
reproduced as under :

"14.
Refusal
of
licences.-(1)
Notwithstanding anything in section 13,
licensing authority shall refuse to grant-
(a) a licence under section 3, section 4 or
section 5 where such licence is required
in respect of any prohibited arms or
prohibited ammunition;
(b) a licence in any other case under
Chapter II,-
(i) where such licence is required by a
person whom the licensing authority has
reason to believe-
(1) to be prohibited by this Act or by any
other law for the time being in force from
acquiring, having in his possession or
carrying any arms or ammunition, or
(2) to be of unsound mind, or
(3) to be for any reason unfit for a licence
under this Act; or
(ii) where the icensing authority deems it
necessary for the security of the public
peace or for public safety to refuse to
grant such licence.
(2) The licensing authority shall not
refuse to grant any licence to any person
merely on the ground that such person
does not own or possess sufficient
property.
(3) Where the licensing authority refuses
to grant a licence to any person it shall
record in writing the reasons for such
refusal and furnish to that person on
demand a brief statement of the same
unless in any case the licensing authority
is of the opinion that it will not be in the
public interest to furnish such statement."

13. Keeping in view the letter and
spirit of Section 14 of the Act, ordinarily,
it shall always be incumbent on the
licensing authority to pass a speaking and
reasoned order while refusing to grant
licence. It shall be pre-requisite for the
refusal to grant arm licence to examine all
relevant facts and material on record.

14. Now, it is trite in law that every
unreasoned order shall be hit by Article
14 of the Constitution of India vide Smt.
Maneka Gandhi versus Union of India
and another AIR 1978 SC 597 and
Delhi Transport Corporation versus
D.T.C. Mazdoor Congress AIR 1991
SC 101.

15. In view of above, every order
passed by the licensing authority while
rejecting the application for grant of arm
licence must be a reasoned order -may be
precise, keeping in view the relevant
material on record.

16. Sub Section (3) further provides
that the licensing authority shall furnish
688 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

on demand a brief statement unless in his
opinion it shall be against public interest
or
furnishing
of
such
opinion
is
detrimental to national security.

17. In the present case, the licensing
authority instead of passing a reasoned
order by applying his own mind has
declined to grant arm licence merely by
endorsement viz. "refused". Such decision
of licencing authority seems to be
arbitrary
exercise
of
power.
As
observed(supra), the citizen has statutory
right to obtain arm licence keeping in
view the mandate of Art. 21 of the
Constitution of India and such a matter
should not be dealt with mechanically
without passing a reasoned order.

18. It is a basic principle of rule of
law in a democratic society that a person
against whom an adverse order is passed
by
administrative
or
quasi-judicial
authorities, it must be reasoned so that the
person must be aware of the grounds on
which he has been denied his statutory
right.

19. Needless to say that every order
passed by the administrative or quasijudicial
authorities
or
the
judicial
authorities are subject to judicial review
by the appellate forum or this Court and
when a citizen approaches for judicial
review of an order passed by the
administrative authority, such higher
forum should move to gather the reason
from the order itself and not from their
affidavits or pleading on record.

20. The Constitution Bench of
Hon'ble Supreme Court in the case
reported in AIR 1978 Supreme Court
851 Mohinder Singh Gill and another
versus
The
Chief
Election
Commissioner, New Delhi and others
has held that every order must stand on its
own leg and it cannot be supplemented
through an affidavit.

21. In the present case, learned
Standing Counsel has tried to defend the
action of the District Magistrate on the
ground
that
the
members
of
the
petitioner's family are history sheeters,
hence refusal was proper but he failed to
point out any criminal case pending
against the petitioner. However, under
what circumstances, the petitioner has
been involved in the criminal activity of
his family members seems to be not on
record. All these aspects of the matter
should have been considered by the
licensing authority while passing the
order.

22. In view of the above, the writ
petition deserves to be allowed. A writ in
the nature of certiorari is issued quashing
the impugned order dated 29.4.2006
passed
by
the
District
Magistrate,
Ghazipur with consequential benefits. A
writ in the nature of mandamus is issued
commanding the District Magistrate,
Ghazipur to re-consider the petitioner's
application for grant of fire arm licence
keeping in view the observation made
hereinabove expeditiously and preferably
within a period of three months from the
date of receipt of a certified copy of this
order.

23. The writ petition is allowed
accordingly. Costs easy.
---------
2 All] Arvind Kumar Rai V. The State of U.P. and others

689

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2009

BEFORE
THE HON'BLE RAJESH CHANDRA, J.

Criminal Misc. Application No.17754 of
2009

Kamruddin

...Applicant
Versus
State of UP

 ...Opposite Parties

Counsel for the Applicant:
Sri R.S. Chauhan

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 125Maintenance-While
granting
maintenance-No special reason required
to be recorded-but the order should be in
expressed term-grant of maintenance
from
the
date
of
application-No
interference called for.

Held: Para 6

It
is
clear
from
the
above
noted
observation that if the maintenance is
allowed from the date of application
then an express order is necessary in
that regard but no special reasons are
required to be given by the Court. In the
present case, the learned Additional
Sessions Judge has passed an express
order that the maintenance shall be
given from the date of application and
thus the provisions of section 125 Cr.P.C.
have been complied with.

(Delivered by Hon'ble Rajesh Chandra, J.)

1. This application under section
482 Cr. P.C. has been filed with a prayer
that the order dated 12.6.2009 passed by
the Additional Sessions Judge, Jaunpur in
Criminal
Revision
No.14
of
2007,
Waheeda Vs. State of U.P. may be stayed.

2. In brief the facts of the case are
that Smt. Waheeda moved an application
under section 125 Cr. P.C. against her
husband Kamruddin in the Court of
Judicial Magistrate 1st, Jaunpur. That
application was decided on merit vide
order dated 2.12.2006. The Magistrate
rejected the application of Smt. Waheeda
for her maintenance, but allowed the
application
for
maintenance
of
her
daughters Km. Hina and Km.Rina.
Against that order Criminal Revision
No.14/2007
was
filed
which
was
ultimately decided by the Additional
Sessions Judge, Court No.4, Jaunpur. The
revision was allowed and Smt.Waheeda
was
also
allowed
maintenance
@
Rs.2000/- p.m. from the date of her
application
i.e.14.8.2002.
In
this
application under section 482 Cr. P.C. this
order of the Additional Sessions Judge,
Jaunpur passed on12.6.2009 has been
challenged.

3. The contention of the applicant is
that as a normal rule the maintenance
should be allowed from the date of order
and if the maintenance is granted from the
date of application moved under section
125 Cr. P.C. then special reasons should
be given by the Court.

4. I have considered over the matter
and also heard the learned counsel for the
applicant.

5. Learned counsel for the applicant
has relied upon the judgment of the
Hon'ble Apex Court in Shail Kumari Devi
Vs. Krishna Bhagwan Pathak 2008, Crl.
Law Journal 3881. The answer to his