# Mohd. Danish v. State of U.P. and others

- **Citation:** (2012) 3 ILRA 1332
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-03
- **Case number:** Civil Misc. Writ Petition No. 27624 of 2006
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-danish-v-state-of-u-p-and-others-42399
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226cancellation
of
application-Fire
Arm
License-on ground no genuine need
proved by applicant-inspite of having
every positive report-rejection on such
frivolous ground-amounts to abuse of
power-direction issued to award adverse
entry against those guilty officer-if no
criminal case found against petitionerD.M. to grant license.

Held: Para-6

Accordingly,
it
is
directed
that
if
henceforth
any
such
matter
comes
before the Court where D.M. has refused
to grant the arm licence on patent/
frivolous ground that actual need had
not been proved by the applicant,
direction will be issued for making
adverse entry in the service record of the
said D.M.
Case Law discussed:
1977 ACC Page 499; 2010 (10) A.D.J. 782;
2012 (8) A.D.J. 170

## Text

1332 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

6. The learned A.G.A. could not
dispute the aforesaid proposition of law as
has been held by the Full Bench decision in
the case of Mata Sewak Upadhyay (supra).

7. The decision of Mata Sewak
Upadhyay (supra) still holds good and has
not been overruled nor anything has been
argued in this respect by the learned A.G.A.
It appears that at the time of hearing of the
case of Virendra Singh (supra) the decision
of Mata Sewak Upadhyay (supra) was not
brought to the notice of the Hon'ble
Division Bench. In view of the decision of
Full Bench on the same subject, the
decision of Division Bench cannot be given
effect to.

8. In view of the foregoing discussions
it can safely be said that the offence under
Section 506 I.P.C. is not non-cognizable,
hence the impugned order passed by the
lower revisional court cannot be sustained
in the eye of law. The provisions of Section
2(d) of Cr.P.C. do not apply in the present
case. The submission of leaned counsel of
the applicant in this regard finds force. The
impugned order passed by the lower
revisional court is set aside and the order of
the Magistrate dated 1.4.2010 is hereby
restored. Accordingly, the matter is sent
back to the Magistrate, who may proceed in
the case in accordance with law.

9. The application stands allowed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.10.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 27624 of 2006

Mohd. Danish

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Shailendra Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226cancellation
of
application-Fire
Arm
License-on ground no genuine need
proved by applicant-inspite of having
every positive report-rejection on such
frivolous ground-amounts to abuse of
power-direction issued to award adverse
entry against those guilty officer-if no
criminal case found against petitionerD.M. to grant license.

Held: Para-6

Accordingly,
it
is
directed
that
if
henceforth
any
such
matter
comes
before the Court where D.M. has refused
to grant the arm licence on patent/
frivolous ground that actual need had
not been proved by the applicant,
direction will be issued for making
adverse entry in the service record of the
said D.M.
Case Law discussed:
1977 ACC Page 499; 2010 (10) A.D.J. 782;
2012 (8) A.D.J. 170

(Delivered by Hon'ble S. U. Khan, J.)

1. Heard learned counsel for the
petitioner and learned standing counsel
for
the
respondents.
3 All] Mohd. Danish V. State of U.P. and others
1333

2. Time granted to file counter
affidavit has expired long before still no
counter affidavit has been filed.

3. Father of the petitioner was
holding arm licence to keep a SBBL gun
who died on 29.02.2004 and thereupon
the petitioner deposited the gun with an
arms dealer. Thereafter petitioner applied
for grant for licence to him. The
application was registered as Case No.73
of 2004. D.M. Fatehpur through order
dated 18.01.2006 rejected the application.
It is specifically mentioned in the order
that the other legal representatives of
deceased
licence
holder
had
given
affidavit in favour of the petitioner and
according to the report of the S.P.
petitioner had no criminal history and
grant of licence was recommended.
A.D.M. also reported that there was no
objection for grant of licence. Still the
D.M. rejected the application for grant of
licence on the ground that according to
the policy of the government arm licence
shall not be given to the persons who do
not, necessarily actually require the arm
licence. There is absolutely no reference
to the details of the said policy. Neither
the
date
nor
the
number
of
the
communication/
order
has
been
mentioned. It has not been explained what
is meant by actual need. Does it mean that
the person applying for arm licence must
have got several enemies, must have been
attacked and received severe injuries etc.
? If the matter had not been quite old, the
Court would have required the D.M.
concerned to file the copies of the orders
which he might have passed while
granting licences to allegedly needy
persons to discern the meaning of need.
Against the order dated 18.01.2006
petitioner filed Appeal No.16 of 2005-06.
Commissioner,
Allahabad
Division,
Allahabad through order dated 27.02.2006
dismissed the appeal referring to the
judgment of the High Court in Jagpal Vs.
State, 1977 ACC Page 499 holding that
D.M. is the best judge to decide whether
to grant the licence or not. Even Supreme
Court and High Court judges while
deciding the matters are duty bound to
give valid reasons. To be the best judge
does
not
mean
that
the
authority
concerned has got the right to decide the
case by toss of coin. In Writ Petition
No.21605 of 2006, Abdul Rahman Vs.
State of U.P. and others decided on
04.09.2012 I held as follows in the last
two paragraphs:

"Probably the authorities below were
of the opinion that unless someone very
seriously injured the petitioner he could
not be granted fire arm licence. Some
times first symptom of heart attack is
instant death. Similarly some times first
evidence of threat to some ones life is his
murder. The matter is quite old otherwise
the court would have asked the D.M.
concerned to produce the orders in which
he had allowed the applications for grant
of fire arm licence to ascertain that on
what basis the D.M. concerned was
granting fire arm licences.

Unless there is some thing adverse
against the applicant fire arm licence can
not be denied to him vide Pawan Kumar
Jha Vs. State of U.P. & others 2010(10)
A.D.J. 782 and Dinesh Kumar Pandey
Vs. State of U.P. 2012(8) A.D.J. 170.
Accordingly, writ petition is allowed.
Impugned orders are set aside. If till date
no criminal case has been lodged against
the petitioner then he must immediately,
in no case beyond one month from the
date of production of certified copy of this
order before the D.M. Allahabad be
1334 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
granted the fire Arm licence. Writ petition
is allowed."

4. In the aforesaid authority of
Dinesh Kumar Pandey referred in the
above judgment the matter has very
thoroughly been examined by Hon'ble
Sudhir Agarwal, J.

5. Innumerable cases are coming
before the Court where without any reason
grant of licence to hold fire arm is being
denied on the ground that there is no actual
need. The authorities below must realise
that more often than not fire arm is required
to prevent a crime and not to commit the
same. A person who wants to commit a
crime does not wait for grant of fire arm
licence.

6. Accordingly, it is directed that if
henceforth any such matter comes before
the Court where D.M. has refused to grant
the arm licence on patent/ frivolous ground
that actual need had not been proved by the
applicant, direction will be issued for
making adverse entry in the service record
of the said D.M.

7. Writ Petition is allowed. Impugned
orders are set aside. D.M. shall pass fresh
order within two weeks from the date of
receipt of a certified copy of this order. If no
criminal case is pending against the
petitioner, licence shall be granted to him.

8. Office is directed to supply copy of
this order free of cost to Sri A.S. Rana,
learned standing counsel within a week. Sri
Rana shall send copies of this order to each
and every D.M. of the State as well as to the
Home Secretary and Chief Secretary to the
government of State.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 35114 of 2005

Roshan Lal and others
 ...Petitioner
Versus
Rishi Pal Singh and others ...Respondents

Counsel for the Petitioner:
Sri K.M. Garg

Counsel for the Respondents:
Sri Mahipal Singh

Small Causes Court Act, 1887-Section 17
(1) readwith Code of Civil ProcedureOrder 9 Rule 13-Setting-a-side-ex-parteDecree-application neither accompanied
with entire decreed amount nor with
exemption
application-held-furnishing
security towards decreed amount being
mandatory-application for setting-a-side
ex-parte Decree-not maintainable.

Held: Para-7

In my view, Revisional Court has not
only misread proviso to Section 17(1) of
Act, 1887 but has also ignored catena of
decisions of this Court as also that of
Apex Court, which have considered
proviso to Section 17(1) of Act, 1887
wherein it has been held unambiguously
that
requirement
of
deposit
or
application for security must accompany
or precede the application for setting
aside ex parte decree and not to be seen
on
the
date
of
hearing
of
such
application.
Case Law discussed:
1996 (1) ARC 76; 2002 (1) ARC 186; 1978 ALJ
738; 1979 AWC 256; 1983 1 ARC 565; 1985 1
ARC 54; 1988 1 ARC 310; 1988 (1) ARC 341;
1988 (2) ARC 575; 1991 (2) ARC 129; AIR
1991 All 223 : 1991(1) ARC 501; 1996 (27)