# Vinay Kumar v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1230
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-10-14
- **Case number:** Civil Mic. Writ Petition No. 40817 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-v-state-of-u-p-and-others-41950
- **Pages:** 4

## Headnote

Constitution of India, Article 226-locus
standi-petitioner
being
strangerchallenged the action of R-3-in grant of
fire arm licence to a hurdened criminaleven convicted in by life imprisonment in
number cases-rejection of complaint on
ground mere lodge FIR-can not be
ground
fro
cancellation-but
nothing
whisper regarding major punishmentsuch dubious manner if allowed to
perpetuate cause serious consequences
to determent of public-can be questioned
by strangers.

Held: Para: 11

Though
I
am
inclined
to
uphold
preliminary objection of learned counsel
for respondent no.7 that the petitioner is
a mere complainant hence cannot be
allowed to challenge the order passed by
the
licensing
authority
withdrawing
show cause notice and dropping the
proceedings under Section 17(3) of the
Arms Act 1959 but exercising the powers
in
constitutional
extraordinary
jurisdiction under Article 226 this Court
cannot remain a silent spectator if it
comes to the knowledge of the Court
that
the
executive
authorities
in
sensitive
matter
like
regulation
of
firearm are acting in a dubious manner
which if allowed to perpetuate may
result in more serious consequences to
the detriment of public at large. In the
circumstances, I decline to interfere in
the order impugned in the writ petition
at the instance of the petitioner

## Text

1230 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
making such enquiry as directed above
and provided in law.

C. This case shall be listed in the first
week of February, 2012 only for the
purpose of considering progress report as
directed above but otherwise it stands
disposed of.

38. Copy of this order shall be sent
to Chief Secretary, U.P. at Lucknow by
Registrar
General
forthwith
for
information and compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Mic. Writ Petition No. 40817 of 2011

Vinay Kumar

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

Counsel for the Petitioner:
Sri R.N. Yadav
Sri Ashok Khare

Counsel for the Respondent:
C.S.C.
Sri Rajesh Kumar Pandey

Constitution of India, Article 226-locus
standi-petitioner
being
strangerchallenged the action of R-3-in grant of
fire arm licence to a hurdened criminaleven convicted in by life imprisonment in
number cases-rejection of complaint on
ground mere lodge FIR-can not be
ground
fro
cancellation-but
nothing
whisper regarding major punishmentsuch dubious manner if allowed to
perpetuate cause serious consequences
to determent of public-can be questioned
by strangers.

Held: Para: 11

Though
I
am
inclined
to
uphold
preliminary objection of learned counsel
for respondent no.7 that the petitioner is
a mere complainant hence cannot be
allowed to challenge the order passed by
the
licensing
authority
withdrawing
show cause notice and dropping the
proceedings under Section 17(3) of the
Arms Act 1959 but exercising the powers
in
constitutional
extraordinary
jurisdiction under Article 226 this Court
cannot remain a silent spectator if it
comes to the knowledge of the Court
that
the
executive
authorities
in
sensitive
matter
like
regulation
of
firearm are acting in a dubious manner
which if allowed to perpetuate may
result in more serious consequences to
the detriment of public at large. In the
circumstances, I decline to interfere in
the order impugned in the writ petition
at the instance of the petitioner

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. This writ petition has been filed by
one Vinay Kumar assailing the order dated
27.5.2011, passed by Additional District
Magistrate, City, Allahabad revoking show
cause notice dated 30.1.2010 under Section
17(3) of the Indian Arms Act, 1959 and
consigning proceedings initiated against Sri
Ram Kishore Yadav, respondent no.7 .

2. In brief submission of counsel for
the petitioner is that respondent no.7 is a
convict in two criminal cases for an offence
under Section 302 read with Section 34 IPC
yet proceedings for cancellation of his arms
licence has been revoked by respondent
no.3 in a wholly illegal and perverted
manner. It is alleged that the impugned
order has been passed by respondent no.3
with antedating when an application for
transfer of the case was moved before the
District
Magistrate
on
9.6.2011.
3 All] Vinay Kumar V. State of U.P. and others
1231

3. Respondents no. 2 and 3 have filed
counter affidavit sworn by Sri Hansraj SubDivisional Magistrate, Sadar, Allahabad and
respondent no.7 himself has filed counter
affidavit through his counsel Sri Anil
Tiwari. Pursuant to this Court's order dated
25.7.2011 original record of cases no. 56 of
2010 and 57 of 2010 wherein impugned
order has been passed was also produced
before the Court.

4. Sri Anil Tiwari has raised a
preliminary
objection
regarding
maintainability of writ petition at the
instance of petitioner, a stranger contending
whether an arms licence should be granted
or should be allowed to continue is a matter
within the statutory discretion of the
licensing
authority
i.e.,
the
District
Magistrate concerned and once such
discretion has been exercised, no third
person including a complainant if any, can
be said to have a grievance entitling him to
challenge the action of licensing authority
and, therefore, the writ petition at the
instance of the petitioner being not
maintainable deserves to be dismissed in
limine.

5. Learned counsel for the petitioner
sought to repel the argument of Sri Tiwari
contending that respondent no.7 is a proven
criminal having been convicted in two cases
of heinous crime under section 302 read
with Section 34 IPC. He is misusing his
firearm
by
threatening
local
people
including the petitioner at whose instance
proceeding under Section 17 was initiated
by the authority concerned but respondent
no.3 to whom the District Magistrate
transferred the matter passed the impugned
order for wholly extraneous and collateral
reasons and, therefore, the petitioner is an
aggrieved person and can maintain the writ
petition for assailing an order passed under
a statute but in utter disregard thereof and
law on the subject. It is contended while in
other cases on account of mere registration
of criminal cases, firearm licences already
granted have been cancelled but respondent
no.7 has been singled out for the reason of
his high access and approaches.

6. Though the petitioner has pleaded
that a large number of criminal cases from
time to time were registered against
respondent no.7 but from record, what this
Court finds to be admitted fact is that
respondent no.7 is a convict in two criminal
cases, namely S.T. No. 23 of 1984 under
Section 302/34 IPC decided on 15.12.1987
and S.T. No. 514 of 1985 under Section
302/34 IPC decided on 18.4.1990 wherein
he has been sentenced to undergo life
imprisonment. Appeals in both the matters
are said to be pending before this Court.
Respondent no.7 had two licence no. 551 of
1983 for rifle no. NB 811784 NPB-315
bore and another licence no. 5469 for Pistol
No.
236061.
Inspector
in
Charge
Dhoomanganj,
Allahabad
submitted
a
report dated 20.10.2009 recommending
cancellation of licence no. 551 of 1983
(new number 8113, P.S. Colonelganj)
which was endorsed by D.I.G., Allahabad
vide his report dated 4.11.2009. A similar
report in respect of licence no. 8112 was
also submitted by the police authorities. The
District Magistrate, Allahabad on 6.11.2009
registered both the matters and authorised
respondent no.3 for further proceedings.
Show cause notices under Section 17(3)
were issued in respect of both the licences
on 30.1.2010. After service of notice upon
respondent no.7 hearing concluded on
30.3.2010 and 6.4.2010 was fixed for
delivery of order. In the order sheet of both
the cases there is pasting of separate piece
of paper on some already transcribed order.
When I tried to see through light it appears
1232 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
that an order was transcribed regarding
passing of order by respondent no.3 on
6.4.2010 but thereafter the same has been
changed and a different order was
mentioned on a small piece of paper posted
on back of paper no. 2/1 in the record of
Case No. 56 of 2010 and 57 of 2010. The
order sheet further shows that thereafter on
several occasions arguments were heard and
date was fixed for delivery of order but the
order was not delivered. For example on
20.8.2010 hearing in both the matters
concluded and 3.9.2010 was fixed for
orders. The order was not delivered on
3.9.2010 having been declared public
holiday due to last Friday of Ramzan. Then
a long adjournment was given fixing
28.9.2010. On the next day also the order
was not delivered on the pretext that there is
a decision of no adverse order and the case
was fixed for re-hearing on 15.10.2010.
Again hearing concluded on 7.12.2010 and
14.12.2010 was fixed for orders. On
14.12.2010 order was not delivered on the
ground of Presiding Officer being busy in
administrative work and the same reason
was assigned for the next date i.e.,
21.12.2010.
The
further
next
date
28.12.2010 also did not see the order and
the reason assigned is the decision of "no
adverse order" and the matter was fixed
again for hearing on 18.1.2011. Lastly after
dozen of dates hearing took place on
20.5.2011 and order was delivered on
27.5.2011.

7. In the counter affidavit respondents
no. 2 and 3 have relied upon the said record
to plead that there is nothing irregular on the
part of respondent no.3 in passing the
impugned orders. Dispatch number has
been entered by the Reader of the office of
respondent no.3 on 6.6.2011 and parties
applied for certified copy of the order only
on 10.6.2011 and onwards.

8. The petitioner stated in para 22 of
the writ petition that though the matter was
heard on 20.5.2011 but the order was not
delivered and hence he filed application
before the District Magistrate, Allahabad on
9.6.2011 seeking transfer of both the cases
to some other Court levelling certain
allegations against respondent no.3. This
fact of filing of application is not in dispute.

9. Licence file of respondent no.7
which has also been produced before the
Court shows that respondent no.7 had a
direct
connection
with
Senior
Administrative Officer inasmuch as on his
application for change of address from P.S.
Dhoomanganj
to
P.S.
Colonelganj
verification of address has been made by the
then A.D.M. (Finance & Revenue) stating
that he personally knows respondent no.7
and accordingly verified his change of
address at New Katra, P.S. Colonelganj.

10. The manner in which record of
two cases has been kept and the matter has
been dealt with by respondent no.3 leaves
much scope to say something which
presently I am refraining myself so that the
order which I propose to pass may not
prejudge the issue and cause prejudice to
anyone. Ex facie, I have no manner of doubt
that respondent no.3 in the impugned order
has relied on the proposition that mere
registration of criminal case does not justify
proceedings for cancellation of firearm
licence, completely misdirecting himself
and ignoring the fact that here is not a case
of mere registration but the person
concerned had been convicted twice by the
Trial Courts in cases involving heinous
crime under Section 302 read with section
34 IPC and, therefore, the proposition relied
by respondent no.3 had no application
whatsoever. What prompted him to misread
such proposition to this extent deserves an
3 All] Smt. Kalpana Agrahari V. State of U.P. and others
1233
inquiry particularly in the light of the fact
that the order sheet has some manipulation
in the form of pasting of a piece of paper for
hiding an earlier written order by changing
the same.

11. Though I am inclined to uphold
preliminary objection of learned counsel for
respondent no.7 that the petitioner is a mere
complainant hence cannot be allowed to
challenge the order passed by the licensing
authority withdrawing show cause notice
and dropping the proceedings under Section
17(3) of the Arms Act 1959 but exercising
the powers in constitutional extraordinary
jurisdiction under Article 226 this Court
cannot remain a silent spectator if it comes
to the knowledge of the Court that the
executive authorities in sensitive matter like
regulation of firearm are acting in a dubious
manner which if allowed to perpetuate may
result in more serious consequences to the
detriment of public at large. In the
circumstances, I decline to interfere in the
order impugned in the writ petition at the
instance of the petitioner but dispose of the
writ petition with the following directions:

(I) This judgment shall not preclude
the
State
Government
from
making
appropriate inquiry in the manner and the
circumstances, the impugned order has been
passed by respondent no.3.

(II)
The
Chief
Secretary,
U.P.
Government shall get appropriate inquiry
into the matter and if necessary, through
vigilance establishment or CB CID, as the
case may be, and submit progress report on
16.1.2012.

(III) In case the State Government
finds it necessary to pass order relating to
continuation
of
firearm
licences
no
551/1983
and
5469
possessed
by
respondent no.7, it can take such action as
permissible in law and this judgment shall
not come in its way.

(IV) Registrar General is directed to
send a copy of this order forthwith to Chief
Secretary U.P. Government for information
and compliance.

(V) This writ petition stands disposed
of for all purposes except for perusal of the
progress report for which it shall be listed
on 16.1.2012.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No.44591 Of 2011

Smt. Kalpana Agrahari
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Mishra

Counsel for the Respondents:
Sri Amit Sthalekar
Sri Yashwant Verma
C.S.C.

Constitution of India-Article 226-Right to
appointment
once
selection
process
started-appointment
letter
issued-can
not be file up such vacancy-by transfer
from
another
judgeship-held-joining
within one month-transfer employee
accommodated any other place or to
adjust in future vacancy.

Held: Para 10

Respectfully following the aforesaid two
decisions, I am of the view that the
filling up vacancy by transfer of Arun