S.S.SANDHAWALIA, J.

1. Would the registration and pendency of a criminal case for a major or capital offence justify the suspension or revocation of a licence under Clause (a) of Sub-Section (3) of S.17 of the Arms Act - is the significant question necessitating this reference to the Full Bench.

2. The facts lie in a narrow compass. Kapildeo Singh petitioner was the holder of a licence for D. B. B. L. gun granted by District Magistrate of Sitamarhi. On the 14th of November, 1978 a case under Ss.302, 307, 147, 148, 149 and 436 of the Indian Penal Code, S.27 of the Arms Act and S.3 of the Explosive Substances Act was registered at Police Station Dumra against the petitioner and others. Therein inter alia, allegation had been made that the petitioner Kapildeo Singh armed with his gun was a member of the unlawful assembly and in the transaction gunshots were fired at Tribeni Baitha, though the actual fatal injuries were attributed to the gun of Mangru Singh, co-accused. Later the police after investigation submitted charge-sheet and the Chief Judicial Magistrate, Sitamarhi, took cognizance and committed the petitioner and his co-accused to the Court of Session where the trial is still pending.

3. During the pendency of the aforesaid case respondent No. 3, District Magistrate, Sitamarhi, issued show cause notice to the petitioner as to why the gun licence in his favour be not cancelled. In response thereto the petitioner showed cause which did not find favour with the District Magistrate who cancelled the petitioners licence by order dated the 15th of September, 1981. On appeal the learned Commissioner set aside that order and remanded the same primarily on the ground that the District Magistrate had not complied with Sub-Section (5) of S.17 by recording the reasons in writing for the cancellation. On remand respondent No. 3 reconsidered the matter and after recording reasons again revoked the petitioners licence vide Annexure-3 to the writ petition, dated the 22nd April, 1985. On appeal, respondent No. 2, the Commissioner, upheld the order of the District Magistrate on the ground that the order was now well reasoned and there was more than enough cause to cancel the licence of the petitioner (vide Annexure-4, dated 23rd July, 1985).

4. Aggrieved by the orders aforesaid the present writ petition has been preferred. At the threshold stage of admission it was noticed that the question whether the pendency of a criminal case would justify cancellation or suspension of the licence under S.17 of the Arms Act had been a matter of some controversy which should be authoritatively resolved by a Full Bench and the case was accordingly referred to the Full Bench.

5. Before one proceeds to microscopically examine the provisions under S.17 of the Arms Act, 1959 (hereinafter referred to as the Act) the broad approach to the issue may be first settled. In our Constitution and jurisprudence there is no fundamental right to bear arms unlike the Second Amendment to the American Constitution which at least suggests such a right in the following terms :

"A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

In construing the aforesaid provision the Supreme Court of the United States in Presser V/s. Illinois, (1884-85) 116 US 252 has observed as under :

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the Federal Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government. But....... we think it clear that