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2019 Supreme(Pat) 1686
IN THE HIGH COURT OF JUDICATURE AT PATNA
AMRESHWAR PRATAP SAHI, ANJANA MISHRA, JJ.
Mukesh Kumar Singh S/o Late Akhileshwar Prasad Singh - Appellant
Versus
The State of Bihar and Ors - Respondent
Letters Patent Appeal No.1228 of 2018 In Civil Writ Jurisdiction Case No.4325 of 2018
Decided On : 17-07-2019
Advocate Appeared:
For the Appellant : Mr. Deepak Kumar, Adv.
For the Respondent: Mr.Prabhat Kumar Verma-AAG 3
Headnote:
Arms Act, 1959 – Section 13 – Arms Rules, 2016 – Rule 25 – Refusal to grant Arms licence to appellant under Heirloom Policy – Single Judge dismissed writ petition filed by appellant on the ground of availability of alternative remedy – Appellant applied for a DBBL gun licence for safety of life and property before District Magistrate – Father of appellant was a valid licence holder – An adverse remark which has consequences of rejection of a claim, cannot be speculative or imaginative or based on no material – Subjective satisfaction can also be formed only if there is some tangible material to substantiate a perception – A person may be possessed of a righteous anger which may be for benefit of society but every form of anger cannot be presumed to be necessarily resulting into a hasty revenge – In present case, there is no material to that effect – It is not based even on an iota of evidence on the basis whereof it could have been gathered that appellant was a hot-headed person – There is no indication in the report that police officer himself interviewed appellant in order to gather any such perception – It was a totally reckless performance of duty – Arms Act and Rules do not prohibit grant of licence to a person having attained a particular age – There is nothing in the report which may indicate that even father of appellant had ever misused his arms or appellant had ever misused arms of his father – Impugned judgment of Single Judge and order of District Magistrate set aside – District Magistrate directed to pass an order keeping in view Heirloom Policy for grant of licence to appellant within a period of fifteen days. (Paras 6, 15, 17, 20, 23 and 24)
JUDGMENT :
AMRESHWAR PRATAP SAHI, J.
I.A. No. 6701 of 2018
1. Having heard learned Counsel for the parties, we are satisfied that the delay has been sufficiently explained. The delay condonation application is allowed. The appeal shall be treated to be within time.
L.P.A. No. 1228 of 2018
2. This appeal arises out of a refusal to grant an Arms licence to the appellant under the Heirloom Policy. The learned Single Judge has dismissed the writ petition filed by the appellant on the ground of availability of alternative remedy.
3. Even though, ordinarily, the alternative remedy has to be availed of, but in the exceptional circumstances of this case that we have noted, we were impelled to entertain this appeal and had passed the following order on 1st of July, 2019:-
“Learned counsel for the appellant is permitted to implead Dharmendra Kumar, the then Station House Officer of Police Station Phulwarisharif, District-Patna as respondent no.9 by name during the course of the day.
This appeal has been filed praying that the learned Single Judge even though has noted the fact that it was an application for grant of licence under the Heirloom Policy, yet has rejected the writ petition on the ground that the petitioner-appellant may file an appeal before the appellate authority.
From the facts on record and on a perusal of the order of the District Magistrate it is evident that the said rejection was on the basis of a psychological assessment of the Station House Officer Mr. Dharmendra Kumar that the appellant being a short tempered person cannot be granted licence. We do not find any discussion of the information and the source from where the said Station House Officer could come to such a psychological assessment about the nature of the appellant and as to what enquiry did he make and from whom about the nature of the appellant. To us, prima facie, this appears to be a mischievous sort of report having been made with a view to scuttle the grant of licence to the appellant.
We, therefore, call upon the said Mr. Dharmendra Kumar, respondent no.9, to file his personal affidavit before this Court as to on what basis did he arrive at the conclusion that the appellant was a short tempered person and in what meeting and in what manner did he come to such a conclusion. In the event, the affidavit is not filed, this Court will take a serious view of the matter against the said Station House Officer Mr. Dharmendra Kumar, respondent no.9.
A copy of this order be brought to the notice of the District Magistrate, Patna, as well who has based his order on this sort of opinion of the Police Officer.
Let learned counsel for the State to communicate this order to both the District Magistrate, Patna as well as to the newly added Station House Officer for filing a reply by Monday next.
Put on Monday next, i.e., 08.07.2019.”
4. Today, the affidavit of S.H.O. Mr. Dharmendra Kumar as well as an affidavit of A.S.I. Mr. Deeplal Paswan have been filed that are taken on record.
5. We are not satisfied with the averments made in the affidavits, inasmuch as we find both the officers having not discharged their duties and responsibilities in good faith. This would be evident from the facts of the case narrated hereinafter.
6. The appellant applied for a DBBL gun licence for the safety of life and property on 2nd of August, 2013 before the District Magistrate, Patna. The father of the appellant was a valid licence holder. The petitioner’s father died on 13th February, 2015 and the petitioner as per Rules deposited the arms with a gun house and then applied for grant of a licence. Since the same was not being considered, he was compelled to file C.W.J.C. No. 17044 of 2016 which was disposed of with a direction to the District Magistrate, Patna to pass an appropriate order within three months.
7. A contempt application was also filed being M.J.C. No. 3357 of 2017 and it is during the pendency of the said contempt petition that the order of the District Magistrate was received which
