- (1.) ASHOK Bhushan, J. Heard Sri Haji S. Kamal Akhtar Khan, learned Advocate appearing for the petitioners and Sri D. K. Tripathi, learned Standing Counsel appearing for the respondents.
(2.) THESE two writ petitions raise similar issues; both have been heard to gether and are being decided by this common judgment. It is sufficient to note the facts of Writ Petition No. 47086 of 2007 for deciding both the writ petitions. Both the writ petitions pray for quashing the order dated 23rd December, 2004 passed by the District Magistrate cancelling the arm licence granted to the petitioners and the order dated 3rd February, 2007 dismissing the appeals filed by the petitioners. 4 Facts of the case, briefly noted, are; the District Magistrate issued no tice under section 17 of the Arms Act, 1959 asking the petitioner to show cause as towhy the licence be not cancelled on the ground that petitioner has been convicted in Criminal Case No. 30 of 1996, under sections 147,148,149 and 307 of I. P. C. for five years rigorous imprisonment and fine. Notice further stated that in future the arm can be used causing serious incident, which may lead to breach of public safety. The petitioner submitted a reply to the notice stating that against the judgment and order dated 12th November, 2003 the petitioner has filed an appeal before the High Court of Judicature at Allahabad and till the appeal is pending the order of the Fast Track Court dated 12th November, 2003 has no effect. It was stated in the reply that arm has not been used and the no tice be discharged. The District Magistrate by the impugned order dated 23rd December, 2004 cancelled the arm licence of the petitioner on the ground that petitioner has been convicted by the judgment and order of the Additional District and Sessions Judge dated 12th November, 2003. The District Magistrate observed that petitioner being a convict it is not in the interest of public safety and public peace that licence be allowed to remain with the peti tioner. The petitioner filed an appeal, which too has been dismissed. 5. The appellate authority noticed the submissions of the petitioner that against the judgment of the Fast Tract Court dated 12th November, 2003 the appeal has been filed in the High Court. The Appellate Court, however, ob served that the District Magistrate having considered the above aspect, there is no ground to interfere with the order of the District Magistrate. 6. Learned Counsel for the petitioners, challenging the order, contended that conviction order having been stayed by the order of this Court dated 17th November, 2003 passed in Criminal Appeal No. 5788 of 2003, the conviction does not survive and cannot be made basis for cancellation of the arm licence. Learned Counsel for the petitioners further submitted that arm having not been used in the offence in which the petitioners have been convicted, there is no jus tification for cancelling the arm licence. 7. Learned Standing Counsel refuting the submissions of learned Counsel for the petitioners, contended that on conviction made by the Criminal Court, the arm licence of the petitioner has rightly been cancelled. Learned Standing Counsel submits that arms of the petitioners have been used in the incident and there is no error in cancellation of the arm licences. Learned Standing Counsel further contended that the fact that petitioners have been released on bail does not wipe out the conviction and the said fact can very well be relied by the District Magistrate. 8. I have considered the submissions of the learned Counsel for the parties and perused the record. On the submissions made by learned Counsel for the parties, following is sues arise for consideration in this writ petition :- (i) Whether conviction of a person having arm licence can be a ground for cancellation of arm licence under section 17 of the Arms Act, 1959? (ii) Whether grant of bail in appeal filed against the order of conviction makes the order of conviction inoperative? (iii) Whether the cancellation of the arm licence in facts of the present case is unjustified? 9. The first question is as to whether an arm licence can be cancelled on the ground of conviction in a criminal offence. Section 17 of the Arms Act pro vides for variation, suspension and revocation of licences. Sections 17 (3), 17 (7) and 17 (8) which are relevant for the present case, are extracted below :- "17. (3 ). The licensing authority may by order in writing suspend a li cence for such period at it thinks fit or revoke a licence,- (a) if the licensing authority is satisfied that the holder of the licence is 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 ammu nition, or it is of unsound mind, or is for any reason unfit for a licence un der this Act; or (b) if the licensing authority deems it necessary for the security of the pub lic peace or for public safety to suspend or revoke the licence; or; (c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the li cence or any other person on his behalf at the time of applying for it; or (d) if any of the conditions of the licence has been contravened; or (e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver up the licence. 17 (7 ). A Court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the li cence; 17 (8 ). An order of suspension or revocation under sub-section (7) may also be made by an Appellate Court or by the High Court when exercising its powers of revision. " 10. The arm licence is granted to an applicant on an application to be made in accordance with section 13. According to Rule 51 every application for grant of an arm licence under the rules is to be made in Form- "a" as provided in Schedule 3 of the Rules. One of the columns provided in Form "a" and relevant for purpose of the present case, is item No. 9, which is extracted as under :- "9. Whether the applicant has been :- (a) convicted-if so, the offence (s), the Sentence and date of sentence; (b) ordered to execute a bond under Chapter VIII of Code of Criminal "procedure, 1973 (2 of 1974) for keeping the peace of for good behaviour-if so, when and for what period; (c) prohibited under the Arms Act, 1959, or any other law from having the arm/ammunition. " 11. Section 13 (2) of the Act provides that 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. From the scheme of the Act and the Rules for grant of arm licence, it cannot be denied that the question as to whether an applicant has been convicted of an offence is a relevant fact to be considered-including the nature of sentence and date of the sentence. When a factor is relevant for grant of licence, the said factor can also be relevant under section 17 of the Act. Section 17 (3) (a) of the Act provides that if the authority is satisfied that the holder of an arm licence. . . . . . . is for any reason unfit for a licence under this Act, he may suspend or revoke the arm licence. The said section 17 (3) (a) is coached in a very wide term. A person convicted of a serious offence may be found unfit for an arm licence by licensing authority after recording the satisfaction as contemplated under section 17 (3) (a ). For example, after grant of an arm licence a person commits murder or other serious offence can it be said that the conviction of the said person is an irrelevant fact for cancellation of the arm licence, the answer obviously has to be no. 12. Sub-section (7) of section 17 provides that a Court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence provided that if the conviction is set-aside on ap peal or otherwise, the suspension or revocation shall become void. The Court convicting a licensee of any offence under the Arm Act has been given a specific power to suspend or revoke the licence. Sub-section (7) of section 17 empowers the Court convicting the holder of the arm licence only with regard to the of fences of Arms Act or the Rules. Sub-section (7) of section 17 does not cover the cases of conviction of other offences. Obviously, the licensing authority is fully empowered to consider the conviction of a licensee in other offences for purposes of revocation or suspension. It is, however, observed that it is not on each and every conviction that an arm licence can be suspended or revoked, the suspen sion or revocation of an arm licence depends on nature of the offence and convic tion of the person. For example, for violation of a traffic offence or trivial of fence there may not be any ground for suspension or revocation of the arm licence but a person convicted of an offence of murder, rioting, dacoity etc. can be a per son whose licence may be suspended or revoked by the licensing authority. 13. Learned Counsel for the petitioner has placed reliance on a judgment of this Court in Pitambar Das v. The Deputy Commissioner, Pratapgarh and oth ers. 1957 Crlj 281 In the said case the Court was considering section 18 (2) of the Arms Act, 1878. Considering the said clause, learned Single Judge of this Court held that the said clause was not meant to be applied to individual cases of conviction. In the said case the licensee was prosecuted under section 22 of the Indian Arms Act and was released giving benefit of the section 3 of the First Offenders Act. The above was the case where the argument was made that with regard to of fence under the Arms Act, it is only the Magistrate or Judge before whom the holder of the licence has been convicted can cancel the licence. The said case was not opposed by the State and in the said case the order did not give any reason why it was necessary for the safety of the public peace to cancel the li cence. Paragraphs 3 and 5 of the said judgment are quoted below :- "3. The argument of the learned Counsel for the petitioner is that a li cence could only be cancelled under section 18 of the Indian Arms Act. There are two clauses of this section. Clause (a) meant for cancellation of licence in cases where there has been no conviction and any Magistrate or Commissioner deems it necessary for the security of the public peace to can cel or suspend such licence. Clause (b) relates to the cancellation of a licence by the Magistrate or a Judge before whom the holder of the licence has been convicted. The argument of the learned Counsel for the petitioner is that the Additional Commissioner or the District Magistrate cannot cancel the licence on the ground of his conviction. That should have been done by the Magistrate, if he thought fit, when he was convicted under section 22 of the Indian Arms Act. 5. Learned Counsel for the petitioner argues that if a licence is to be cancelled on the ground of the conviction it must be made by the Judge or the Magistrate before whom the case is pending in which the conviction is recorded otherwise there was no reason to have two different clause in sec tion 18 of the Indian Arms Act. In the impugned order there is no other rea son given why it was necessary for the security of the public peace to cancel the licence. This clause means that the license can be cancelled when there is danger for the public in general and there is likelihood of the breach of public peace and it appears that it was not meant to apply to individual cases of conviction. Nobody appears for the State to oppose this applica tion. In the circumstances of the case I allow the petition, set-aside the or der of the Deputy Commissioner cancelling the petitioner's licence and di rect him to act according to law. " 14. The said judgment does not help the petitioners in the present case. Firstly the said case considered the section 18 of the Arms Act, 1878 and was not considering the scheme of the Arms Act, 1959 and the Rules framed thereunder, secondly nobody opposed the application on behalf of the State and thirdly in the said case there was no conviction and the petitioner was released giving benefit of First Offender Act. In view of the foregoing discussions, it is thus to be held that arm licence of a licensee can be cancelled on the ground of conviction of a serious offence. However, the licence is not required to be cancelled on each and every conviction and the said power can be exercised looking to the nature of offence for which the applicant has been convicted. 15. The second issue is as to what is the consequence of grant of bail in a case where applicant has been convicted. In the present case the judgment of the learned Additional District and Sessions Judge has been filed as Annexure-5 to the writ petition, which convicted the petitioner for rigorous imprisonment for five years and fine of Rs. 3000. An appeal was filed by the petitioner be ing Appeal No. 5786 of 2003, in which following order was passed by this Court on 17th November, 2003 :- "heard learned Counsel for the accused-appellants and the learned A. G. A. for State. Admit. Issue notice. Perused the judgment of the Trial Court, Appellants had been on bail during the trial and had not misused the liberty. Appellants Noor Hasan, Noor Alam, Manzoor Aalam, Ramjaney, Musabbar and Hazi Mohd. All convicted in S. T. Nos. 447 and 219 of 1997, shall be released on bail on his/their furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Court concerned. Until further orders the realization of hall of the amount of fine shall remain stayed. " 16. A perusal of the above order of this Court passed in criminal appeal filed by the petitioners indicates that applicants were released on bail and re alization of the half of the amount of fine was stayed. The order of this Court clearly indicates that conviction was not stayed. Learned Counsel for the peti tioners has placed reliance on a judgment of this Court in Sada Nand Misra v. State of U. P. and others. 2002 (2) ESC 832 (Alld) A learned Single Judge of this Court in the said judg ment observed that when the operation of the order convicting and sentencing a person is stayed, the authority is duty bound to follow the same and it is not open for him to consider the conviction till stay order exists. In the said judg ment it was noted by this Court that against the judgment of Sessions Judge in appeal operation of the order under appeal was stayed and on that basis the Court made following observations in paragraph 12 of the judgment: "12. In view of the above, once this Court while exercising the jurisdic tion under section 389 or 482, Cr. P. C. stayed the operation of the order ap pealed against, i. e. convicting and sentencing the petitioner, the concerned authority/officer is duty bound to follow the same and it is not open for them to consider conviction/punishment of the petitioner till the stay order exists. " 17. Another judgment relied by learned Counsel for the petitioners is State of U. P. v. Kamal Kishore and another 1992 SCC (Cri) 79 = 1992 (29) ACC 41. In the said case the Apex Court was con sidering a case where recovery of fine was stayed during pendency of the ap peal before the Apex Court against the conviction. The question was as to whether limitation for recovery of fine has not begin till passing of the order of Supreme Court. Confirming conviction and sentence, the High Court held that after dismissal of the appeal by the Supreme Court proceedings were initiated for fine as arrears of land revenue. On an objection raised by accused it was held that recovery of fine was barred by time. The Apex Court held that limitation for recovery of fine did not begin till the passing of the order by the Supreme Court. In the case before the Supreme Court where the realisation was also stayed, it was on the basis of stay granted for realisation of fine, the Supreme Court took the view that limitation for recovery of fine did not begin till passing of the order by the Supreme Court on January 10, 1975. The said case does not help the petitioners in the present case since in the said case there was clear stay of realisation of fine and the question in issue was with regard to limitation for realisation of fine. 18. Recently a Constitution Bench judgment of the Apex Court in K. Prabhakaran v. P. Jayarajan (2005) 1 SCC 754. had occasion to consider the effect of conviction on a question of disqualification in context of Representation of People Act. The Apex Court after considering the earlier judgments of the Apex Court came to the conclusion that even if there is stay of sentence the conviction is not wiped out and disqualification, which follows on the basis of conviction by Criminal Court continues to operate. Following observation was made in paragraphs 42 and 43 of the said judgment :- "42. What is relevant for the purpose of section 8 (3) is the actual pe riod of imprisonment, which any person convicted shall have to undergo or would have undergone consequent upon the sentence of imprisonment pro nounced by the Court and that has to be seen by reference to the date of scrutiny of nominations or date of election. All other factors are irrelevant. A person convicted may have filed an appeal. He may also have secured an order suspending execution of the sentence or the order appealed against under section 389 of the Code of Criminal Procedure, 1973. But that again would be of no consequence. A Court of appeal is empowered under section 389 to order that pending an appeal by a convicted person the execution of the sentence or the order appealed against be suspended and also, if he is in confinement, that he be released on bail or bond. What is suspended is not the conviction or sentence; it is only the execution of the sentence or order which is suspended. It is suspended and not obliterated. . . " "43. In B. R. Kapur v. State of T. N. a similar question though in a little different context, had arisen for the consideration of the Constitution Bench. Vide para 44 (SCC p. 298), the Court did make a reference to Vidya Charan Shukla case but observed that it was a case of an election petition and, therefore, did not have bearing on the construction of Article 164 of the Constitution which was in issue before the Constitution Bench. Obviously the consideration of the correctness of the law laid down in Vidya Charan Shukla case was not called for. However, still the Constitution Bench has made a significant observation which is very relevant for our purpose. The Constitution Bench observed (vide Supreme Court Cases p. 298, para 44)- "there can be no doubt that in a criminal case acquittal in appeal takes effect retrospectively and wipes out the sentence awarded by the Lower Court. This implies that the stigma attached to the conviction and the rigour of the sentence are completely obliterated, but that does not mean that the fact of the conviction and sentence by the Lower Court is obliter ated until the conviction and sentence are set- aside by an Appellate Court. The conviction and sentence stand pending the decision in the appeal and for the purposes of a provision such as section 8 of the Representation of the People Act are determinative of disqualifications provided therein. " 19. Another judgment of the Apex Court in Union of India v. State of Bihar and another 2006 (10) SCC 509. is relevant to be mentioned. In the said case the employee was convicted. The High Court in criminal revision filed by the convicted employee directed that conviction will not effect the service career of the employee. The Apex Court laid down that in exercise of jurisdiction of sections 401, 397, 235, 248 and 255 of Cr. P. C. the High Court could not issue direction that the convic tion of an employee will not affect his service career. Following was laid down in paragraph 4 of the said judgment :- "4. We have perused the order passed by the High Court dated 13. 3. 2000. The High Court while exercising its criminal jurisdiction could either have convicted the accused or acquitted him of the charge levelled against him, and could pass any other order which it is authorised to pass in exercise of its criminal jurisdiction. However, in exercise of such jurisdic tion it could not have issued a direction that the conviction of the respon dent will not affect his service career, because the High Court in exercising its criminal jurisdiction has no authority to prevent the legal consequences which follows the conviction of a Government servant. Those are matters governed by the Service Rules, and the Service Rules must be allowed to op erate in such cases. We, therefore, find that the direction contained in the last part of the order of the High Court dated 13. 3. 2000 was an order passed without jurisdiction, and therefore, must be treated as invalid and non est. We, therefore, allow this appeal and declare that the direction made by the High Court in Crl. Revision No. 6 of 2000 by order dated 13. 3. 2000 to the effect that the order of conviction will not affect the ser vice career, including payment of retiral benefits to respondent 2 shall be ignored by the authority concerned as being without jurisdiction, invalid and non est. The appeal is allowed. ". 20. From the above, it is clear that mere fact that bail has been granted to the petitioner the conviction could not be wiped out and it was open for the District Magistrate to rely on the said conviction and no error has been commit ted by the District Magistrate in placing reliance on the said conviction. The submission of the petitioner that conviction is inoperative cannot be accepted. 21. Now the issue remain is as to whether the cancellation of the arm li cence in the present case was justified. The District Magistrate in his order had only mentioned about the conviction of the petitioner in the aforesaid case. The Appellate Court has noted the fact that an appeal has been filed. Although the District Magistrate has not considered filing of the appeal or affect of grant of bail but in view of the fact that the said question has been considered by this Court and it is found that filing of appeal and grant of bail does not wipe out the conviction, no useful purpose will be served in remitting the matter to the District Magistrate to consider the said issue. However, as observed above, it is not each and every conviction, which may lead to revocation or sus pension and it depends on the facts of each case. 22. Learned Counsel for the petitioner contended that firearm was not used in the incident, hence it was not a case for cancellation of the arm licence. The petitioner himself has filed copy of the judgment of the Additional District and Sessions Judge convicting the petitioner under sections 148 and 307/149 of I. P. C. The judgment of the Additional District and Sessions Judge mentioned that a group lead by Noor 0 Hasan, father of the petitioner was aggressor and firing was made, which resulted in injuries to other side. The said firing was made in a meeting of Gaon Panchayat. The use of firearms were made. Finding has been recorded by the Additional District and Sessions Judge that Noor Hasan and Noor Aalam both have fired, which caused injury. Considering the nature of the offence in which the petitioners were also convicted, it cannot be said that the said conviction could not have been made basis for cancellation of the arm licence coupled with the observation of the District Magistrate that a person convicted of such offence may cause breach of public peace and public safety. 23. In view of the foregoing discussions, the petitioners have not made out any case for grant of relief in exercise of writ jurisdiction of this Court. Both the writ petitions are dismissed. Petitions Dismissed. .;