BABAN KANU MHATRE Vs. O.P.BALI

JUDGEMENT

(1.) AMENDMENT allowed. Amendment to be carried out during the course of the day.

(2.) BY the present petition, the petitioner has challenged the legality and validity of the order dated 11th February 1993 passed by the Commissioner of Police, Thane and the Order dated 4th October 1994 passed by the State of Maharashtra in its Home Department in Appeal whereby the Order of the Commissioner of Police, Thane has been confirmed. At the outset, we may state that the petition as originally filed prayed for prayer (c) only i.e. asking for quashing and setting aside the order dismissing the appeal by the State of Maharashtra. However, Mr.Chitnis applied for amendment of the petition by adding a similar prayer in respect of the Order of the Commissioner of Police, Thane. The said permission has been granted as in our view, the petitioner, as it appears from the petition, is basically aggrieved by the order passed by the Commissioner of Police, Thane dated 11th February 1993.

(3.) MR .Chitnis, the learned Counsel appearing for the petitioner, submitted that both the orders i.e. the Order passed by the Ist Respondent and the order in appeal passed by the 2nd Respondent was illegal and required to be quashed. It was his submission that the show cause notice proceeded on the basis that the petitioner had not at the time of applying disclosed the fact of the case having been registered against him under Section 324, 323 read with Section 34 of the Indian Penal Code and, therefore, the 1st Respondent came to the conclusion that the petitioner was not entitled to keep the fire arm in the public interest under Section 17(3)(b) of the said Act. Mr.Chitnis submitted that in fact an offence was registered and the case which was filed was compounded and the final order was passed in the said Criminal Case on 29th September 1987 i.e. much prior to the petitioner applying for the fire arms licence. He took us through the relevant provisions of the said Act and the Arms Rules, 1952 framed thereunder. He drew our attention specifically to Section 13 of the said Act which deals with grant of licence and the procedure to be followed by the licensing authority. Sub-section (2) of the said section lays down 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. The form of the application is also prescribed and the same is under Rule 51 of the said Rules and the form is Form 'A'. On perusing the said Form 'A', it is apparent that what the applicant is required inter alia to mention while applying is that whether the applicant has been 'convicted' of an offence and if so of what offence and the date of sentence. There is no mention in the said form nor in the said Rules nor in the said Act prohibiting the applicant from applying or disqualifying an applicant on the ground of a case being registered or even pending against the applicant. Mr.Chitnis is right in his submission that in any view of the matter even if earlier incident is to be considered, the same has resulted in acquittal and cannot by any stretch of imagination be equated with a conviction although the stand taken by the 1st Respondent in the affidavit in reply filed is that the case against the petitioner which ended in acquittal was not actually contested and tried but was found to be compounded. We have given our careful consideration to the submissions of Mr.Chitnis. In our opinion, Mr.Chitnis is right in his submission that there was no concealment of any fact on the part of the petitioner when in fact all the information which was required to be given to the licensing authority was given by the petitioner while applying. Moreover as provided by Section 13(2) of the said Act, a report from the nearest Police Station was also called for by the licensing authority and the same being favourable licence was granted by the licensing authority on taking all the factors before it into consideration as is evident from the say filed by the Respondent. It is inter alia stated therein that the applicant's application was duly processed and the remarks of the concerned authorities viz., Police Inspector, Panvel Police Station (a Police Station with which the licensing authority was concerned), ACP Panvel Division and DCP Zone IV, New Bombay and that all the concerned authorities had recommended the request of the petitioner and considering the merit of the case, the petitioner's request for grant of Gun Licence was granted on 30th August 1988. Surprisingly the same Affidavit in reply also further states that the Deputy Commissioner of Police, Zone IV, New Bombay submitted a report to the Commissioner of Police, Thane in 1990, in which it was reported that in the year 1986 the petitioner was involved in a case and "he was likely to misuse the gun possessed by him against his licence and accordingly in the report recommended that the licence of the petitioner be cancelled." We fail to understand as to how the Respondents be permitted to change their stand from time to time to the detriment of the petitioner. The petitioner had applied for a fire arm licence and was granted the same after consideration of all the relevant material placed before the licensing authority and after obtaining necessary report from other authority like nearest Police Station. How can the Respondents be permitted to take a different stand and to be allowed to accuse the petitioner of suppression of fact which in the first place he was not bound to disclose. In our view, the said criminal case having ended in acquittal as a result of having been compounded, in any view of the matter, the same cannot be considered as conviction. In fact section 320 of the Code of Criminal Procedure provides for compounding of offences and sub-section (8) thereof provides that composition of an offence under the said section 320 shall have the effect of an acquittal on the accused against whom the offence has bean compounded.