IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.6885/2019(GM-RES) BETWEEN:
SHAILESH KUMAR S/O MR. JANARDHAN ACHAR, AGED ABOUT 50 YEARS, SHAGIL PRECISION INDIA, UNIT-II, DERALAKATTE, MANGALURU-575018.
...PETITIONER (BY SRI CYRIL PRASAD PAIS, ADVOCATE) AND:
1 . THE APPELLATE AUTHORITY AND ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, VIDHANA SOUDHA, BANGALORE-560001.
2 . DISTRICT MAGISTRATE AND DEPUTY COMMISSIONER, DAKSHINA KANNADA DISTRICT, MANGALORE-575001.
3 . COMMISSIONER OF POLICE MANGALORE CITY, DAKSHINA KANNADA-575001.
4 . STATION HOUSE OFFICER ULLALA POLICE STATION, ULLAL, MANGALORE-575020.
5 . SMT. NISHA SHAILESH KUMAR W/O SHAILESH KUMAR, AGED ABOUT 37 YEARS, R/AT MEGHA VARSHINI, NETHRAVATHI LAYOUT, CAPITANIO ROAD, KANKANADI POST, MANGALORE-575002.
…RESPONDENTS (BY SRI VIJAYKUMAR A PATIL, AGA FOR R1 TO R4; SMT. NISHA SHAILESH KUMAR-PARTY IN PERSON/R5) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 03.03.2018 PASSED BY THE R-1 AS PER ANNEXURE-A AND THE ORDER DATED 1.2.2014 PASSED BY THE 2ND RESPONDENT AS PER ANNEXURE-B ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner, who is the Arms licence holder of pistol as per Licence No.DK-MAN-466/3-III, is before this Court for a writ of certiorari to quash the order dated 3.3.2018 passed by the 1st respondent – Appellate Authority in Proceedings No.HD 200 KAA 2014 rejecting the appeal filed under Section-18 of the Arms Act, 1959 with liberty to the present petitioner to apply afresh for an Arms Licence after the final disposal of cases in various courts between him and his wife – present petitioner and also to quash the order dated 1.2.2014 passed by the 2nd respondent – District Magistrate & Deputy Commissioner as per Annexure-B canceling the Arms licence and directing the Police Inspector, Ullal Police Station to keep Arms and bullets in the custody of the Ullal Police Station until further orders.
2. It is the case of the petitioner that he was granted a licence to possess a weapon (pistol) by the Commissioner of Police in his proceedings DDIS ARM(1) CR-1 42/2002-03 with License No.DK-MAN-466/3-III. On 8.11.2011, the petitioner lodged a complaint before the District Commissioner of Police, Mangalore stating that there were lot of misunderstandings between him and his son on one hand and his wife – 5th respondent on the other hand. In addition to this, he perceived a threat from the 5th respondent – wife that she would kill him. The 5th respondent was repeatedly demanding for his property and since this was refused by him, he was certain that she would go to any extent to get rid of him. It is further contended that she had abused and assaulted him on various occasions. It is also contended that the weapon was missing since one week prior to filing the complaint and therefore, he requested the Police to recover the weapon and keep the same in their safe custody. It is further contended that on 19.4.2012, the petitioner gave an explanation to the Deputy Commissioner of Police (Law and Order) in relation to the complaint filed by the 5th respondent - wife. The petitioner also stated that he had filed a case in the Mangalore Court against his wife for misuse of his money. It is also stated that the petitioner was staying in his house with his son and the 5th respondent was not staying with them.
3. When things stood thus, on 6.7.2012, the Additional District Magistrate, Dakshina kannada, Mangalore, on an application filed by the petitioner, permitted him to sell his weapon Point 32 pistol, to Hassan Armory Vijaya Parameshwari Complex, Hassan. Subsequently after selling the weapon, the Addl. District Magistrate permitted the petitioner to use Revolver (pistol) and directed him to produce the same on or before 30.10.2012. Again on 30.9.2013, the 5th respondent - wife filed one more complaint before the Secretary, Home Department, Vidhana Soudha, Bangalore and also to the Chief Secretary, Government of Karnataka requesting them to seize and cancel the weapon license given to the petitioner and further stated that there was a threat to her life. On 19.11.2013, the 1st respondent issued a letter to the 2nd respondent stating that the 5th respondent was facing a serious life threat from the petitioner. The 5th respondent stated that she was facing constant threats to her life and requested for issue of a direction either to surrender the license of the petitioner or to instruct him to deposit his weapon. On 23.12.2013, the 3rd respondent – Commissioner of Police came to the conclusion that the licence needs to be forfeited based on the criminal complaints filed by the 5th respondent.
4. In view of the above, the petitioner wrote a letter to the Circle Inspector of Police, Ullal Police Station on 9.1.2014 stating that in view of the matrimonial differences between him and the 5th respondent, there were some disputes pending before the various Courts at Mangalore and also before this Court and that therefore, deposited his weapon, Pistol 32 Bore bearing No.FG 37 191 Make IOF, Indian Made together with 39 live cartridges for safe custody till the investigations in the complaints were cleared. Thereafter, the petitioner submitted a detailed representation on 10.1.2014. Ultimately, the 2nd respondent – District Magistrate by the order dated 1.2.2014 cancelled the Arms licence of the petitioner with licence No.DK-MAN- 466/3-III and directed the Police Inspector, Ullal to keep the Arms and bullets in the custody of Ullal Police Station until further orders.
5. Being aggrieved by the order passed by the original authority, the petitioner filed appeal before the Appellate Authority under the provisions of Section 18 of the Arms Act, 1959. The Appellate Authority considering the entire material on record rejected the appeal with liberty to the present petitioner to apply afresh for an Arms licence after the final disposal of cases in various courts between him and his wife – present respondent No.5. Hence, the present writ petition is filed for the relief sought for.
6. I have heard the learned counsel for the parties to the lis including the party-in-person – 5th respondent – Smt. Nisha Shailkesh Kumar.
7. Sri Cyril Prasad Pais, learned counsel for the petitioner contended that the impugned order passed by the appellate authority rejecting the appeal with liberty to file fresh application for an Arms licence after disposal of various cases between the petitioner and his wife, is erroneous and contrary to the material on record. He would further contend that the petitioner himself by a representation dated 8.1.2013 has handed the weapon – revolver with 39 live cartridges to the Circle Inspector of Police, Ullal for the safe custody till the investigation in the complaints mentioned in the notice issued to him by the Addl. District Magistrate, Dakshina Kannada, is cleared. The Deputy Commissioner as well as the Appellate Authority ought to have permitted the petitioner to renew the licence after the clearance of cases between him and his wife instead of canceling the licence. He would further contend that the Appellate Authority rejected the appeal with liberty to the petitioner to file fresh application for Arms licence and the same is erroneous and when petitioner himself has surrendered the weapon and live cartridges, there was no need to file fresh application. After completion of the cases, once the same is intimated to the authorities by the petitioner, the authorities shall revoke the cancellation and question of filing fresh application would not arise. He would further contend that though several complaints were made by the 5th respondent – wife against the petitioner, the authorities after investigation filed the ‘B’ report, which clearly indicates that there is no threat from the petitioner – husband to the 5th respondent - wife. Therefore, he sought to allow the writ petition.
8. Per contra, Sri Vijay Kumar A. Patil, learned AGA for respondent Nos.1 to 4 sought to justify the impugned orders and contended that the petitioner himself by letter dated 8.1.2013 voluntarily handed over the weapon – revolver with 39 live cartridges to the Circle Inspector of Police, Ullal Police Station for the safe custody till the investigation in the complaints mentioned in the notice issued to him by the Addl. District Magistrate, Dakshina Kannada, is cleared. Based on the complaint made by the 5th respondent, the Commissioner of Police after holding detailed enquiry submitted a report that in order to avoid any future consequences, cancellation of the Arms licence would be proper. Based on the said report, the District Magistrate has cancelled the licence on 1.2.2014 directing the Ullal Police to keep arms and bullets in the custody of the Ullal Police Station until further orders. It is also not in dispute that on the appeal filed, the appellate authority rightly rejected the appeal. Therefore, he sought to dismiss the present writ petition.
9. The Respondent No.5 – Smt. Nisha Shailesh Kumar - Party-in-person while justifying the orders passed by both the original authority as well as the appellate authority, has contended that there are various cases and counter cases pending between her and the petitioner – husband and there is every chance of threat to her if the petitioner retains the licence. Taking into consideration the entire material on record, the authorities were justified in canceling the licence of the petitioner. Therefore, she sought to dismiss the petition.
10. Having heard the learned counsel for the parties and the 5th respondent-party-in-person it is an undisputed fact that the petitioner is an Arms licence holder from 2002 and renewed from time to time up to 2013. On 8.1.2013 the petitioner himself voluntarily approached the Circle Inspector of Police, Ullal Police Station stating that there are some disputes pending before various Courts between him and his wife and ultimately, he surrendered the weapon – revolver bearing No.FG 37191 together with 39 live cartridges for safe custody till the investigation is completed. It is also not in dispute that on the basis of the complaint made by the 5th respondent, the State Government directed the Commissioner of Police to investigate and submit a report. The Commissioner of Police, Mangalore city, Dakshina Kannada after investigation of the entire material on record submitted the report to the District Magistrate. Based on the report and taking into consideration the peculiar facts and circumstances of the case and the dispute between the wife and the husband, the District Magistrate thought it fit to cancel the Arms licence of the petitioner and directed the Ullal Police to keep the Arms and Bullets in their custody until further orders. The Appellate Authority considering the entire material on record has recorded a finding of fact as under:
“7. I have heard the arguments and perused the documents produced. The fact that there is a dispute between appellant and respondent-4 is not denied by the appellant. There are various cases and counter case which had been registered against each other. It is also clear that ‘B’ reports have been filed in all the cases filed against appellant. The name of the appellant is not mentioned in the Certificate of Incorporation of M/s Shagil Precision India Private Limited dated 7.11.2014 copy of which is submitted by 4th respondent. It can be concluded that there is no case of business rivalry and threats. A copy of the medico legal case registered on 19.5.2003 at Wenlock Government Hospital submitted by respondent-4 has not been contested by the appellant. There is a difference in the date mentioned regarding deposit of weapon in the safe custody of Ullal Police Station. Respondent-4 has strongly contended that there is a threat to her life from appellant. Appellant is also not in possession of a weapon since three years. Appellant has not provided valid proof of threat to his life. “ 11. Keeping in view the threat from the petitioner and the ‘B’ reports filed in all the cases filed against the petitioner, the appellate authority was of the considered opinion that after disposal of all the cases between the petitioner and the 5th respondent - wife in the various courts, it is always open for the petitioner to file fresh application for Arms licence. That is how, the appellate authority has rejected the appeal with liberty to the petitioner to file application afresh after disposal of the cases in various Courts. Though the learned counsel for the petitioner strongly contended that since the petitioner voluntarily surrendered the weapon himself, there is no need to file fresh application and after the disposal of the cases pending between the petitioner and his wife, the licence can be renewed, this Court does not agree with the said contention raised by the learned counsel for the petitioner in view of the fact that under the provisions of the Arms Act, 1959 and the Rules, counsel for the petitioner is unable to point out such provision. Once the petitioner surrendered the Arms licence and the authority cancelled the licence, as rightly held by the appellate authority, after disposal of the cases in various Courts between the present petitioner and the Respondent No.5, it is always open for the petitioner to apply afresh for an Arms licence. It is for the authorities concerned to confirm as to whether the cases pending between the petitioner and the 5th respondent cleared and pass appropriate orders. Therefore, the contention of the petitioner cannot be accepted at this stage.
12. In view of the aforesaid peculiar facts and circumstances of the case, the impugned order dated 1.2.2014 passed by the 2nd respondent – District Magistrate as per Annexure-B confirmed by the Appellate Authority as per Annexure-A dated 3.3.2018, is just and proper. The petitioner has not made out any ground to interfere with the impugned orders passed by the original authority and the appellate authority, in exercise of powers under Articles 226 and 227 of the Constitution of India.
13. Accordingly, the writ petition is dismissed.
However, it is needless to observe that taking advantage of dismissal of the writ petition, the 5th respondent - wife shall not take any precipitative action against the petitioner - husband or create any threat to him.
Ordered accordingly.
Sd/-
JUDGE Gss/-