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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1438    OF 2009 [Arising out of SLP(Crl.) No. 4409/2007]

  SHASHI PRAKASH SINGH ... APPELLANT(S)

:VERSUS:

  STATE OF U.P. AND ORS.   ... RESPONDENT(S)

O R D E R

1. Leave granted.

2. At  the  material  time,  Smt.  Beena,  respondent  No.5  herein,  was  the  

District Magistrate of Sultanpur District in the State of U.P.  She, in the said  

capacity, was also a licensing authority in terms of the provisions of Arms Act,  

1959. Appellant is working as a permanent clerk in the Kamla Nehru Institute,  

Sultanpur.  Inter  alia  on  the  premise  that  she  had been threatened with dire  

consequences by the appellant on 9.1.2007, when she refused to succumb under  

undue and illegal demand to divert a sugarcane purchase order to some other  

sugar mill outside Sultanpur District, a show cause notice under Section 17 of the  

Arms Act was issued to the appellant on 9.1.2007. The said show cause notice  

reads as under:      

“Shri  Shashi  Prakash  Singh  son  of  Sri  RD  Singh

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resident  of  CPI  Building  near  Bus  Station,  Sultanpur,  PS  Kotwali City, Dist. Sultanpur.

On 9.1.2007, you ere hearing public complaint letters  before the undersigned in the Meeting Hall of Collectorate and  the  point  of  Cane  Purchase  Centre  located  in  Semri  Bazar  which was being allotted to some other sugar mill outside the  District was taken up before the undersigned with a view to get  political pressure in the matter. On refusal to the sanction, you  were threatened the undersigned of public agitation and in case  of suppression of the agitation, threat of murder was given by  you. You are a person of furious nature. You are habitual of  threatening  and  terrifying  government  officials  for  getting  illegal work done through them. You are terrorist type person.  Your  aforesaid  activities  indicates  your  violent  nature  and  because of your such activities, there is always a threat of law  and  order  and  public  safety  in  the  society.   By  using  your  licensed weapon, you can spread violence and terrorism at any  point of time. Thus, there is always a danger of violence in the  society  and  that  danger  may  be  resulting  in  law  and  order  problem to the public peace and security. Keeping in view your  aforesaid  activities  as  well  as  in  public  interest,  it  seems  improper that you hold a licensed weapon with you.

I  Veena,  District  Magistrate,  Sultanpur,  therefore,  using powers under Section 17 Armed Act hereby suspend your  weapon licence no. 1857 Pistol No.RP-109406 with immediate  effect  and  instruct  you  to  immediately  deposit  your  licensed  weapon in the Police Station. You are also warned that keeping  in view the aforesaid allegations against yo, why your weapon  licence could not be cancelled? Your written clarification must  be  submitted on 16.1.2007 either by you personally or through  an advocate before the Court. In case of non-compliance, it will  be considered that you have nothing to say in this connection  and  further  action  will  be  taken  on  the  basis  of  available  evidences.”    

3. Pursuant to or in furtherance of the said show cause notice, the counsel  

for the appellant appeared before the District Magistrate and asked for some  

time to file the show cause.  Inter alia on the primise that the situation was grave,  

the  learned  Magistrate  gave  an  opportunity  to  the  learned  counsel  for  the  

appellant to file the show cause till the sitting of the Court.  As  the said order  

was  not  complied  with,  the  impugned order  dated  16.1.2007  was passed,  the  

operative portion whereof reads as under:

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“In addition, FIR be registered against the opposite party under  appropriate Section for threatening and terrorizing government  officers and giving threat of committing murder.  Copy of the  order  be  sent  to  Incharge  Officer,  Weaponry  and  Incharge  Inspector  Kotwali  Nagar  for  necessary  action.  After  taking  necessary action, file of the case of submitted in the office.”

4. We may, however, notice that while the said show cause notice dated  

9.1.2007 was issued,  a  copy thereof  was sent to  the Superintendent  of  Police,  

Sultanpur, not only to serve the said notice on the appellant but also to get his  

weapon  deposited  in  the  police  custody  and  not  to  return  the  same  till  the  

disposal of the case.  

5. The appellant  preferred an appeal  against  the aforesaid order dated  

16.1.2007 before the Commissioner, Faizabad Circle. By an order dated 1.2.2007,  

the operation of the said order was  stayed directing:  

“This appeal was came up before me. Heard arguments of both  the Ld. Counsels. Prima facie the Appeal seems to be admitted  and, therefore, admitted.  

As  far  as  the  question  of  stay  is  concerned,  the  Appellant has no criminal background.  Therefore, the order of  lower court dated 16.01.2007 is hereby stayed till further order.  File  of  the  lower  court  and  parawise  reply  therein  be  summoned. The file be presented on 17.5.2007 for hearing.”  

6. Pursuant to or in furtherance of the said purported direction contained  

in the aforementioned order dated 16.1.2007, the officer incharge of the Police  

Station Kotwali Nagar, Sultanpur, lodged a first information report.  In the said  

first information report, the name of Smt. Beena, District Magistrate, Sultanpur  

was mentioned as the complainant. The first information report was said to have

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been received by post.  It was expected that a copy of the letter issued by the  

District  Magistrate,  Sultanpur,  containing  the  allegations  made  against  the  

appellant would have been annexed to the counter affidavit.  It was not, however,  

done.  We are, therefore, not sure whether the District Magistrate,  Sultanpur  

herself  lodged  the  first  information  report  making  the  allegations,  whereby  

commission of cognizable offence was disclosed or merely a copy of the order  

dated 16.1.2007 was sent.   

7. Appellant  aggrieved  by  the  recording  and  lodging  of  the  first  

information  report  by  the  Officer  Incharge  of  Kotwali  Nagar  Police  Station,  

Sultanpur,  filed  a  writ  petition  before  the  High  Court  of  Judicature  at  

Allahabad, Lucknow Bench, Lucknow, wherein Smt. Beena was impleaded as a  

party.  The High Court by reason of the impugned order dated 17th May, 2007  

while dismissing the application opined that although some sections mentioned in  

the first information report might not have been attracted, a case under Section  

506 I.P.C. was attracted. In regard to the contention raised by the appellant that  

the said first information report was directed to be lodged with mala fide motive,  

the High Court has to say as as under:

“Mr. Sharad Pathak submits that the complaint is registered with  mala fide motive and for that purpose he seeks exercise of power  by this  Court  under  Section 482 Cr.P.C.  or  Article  226 of  the  Constitution. He has placed reliance upon the judgment of Apex  Court, reported in 1992 Supp. (1) SCC 335, State of Haryana and  others V. Bhajan Lal and others. We are not prepared to accept  this submission. The petitioner claims to be a social worker and  still  desires  to  have  an  arm  licence.  A  notice  has  been  issued  subsequently  by  the  Collector  to  cancel  his  arm  licence.  The  learned  counsel  for  the  petitioner  submits  that  this  shows  Collector's mala fides. This cannot be accepted since the threat  given by petitioner has led to this notice. All these factors cannot  go  to  vitiate  the  complaint  which  has  been  registered  by  the

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Collector.  The  Collectors  do  not  normally  register  such  complaints,  obviously  the  occurrence  must  have  taken  place.  Learned counsel  for the petitioner  states  that  the  notice  of  the  Collector regarding arm licence has been subsequently stayed by  the Commissioner. That is no reason to interfere with the prior  registration of offence under Section 506 I.P.C.”    

The appellant is thus before us.

8. From a bare perusal of the entire proceedings before the leaned District  

Magistrate,  Sultanpur, it is evident that the same is actuated by malice.  If a  

cognizable  offence  has  been  committed  by  the  appellant  in  the  office  of  the  

District  Magistrate  on  9.1.2007,  a  first  information  report  could  have  been  

directed to be lodged then and there.  There was absolutely no reason as to why  

for the said purpose, a proceeding under Arms Act was required to be initiated.  

Apart  from  the  District  Magistrate  herself,  there  cannot  be  any  doubt,  

whatsoever, that when such overt acts are committed by the appellant, any staff  

working in the office of the District Magistrate also could have lodged the first  

information report.  Event the police constables posted   therein also could have  

seen to it that the offender is brought to book.   

9. We have noticed that the District Magistrate for all intent and purport  

even directed the Superintendent of Police to serve the notice on the appellant  

and return the duplicate copy thereof before the date fixed. By reason of the said  

order, the Superintendent of Police was directed to seize the weapon and get it  

deposited in the police custody.    

10. We are not apprised of any provision in the Arms Act, 1959 in terms

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whereof  such  extraordinary  steps  could  be  taken  by  the  leaned  District  

Magistrate. The proceedings under the Arms Act is a statutory proceedings.  The  

District Magistrate while acting under a statute must act within the four corners  

thereof.  The procedure laid down therein must be complied with.   

11. We do not intend to enter into the correctness, legality or otherwise of  

the proceedings initiated under the Act at present.  As the matter is  pending  

before  the learned Commissioner,  Faizabad Circle,  we  have no doubt  in  our  

mind that while exercising a quasi judicial function under the provisions of the  

Arms Act, the District Magistrate could not have issued the order for lodging the  

first  information  report.  If  initiation  of  the  entire  proceedings  was  wholly  

without jurisdiction, the same would be a nullity.  It may be correct that any  

person can set the law in motion but for that purpose the District Magistrate  

could have lodged a first information report herself. If such a procedure was not  

adopted, in our opinion, the High Court was not entirely correct in considering  

the matter as to whether the contents of the first information report disclosed a  

cognizable offence or of what offence.   

12. We, therefore, are of the opinion that it was a fit case where the High  

Court  should  have   exercised  its  jurisdiction  under  Article  226  of  the  

Constitution on the premise that the first information report suffers from the  

doctrine of malice in law and issued a writ of mandamus directing the officer  

incharge of the Police Station not to make or cause any investigation to be made  

pursuant  thereto  or  in  furtherance  thereof.  There  cannot   be  any  doubt,  

whatsoever, that if any person intends to bring the appellant to justice, including

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respondent No.5 herein, as has been contended by her in her counter affidavit  

filed before us, an appropriate action in that behalf may be taken. But only on  

that  ground we should  not  refrain  ourselves  from exercising  our  jurisdiction  

which,  according to  us,  appears  to  be  mala  fide on the   face  of  it.  The first  

information report is therefore quashed.         

13. The  appeal  is  allowed  with  the  aforementioned  observations  and  

directions. However, there shall be no order as to costs.  

........................J (S.B. SINHA)

........................J   (DEEPAK VERMA)    NEW DELHI, AUGUST 6, 2009.