The New Nation - Internet Edition

High Court Division (Civil Revisional Jurisdiction)

Mir Hashmat Ali J

SM Halim Reza

SAK Md Dabirush-

Petitioner

Shan J

Judgment,

June 5th, 2007

vs

Secretary, Ministry of Home Affairs and ors ttt Respondents"

Constitution of Bangladesh, 1972 Article 102

Arms Act (XI of 1878) Section 18(A)

Arms Rules

Rule 43

The granting of a licence to possess firearms granted by the authorities and that a citizen has common law or legal right to go for a licence to possess a gun or pistol and hence it is a discretion on the part of the Government (Authority) to grant arms licence to the citizen and to cancel them when the authorities deem it necessary for the security of public peace and the cancellation of licence is an administrative order and the order by no imagination can be treated as

judicial order hence the making of a speaking order is not called. for. The right to licence of an arms may be a legal right but not a fundamental right. Furthermore, fundamental right has been suspended by the declaration of emergency.

The petitioner filed the instant writ petition without exhausting the appellate forum under Rule 43 of the Arms Rules, the petitioner could apply or may file appeal to the immediate official superior to the authority so refusing and cancelling or suspending the arms licence but without "exhausting the appellate forum the instant writ petition is not maintainable since there are efficacious adequate remedy available by way of appeal and without exhausting the forum the present writ petition is not maintainable . . .. . .. (8 & 9)

Code of Criminal Procedure (V of 1898) Section 494

Although the criminal case was withdrawn against the petitioner, the order of withdrawal was purely a mechanical order which did not disclose any cogent reason or ground for such withdrawal. The principle associated by our Appellate Division is that a: criminal case cannot and should not be withdrawn mechanically and such case may be revived at any time. . t.. (7)

Sreemati Prativa Rani Dey vs Dr Md Yousuf and 2000 BLD (AD) 54 = 52 DLR (AD) 8.

M Sayed Ahmed for Abdul Baset Majumder Advocates-For the Petitioner.

AKM Salahuddin Khan, Assistant Attorney- General Rubaiyat Hossain; Assistant Attorney General-For the Respondents.

Judgment

SAK Md Dabirush-Shan J: This Rule Nisi was issued calling upon the respondents to show cause as to why the notice dated 29-9-98 issued under the signature of District Magistrate, Kushtia (Annexure-E to the writ petition) canceling the licences of the petitioner should not be declared to have been issued illegally and without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may deem fit and proper.

2. The brief fact of the writ petition is that the petitioner was a Freedom Fighter and actively participated in the liberation war and subsequently started his career as a businessman and he was an active member of the political party namely, Bangladesh Awami League and under the prevailing circumstances in the society the petitioner applied for possession of a gun licence and complied with all the requisites for the same. Thereafter, the authority i.e. the District Magistrate, Kushtia, after an inquiry granted him a licence No. 8502 Khoksha for possession of a gun by order dated.2-2-97. In this way the petitioner also obtained another licence No. 1379-Kushtia for a pistol, both the arms were granted to the petitioner by the District Magistrate. Kushtia and the licences remained valid upto 31-12-98. Subsequently the Superintendent of Police, Kushtia called for an enquiry from the local police station. Accordingly, a report has been submitted by the Thana Police Officer to the Superintendent of Police (Annexure-C to the writ petition) .. Thereafter, on 19-8-98 a show cause· notice was issued by the District Magistrate, Kushtia to the effect that why the gun licence No. 8902/Kushtia and Pistol licence No. 1399/Kushtia should not be cancelled alleging, inter alia, that the petitioner was an accused of Kurnarkhali PS Case No. 12 dated 25-12-74 under section 302 of the Penal Code (Annexure-D to the writ petition) for murdering the then Member of the Parliament Mr Golam Kibria of Kushtia.

3. The petitioner on receipt of the said show cause notice submitted a written reply to the Deputy Commissioner, Kushtia on 3-9-98 denying the allegation brought against him and stated that the petitioner was not a FIR named accused in Kumarkhali PS Case No. 12 dated 25-12-74. But out of enmity he was made an accused in the charge sheet but ultimately the case was withdrawn by the Government on 20-11-81. It was further asserted that there was no case pending against the petitioner in any Court of Bangladesh. The petitioner further stated in his show cause reply that the then Member of Parliament Golam Kibria of Kushtia was killed due to internal clash of the local Awami League party and the petitioner was made victim. The petitioner, in support of his reply, filed some documents which were annexed in the writ petition as Annexure-E series.

4. The respondent No. 2 by an order dated 29-9-98 cancelled the said arms licence of the petitioner on the ground of maintaining Public Peace and Security by virtue of power under section 18(A)(K) of the Arms Act 1878 and directed him to deposit the said arms within 3(three) day on receipt of the order to the local police station and the said order is made impugned order to the writ petition as (Annexure-F). The petitioner when came to know about the order of cancellation of arms licence the petitioner filed the instant writ petition before this Court and obtained the present Rule and the order of stay without surrendering the licences and the said arms i.e. the gun and pistol, and the arms were still in possession of the petitioner.

5. The learned Counsel Mr M Sayed Ahmed for Mr Abdul Baset Majumder appearing on behalf of the petitioner submits that the impugned order dated 29-9-98 by the District Magistrate, Kushtia cancelling the licences of the petitioner on the facts and circumstances are illegal, void, malafide and without jurisdiction. Next he submits that before granting the licence of the arms authority concerned i.e. District Magistrate, Kushtia, made a thorough inquiry and after being satisfied granted the petitioner licences of the gun and pistol on 2-2-97 and 22-3-97 respectively. The petitioner in his reply to the show cause notice elaborately stated about the Kumarkhali PS Case No. 12 dated 25-12-74. As a matter of fact the Member of the Parliament Golam Kibria was killed due to internal clash of Awami League Party and the petitioner was not at all involved in the alleged murder and he was not an FIR named accused in that case although police after investigation cited the petitioner as a chargesheeted accused. He further submits that the Government subsequently withdrew the case against the petitioner as the petitioner had no complicity in the alleged murder of the Member or Parliament.

The order of withdrawal was also annexed to the writ petition as (Annexure-E series). He also submits that the impugned order is a no-speaking order and the authority did not state any cogent reason for cancellation of the licences of the petitioner which is absolutely illegal, unlawful and without jurisdiction. Finally, the learned Counsel submits that the law having provided condition that for canceling licence the reasons to be recorded in writing but the impugned order having not disclosed any such reasons, the respondent No.2 acted arbitrarily in canceling the arms licences of the petitioner which was illegal and without any lawful authority and, as such, the impugned order should be struck down.

6. On the other hand, the learned Assistant Attorney-General Mrs Rubaiyat Hossain with Mr AKM Salahuddin Khan appearing on behalf of the respondents, submitted an affidavit-in-opposition to controvert the Rule stating, inter alia, that under section 18(A) of the Arms Act the officer by whom the arms licence was granted or by any authority to which he may be sub-ordinate, or by any Magistrate of District within the local limits to whose jurisdiction the holder of such licence may be, when for reasons to be recorded in writing, such office, authority, Magistrate deems it necessary for the security of the public peace is fully empowered to cancel or suspend such licence. Next; she submits that while granting the licence to the petitioner it was not detected that the petitioner was an accused of a murder case of the Parliament Member Golam Kibria but subsequently, after a proper enquiry it was revealed that the petitioner was a chargesheeted accused in Kumarkhali PS Case No. 12 dated 25-12-74. Next, she submits that although subsequently the Government withdrew the case against the petitioner on 20-11-81, but it appears from the enquiry that the antecedent of the petitioner was not· satisfactory in holding licensed arms.

Finally, she submits that the submission made by the lawyer of the petitioner that the impugned order did not state any reason for cancelling the licence is not at all correct and true. Because it is clearly stated in the impugned order that due to maintenance of public peace and security the arms licence of the petitioner was cancelled as contemplated under section 18(A) of the Arms Act. Finally, the learned Assistant Attorney-General submits that the impugned order passed by the District Magistrate, Kushtia is absolutely justified and does not call for any interference by this Court.

7. On a meticulous examination of the writ petition, the impugned order and Annexures it transpires that the petitioner was granted a gun licence on 2-2-97 and a pistol licence on 22-3-97 but after a thorough inquiry subsequently it was revealed that the petitioner was involved in Kumarkhali PS Case No. 12 dated 25-12-74 under section 302 of the Penal Code for murdering Mr Golam Kibria the then Member of the Parliament from Kushtia. It appears from Annexure-'E' series that the Government under Memo No. 183/2/ 15/19/LS issued by the Ministry of Home Affairs. Law section dated 5-3-81 withdrew the case against the petitioner and subsequently on the basis of the withdrawal letter the learned Sessions Judge, Kushtia by his order dated 20-11 ~81 discharged the accused petitioner from the charge. Although the criminal case was withdrawn against the petitioner, the order of withdrawal was purely a mechanical order which did not disclose any cogent reason or ground for such withdrawal.

The principle enunciated by our Appellate Division is that a criminal case cannot and should not be withdrawn mechanically and such case may be revived at any time. It has been held in the case of Sreemati Prativa Rani Dey vs Dr Mohammad Yousuf reported in 2000 BLD (AD) 54, wherein it has been held that "The consent to withdraw mentioned in sections 494 of the Code of Criminal Procedure is not to be given mechanically". Therefore, such withdrawal of criminal case does not warrant the innocence of the petitioner.

8. The granting of a licence to possess fire-arms granted by the authorities and that a citizen has common law or legal right to go for a licence to possess a gun or pistol and hence it is a discretion on the part of the Government (Authority) to grant arms licence to the citizen and to cancel them when the authorities deem it necessary for the security of public peace and the cancellation of licence is an administrative order and the order by no imagination can be treated as judicial order hence the making of a speaking order is not called for. The right to licence of an arms may be a legal right but not a fundamental right. Furthermore, fundamental right has been suspended by the declaration of Emergency.

9. The petitioner filed the instant writ petition without exhausting the appellate forum under Rule 43 of the Arms Rules, the petitioner could apply or may file appeal to the immediate official superior to the authority so refusing and cancelling or suspending the arms licence but without exhausting the appellate forum the instant writ petition is not maintainable, since there are efficacious adequate remedies available by way of appeal and without exhausting the forum the present writ petition is not maintainable.

10. In view of the apove facts and circumstance of the case and also the legal position we are constrained to hold that the impugned order (Annexure-F) does not call for any interference by this Court under the Writ jurisdiction.

11. In the result the Rule is discharged without any order as to the cost.

12. The petitioner is directed to deposit the questioned gun and pistol and ammunition along with licences to the nearest police station of Khoksha Police Station under Kushtia District within three days from date otherwise the law enforcing agencies may take necessary steps in accordance with law.

Communicate the order at once.