HC puts ball in DM’s court in polls case

Source: The Hitavada      Date: 09 Nov 2018 10:54:53


 

Legal Correspondent,

In the matter related to petitioner aggrieved the order, which was directed that weapons were directed to be deposited by the respondents in view of the ensuing Vidhan Sabha Elections, the single bench of the Madhya Pradesh High Court comprising of Justice, Sujoy Paul has directed that “Considering the aforesaid, I deem it appropriate to dispose of this petition by directing the District Magistrate to undertake an individual review in case of the petitioner within 48 hours from the date of production of the certified copy of this order.

The said examination must be undertaken dispassionately without getting influenced by earlier rejection order. Needless to mention that learned District Magistrate shall be guided by the relevant clauses of the aforesaid Circulars. He/she shall take decision within 48 hours from the date of production of the certified copy of this order. The outcome of such consideration shall be communicated to the petitioner. The petition is disposed of without expressing any view on the merits of the case.”


The single bench has heard the petition filed by Akshay Saigal. Counsel for the petitioner submits that the petitioner’s weapons were directed to be deposited by the respondents in view of the ensuing Vidhan Sabha Elections. Advocate Manoj Sharma, counsel submitted that on various occasions, petitioner was threatened and assaulted by various persons. For his self defence, the said weapons are required. The criminal cases are pending against the persons who have threatened the petitioner and therefore, they may again put the petitioner’s life and freedom to jeopardy.


Hence, the respondents are required to examine the necessity to confiscate the weapons in the light of election commission circular. By taking this Court to Clause 4.10 of the Election Commission Circular dated on January 8, 2007, learned counsel for the petitioner submits that the respondents are required to examine and undertake a detailed and individual review and assessment of each case of license-holder and take a decision whether his weapons need to be impounded. The ingredients on which such a decision of impounding can be taken are enumerated in the said clause. No such condition is available against the petitioner, yet in a mechanical manner his weapons were directed to be deposited.


Government Advocate Vishal Dhagat and Siddharth Seth, counsel for the respondent produced an order dated on October 26, 2018 wherein the Additional District Magistrate opined that as per the Circular dated on September 1, 2009, the petitioner has not proved that he has any special ground to keep the weapons with him. The respondents urged that this order has not been called in question. In addition, reliance is placed on Clause 3.10 of the Circular dated on September 1, 2009.


The single bench said that “I have heard counsel for the parties on this aspect. A conjoint reading of Clause 4.10 of Circular dated January, 8, 2007 and Clause 3.10 of Circular dated September, 1, 2009 shows that texture, tenor and intention of both the Clauses are similar. Burden is on the District Magistrate to undertake a detailed and individual review to examine whether weapons are to be impounded. It can be impounded to ensure maintenance of law and order, if certain conditions are fulfilled. Thus, in my view burden is on the District Magistrate to undertake an individual review to examine whether essential conditions to impound the weapon are satisfied. It is not other way round and burden is not on the shoulder of the petitioner to show why he needs a weapon or there exists a “special ground”.”