Dr. Pankaj Tripathi vs State Of U.P. And 5 Others
2014 Latest Caselaw 683 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 AFR
 
Reserved
 

 
Civil Misc. Writ Petition No.10765 of 2014
 

 
Dr.Pankaj Tripathi			..........			Petitioner
 
							Versus
 
State of U.P. and others		..........		      Respondents.
 
					      
 
Hon.Tarun Agarwala,J.

Hon. Rajan Roy,J.

(Delivered by Hon.Tarun Agarwala,J.)

The petitioner's father was a Civil Surgeon and was murdered on 25.05.1980 at Mirzapur. A first information report was lodged and upon investigation a charge sheet was filed in which respondent no.6 Vijay Kumar Mishra an accused. The trial in case crime no. 157 of 1980 is pending for the last 34 years. This respondent no.6 is presently a sitting Member of the Legislative Assembly from the ruling party. The petitioner fearing threat of his life was provided a security by the State for the period 28.04.2011 to 27.10.2011 which was subsequently withdrawn by an order dated 06.04.2012. The petitioner thereafter moved several applications before the Senior Superintendent of Police, Allahabad praying that he should be provided security, which has remained pending.

On the other hand, by an order dated 25.10.2013 respondent no.5, Smt. Seema Mishra, daughter of Vijay Kumar Mishra was granted 'X' category security and, by another order dated 31.10.2013 'Y' category security was provided to respondent no.6, Vijay Kumar Mishra. The petitioner being aggrieved by the grant of such kind of security to respondent nos. 5 and 6 filed the present writ petition praying that such security cover should be withdrawn.

This Court while entertaining this writ petition on 20.02.2014 found that 60 criminal cases were pending against Vijay Kumar Mishra, in spite of which 'Y' category security was granted in his favour. The Court directed the State Government to provide details of the number of meetings of the State Level Security Committee, which had taken place and whether the State Level Security Committee had considered the threat perception. The Court directed the State to place the relevant materials before the Court. The Court, after considering the matter found that on the basis of the instructions received by the Standing Counsel, the State Level Security Committee had not considered the threat perception and since no relevant material was placed before the Court, an order dated 20.02.2013 was passed directed the Standing Counsel to file a counter affidavit. The Court further directed 'X' and 'Y' category security provided to respondent nos. 5 and 6 should be immediately withdrawn.

Based on the said direction of the Court, the State Government, by an order dated 01.03.2013 withdrew the 'X' and 'Y' category security granted to Smt. Seema Mishra and Vijay Kumar Mishra and, in lieu thereof, provided a gunner security to Vijay Kumar Mishra on the basis of the post which he was holding and also provided a gunner security to his daughter Smt. Seema Mishra. The said order has also been challenged by way of an amendment application, which was allowed by the Court. The State has filed a short counter affidavit, a supplementary counter affidavit and a counter affidavit to the amendment application. Respondent nos. 5 and 6 have also filed counter affidavit and a supplementary counter affidavit.

The Court heard at length Sri U.N.Sharma, the learned Senior Counsel assisted by Sri Chandan Sharma for the petitioner, learned Standing Counsel for the State and Sri L.K.Dwivedi, the learned counsel appearing for respondent nos. 5 and 6. At an early point of time, the Court also heard Sri G.S.Chaturvedi, the learned Senior Counsel for respondent nos. 5 and 6.

The counter affidavit of respondent nos. 5 and 6 reveals that the uncle of the petitioner Dr. Rakesh Dhar Tripathi was an accused in the murder of the father of Vijay Kumar Mishra on 05.03.1985. The Court finds that there appears to be rivalry between the family of the petitioner and the family of Vijay Kumar Mishra, wherein the father of respondent no.6 and the father of the petitioner were murdered.

The counter affidavit of the State reveals an interesting fact, namely, that 60 criminal cases are recorded in the history note no. 2B against Vijay Kumar Mishra. In the recommendation of the District Level Security Committee it indicates that Vijay Kumar Mishra has already been provided one gunner on account of the fact of being a Member of Legislative Assembly and that two gunners have also been provided pursuant to an order passed in writ petition no. 25906 of 1999. In addition to that, 'Y' category security was provided to respondent no.6. The police report also indicates that Vijay Kumar Mishra has two rifles and one pistol in his name. There is also one rifle and one revolver in his mother's name and that one double barrel gun licence has been given in the name of his brother.

The District Level Security Committee, Allahabad in spite of recording that Vijay Kumar Mishra is a history sheeter and that he and his family own several weapons and in spite of the fact that three gunners have already been provided, recommended that a high security be provided.

In so far as, Vijay Kumar Mishra's daughter is concerned, the District Level Secuirty Committee, Bhadohi recommended that 'X' category security should be provided to her because she is a prospective applicant of the ruling party in the ensuing Lok Sabha Election and that the applicant feels that there would be a threat to her life. The District Level Security Committee, Bhadohi recommended 'Y' category security for Vijay Kumar Mishra.

The short counter affidavit did not give details of the minutes of the State Level Security Committee nor the materials were placed before the Court with regard to the consideration of the threat perception by the State Level Security Committee. The Court directed the State to file a supplementary counter affidavit and when the materials were not placed, the Court directed the State to produce the original records. The records of the State Level Security Committee and of the State Government have been placed, which the Court has perused.

We find from a perusal of the Government Order dated 25th April, 2001 that a security is provided as per the recommendation of the District Level Security Committee for a period of one month which can be extended for a maximum of three months and further extension could only be given by the State Government on specific recommendation being given by the District Level Security Committee. The government order further provides that a review of the matter would be taken by the Committee on a monthly basis in order to review whether security is to be provided further considering the threat perception.

What constitutes the threat perception has not been indicated in the government order. A threat perception, is therefore, a question of fact which can only be assessed by the State Investigating Agencies. It is not the domain of the Court to consider whether a threat perception exists in favour of a particular person or not.

From a perusal of the Government Order of 2001, the Court further finds that the State Government has emphasized that no security should be provided to a person, who is indulging in criminal activities and against whom, it is feared that providing security to them could be misused.

In the light of aforesaid Government Order, this Court in Gayur Hasan Vs. State of U.P. And others 2009 (1) ACR 514 held:

"15. Moreover, irrespective of any reason whatsoever, if a person has indulged in criminal activities and thereby has enhanced perception of threat to his life and liberty, he himself is responsible for the same, and cannot look to the State to provide him separate security at the cost of common man when he himself is responsible for enhancing threat perception due to his anti-social activities. Whatever position an individual occupy in our democratic system, it he is engaged in anti social criminal activities, in our view, there is no justification to provide him security at the cost of tax payer society and common people of the State. His criminal activities are against the society. It is inconceivable that such a person shall be provided extra security at individual level to ensure that such activities at his level may continue with impunity. This in fact amounts to an encouragement to anti-social criminal elements to go ahead with such criminal activities and also enjoy an edge over his counter parts by obtaining State's security cover at the cost of common man."

Recently in Nutan Thakur Vs. State of U.P. & Ors. in

Writ Petition No. 6509 of 2013, a Division Bench of the Lucknow Bench of this Court, by an order dated 3rd March, 2014 held that security provided by the State to persons having criminal activities should be removed immediately and thereafter a review should be conducted by the State for providing security to those persons after considering objectively the evaluation of threat. The Court held:

"We, thus, provide that security to all such persons shall be removed within a period of ten days and thereafter review regarding threat perception may be conducted by the State Government at appropriate level within next fifteen days and depending upon the evaluation of threat perception in the manner provided herein above in this order, the State Government will consider for providing the security only if it is found that there is actual and real threat perception to the individuals concerned."

Having considered the submissions of the learned counsel for the parties, we find that in the instant case there exists political and family rivalry between the petitioner and respondent nos. 5 and 6. Respondent no.6 has a criminal history. Threat to the life of such persons, who are indulging in criminal activities is mainly on account of enmities and attack on such person, who seeks revenge. Even though the State is under an obligation to provide security to a citizen to protect the life in an exceptional circumstances, but where a persons indulges a criminal activity and thereby indulges to a threat to his life, in such a situation, the said person is alone responsible and, consequently the State in such a situation is not required to come forward and provide security. We are of the opinion that it is not desirable to provide personal security to such persons who indulge in criminal activities and threaten others unhindered with the aid of protection provided by the State to them.

From a perusal of the record of the State Government and the State Level Security Committee, we find that orders from the top has been issued namely, from the office of the Chief Minister to provide security to respondent nos. 5 and 6 without there being any assessment of the threat perception. The impugned orders dated 25.10.2013 and 31.10.2013 were issued providing 'X' and 'Y' category security to respondent nos. 5 and 6 as an interim measure till such time the State Level Security Committee met and gave its recommendation. What was the urgency to issue such interim measure without awaiting for the report of threat perception is not recorded anywhere in the file nor any subjective satisfaction has been recorded.

We find that the State Level Security Committee met on 28.11.2013 and again on 26.02.2014. The minutes does not record any agenda or the discussion nor records the materials that was made available nor there is anything on the record of the State Level Security Committee indicating the evidence which the Court could examine as to what kind of threat perception existed against respondent nos. 5 and 6. The Court gets an uncanny feeling that the minutes, which has been recorded has been drawn mechanically by the office and signatures have only been placed by the members of the Committee. Upon examination of the records, the Court also gets the feeling that when orders have been issued from the top, a perfunctory report has been prepared by the State Level Security Committee and the District Level Security Committee, so that the orders given by the top level functionary of the State is complied with. The Court finds that the recommendation given by the District Level Security Committee is not worthy of any credence and such recommendation is not based on any evaluation of the threat perception. The District Level Security Committee in the case of Smt. Seema Mishra recommended 'X' category security on the ground that she apprehended threat to her life since she is entering the political arena. No investigation was made by the District Level Security Committee with regard to such threat perception perceived by Smt. Seema Mishra. Similarly, the District Level Security Committee has recommended 'Y' category security to respondent no. 6 because of political rivalry. The Court is of the opinion that such grounds are not tenable and cannot be used to grant 'X' and 'Y' category security.

From a perusal of the government order, the Court finds that there was no material before the State Level Security Committee by which any assessment of threat perception could be evaluated and, in the absence of any material, the State has acted arbitrarily in granting 'X' and 'Y' category security to respondent nos. 5 and 6.

The order for granting 'X' and 'Y' category security has now been withdrawn by the State Government but the Court finds that Vijay Kumar Mishra is not only being provided one gunner because of his post he is holding but in addition to that he has been provided two gunners as per the interim order of the Court passed in Writ Petition No. 25906 of 1999. The Court finds that the interim order dated 10.08.2007 passed in the said writ petition has come to an end since the said writ petition was dismissed on 16.11.2009 but the State Government for reasons best known to it is still continuing with this facility to provide two gunners to respondent no.6. Such continuance of security cover cannot be allowed to continue.

The Court further finds that merely because Smt. Seema Mishra is the daughter of Vijay Kumar Mishra and is a prospective candidate, a security cover could not be provided. The issuance of 'X' category security and thereafter providing a gunner is wholly arbitrary and has been made without evaluation of the threat perception. Such continuance of security cover to Smt. Seema Mishra is wholly illegal.

Article 21 of the Constitution ordains that no person shall be deprived of his life or personal liberty except according to the procedure established by law. We find that even though the State is under an obligation to provide security to a citizen and there is an obligation to protect them, individual security should only be provided in exceptional circumstances. 'X' and 'Y' category security is a high level security for which the State has to bear a very high cost. Such security could only be granted in exceptional cases especially since the cause for granting such security to such person involves the State Exchequer, which is the tax payers' money. The State cannot spend such money in a cavalier fashion. The mere fact that the orders have been issued by the top functionary does not mean that expenditure should be made from the tax payers money.

In the instant case, admittedly respondent no.6 is a sitting Member of the Legislative Assembly of the ruling party. The State Government has not considered the fact that there are 60 criminal cases pending against him. The Government Order of 2001 clearly places an impediment that a person who holds criminal history should not be provided security.

No person can claim as of right that the State should provide him personal security to ensure that his life is protected. Once an arms licence has been granted, sufficient protection has been given by the State to protect his life. The philosophy of the State should be to maintain law and order at a macro level, rather than concentrating on safety of certain individuals in the society. More fundamental question that needs to be addressed is, whether it is desirable to provide personal security to persons, who are part of factions with long criminal record. In our opinion, providing personal security would bolster the activities of such person to the detriment of the society at large. A person who has chosen violence and does not have any value of human life has no right to plead that the State should take special measures to protect his life from his rivals. The threat perception, if any faced by such a person, is of his own making for which the State can not come forward to provide him security.

In the light of the aforesaid, since the orders dated 25.10.2013 and 31.10.2013 are withdrawn, no further direction is required to be issued. We, however, quash the order dated 01.03.2013, by which gunner has been provided to respondent no.5 since the said facility was provided to the said respondent without any application of mind and without evaluating the threat perception. We also direct the State Government to immediately withdraw the two gunners given to respondent no. 6 on the basis of the interim order dated 10.08.2007 passed in Writ Petition No. 25906 of 1999 since the said writ petition has already been dismissed on 16.11.2009. The writ petition is allowed.

Let a certified copy of this order be sent by the registry to the Chief Secretary, Government of Uttar Pradesh within two weeks, who will ensure that the mater is placed before the State Level Committee who are required to comply with the directions and observations made hereinabove.

Dated: 09th April, 2014

MAA/-

					   (Rajan Roy,J.)         (Tarun Agarwala,J.)