Shri Jamal S/O Anwar Siddiqui vs State Of Mah. Ministry Of Home ...
2021 Latest Caselaw 2386 Bom

                                                                                                                             5.Cri.WP.107.2020.odt
                                                                                      (1)

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR

                                       CRIMINAL WRIT PETITION NO.107/2020

                           Shri Jamal s/o Anwar Siddiqui,
                           Aged about 48 years, Occ.: Business,
                           R/o : Plot No.4, Waseem Palace,
                           Dattatraya Nagar, Ayodhya Nagar,
                           Nagpur.                              ..... PETITIONER


                                                                        // VERSUS //
             1.          State of Maharashtra, Ministry of
                         Home Affairs, Fort, Mumbai.

             2.          The Director General of Police,
                         Town Hall Building, Ground Floor,
                         Near Horiman Circle, Mumbai.

             3.          The Police Commissioner Police
                         Sadar, Nagpur.

             4.          The Deputy Commissioner of Police
                         Special Branch, Nagpur.           .... RESPONDENTS

             ----- ---------- ------------------------------------------------------------
                           Shri S. S. Sohoni, Advocate for petitioner.
                           Ms. T. H. Khan, APP for the respondents.
             - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -


                                                          CORAM :                       SUNIL B. SHUKRE AND
                                                                                        AVINASH G. GHAROTE, JJ.

                                                          DATED                 :       05/02/2021


             ORAL JUDGMENT : (PER:- SUNIL B. SHUKRE, J.)

             1]                           Heard. Rule. Rule made returnable forthwith.


             2]                           Heard finally by consent of the learned counsel

             appearing for the parties.


                                                                         5.Cri.WP.107.2020.odt


             3]                By this petition, the petitioner has prayed for

issuance of writ of mandamus to the respondents to provide him

or continue to provide him 'X' - category security. The petition

is opposed by the respondents.

4] We may state here that in a democracy like India,

having a written Constitution for the governance of the Country

where rule of law pervades all through out, the State has been

entrusted with the duty and responsibility to protect life and

property of its citizen and this duty is and continues to be

performed by the State through various laws it has enacted or

may enact in future, taking of different measures and setting up

various protection forces. There are police stations established

all over. There is also established a Reserve Police Force and

generally speaking, the police machinery also resorts to such

steps as police patrolling, providing of temporary police force

where the trouble is anticipated, providing of night guards and

so on forth. Even, such steps as externing criminals from

particular areas and initiating preventive detention action

against the hardened criminals are also taken. These are all the

steps and measures taken for ensuring safety of citizens of India

and their property. Therefore, if any person is desirous of

security over and above the ordinary ring of protection already

5.Cri.WP.107.2020.odt

thrown around by the State which is seen in the enacted laws

and various steps just pointed out, there must be some special

reason or material to show that such additional and special

security is indeed justified. After all, when any special or

additional security has to be provided, the State does so by

incurring huge expenditure of public money. Then, there are

also dangers involved in providing of such special security. One

of them could be of any possible misuse of the special security

by the person to whom it is provided. This is the reason why

there is a well established procedure which must be followed

before any decision is taken for providing special or additional

security to a person. Such special security would not come as a

matter of right and matter of course, rather it would follow the

special need of the person and peculiar urgency of the situation.

5] Special need of the person and peculiar urgency of

the situation are the factors which cannot be decided by a

person who is demanding a special security. These factors are

required to be examined and dealt with appropriately in a

dispassionate manner by the State by following procedure

established by rules. The reason being that right to lead secured

life is a right which extends to secure conditions of life as

understood in the context of general measures of security

5.Cri.WP.107.2020.odt

initiated by the State. So, the corresponding duty of the State is

only up to the level of providing adequate measures of security

in general. The right to lead a secured life would never include

in it any right to lead a specially secured life, unless the special

need is assessed and acknowledged by the State. Therefore, it is

the assessment of the State alone, and not of an individual

demanding special security, which is material. A person

demanding special security, may, for his own reasons see that

there is a threat to his life or property or both from the world at

large and therefore may lead his life constantly under fear. But,

such opinion of a person about danger to his own life or

property, in a given case, may only be a figment of imagination

or due to some peculiar psychology of that person. But, in

reality, the agency entrusted with duty to protect a citizen, may

find that the own threat perception of such a person is illusory

or unrealistic or blown out of proportion. Therefore, the agency

of the State which is under a duty to protect its citizen is

required to discharge it's duty in such a case cautiously,

carefully, diligently and in the best of interest of the person

concerned and also the State. Such agency would examine the

whole issue by making an inquiry into the matter, would collect

inputs provided to it by various sources and then would take an

5.Cri.WP.107.2020.odt

appropriate decision regarding how would it perceive the factor

of threat to the person demanding security. Any decision taken

by such agency, after making such an inquiry and which is based

upon the material revealed in the inquiry, being of

administrative nature, would not be liable to be substituted by a

decision of the Court taking judicial review of the decision

under Article 226 of the Constitution of India, unless, the

decision taken is not based upon any material or is actuated by

any malice or malafides or is the result of consideration of some

extraneous material. If any judicial review of such a decision

has to be taken it must be on the basis of the principle of

Wednesbury unreasonableness so well entrenched in Indian

jurisprudence. A useful reference in this regard may be made to

the cases of Associated Provinicial Picture Houses Ltd., Vs.

Wednesbury Corpn, ALL Criminal Report pages 682 H - 683 A

and State of NCT of Delhi and another Vs. Sanjeev alias Bittoo ,

2005 SCC (Cri) 1025.

6] According to the learned counsel for the petitioner,

the petitioner is a National President of BJP Minority Morcha

and by virtue of his occupying such a position, the petitioner

remains under constant threat to his life and property. He

submits that while other similarly situated persons have been

5.Cri.WP.107.2020.odt

granted 'X' - security, the petitioner has been denied the same.

He further submits that earlier 'X' - category security was

provided to the petitioner, but that was during to the regime of

the Government of another national party and in the

interregnum another party's Government came into power and

the 'X' - security granted to the petitioner was withdrawn. This

is all disagreed too by the learned APP, who submits that

withdrawal of 'X' - category security was never for any political

reason but was only on account of the changed circumstances

which reduced considerably the threat to the life and property

of the petitioner as perceived by the Intelligence Agencies. She

also submits that it is not the case that the petitioner has not

been provided with any security. She points out that by

providing one Gun-man for security of the petitioner with effect

from 05.03.2020, the State has only performed its duty to

protect life and property of its citizen in a diligent manner.

7] So far as, granting of 'X' - category security to the

petitioner earlier is concerned, there is no dispute about it. It

was granted sometime in the year 2017 and it came to be

withdrawn on 13.12.2019. The reply filed on record by the

State indicates that the withdrawal of 'X' - category security did

not take place suddenly and without following any procedure. It

5.Cri.WP.107.2020.odt

shows that the decision was taken by the Intelligence

Committee in the confidential review it takes periodically of the

security arrangement of different categories made for different

important persons. It further shows that after collecting

necessary inputs in the matter, the Intelligence Committee,

which is in Marathi called 'iqufoZyksdu lferh* took the review of

the security arrangement and it was of the view that for the

present there was no fresh or special threat to the petitioner and

the circumstances had changed which indicated that

continuation of 'X' -category security given to the petitioner was

no longer required and therefore, the committee took a decision

that 'X' category security given to the petitioner be withdrawn.

Accordingly, it came to be withdrawn with effect from

13.12.2019. A copy of a communication dated 02.03.2020

addressed to the DCP, Special Branch Nagpur City by DCP (VIP)

Security State Intelligence Bureau, State of Maharashtra,

Mumbai informing about such withdrawal of 'X' - category

security is annexed to the reply of the respondents. It stands in

support of what is stated in the reply of the respondents. There

is no reason for us to disbelieve what is stated in the said

communication or the reply of respondents. There is also no

doubt expressed by the petitioner about the correctness of the

5.Cri.WP.107.2020.odt

statements made in the reply and the said communication. So,

what appears to us is that there was in existence material for

Review Committee to consider and review it's decision, which it

did consider and accordingly reached it's subjective satisfaction

regarding withdrawal of 'X' category security.

8] According to Wednesbury principle of

unreasonableness, whenever any subjective satisfaction is based

upon material in existence and its appropriate consideration by

the administrative Authority, review of the decision of the

Authority by any Court is not permissible on the spacious

ground that had such material been considered by the Court,

the Court would have taken a different view. Therefore, we do

not find that any challenge worth the name could be taken to

the decision of the review committee to withdraw 'X' category

security given to the petitioner. Then, it is not the case here that

the State is being callous to the petitioner. It's an admitted fact

that the petitioner has been granted extra personal security by

providing him a Gun-man by the State. Such security

arrangement, we must say, is also based upon perception of the

threat objectively seen by the State and therefore, cannot be

seen to be inadequate in the fact situation of this case.

9] At the cost of repetition, we would say it here, that

5.Cri.WP.107.2020.odt

in such cases what matters is not the own perception of an

individual about any threat to him, but it is the perception of

the agency of the State entrusted with duty to protect citizens is

what is important. Such agency is required to take into

consideration several relevant factors, follow the requisite

procedure and arrive at appropriate decision so that, the

additional expenditure of public money that is involved in such

cases is not incurred without any reason and that the additional

security to be provided is also not misused in any manner by

anybody including the protectee himself. Nevertheless, if the

person desirous of any additional and special security is

dissatisfied with decision of the State to not provide him any

special or 'X' category security, such person can always opt for

engaging private Security Guards for his own security at his

own expenses.

10] In the result, we find that this petition is devoid of

any merit. The Writ Petition stands dismissed.

Rule is discharged.

             (AVINASH G. GHAROTE, J)                       (SUNIL B. SHUKRE J.)


             Sarkate