Rajasthan High Court - Jodhpur
Afiya Afzal vs State Of Rajasthan on 6 January, 2023
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Writ Petition No. 33/2023
1. Afiya Afzal D/o Afzal Baig, Aged About 20 Years, Village
Hartaryan, Dist. Udhampur, Jammu And Kashmir.
2. Sanjay Pal S/o Shishpal, Aged About 24 Years, Wlno. 2,
Shyorani Teh. Nohar Dist. Hanumangarh.
----Petitioners
Versus
1. State Of Rajasthan, Through Chief Secretary, Dept. Of
Home Affairs, Jaipur.
2. Superintendent Of Police, Hanumangarh.
3. Sho, P.s. Nohar, Dist. Hanumangarh.
4. Superintendent Of Police, Udhampur (J And K)
5. Afzal Baig S/o Yunis Baig, Vill. Hartaryan, Teh. And Dist.
Udhampur, Jammu And Kashmir.
6. Mohammed Ashraf S/o Mohammed Bashir, Vill. Hartaryan,
Teh. And Dist. Udhampur, Jammu And Kashmir.
7. Mohammed Naveed S/o Mohammed Faruque, Vill. Chak,
Teh. And Dist. Udhampur, Jammu And Kashmir.
----Respondents
For Petitioner(s) : Mr. Rakesh Dhaka
For Respondent(s) : Mr. Arun Kumar, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
06/01/2023
1. This criminal writ petition under Article 226 of the
Constitution of India has been preferred for issuance of necessary
directions to the official respondents to provide adequate security
and protection to the petitioners on the ground that they are
facing grave threat of life and liberty at the hands of private
respondents.
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2. Learned counsel for the petitioners submits that Article 21 of
the Constitution of India provides for right to life and personal
liberty under the ambit of fundamental rights and any threat to
the same amounts to violation of the same.
3. Heard learned counsel for the parties as well as perused the
record of the case.
4. While keeping in mind a catena of precedent laws laid down
by the Hon'ble Apex Court, this Court has made the following
observations in its judgment rendered in the case of Leela & Anr.
Vs. State of Rajasthan & Ors. (S.B. Criminal Misc. Petition No.
5045/2021, decided on 15.09.2021):-
"30. It is sufficiently clear to this Court that the Hon'ble
Apex Court's standpoint is that there exists a duty of the
State to protect and safeguard all fundamental rights,
unless taken away by due process of law. Even if any
illegality or wrongfulness has been committed, the duty to
punish vests solely with the State, that too in attune with
due process of law. In no circumstance can the State bypass
due process, permit or condone any acts of moral policing or
mob mentality. When the Right to life and liberty is even
guaranteed to convicted criminals of serious offences, there
can be no reasonable nexus to not grant the same
protection to those in an "legal/illegal relationships".
31. Had there been a question before this Court with
regards the morality/ legality of live- in relationships and
matters connected thereto, then perhaps the answer would
have required more deliberation along those lines. However,
in the context of the limited question this Court is posed
with pertaining to the application of Article 21 of the
Constitution of India and it is clear that the right to claim
protection under this Article is a constitutional mandate
upon the State and can be availed by all persons alike.
There arises no question of this right to be waived off even
if the person seeking protection is guilty of an immoral,
unlawful or illegal act, as per the precedent law cited of the
Hon'ble Apex Court. However, in this case, this Court does
not wish to delve into the sanctity of relationships.
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32. This Court finds itself firmly tied down to the principle
of individual autonomy, which cannot be hampered by
societal expectations in a vibrant democracy. The State's
respect for the individual independent choices has to be held
high.
33. This Court fully values the principle that at all
junctures constitutional morality has to have an overriding
impact upon societal morality.
This Court cannot sit back and watch the transgression or
dereliction in the sphere of fundamental rights, which are
basic human rights.
The public morality cannot be allowed to overshadow the
constitutional morality, particularly when the legal tenability
of the right to protection is paramount.
34. This Court is duty bound to act as a protector of the
rights of the individuals, which are under siege with the
clear intention of obstructing the vision of Constitution."
5. This Court thus, disposes of the present petition with the
direction to the petitioners to appear before the Station House
Officer, Police Station Nohar, District Hanumangarh alongwith
appropriate representation regarding their grievance. The Station
House Officer, Police Station Nohar, District Hanumangarh shall in
turn hear the grievance of the petitioners, and after analyzing the
threat perceptions, if necessitated, may pass necessary orders to
provide adequate security and protection to the petitioners.
6. It is made clear that any observation in this order shall not
affect any criminal and civil proceedings initiated against the
petitioners. All pending applications also stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
156-Zeeshan
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