Uttarakhand High Court
"Anil Kumar vs Judgment Has Attained Finality. ... on 22 November, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
22ND NOVEMBER, 2021
CRIMINAL WRIT PETITION NO.861 OF2021
Between:
Anil Kumar alias Anil Rana ...Petitioner
and
State of Uttarakhand and others. ...Respondents
Counsel for the : Mr. Navneet Kaushik.
petitioner.
Counsel for the State : Mr. J.S. Virk, learned Deputy
of Uttarakhand. Advocate General.
The Court made the following:
JUDGMENT: (per Hon'ble Sri Justice Alok Kumar Verma)
Whether the petitioner has a valid and
enforceable right to continue the security, which was
provided to him? This is the question arises in this writ
petition.
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2. In order to appreciate the said issue, involved
in this writ petition, the relevant facts, as stated in the
writ petition, need mentioned infra.
3. The petitioner is the owner of a land, bearing
Khasra No.170, situated in village Saitpura Mewar Kalan,
District Haridwar. One Musteem and other persons were
interfering in the peaceful possession of the petitioner,
due to which, the petitioner filed a Civil Suit against
them, which was numbered as Civil Suit No.117 of 2008,
"Anil Kumar vs. Musteem and others". The said suit was
dismissed vide order dated 30.01.2014, against which,
the petitioner filed a Civil Appeal before the Court of
District Judge, Haridwar. The said appeal was allowed
vide judgment dated 01.09.2016. The said appellate
Judgment has attained finality. After the judgment of
the appellate court, the petitioner started construction
on the said property. The respondent no.5 with the help
of his associates started threatening the petitioner and
asked him to vacate the said land. Therefore, the
petitioner filed a Criminal Writ Petition No.881 of 2016 in
this Court. This Court vide order dated 28.09.2016
closed the said writ petition with the direction, "The
arrangement of Gunners being provided, will continue
for a period of 10 days and, thereafter, if the petitioner
represents before the first respondent that there is still
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threat from the party respondents to the petitioner, he
will look into the matter and only if is satisfied that there
is threat, he will provide adequate protection as and
when required." In the intervening night of 2/3
September, 2016, the respondent no.5 installed a statue
of Baba Sahib Dr. Bhim Rao Ambedkar on the land of the
petitioner. The petitioner approached this Court by way
of Writ Petition No.2508 of 2016, which was disposed of
by order dated 16.02.2017. This Court observed that if
the land-in-question belonged to the petitioner, he was
free to remove the statue. Since, it was not possible for
the petitioner to remove the statue, he filed a Writ
Petition No.847 of 2017 before this Court for providing
police assistance to remove the statue. The said writ
petition is still pending. After passing the order dated
16.02.2017, the respondent no.5 and his associates tried
to take forcible possession of the land of the petitioner
and when the police reached the spot, the respondent
no.5 and his associates assaulted the police personnel,
in respect of which an FIR was registered against them.
The respondent no.5 lodged an FIR against the petitioner
and another with the allegations that the said statue had
been stolen. After the investigation, a closure report was
filed by the Investigating Officer. In these
circumstances, it is clear that the threat perception to
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the life and liberty of the petitioner at the hands of the
respondent nos.5 to 13 still subsists. However, the
respondent no.2 has withdrawn the police security of the
petitioner vide impugned order dated 13.05.2021
without any notice and without serving the order upon
the petitioner. Therefore, the petitioner has filed this
petition under Article 226 of the Constitution of India to
issue a writ of certiorari to quash the impugned order
dated 13.05.2021, passed by the Deputy Inspector
General of Police (Security), the respondent no.2, and, a
writ to direct the respondent nos.1 to 4 to grant security
to the petitioner, who is facing threat to his life and
liberty at the hands of the respondent nos. 5 to 13.
4. Heard Mr. Navneet Kaushik, the learned
counsel for the petitioner and Mr. J.S. Virk, the learned
Deputy Advocate General for the State of Uttarakhand.
5. Mr. Navneet Kaushik, the learned counsel
appearing for the petitioner, submitted that Article 21 of
the Constitution of India enables a person, whose life
and liberty are threatened, to seek protection from
Police. The petitioner is the owner of the said property.
However, the petitioner is facing threat to his life and
liberty at the hands of respondent nos.5 to 13,
therefore, in the absence of any material, the State
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cannot withdraw the security, which was provided to
him.
6. Per contra, Mr. J.S. Virk, the learned Deputy
Advocate General, contended that there is no substance
in the writ petition and after considering the reports,
received from various quarters, the Deputy Inspector
General of Police, the respondent no.2, has arrived at
the conclusion that there was no threat perception to the
life and liberty of the petitioner. Therefore, the
respondent no.2, after applied his mind to all the
relevant considerations, has passed the said order dated
13.05.2021.
7. Police protection cannot be granted to the
petitioner for the mere asking of it. Mandamus is not a
writ of right. A mandamus will go where there is a
specific legal right.
8. In P.R. Muralidharan and others vs.
Swami Dharmananda Theertha Padar, (2006) 4
SCC 501, the Hon'ble Supreme Court has held that a
writ of mandamus directing the State to give police
protection to the petitioner can be issued only when the
Court is satisfied that there is a threat to the petitioner
and the authorities have failed to perform their duties.
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9. A writ of mandamus for police protection can
be maintained only when the petitioner has made out a
serious and imminent threat perception. The threat
perception should be clear and based on cogent and
reliable materials. The petitioner has disclosed only an
apprehension. But, an apprehension is different from a
perception. The petitioner has not made a factual
foundation for the issue of a writ of mandamus for police
protection.
10. The learned counsel for the petitioner has
failed to show that the respondent no.2 acted arbitrarily
or capriciously and the impugned order dated
13.05.2021 has been passed by the respondent no.2
without minimal requirements of justice and fair play. On
the other hand, the impugned order clearly shows that
the action was taken by the respondent no.2 in good
faith, without bias and after application of his mind to all
the relevant considerations along with the reports,
received from various quarters.
11. Indeed, the jurisdiction of the Writ Court is
wide while considering the relief regarding police
protection to protect the life and liberty of a person, but
while doing so the Court cannot adjudicate on the
property rights of the petitioner. It is for the State to
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assess and review the threat perception of an individual
on case to case basis. Judicial review in this regard is
very limited and since there were adequate materials for
the decision taken by the respondent no.2, this Court
cannot entertain this writ petition.
12. In view of the above detailed discussion, the
writ petition devoid merits. Therefore, the writ petition is
liable to be dismissed. Consequently, the writ petition is
dismissed at the admission stage. No costs.
_______________________________
RAGHVENDRA SINGH CHAUHAN, C.J.
_________________
ALOK KUMAR VERMA, J.
Dt: 22nd November, 2021
Neha
