JUDGMENT By the Court.—Heard learned Counsel for the petitioner, Shri S.M.A. Kazmi, learned Advocate General assisted by Shri V.S. Mishra, learned Government Advocate and Shri A.K. Sand, learned Additional Government Advocate. 2. In our previous order on 13.3.2007 in spite of the argument of Sri Kazmi the learned Advocate General that as out of the 368 cases which were sent for review before the High Powered Committee (hereafter HPC) consisting of the Secretary (Home), A.D.G. (Law and Order) and A.D.G. (Security) only 35 cases had finally been recommended for grant of gunners by the HPC which showed the impartial and objective functioning of the High Powered Committee. It has been clarified today that erroneously the number where security has been recommended by the HPC was mentioned as 35 in the previous affidavit of the concerned Deputy Secretary. The correct figure was actually 29. However as on a closer examination we had prima facie found that persons who had been finally recommended security largely belonged to a particular caste group or they owed their allegiance to the Ruling party, or because some of them had criminal antecedents we had thought it proper that the confidential reports of the District Level Committees (DLCs) consisting of the District Magistrates, S.S.P./S.P and the in-charge to the Local Intelligence Unit (LIU) be summoned for closer scrutiny by us. In pursuance thereof the reports have been produced before us today. 3. Even a cursory examination of the reports confirms our apprehensions. Though it is also apparent that there is considerable variation, in the matter. In the case of a large number of DLCs there seems to be objective consideration in the matters, and gunners have not lightly been recommended simply because an applicant is politically well-connected or belongs to the party in power, when there is no documentary and concrete evidence of enmity with a particular person or political opponent, and where no instances of actual attacks on the applicant or his family members have been brought to light, nor is the applicant a witness or pairokar in a pending criminal trial. However, the examination of the confidential reports by us indicates that some District Level Committees especially the DLCs at Shahjahanpur, Rampur, J.P. Nagar, Etah, Firozabad, Kheeri, Unnao, Farrukhabad, Etawah and Aligarh have acted in a mala fide manner by recommending grant of gunners to ineligible persons, who may even have criminal antecedents simply because they owed allegiance to the Ruling Party or belonged to a particular caste group, in the teeth of Government Orders or orders of this Court. Although we must agree with the Advocate General that some of these, DLCs have granted security to a few persons of other political parties and also in some cases to pairokars or witnesses or in cases where applicants or their family members have been targets of actual attacks in the near past. But these appear to be face saving exceptional cases. We think that simply being a supporter of a political party (and in most cases the ruling political party) is no ground for grant of gunners at State expense or private costs. The grant of gunners is no largesse to be granted by parties in power to its favourites. Also if a person has so much fear for his life, that he is even unprepared to meet the general public without the protection of a gunner, he has no business to be in public life. The real reason it seems is that persons with criminal antecedents, who have harmed others are now entering political life to escape prosecutions, hence they need gunners for their security. At election time presence of official gunners can also be a used to impress the electorate, that these persons are persons with clout, hence they would be able to get the work of the electors done, which amounts to using a State gunner for an impermissible purpose. We also see little reason for grant of gunners when a large number of licensed fire arms are present with the applicant or his family members, (as was indeed the case of the majority of persons who were recommended gunners by the existing HPC and DLCs), or where he is financially capable of arranging security for himself. We also find that the DLCs which seem to be extensively recommending grant of gunners are the very DLCs where the applicants already possess gunners, but a further recommendation is being made. We also find that the DLCs which seem to be extensively recommending grant of gunners are the very DLCs where the applicants already possess gunners, but a further recommendation is being made. This further shows the partiality of these District Level Committees to the applicants seeking security, and also reflects the scant regard for the repeated orders of this Court to withdraw security from such persons. 4. We, therefore, think that it would be appropriate if the existing HPC is disbanded, and a new HPC is constituted to evaluate the grant of security whose panel is approved by the Election Commission. 5. The learned Advocate General vehemently opposed this direction, on the grounds that such a direction would give a wrong political message at this sensitive election time, that the exercise would be fruitless as the officers who would be engaged in selecting the new panel to constitute the HPC would be the Chief Secretary, the DGP, and the Principal Secretary (Home) who have in any case been recently appointed by the Election Commission itself. Also that such an order would be in derogation of the powers of this Court which is seized of the matter. We are not impressed by any of these arguments of the learned Advocate General. We see no reason how an order asking the Election Commission to select the persons from a panel for constituting the HPC would give a wrong political message. It would only facilitate greater purity of the electoral process, by ensuring that official gunners are not provided to persons only from a particular political group, who could be mis utilized for wielding undue influence during election time, which is the prime concern of the Election Commission, and which task it seems to be pursuing with admirable pro-active concern. As, admittedly, the present Chief Secretary, DGP, and Principal Secretary (Home) have been appointed by the Election Commission, we see no problem if the Election Commission also scrutinizes, who are the appropriate authorities/persons who deserve to be members of the High Powered Committee which can consider recommendations for grant of gunners by the DLCs. As, admittedly, the present Chief Secretary, DGP, and Principal Secretary (Home) have been appointed by the Election Commission, we see no problem if the Election Commission also scrutinizes, who are the appropriate authorities/persons who deserve to be members of the High Powered Committee which can consider recommendations for grant of gunners by the DLCs. As the Court itself feels that the Election Commission which seems to be engaged in an exercise of identifying good and independent officers has better information than this Court about the independence, impartiality and political neutrality of particular officers who should constitute the HPC, we fail to understand how the said directions involve any derogation of the powers of this Court. On a perusal of the HPCs recommendation in the 29 cases the Court also gets the impression that it is with an eye to the elections that the gunners have been granted by the present HPC, because either the HPC’s order says that gunner be granted for 4 months and in some cases it has been mentioned in so many words that the gunners are being granted for the elections. The strong opposition to what is essentially a direction of neutral character by the learned Advocate General does prima facie justify the impression of this Court that the Government is unnecessarily interested in manning key posts with its own men. 6.One incidental advantage of involving the Election Commission in this exercise is that on examination of the recommendations by different District Magistrates, S.S.Ps/S.Ps who constitute the DLCs of different districts it will have objective material before it to identify the officers who are capable of taking decisions independent of political considerations and the officers who readily succumb to the dictates of the ruling political dispensation and prevent the latter from continuing in Key posts in the said districts so that the electoral process may be conducted impartially, untainted by the mala fide interference of politically motivated officers. It is all important that the electoral process be freed from muscle and money power and from the undue influence of politically motivated bureaucrats and police officers. 7. It is all important that the electoral process be freed from muscle and money power and from the undue influence of politically motivated bureaucrats and police officers. 7. Our earlier order staying the grant of gunners to the aforesaid 29 persons approved by the present HPC shall, therefore, continue until the re-evaluation of the material by the new HPC to be constituted with approval of the Election Commission and until the same is finally placed and approved by this Court. We direct that this order (as well as our earlier order dated 13.3.2007, and the recommendations of the HPC and the confidential reports of the District Level Committees) be placed before Election Commission within six days for immediate re-constitution of the High Powered Committee. 8. As the examination of the confidential reports shows that in many cases gunners are continuing with persons in spite of the earlier orders of this Court to withdraw the same, we now direct the police chiefs (i.e. the S.S.P.s/S.P.s) of all the districts in U.P. to file affidavits within two weeks mentioning the names and numbers of persons in their districts who continue to be provided with security from any source. The said affidavits shall also be filed before the Election Commission. The S.S.Ps/S.P.s concerned will be personally liable for the correctness of the information being sought by the Court. 9. We do not agree with the learned Advocate General that there is any uncanalized unrestricted powers even with the Chief Minister to grant gunners to anyone he choses, under the G.O. dated 9.7.06. In clause 9 of the said G.O. it is simply stated that the maximum period for providing gunners shall be one year, but in special circumstances with the prior approval of the Chief Minister this period can be extended for a period greater than a year. If the interpretation of the learned Advocate General that any clause in the G.O. gives unlimited powers even to the Chief Minister to grant gunners to anyone he choses, as per his sweet will, the same would suffer the risk of being declared ultra vires by this Court as any system of absolute discretion to any person no matter howsoever high he be placed uncanalized by laws or rules is anathema to democracy and governance by the Rule of law. We need mention here that we would not be surprised to learn that the Hon’ble Chief Minister, plagued as he is with innumerable matters may not even be aware if persons in his secretariat get the said discretionary orders passed under the cover of the impugned Government order, even without his knowledge in some cases, perhaps for some consideration. 10. So far as the persons who face threats to life and are witnesses or pairokars in grave criminal cases, in a reaffirmation of our earlier order dated 13.3.07 we clarify that they may be provided security till the stage of trial after bringing the factum of threats to their lives before the trial or committal Courts who may after consideration of the matter and calling for any reports from the police or LIU as the said Court consider necessary, recommend grant of security and the extent of security either free or on payment as the Court deems fit in the circumstances of each case, As directed earlier the grant of such security shall be applicable only till the stage of trial, and shall not operate interminably. The security to the said persons is only to continue provided that the applicants apply to the concerned trial Court every two months for extension of security. The security provided shall automatically lapse if there is no such extension application. It is further directed that the trial Courts where such security has been provided shall endeavour to conclude their trials expeditiously and as far as possible on a day basis according to Section 309, Cr.P.C. 11. List this case on 9.4.07 for further orders and for obtaining compliance reports from the State Government and the concerned officers. 12. Let a copy of this order be furnished to the learned Government Advocate within 48 hours for compliance and necessary communication to the Election Commission. ————