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2012 DIGILAW 1472 (PAT)

S. M. Sibghatullah v. State of Bihar

2012-10-16

ASHWANI KUMAR SINGH

body2012
ORDER The prayer of the petitioner in paragraph-1 of the writ petition reads as under: “That the petitioner seeks the indulgence of this Hon’ble court for the following reliefs:– I. For issuance of a writ in the nature of certiorari for quashing of Memo no.3304 dated 7.11.2011 issued by the office of Senior Superintendent of Police, Darbhanga whereby and where under security guard provided to the petitioner has been withdrawn without assigning any cogent reason. II. For issuance of a writ in the nature of mandamus for directing and commanding the respondents authorities particularly respondent no.5 to take proper step for providing armed security guard to the petitioner with taking into consideration that there is an immediate threat to life and liberty of the petitioner who constantly received threat from the enemies who had earlier made an attempt to kill the petitioner as well as during pendency of present writ application the respondents be directed to immediately depute security guard for protection of the petitioner to lead peaceful life. III. For issuance of a writ in the nature of mandamus for directing and commanding the respondents authorities particularly respondent no.5 to ensure that the life and liberty of the petitioner and his dependents be protected by the State machinery in as much as the petitioner and his family members may lead a fearless life. IV. And for any other relief/reliefs for which the petitioner is found to be entitled in the fact and circumstances of the case.” 2. It is contended that the petitioner being Ward Councilor of Darbhanga Nagar Nigam in Ward No.24 was receiving threat from his political enemies for which he made repeated request before the authority concerned to provide adequate security. On 18.4.2010, an attempt to kill the petitioner was made and in that incident he had sustained gun shot injuries. He was brought to D.M.C.H. for treatment and on account of his serious condition, he was referred to P.M.C.H., where, he was under treatment for few days and thereafter, he was discharged. For the said incident Laheriasarai P.S. Case No.147 of 2010 was instituted under sections 307, 326 and 120B read with 34 of the Indian Penal Code against the accused persons named therein. After the said occurrence the district administration provided him armed security guard for protection of his life. For the said incident Laheriasarai P.S. Case No.147 of 2010 was instituted under sections 307, 326 and 120B read with 34 of the Indian Penal Code against the accused persons named therein. After the said occurrence the district administration provided him armed security guard for protection of his life. However, during last assembly election the security guard provided to him was withdrawn vide Memo No.2750 dated 10.10.2010 issued under the signature of the Superintendent of Police, Darbhanga but subsequently the armed security guard was again restored to him after the assembly election concluded. On 7.11.2011, the security guard provided to him was again withdrawn. 3. Learned counsel for the petitioner submits that the order dated 7.11.2011 was passed pursuant to a decision taken by the District Security Committee in a meeting held on 14.10.2011. He submits that the petitioner is being constantly pressurized by the accused persons of the aforesaid criminal case to withdraw the case. The petitioner has filed a petition in this regard before the learned Chief Judicial Magistrate as well as the concerned authorities in the police department. 4. Learned counsel for the State, on the other hand, submits that there is no statutory legal right vested in the petitioner and the State has constituted a District Level Committee named as District Security Committee which considers the desirability of providing security guard to the residents of the district after evaluating and assessing threat perception. 5. A counter affidavit has been filed on behalf of the State in which it has been stated that it is true that on appreciation of the prevailing situation the petitioner was provided with security guard but subsequently the District Security Committee in its meeting held on 14.10.2011 reviewed the threat perception of the petitioner and came to a conclusion that the security guard provided to the petitioner be withdrawn. The decision taken by the District Security Committee has been communicated vide memo no.1212 dated 2.5.2012 issued under the signature of Sergeant Major, Police Line, Darbhanga to the Senior Superintendent of Police, Darbhanga. The said letter has been brought on record and is marked as Annexure-A to the counter affidavit. 6. Learned counsel for the State submits that on the representation of the petitioner the District Security Committee again considered the matter in its meeting held on 4.4.2012 in which the request for armed security guard made by the petitioner was rejected. 7. The said letter has been brought on record and is marked as Annexure-A to the counter affidavit. 6. Learned counsel for the State submits that on the representation of the petitioner the District Security Committee again considered the matter in its meeting held on 4.4.2012 in which the request for armed security guard made by the petitioner was rejected. 7. After filing of the counter affidavit, the petitioner has filed an interlocutory application, being I.A. No.1779 of 2012, in which, a prayer has been made for adding an additional prayer in paragraph-1 of the writ petition which reads as follows:– “For issuance of a writ in the nature of certiorari for quashing Memo no.1212 dated 02.05.2012 issued under the signature of Sergeant Major, Police Line, Darbhanga whereby and whereunder the Senior Superintendent of Police, Darbhanga has been informed that with reference to letter vide Memo no.144 dated 27.2.2012 issued by the City Superintendent of Police, Darbhanga, the petitioner’s representation for providing security guard was put up for consideration before the District Security Committee, who in its meeting held 04.04.2012 rejected the same.” 8. Learned counsel for the petitioner submits that the decision of the District Security Committee for withdrawing the security guard provided to the petitioner is bad in the eye of law. No reason has been assigned for such withdrawal and, as such, the letter dated 2.5.2012 as contained in Annexure-A to the counter affidavit may be quashed. He further submits that threat perception of the petitioner has not been viewed correctly by the District Security Committee. According to him, repeated threat is still being given to the petitioner by the accused persons named by him in the F.I.R., some of whom have still not been apprehended. 9. After hearing the parties, I am of the view that once the District Security Committee after evaluating the threat perception of the petitioner has taken a decision to withdraw the security guard, the court cannot substitute its own view in that regard. In order that a writ of mandamus be issued, there must be a legal right with the party asking for a writ to compel the performance of some statutory duty cast upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. In order that a writ of mandamus be issued, there must be a legal right with the party asking for a writ to compel the performance of some statutory duty cast upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. In the present case, it has not been shown by the petitioner that there is any statute or rule having the force of law which casts a duty on the State or its authorities to provide armed security guard to the petitioner and the State failed to perform such duty. If the petitioner has no legal right under the statute, he cannot seek to enforce its performance. In that view of the matter the writ petition is dismissed. 10. However, since the State has formed a District Security Committee at the district level, in order to assess the threat perception of citizen within its jurisdiction, in case, in future, if occasion arises and the petitioner represents before the Committee for providing security guard, the District Security Committee would consider such representation on its own merit, in accordance with law, without being prejudiced in any manner by the fact that the present writ has been dismissed.