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2016 DIGILAW 3666 (ALL)

Jitendra Kumar Mishra v. State of U. P. Thru. The Prin. Secy. Home Deptt.

2016-11-09

A.P.SAHI, ANIL KUMAR SRIVASTAVA-II

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JUDGMENT Heard Dr. L.P. Misra, learned counsel for the petitioner and the learned Additional Advocate General for the respondents no. 1 to 6. This petition was entertained and the following order was passed on 03.11.2016. "Mr. D. K. Pathak, learned Additional Chief Standing Counsel for respondent Nos.1 to 6, is directed to file a detailed counter affidavit justifying their action for withdrawal of security from the petitioner, on or before Tuesday, i.e. 8.11.2016, with an advance copy thereof to the Advocate for the petitioner. S.O. to 8.11.2016, as fresh matter." The matter was got adjourned on the request of the learned counsel for the State. The learned Additional Advocate General has opposed the petition even though no affidavit has been filed today. The writ as prayed for is in the nature of certiorari to quash the order dated 06.10.2016, Annexure 18 to the writ petition whereby the personal security extended by the State to the petitioner has been withdrawn and the same has been challenged contending that the consequential order issued by the concerned S.P. on 08.10.2016 suffers from serious infirmities of mala-fidies as well as an incorrect exercise of power without there being any material that may reduce the threat perception to the life of the petitioner. The action, according to Dr. L.P. Misra is not only vitiated on the aforesaid counts but it also violates Article 21 of the Constitution of India. On facts the attention of the Court has been invited to the report of the District Level Security Committee dated 02.5.2015, contained in Annexure 7 to the writ petition, where the threat perception of the petitioner has been assessed and the petitioner in the background aforesaid had been extended the benefit of security. The contention is that the threat perception is neither reduced nor there is any element to indicate that the danger to the life of the petitioner has been diminished but on account of the political affiliations of the petitioner, a sudden and abrupt decision has been taken, as the petitioner has now chosen to field himself as a candidate of a rival political party as against the official candidate of the existing political party which is in power in the State. The respondent no.7 is the sitting MLA of the ruling party, against whom the petitioner has been declared as the official candidate of the BSP from the same constituency. The respondent no.7 is the sitting MLA of the ruling party, against whom the petitioner has been declared as the official candidate of the BSP from the same constituency. He, therefore, submits that the prelude which led to the aforesaid mala-fide decision is now borne out from the report, copy whereof has been filed as Annexure 12 to the writ petition. He has further invited the attention of the Court to a specific complaint having been moved by the respondent no.7 to the Chief Minister of the State on 30.8.2016, copy whereof is Annexure 10 to the writ petition, which is stated to have been endorsed to the Principal Secretary (Home). This was followed by a letter of the Superintendent of Police, Hamirpur to the concerned SP on 14.9.2016, copy whereof is Annexure 11, where the aforesaid complaint of the respondent no.7 and the directions of the Chief Minister to process the same has been referred to. From a perusal of Annexure 10 to the writ petition, the complaint is that since the petitioner has now switched his political loyalities in favour of the BSP, therefore, keeping in view his actions, the security given to him should be immediately withdrawn. It is this complaint which finds mention in the letter dated 14.9.2016 whereafter the assessment report appears to have been prepared by the District Level Committee, copy whereof is Annexure 12 to the writ petition. The said report in no uncertain terms repeats the aforesaid allegation made in the complaint of the respondent no.7, time and again stating, that since the petitioner has now departed from the Samajwadi Party and has joined the BSP, and is a likely contestant from the constituency of the respondent no.7, the same was treated to be a consideration for the assessment of the threat perception of the petitioner. Dr. Misra, therefore, submits that the procedure so adopted is contrary to law and being mala-fide, the decision is clearly vitiated, hence, the order to withdraw the security deserves to be quashed and security deserves to be restored. As indicated in the order dated 03.11.2016, the respondents were called upon to come up with a response. Dr. Misra, therefore, submits that the procedure so adopted is contrary to law and being mala-fide, the decision is clearly vitiated, hence, the order to withdraw the security deserves to be quashed and security deserves to be restored. As indicated in the order dated 03.11.2016, the respondents were called upon to come up with a response. The learned Additional Advocate General, on the basis of the instructions received and on the basis of the recitals contained in the report has urged that apart from the aforesaid allegations there were other reasons as well that weighed with the authority in proceeding to withdraw the security and consequently, it cannot be said that the decision relating to the assessment of threat perception is only based on a single consideration relating to political switching over of loyalities of the petitioner. It is urged that in view of these additional reasons also the decision was taken by the State Government vide order dated 06.10.2016, copy whereof is Annexure 18 to forthwith withdraw the security of the petitioner. We have considered the submissions raised and we find that the withdrawal order passed by the State Government dated 06.10.2016 does not by itself contain any reasons indicating the reduction of the threat perception of the petitioner for withdrawal of the security or any other reason as has been indicated in the report, copy whereof is Annexure 12 to the writ petition. Consequently, the reason primarily assigned in the report about the switching over of the loyality of the petitioner from the SP to BSP does not appear to be informed with any valid reason nor can it be supported by any cogent logic. Merely because the petitioner has joined another political party, the threat perception on the basis whereof he had been extended the benefit of security, does not get diminished and same has to be judged on the parameters of Article 21 of the Constitution of India, as the matter relates to the protection of the life of the petitioner. On the facts as stated on record and also in the various reports, it is the existence of threat from certain accused who have been convicted of the murder of the petitioner's uncle and attempt on the life of petitioner's brother that had been made the basis of the grant of security. On the facts as stated on record and also in the various reports, it is the existence of threat from certain accused who have been convicted of the murder of the petitioner's uncle and attempt on the life of petitioner's brother that had been made the basis of the grant of security. In such circumstances, the reason for grant of security to the petitioner being entirely different from the reasons of his political affiliations, cannot result in withdrawal of the security and as such the impugned reasons cannot be sustained. The decision, therefore, becomes susceptible to challenge on the ground of mala-fides, even if it is not personal malice, yet it is a clear malice in law. The reason for denying security on account of switching over from one political party to another cannot be a ground so as to reduce the threat perception of a person who is a possible victim of any further crime on account of the perceptions that had been made the basis for the grant of security. Officials who have taken the decision and have submitted a report have, therefore, not proceeded bonafidely and consequently, neither the submission of the report nor the passing of the order can be sustained in any way. The argument of the learned Additional Advocate General that there were other reasons also for the same, may be a consideration but the issue remains that the consideration has to be primarily about the threat perception to the life of the petitioner and arrangements to be made in this regard. The consideration cannot be bereft of this criteria. Consequently, the decision of the State Government cannot be sustained on any count. The writ petition deserves to be allowed. The order dated 06.10.2016 and the consequential order dated 08.10.2016 are accordingly quashed. The security to the petitioner shall stand restored. It shall be open to the State Government to pass an order that may be necessary on the basis of any review of the threat perception to the life of the petitioner in accordance with law in the light of the observations made hereinabove. Writ petition is allowed with the aforesaid directions.