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2020 DIGILAW 300 (AP)

E. Koteswara Rao v. State Of A. P.

2020-04-28

D.V.S.S.SOMAYAJULU

body2020
ORDER: 1. This Writ Petition is filed by the petitioner, who is a former Minister, seeking a Writ of mandamus declaring the action of the respondents in withdrawal of the security provided to him by way of Memo dated 12.02.2020 as illegal, irregular, arbitrary etc. He is seeking a further direction to the respondents to provide at least 2+2 Personal Security Officers to the petitioner instead of 1+1 security as provided. 2. This Court has heard Sri P. Veera Reddy, learned senior counsel appearing for the petitioner, Sri Sumon for the learned Advocate General appearing for the respondents 1 to 4 and Sri B. Krishna Mohan, learned Assistant Solicitor General appearing for the 5th respondent. 3. The petitioner before this Court is a former Minister, who hails from a family that he claims is active in politics. The petitioner has been elected as MLA for three terms and then he was also elevated to the Cabinet in the year 2017 and he held the post of Minister till 2019. He states that ever since he joined politics he has faced a threat from his rivals and was provided with security (2+2 PSOs) from 2007 – 2009. Thereafter, the same was enhanced to 4+2 PSOs. The security cover continued till the elections in 2019, wherein the petitioner was defeated. He states that due to change in the political scenario the entire security provided has been downgraded to 1+1 security only. Therefore, the petitioner has approached this Court. Apart from that in paragraph-6 of the affidavit, the petitioner stated about a specific threat which he has received from a person, who is named therein. He also states that Crime No.225 of 2019 of Jammalamadugu Police Station has been registered thereafter pursuant to the complaint lodged by the petitioner. Therefore, he questions the actions of the State by which his security is reduced to 1+1 and later withdraw on 12.02.2020. The amendment application I.A.No.2 of 2020 is allowed as it deals with a subsequent event. The said issue of withdrawal is also to be decided in this Writ itself. Office is directed to carry out the amendment. I.A.No.1 of 2020 is also allowed, documents are received. 4. Learned senior counsel appearing for the petitioner has taken the Court to all the factual details. He also relies upon G.O.Rt.No.655, dated 13.03.1997, which details the guidelines to be followed for providing security. Office is directed to carry out the amendment. I.A.No.1 of 2020 is also allowed, documents are received. 4. Learned senior counsel appearing for the petitioner has taken the Court to all the factual details. He also relies upon G.O.Rt.No.655, dated 13.03.1997, which details the guidelines to be followed for providing security. The petitioner, as per the learned senior counsel, was a constitutional authority, who has been given appropriate security. Learned counsel also drew the attention of this Court to the manner in which the security is to be provided and also to be reviewed. He also draws the attention of this Court to the General guidelines provided for security and states that even a private person should be provided with security if there is a threat perception. He argues that it is the duty of the State to provide security. He further states that it is the duty of the State to protect every citizen and hence it is obligatory to provide security. Learned senior counsel relies upon the judgments reported in National Human Rights Commissions v State of Arunachal Pradesh, 1996 (1) SCC 742 wherein in paragraph-20 the Hon’ble Supreme Court of India held that the State is bound to protect the life of every citizen. Relying on the Division Bench judgment of this Court in G. Subas Reddy and Others v State of A.P. rep. by its Principal Secretary, Home Department, Hyderabad and Others, 1996 (4) ALT 985 (D.B.), the learned senior counsel states that the State has a necessary duty to provide security to the functionaries. He relies upon certain paragraphs referred to paragraph-10 of the said judgment. Learned senior counsel submits that this Division Bench judgment lead to framing of the guidelines. Lastly, relying upon the judgment in Katasani Rami Reddy v Government of A.P. and Others, 1998 Crl.L.J.3897 he argued that a duty is cast upon the State to look into the threat perception and also carry out a periodical review from time to time in order to assess the threat perception. Learned counsel submits that in view of the fact that the petitioner has held the post of a minister and was a MLA for number of years, he is entitled to protection. Apart from that learned senior counsel submits that a very specific case of threat has been spelt out in the petition itself and thereafter the FIR was also specifically registered. Apart from that learned senior counsel submits that a very specific case of threat has been spelt out in the petition itself and thereafter the FIR was also specifically registered. Hence it is his contention that initially downgrading the security and later withdrawing the security in this case is a mala fide exercise of power by the State, particularly in view of the changed political scenario. He points out that as the respondents have failed to exercise the duty that is cast upon them to provide the security the petitioner has no option but to approach this Court for the relief. He, therefore, argues that as the State authorities have failed to discharge their statutory duty the petitioner is entitled to seek the relief from this Court. 5. Learned Assistant Solicitor General appearing for the Union of India argued on the basis of the written instructions that the State Government alone has to take a decision on this matter and that the assessment of the threat has to be done on the basis of the inputs received by the State security agencies. He points out that in this case the Central Government has no role to play so far. However, he fairly concedes that a representation has been received on 17.02.2020 from the petitioner and that the same is under active consideration with the Ministry of Home Affairs. He states that if the Ministry comes to a conclusion about the perception, they will take appropriate action. 6. Sri Sumon, learned counsel appearing for the learned Advocate General argues that the State Government has not adopted a discriminatory attitude in the case of the petitioner. 7. He points out that they have downgraded the security but they have not removed the same totally. Learned counsel relies upon the counter affidavit that is filed and also makes a submission in line thereof. The counter affidavit is filed by the 3rd respondent. Learned counsel also produced a copy of the threat perception report in respect of the petitioner, dated 27.12.2019. He points out that a thorough analysis of the petitioner’s activities show that he is now classified under “Dormant” category in view of the loss in the election. It is also pointed out that the petitioner is not under any threat from the Maoists, Terrorists or any other banned groups. He points out that a thorough analysis of the petitioner’s activities show that he is now classified under “Dormant” category in view of the loss in the election. It is also pointed out that the petitioner is not under any threat from the Maoists, Terrorists or any other banned groups. It is also clearly mentioned that there is no life threat to the petitioner. It is also mentioned clearly that as per the security review committee’s recommendations of 2019, 1+1 PSOs are being provided. Learned counsel for the respondents argues that it is not in dispute that the petitioner is always provided security. He draws the attention of this Court to para-4 of the counter affidavit, which shows the manner in which the petitioner was provided security basing on the analysis of the threat perception and the positions he was holding. It is also clearly mentioned that the protection to be provided to the petitioner would be periodically reviewed and the same would be increased or decreased or even withdrawn depending upon the threat perception. Learned counsel drew the attention of this Court to the later threat perception report dated 23.02.2020 in which also it is clearly stated that the protectee is not facing any imminent threat from any individual or group. He relies upon the order passed by the learned single Judge of this court in W.P.No.16540 of 2019, wherein a detailed analysis of the existing legal and factual position was carried on by the learned single Judge. Relying on this decision, learned counsel argues that the Court while exercising power under Article 226 of the Constitution of India cannot sit in appeal over the decision of the State Level Security Review Committee and compel them to provide necessary security. He also relies upon the guidelines of the Government of Andhra Pradesh in G.O.Rt.No.655 Home (SC-B) Department, dated 13.03.1997 and also argues that the procedure has been stipulated for providing security. He points out that as per the said G.O. the petitioner should approach the Unit Officer concerned for security. If his application is rejected, he has to approach the higher functionaries for review and ultimately to the State Government for order. Lastly, he submits that he can approach the appropriate Court also for redress. He points out that as per the said G.O. the petitioner should approach the Unit Officer concerned for security. If his application is rejected, he has to approach the higher functionaries for review and ultimately to the State Government for order. Lastly, he submits that he can approach the appropriate Court also for redress. Relying upon another order passed in W.P.No.7871 of 2019, learned counsel argues that where a person like the petitioner, who is involved in several civil and criminal cases, comes to the Court security should not be granted to him. Therefore, learned counsel for the State submits that security is being reviewed periodically and that there is no mala fide action on behalf of the State. Lastly, he states that the procedure stipulated has not been followed and the Writ Petition has been directly filed. Therefore, he submits that the writ petition should be dismissed. 8. This Court after hearing all the learned counsel notices that there is no serious dispute about the provision of security to the petitioner since the time he was in active politics. Even as on date the grievance of the petitioner, as can be seen from the writ petition, is that his security cover has been reduced to 1+1 security and later withdrew his security, and that he should be given at least 2+2 security. Therefore, the essential grievance is about withdrawal of the security. 9. As rightly pointed out by the learned counsel appearing for the State Government and as held by this Court, including the order of the Division Bench, the Writ Court does not have a necessary expertise or the knowledge to assess the “threat” to a person. Threat perception is not a static concept; it is dynamic and ever changing. There is self-imposed restriction on this Court in entering into the disputed areas of fact. Therefore, when a force, which has the necessary training and expertise viz., the police force has carried out its own analysis of the threat perception and has come on record before this Hon’ble Court to state that there is not imminent threat to the petitioner, this Court cannot enter into a deeper analysis of the said report, particularly where no material has been produced to show that the report is incorrect or actuated by mala fidies. Neither by experience nor by training, this Court is competent to go into this concept of threat perception. This Court can only go into the decision making process to see if there is any error, malice or the like in arriving at that said conclusion. For this the petitioner has to provide the material, which would enable this Court to reach the conclusion that the decision making process is vitiated. In the absence of any material this Court cannot and also should not enter into these areas of controversy. Burden is cast upon the petitioner to show that the decision making process is vitiated or that the decision is based upon an incorrect appreciation of facts. 10. Apart from this, this Court also finds strength in the submission made by the learned counsel for the petitioner that the procedure prescribed in G.O.Rt.No.655, dated 13.03.1997 has not been followed. The procedure to be followed has been described with sufficient clarity. Every person facing a threat should approach the Unit Officer concerned for providing security. If his application is rejected he shall have to approach the higher authority, ultimately he can apply to the Principal Secretary, Home Department, State Government, if there is a rejection by the higher authorities also. Timelines are also prescribed for the Unit Officers and others to come to a conclusion. This procedure has not been followed in the present case. Apart from this, the Division Bench judgment reported in G. Subas Reddy and Others v State of A.P. rep. by its Principal Secretary, Home Department, Hyderabad and others, 1996 (4) ALT 985 (D.B.) also sets out the procedure to be followed. The Division Bench itself had set out in paragraph 10(5) the procedure to be followed in case of threat from third parties. In para-10 (6) and (7) the procedure to be followed in case of apprehension of threat from the Government and its servants is also spelt out. Ultimately, while disposing of W.P.No.10432 of 1996 the Division Bench clearly held that unless the competent authority is approached no order could be passed. While disposing of W.P.No.12172 of 1996 also the Division Bench called for a report from the police authorities. This Court is relying upon this finding for the purpose of reiterating that unless and until adequate material is furnished this Court is not in a position to issue any direction. While disposing of W.P.No.12172 of 1996 also the Division Bench called for a report from the police authorities. This Court is relying upon this finding for the purpose of reiterating that unless and until adequate material is furnished this Court is not in a position to issue any direction. The learned single Judge of this Court in W.P.No.16540 of 2019 also came to the similar conclusion and held that unless there is a breach of a constitutional right or failure of an officer to discharge his duties the Court cannot act under Article 226 of the Constitution of India. After reviving the entire law, the learned single Judge came to a conclusion that the security covered of 1+1, which is issued to the petitioner therein, cannot be altered by the Court while exercising its powers under Article 226 of the Constitution of India. 11. In the case on hand, this Court also has no hesitation to come to the very same conclusion. The material relied upon by the petitioner does not show that the decision making process is not vitiated or that the order is passed for extraneous causes. The material does not show that for extraneous considerations the existing security cover was reduced to 1+1 and later withdrawn on 12.02.2020. In the absence of such material this Court cannot grant relief to the petitioner. The procedure stipulated in the G.O.Rt.No.665 has also not been followed by the petitioner as he has directly approached this Constitutional Court. Lastly, this Court notices that the State has disclosed the reports of the threat perception, dated 27.12.2019 and dated 23.02.2020. Neither of the reports show that there is any present or imminent threat. In that view of the matter, this Court holds that the petitioner is not entitled to any relief. 12. With the above observation, the Writ Petition is therefore dismissed. No order as to costs. 13. As a sequel, Miscellaneous Applications, if any, pending in this Writ Petition shall also stand dismissed.