Andhra Pradesh High Court - Amravati
K.Venkata Prasad vs State Of Andhra Pradesh on 30 July, 2019
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Writ Petition No.7871 of 2019
ORDER:
The writ petitioner herein, who is an Ex.MLA, aggrieved by the action of respondent No.4 in withdrawing the personal security of 2+2 security officers of the petitioner, filed the instant writ petition seeking for writ of mandamus.
2. The petitioner's case is thus:
Petitioner was elected as Member of the A.P. Legislative Assembly in the year 2009 and at that time he was provided with 1+1 security officers owing to the prevalent threat perception. In the year 2010, he made a representation to increase security personnel to 2+2 but his request was not considered and so he filed W.P. No.18930 of 2010 before the High Court of A.P. Pending the writ petition, the respondents have increased the security to 2+2 in the year 2014 and continued the same till 18.06.2019, but, however, suddenly his security personnel were withdrawn without assigning any reason and issuing any prior notice and also without reviewing the threat perception. The petitioner contested in the Assembly elections in the years 2014 and 2019 and since he lost the recent elections, his security was withdrawn without any justifiable reasons. The petitioner is facing threat to his life and hence the respondents were not justified in withdrawing the security coverage.
Hence, the writ petition.
UDPR, J 2 W.P. No.7871 of 2019
3. The first respondent filed counter denying the material allegations made in the writ petition. It is stated, the provision of Personal Security Officers to private persons is regulated by G.O.Rt.No.655, dated 13.03.1997, issued by Home (SC.B) Department. Those guidelines were framed pursuant to the orders of this Court in a batch of writ petitions, wherein it was observed that private persons may be given personal security officers only on payment basis and that the provision of personal security officers need not be an automatic obligation of the police department but based on the forces available and the threat perception. Basing on those observations of the High Court, the Government has drafted guidelines as per which the private persons will be provided security taking due approval from the State Level Review Committee.
(a) It is further contended in the counter that as per Sub-
Clause 6 Clause C of the G.O.Rt. No.655, a person having criminal background should not be given security except when the criminal case is closed or acquitted against him. Further, in case, there is a genuine threat from naxalites of Peoples War Group or in case he is holding public office, then specific permission from I.G.P, Intelligence, who is the nodal authority, should be taken before providing him security. Further, sub-clause 9 of the aforesaid G.O. reads that leaders of political parties, who do not occupy any public office recognized by law, are not entitled for protection at the cost of the State. It is further submitted that Clause D of the G.O. provides for UDPR, J 3 W.P. No.7871 of 2019 procedure to be followed for providing security. A person facing threat should approach the unit officer for providing security. On rejection, the applicant may approach higher functionaries of Police for a review. On rejection, he may approach the State Government represented by Principal Secretary, Home Department. It is further submitted that Clause E of the G.O. provides for State Level Review Committee which consists of Joint Director, Subsidiary Intelligence Bureau (IB), DIG (Security), Joint Secretary (Protocol) and IGP Special Intelligence Branch dealing with maoists as members and ADGP (Intelligence) as nodal authority. The said committee calls for threat perception reports to be submitted and basing upon such reports and other inputs takes decision as to whether a private person may be provided with security or not.
(b) It is further submitted, in the instant case, the petitioner is a former MLA representing Kadiri constituency in Anantapuram district. The petitioner has been convicted and sentenced to undergo 5 years jail term in 2 cases i.e., C.C.No.2 of 2003 and C.C. No.33 of 2007 and further, 18 other cases are pending against the petitioner in Hyderabad, Bengaluru and Kadiri. The petitioner has been charged for serious offences relating to rioting, assault or criminal force on a public servant, causing hurt to a public servant and attempt to murder.
(c) It is further submitted that the State Level Review Committee called for a threat perception report of the petitioner and the same was submitted by 2nd respondent herein after thorough UDPR, J 4 W.P. No.7871 of 2019 investigation and a copy of the said report is submitted to this Court on 27.06.2019, which may be read as a part of the counter. In the said report, it has been clearly mentioned that the petitioner is not facing any imminent threat either by any individual or groups. Hence, it was recommended that the existing security cover of the personnel security officers may be withdrawn. Basing on the said threat perception report, the State Level Committee in its meeting held on 14.06.2019 recommended the withdrawal of the personnel security officers. Threat perception is a dynamic phenomenon and it is never permanent and therefore it is reviewed periodically. Security of an individual is given the highest priority by the State and if the inputs are there to the effect that there is imminent danger to one's life, security cover is provided immediately. In the instant case of petitioner, no such threat has been found, hence the security cover was withdrawn. The allegations of the petitioner are not correct. Hence, writ petition may be dismissed.
4. The petitioner filed reply affidavit in the following lines:
(a) After filing the writ petition, the Superintendent of Police served a notice dated 28.06.2019 on petitioner, wherein for the first time it is stated that a special security review committee meeting was held on 14.06.2019 consequent to which, in proceedings dated 16.06.2019 it was decided to withdraw security in the absence of any specific threat from any individual or group and as per the guidelines issued vide G.O.Rt.No.655, dated 13.03.1997 regarding the provision UDPR, J 5 W.P. No.7871 of 2019 of security to individuals. Those proceedings were not served on petitioner after filing writ petition and in the notice dated 28.06.2019, no reasons were spelt out as to why the security was withdrawn and the parameters which were taken into consideration. It is further stated that even when the petitioner was not an MLA, his case was considered and the erstwhile Government has provided security personnel to him but the respondents have not taken the relevant factors into consideration before withdrawing the security.
(b) Regarding the allegations in para 6 of the counter that the petitioner was convicted and sentenced to undergo five years jail term in two cases and that there are eighteen more cases pending against him, it is submitted that the two cases in which the petitioner was convicted relate to bank draft cases and the same have nothing to do with regard to law and order problem. Further, the petitioner filed criminal appeals Nos.1382/2017 and 454/2016 in this Hon'ble Court and obtained suspension of conviction. The allegation that the petitioner was involved in eighteen cases is false and the respondents are put to strict proof and furnish details of the cases allegedly pending against the petitioner. It is submitted, at the time of elections, four cases have been registered against petitioner relating to petty quarrel between his relatives and TV reporter with regard to violation of model code of conduct and his followers burning crackers. The other cases also relate to violation of code of conduct. Thus, the registration of such cases at the time of elections cannot be taken as a UDPR, J 6 W.P. No.7871 of 2019 ground to deny the personal security to petitioner. On the other hand, pendency of eighteen cases against him is itself a ground to set aside the impugned order.
(c) It is further submitted that copy of the threat perception report which is submitted to this Hon'ble Court was not furnished to petitioner and therefore, the basis on which the security was withdrawn is not known. Finally, the petitioner submits in case the Government is not inclined to provide security at the cost of State, the petitioner is ready and willing to bear necessary charges for the security personnel and the same may be considered.
5. Heard learned counsel for petitioner Sri O.Manohar Reddy and learned Advocate General representing on behalf of respondents.
6. (a) Severely fulminating the action of the respondents in withdrawing the security to the petitioner, Sri O.Manohar Reddy, learned counsel for petitioner would firstly argue that the petitioner was not served with the copy of a report of State level security review committee which was submitted to this Court in a sealed cover and thereby, he was deprived the opportunity to know the facts and circumstances that were considered by the security review committee to recommend withdrawal of security. He would further argue that after filing of writ petition, the respondent served him notice dated 28.06.2019 wherein it is cryptically mentioned as if the security was withdrawn due to the absence of any specific threat from any UDPR, J 7 W.P. No.7871 of 2019 individual or group. He argued that the State level security review committee has not taken into consideration the relevant facts and circumstances relating to the petitioner to make an objective assessment regarding threat perception of the petitioner. Hence, for the non-supply of copy of the security review committee's report and vagueness in the notice dated 28.06.2019, the impugned notice is liable to be set aside.
(b) Secondly, explaining the necessity to continue security to the petitioner, learned counsel argued that since 2009 when he was member of A.P. Legislative Assembly, he was provided with 1 + 1 security, which was later increased to 2 + 2 in the year 2014 and same was continued till 18.06.2019 taking into consideration that he was participating in active politics and there was threat to his life. Therefore, the sudden withdrawal of security that too without any plausible reason is quiet unjustified. His security was withdrawn only for the reason that he lost in the assembly elections in 2019 and due to change in the Government.
(c) Thirdly, he argued that the withdrawal of security on the ground that petitioner was convicted in two criminal cases and eighteen cases are pending against him is not a valid ground. He would submit that against the conviction in C.C.No.02 of 2003 on the file of Principal Special Judge for CBI Cases, Hyderabad, the petitioner preferred criminal appeal No.454 of 2016 and in I.A.No.01/2018, dated 12.10.2018, this Court granted suspension of UDPR, J 8 W.P. No.7871 of 2019 conviction. Similarly, against the conviction and sentence in C.C.No.33 of 2007 on the file of Principal Judge for CBI Cases, Hyderabad, the petitioner preferred Crl.A.No.1382/2017 before High Court of A.P. and in I.A.No.01 of 2018, dated 12.10.2018 suspension of conviction was granted to him and therefore, those cases cannot be taken into consideration to deny security. Learned counsel denied petitioner's involvement in eighteen cases. He would argue that at the time of elections some petty cases were booked against him and his relatives on the allegation of violation of model code of conduct which cannot be a ground to withdraw security.
7. Per contra, learned Advocate General would argue that extension of security is not for mere asking of an individual but based on a rigorous exercise and report of the top officials constituting State Level Security Review Committee. He would emphasise, the State Level Security Review Committee thoroughly scrutinized the case of the petitioner in the light of the guidelines provided in G.O.Rt.No.655, dated 13.03.1997, and ultimately came to the opinion that he is not facing imminent threat either by any individual or by groups and further, he was convicted in two criminal cases and presently facing eighteen criminal cases and thus, he is having criminal background which is one of the disqualifications to seek security. Considering all these, security review committee recommended for withdrawal of existing security cover of personal security officers of the petitioner. He, thus, prayed to dismiss the writ UDPR, J 9 W.P. No.7871 of 2019 petition. He submitted the revised threat perception report in a sealed cover for perusal of this Court.
8. The point for consideration is whether withdrawal of security to the petitioner as per the impugned notice in C.No.29/RI- DSW/DAR/ATP/2019, dated 28.06.2019 is legally sustainable under law?
9. I have given my thoughtful consideration to the above respective arguments. The subject of extension of security protection is no more res integra because a judicial scheme has been evolved and mandated in the form of guidelines by a Division Bench of this Court in G.Subas Reddy v. State of A.P. and others1. Guideline Nos.5 and 7 are germane for reconsideration and, hence, they are extracted thus:
"13. ..................
(5) Individual or individuals, who apprehend threat to peace and to his or their lives can approach the competent authority at the first instance at the district level and make application for deployment of special force for maintaining peace and for protection of his or their lives and liberty. On such application being made, the competent authority shall be duty bound to promptly make suitable orders without any delay. In case the application is rejected by the district authority, the applicant shall have the right to make application before the superior authority in the hierarchy as indicated above, the last being before the Government of the State.
The applicant/applicants for such security or deployment of Special Police Force shall, however, be responsible for the cost as envisaged under the Acts aforementioned and the Government shall have no authority at all to make any expense upon such special force from and out of the revenue of the State. 1 (1996 (4) ALT 985 (DB) UDPR, J 10 W.P. No.7871 of 2019 (7) Applicant, in case his applications have been refused, can approach this Court seeking judicial review of the order of the Court with all constraints self imposed and within the bounds of rules of judicial review may examine individual cases strictly in accordance with law. Any application, however, except for judicial review in the aforesaid circumstances directly made to this Court, shall not be entertainable as no cause for a Mandamus by the Court shall be deemed to have been arisen if the applicant made no efforts to approach the competent authority for such security."
10. A conjunctive reading of the above guidelines would show that an individual or individuals, who apprehend threat to his or their lives can approach the competent authority at the first instance at the district level for deployment of special force for maintenance of peace and protection of their lives or liberty and the competent authority is duty bound to pass suitable orders without any delay. The deployment of special force shall, in such cases, be at the expense of the applicant or applicants. When such applications are refused, those orders are susceptible to judicial review. In the instant case the facts are slightly different. The petitioner who was hitherto having the privilege of 2 + 2 security protection was deprived of the same by dint of the impugned notice following the recommendation of security review committee. Thus, it is not a case where the petitioner at first approached competent authority and the said authority refused to provide security and thereby, he knocked the doors of this court for judicial review. On the other hand, the petitioner hitherto has had the privilege of 2 + 2 security coverage which was withdrawn by the impugned notice dated 18.06.2019. Hence, it has to be seen whether UDPR, J 11 W.P. No.7871 of 2019 the impugned notice is backed up by valid grounds. Before that brief resume of admitted facts which are not disputed have to be extracted.
11. The petitioner was the former MLA of A.P. Legislative Assembly from Kadiri Constituency in Anantapur District in 2009 and he was provided 1 + 1 security officers owing to the threat perception. When his request for providing 2 + 2 security was rejected in the year 2010, he filed W.P.No.18930/2010 in this Court and during pendency of the said writ petition, on reviewing the threat perception he was provided with 2 + 2 security in the year 2014 which has been continued till 18.06.2019. In the recent A.P. Assembly Elections held in April, 2019, the petitioner lost. Thus, admittedly, he is not a constitutional functionary at present. However, his claim is that he has threat perception from his rival political parties and extremists and thereby, he was given security till recently.
12. In the backdrop of above admitted facts, it has to be seen whether the withdrawal of security is justified or not. As rightly argued by learned Advocate General, this Court has no machinery to garner information as to whether petitioner has threat perception from any individual or groups to pit against the opinion of the review report. On this aspect, in Katasani Rami Reddy v. Government of A.P. and others2, a learned single Judge of this Court observed thus:
"9. While following the principles laid down by the Division Bench, I will add further that, the questions whether 2 (1998) 3 ALT 392 UDPR, J 12 W.P. No.7871 of 2019 security is to be provided to the individual or not by the State is dependent upon the threat perception with regard to that individual, and what is the amount of threat and whether the threat is real or imaginary, and in case there is threat, what is the degree of the threat to an individual's life, cannot be considered either by this Court or by any other agency other than the Police force itself.
Police is the competent authority and it is equipped with facilities like intelligence services to come to a conclusion about threat perception of an individual. Therefore, whenever an application is made before a District Superintendent of Police by an individual for providing personal security to him, while disposing of such an application, the District Superintendent of Police should invariably record his finding with regard to the threat perception. Once such a finding is recorded, it will be open for such an individual to agitate the matter further, if the concerned Superintendent of Police does not come to correct finding with regard to threat perception. This will also enable the District Superintendent of Police to decide as to how much personal security is needed by an individual. Otherwise, unless he knows the level of the threat, he cannot be able to decide the matter. It is also well known that, sometimes threat to one's life can remain lifelong depending upon the circumstances and the incidents which are relatable with respect to such an individual, but sometimes threat to one's life may be temporary and in such a case continuous security may not be needed. Therefore, whenever personal security is provided to a person, it must be constantly reviewed by the concerned Superintendent of Police and when, on the basis of information available with him, he genuinely feels that the threat has vanished, he may recall the security."
13. Thus, this Court cannot independently assess the threat perception. However, a duty is cast upon this Court to analyze and find out whether or not the review committee made an objective assessment over the facts and circumstances before recommending extension or withdrawal of the security protection to an individual.
UDPR, J 13 W.P. No.7871 of 2019 This analysis can be done by a close scrutiny of threat perception report submitted by the S.P., Anantapuram, to the review committee. In every writ petition of this nature generally the State produces a copy of such report in a sealed cover so did in this case. In the said report, it was not recommended to continue the security to the protectee i.e., petitioner on two main grounds. Firstly that there is no endanger to life of protectee and secondly that he is involved in eighteen criminal cases and convicted in two criminal cases, the list of which is provided in the said report. A separate list is also provided showing the various stages of the criminal cases in which the petitioner is involved. The particulars are thus:
LIST OF CASES INVOLVED BY SRI KANDIKUNTA VENKATA PRASAD, EX MLA, KADIRI A/C S. Name of Crime Section of law Position of Present stage of the Accused Case No. the PS Number 1 Mudigubba PS 03/2006 147, 148, 302 r/w 149 A5 Case was acquitted u/s IPC, Sec 3 and 4 of E 232 Cr.P.C. by the S Act and Police Addl. Sessions Judge, Firing HUP vide SC No.150/2012 dt.
30.7.2014
2 Gandlapenta 30/2006 143, 171-E, R/w 34, A5 Case was acquitted u/s
Sec.212 of P.Raj Act 255(1) Cr.P.C. by
AJFCM, Kadiri vide
CC.No.794/15 dt.
31.03.16
3 Anantapur 1 Tn 76/2006 25(1)(b)(a), 0 Arms A1 Case was acquitted u/s
Act, and 5 EXPL, SA 248 (1) Cr.P.C. by the
AJFCM, ATP vide
CC.No.612/07 dt.
13.08.2010
4 Kadiri Tn 66/2009 143, 188 IPC A17 Case was acquitted u/s
255(1) Cr.P.C. by the
Court of SJSCM,
Kadiri vide
CC.No.35/09 dt.
04.02.13
5 Kadiri Tn 184/2009 149, 307, 324, 148, A1 Case was acquitted u/s
147 IPC 255(1) in the court of
AJFCM Kadiri vide
CC.No.445/09 dt.
16.011.12
UDPR, J
14 W.P. No.7871 of 2019
6 Kadiri town 186/2009 151 CrPC A1 Accused bound over
before MEM, Kadiri
vide MC No.83/19 dt.
16.09.09
7 Kadiri Rural 82/2010 143, 341, 427, 353, A1 Case was acquitted u/s
506 r/w 149 IPC and 248(1) Cr.P.C. by the
Sec 7(1) of Criminal AJFCM, Kadiri vide
Law amendment Act CC.No.354/11 dt.
and sec 3, 4 of PDPP 22.07.2015
Act
8 Kadiri Tn 182/2010 506 R/w 34 IPC A1 case referred as false
vide C.No.136/Ref./
SDPO-K/2011 dt.
12.04.11 by the SDPO,
Kadiri
9 Kadiri Tn 184/2010 147, 148, 448, 324, A4 Case was acquitted u/s
397, 506 r/w 149 IPC 235(1) Cr.P.C. by the
court of ASJ, Kadiri
vide SC No.144/13 dt.
01.09.14
10 Kadiri Tn 185/2010 354, 506 IPC & Sec 3 A1 case was referred as
(1)(X) of SC/ST POA False vide C.No.
Act 6977/C3/SC/ST/10
dated 26.11.2010 by the
Supdt. of Police,
Ananthapuramu
11 Kadiri Tn 115/2014 151 Cr.PC A1 Accused bound over
before MEM, Kadiri
12 Kadiri Tn 57/2018 323, 506 R/w 34 IPC A1 case was charged on
15.02.2019 awaited for
CC No.
13 Kadiri Tn 120/2018 500, 506, 109 R/w 34 A1 Case is under
IPC & Sec. 156 (3) investigation for
Cr.P.C. examination of some
more witnesses.
14 Kadiri (R) 38/2019 285, 435, 188 r/w 34 A1 case was charged on
IPC 26.04.2019 and awaited
for CC No.
15 Kadiri Tn 70/2019 188 IPC A1 case was charged on
19.04.2019 and CC No.
is awaited
16 Kadiri Tn 72/2019 188 IPC A1 case was charged on
15.05.2019 and CC No.
is awaited
17 Special Mobile CC No.45/09 138 & 142 NI Act of Single Case was acquitted
Court, Kurnool Special mobile Court
18 Banswadi PS, 310/2002 465, 468, 471, 420 r/w CC.No.111 Case was acquitted
Bangalore City 120(b) IPC 31/06 of
IACMM,
Bangalore
19 CBI Case RC.No.19(A) 120(B) IPC R/w 420, CC.No. Convicted and
379, 409, 467, 468, 33/07 Sentenced judgment
1998/CBI,
471 IPC and Sec 13(2) C.No.IE.2001/CBI/BS
HYD
r/w Sec 13(1)(c) and & FC/Bangalore &
(d) of PC Act of Hyderabad U/s 120 (B)
Special Sessions IPC R/w 420, 379, 409,
Judge, Nampally 467, 468, 411, 471 IPC
substantive offences
U/s 13(2) R/w 13 (1)(c)
and (d) of PC Act-1998
convicted 5 years
UDPR, J
15 W.P. No.7871 of 2019
imprisonment in the
court of the Principal
Spl. Judge for CBI
Case, Hyderabad, in
this case the accused
got bail from the
Hon'ble High Court of
A.P. & T.S.
20 CBI Case FIR No. 120(b), 409, 419, 420, CC.No. Convicted and
RC.No.19(A) 467, 468, 471 IPC and 02/2003 sentenced to undergo
1998/CBI, Sec 13(2) R/w rigorous imprisonment
Hyderabad 13(1)(c) and (d) of for 5 years and to pay
CC.No.2/03 P.C. Act fine of Rs.1,00,000/-
under Sec 248(2)
Cr.P.C by the principal
special judge for CBI
Cases, HYD, in this
case the accused got
bail from the Hon'ble
High Court of A.P.
&T.S.
21 CBI, Bangalore FIR No. U/s 120(B) R/w 420, Single Details are awaited
RC.No.IE/20 379, 409, 411, 467,
04/CBI/BS 468, 471 IPC & Sec.
and FC 13(2) R/w 13(1)(c) &
(d) of Cr.P.C. Act
1988
22 Addl. Chief CC.No.56127 U/s. 420, 468, 471 IPC A-8 Posted to 05.10.2019
Metropolitan /2016 for trial
Magistrate,
Mayohall,
Bangalore
14. It should be noted following the judgment of this Court in G.Subas Reddy v. State of A.P. and Ors (Supra 1), the Government of A.P. issued guidelines for extending personal security to Constitutional and Statutory functionaries and also to private persons vide G.O.Rt.No.655, Home (SC-B) Department, dated 13.03.1997.
The general guidelines for providing security are thus:
"1. x x x x
2. A private person may be provided individual security on threat perception, only on advance payment basis subject to availability of man power with the unit officer concerned.
3. x x x x
4. x x x x
5. x x x x UDPR, J 16 W.P. No.7871 of 2019
6. A person having criminal background should not be given security except when the criminal case is closed or acquitted against him. Further, in case there is a genuine threat from naxalites of PWG or in case he is holding public office, then specific permission from I.G.P. Intelligence, who is the Nodal Authority, should be taken before providing him.
7. In respect of factional groups, security should not be given to the affected parties since provision of security to one faction and ignoring requests of other faction is not property and wherever it is felt necessary to give necessary to give security to such persons, the reasons for doing so shall be recorded by the competent authority.
8. Any person who has become a target of extremist by virtue of helping the State by giving some information etc., and thereby invited the wrath of the extremists can be provided personal security officers at State's cost as it is a social obligation of the State. Such provision of security should be reviewed once in every 6 months in the Security Review Committee by the Nodal Authority."
15. Thus, as can be seen from the report, the petitioner is involved in several criminal cases some of which are ended in acquittal and some are pending. It is pertinent to note that as per guideline No.6 of G.O.Rt.No.655, a person having criminal background should not be given security except when the criminal case is closed or ended in acquitted. In the instant case, though in some cases the petitioner was acquitted and in two criminal appeals, the conviction is suspended pending appeal, still some criminal cases are pending against him. Therefore, the respondent authorities are legally justified in rejecting to extend security to the petitioner. Further, as per the report no threat perception exists. In that view also he is not entitled to the extension of security coverage.
UDPR, J 17 W.P. No.7871 of 2019
16. The contention of the petitioner that copy of security review report is not furnished to him cannot be countenanced because this Court in its order dated 15.07.2019 in W.P.No.7822/2019 held that the particulars in the said report is a privileged information under Section 125 of Indian Evidence Act and therefore, petitioner cannot have a look into it. Thus, at the outset, the action of the respondents in withdrawing the security to the petitioner is legally justified. There are no merits in the writ petition and the same is accordingly dismissed. No costs.
As a sequel, interlocutory applications pending, if any, in this case shall stand closed.
_________________________ U.DURGA PRASAD RAO, J 30.07.2019 DSH/SS