Allahabad High Court
Kapil Deo vs The State Of U.P on 5 July, 2012
Author: Saeed-Uz-Zaman Siddiqi
Bench: Saeed-Uz-Zaman Siddiqi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Court No. - 8 Case :- BAIL No. - 4415 of 2012 Petitioner :- Kapil Deo Respondent :- The State Of U.P Petitioner Counsel :- Ashish Raman Mishra Respondent Counsel :- Govt. Advocate Hon'ble Saeed-Uz-Zaman Siddiqi,J.
Heard learned counsel for the accused applicant and learned counsel for the State and perused the F.I.R. and other relevant papers filed in support of the bail application.
Counter affidavit, filed today, is taken on record. The accused applicant has been implicated in this case on account of his involvement in case crime no.892/11 for the offence punishable under Section 419/420/467/468/471/409, Police Station Kotwali, Bhinga District Shravwasti, in which he has been granted bail on 3.5.2012 in bail application no.2500 of 2012 by Hon'ble Mr. Justice Ajai Lamba J.
Learned A.G.A. opposed the prayer for bail.
Considering the facts and circumstances and without expressing any view on the merits of the case, let the accused applicant be released on bail in Case Crime No. 1737/2011, under Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, Police Station Kotwali Bhinga, District Shrawasti, on his furnishing a personal bond and two local and reliable sureties each in the like amount to the satisfaction of the court/Magistrate concerned.
The order dated 21.10.2011 passed by the District Magistrate, Shrawasti does not recite any reason for implicating the accused applicant in this case and he has simply mentioned "approved". The Superintendent of Police, Shrawasti has simply signed on the gang chart and he did not bother even to mention the word "approved" and the right and liberty of the accused applicant has been curtailed by both these authorities working as a post office box and rubber stamp of Inspector, Circle Officer and Additional Superintendent of Police Concerned.
In Zenit Metaplast Private Limited v. State of Maharastra, reported in (2009) 10 SCC 388, the Hon'ble Apex Court has held as under:
"Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. The decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law (vide S.G.Jaisinghani Vs. Union of India & ors., AIR 1967 SC 1427; Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, AIR 1988 SC 157)."
In a earlier judgment Hon'ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and others, reported in (1991) 2 SCC 716, has held as under:
"In Union of India v. Mohan Lal Capoor & Ors. [1973] 2 SCC 836 this court speaking through M.M. Beg, J., for a Bench of two Judges held in paragraph 28 at page 854 that the reasons are the links between the materials on which certain conclusions are based to the actual conclusions. They disclose how mind is applied to the subject matter for a decision, whether it is purely administrative or quasi-judicial. They would reveal nexus between the facts considered and the conclusions reached.. This view was reiterated in Gurdial Singh Fijji v. State of Punjab & Ors. [1979] 2 SCC 368. Those two cases relied on by Sri Chidambaram, the rules/regulations required recording of reasons in support of the conclusion as mandatory.
'Unless the rule expressly or by necessary implications, excludes recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure. In an administrative decision, its order/decision itself may not contain reasons. It may not be the requirement of the rules, but at the least, the record should disclose reasons. It may not be like a judgement. But the reasons may be precise. In S.N. Mukherjee v. Union of India, J.T. 1990 (3) SC 630 the Constitution Bench of this Court surveyed the entire case law in this regard, and we need not burden the Judgement to reiterate them once over and at page 643 in paragraph 40 it held that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi- judicial functions is required to record the reasons for its decision. In para 36 it was further held that recording of reasons excludes changes of arbitrariness and ensure a degree of fairness in the process of decision making. The said principle would apply equally to all decisions and its applications cannot be confined to decisions which are subject to appeal, revision or judicial review. "It is not required that the reasons should be as elaborate as in the decision of a Court of law." The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given the consideration to the points in controversy. The need for recording reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge.' 'Thus it is settled law that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. It also exclude the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion/decision reached. The order when it effects the right of a citizen or a person, irrespective of the fact, whether it is quasi-judicial or administrative fair play requires recording of germane and relevant precise reasons. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Art. 226 or the Appellate jurisdiction of this Court under Art. 136 to see whether the authority concerned acted fairly and justly to meet out justice to the aggrieved person.' 'From this perspective, the question is whether omission to record reasons vitiates the impugned order or is in violation of the principles of natural justice. The omnipresence and omniscience of the principle of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play. But the applicability of the principles of natural justice is not a rule of thumb or a straight jacket formula as an abstract proposition of law. It depends on the facts of the case nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances."
This is a case of gross abuse of power by State machinery. In such cases the citizen must be compensated, in view of law laid down by the Hon'ble Apex Court in the case of Rudal Sah v. State of Bihar, AIR 1983 SC 1086 and in view of law laid down by the Hon'ble Apex Court in Saheli, a Women's Resources Centre through Mrs. Nalini Bhanot v. Commissioner of Police (AIR 1990 SC 513) and in view of law laid down in D.K. Basu v. State of West Bengal (AIR 1997 SC 610).
Unmindful of law, as laid down above, the District Magistrate and Superintendent of Police have allowed their whims to prevail over natural justice who has committed breach of trust to public office. A public office is a trust under the constitutional mechanism, any breach of which amounts to treason, which becomes aggravated by the nature of office held by a particular person. It amounts to be an offence against the State, besides being an offence preparing a document to injure a citizen which is punishable under Chapter VI and X of IPC. A sleeping, dormant, reckless public servant may sleep over his duties and sit over the Constitution, but an activist Judge cannot forgive it and, if a Judge forgives such actions, it cannot function as a champion to uphold the Constitution as established in India by law. The word "activist" does not mean "pro-active" or "over active" but it means and includes to cover a State functionary who is neither sleeping over his constitutional obligation, nor is reckless in performing his duties.
A court of law, in our set up, can't remain a mute spectator to attempts of Jungle rule.Any action offending the basic theories of "origin of State" must be dealt with sternly by every nationalist, otherwise the national fabric would be torned into threads, so as to drag India into a primitive stage.
The word "terror" has been defined as creating panic, affright dread and threat. Any unmindful act causing panic, fear or awe falls under the definition of terrorism and such action by any State functionary is a gravest sin, as the person involved in any such act of terrorism is representing the State, holding constitutional post and extracting money from the State Exchequer in the form of salary; it is a matter of deep concern. The very foundation of the State is based upon maintenance of law and order, strictly in accordance with the Constitution and, laws framed thereunder. Rigorous involvement in anti-social activities can make a person gangster, for which cogent evidence is required. What to say about cogent evidence, there are no allegations in this regard as against the accused applicant.
There is nothing, as against the accused applicant, which may fall under the definition of gang 'as defined in Section 2 (b) (i to xv) or 'gangster' as defined under Section 2 (c) of the U.P. Gangster & Anti Social Activities (Prevention) Act, 1986.
In Punjab National Bank v. Surendra Prasad Sinha, 1993 Supp (1) SCC 499, the Hon'ble Apex Court has held as under:
"The judicial process should not be an instrument of oppression or needless harassment. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charge for.' 'Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance."
The rights of liberty includes a right to live with dignity which cannot be taken away by the District Magistrate in such a reckless manner. It deserves all condemnation at the command of a conscious citizen having respect for 'rule of law'.
The Chief Secretary, Government of U.P. is directed to ensure that the person, who is passing such idiotic order, must not be given charge of District, so as to play with the fundamental rights of the poor public, who are 'sovereign' and, a civil servant hold an office and authority on behalf of 'sovereign', under the constitutional mechanism.
This court is bound to implement 'rule of law', and any violator must be dealt with. The Chief Secretary, Government of U.P. is required to hold an inquiry against the erring District Magistrate and inform about outcome of the inquiry including action taken report to this court within 30 days from receipt of this order positively, failing which the Chief Secretary, Government of U.P. shall have to appear, in person, to explain the circumstances. The order includes grant of compensation to the victim which may be paid out of State expenses but which shall definitely be recovered from the erring official.
The bail application is accordingly disposed of.
The Registry is directed to send a copy of this order to the Chief Secretary, Government of U.P., without delay. Office to place the inquiry report / action taken report on 8.8.2012 before this Court.
Order Date :- 5.7.2012 Ram.