Bombay High Court
Ramesh Jagdish Sharma vs The State Of Maharashtra And Others on 30 September, 1999
Equivalent citations: 2000(5)BOMCR481, 2000BOMCR(CRI)~, (2000)2BOMLR425
Author: Ranjana Desai
Bench: Ranjana Desai
ORDER A.V. Savant, J.
1. Heard both the learned Counsel; Shri S.M. Gupte for the petitioner and Advocate General Shri C.J. Sawant, for the respondents.
2. This petition, as initially filed, sought the relief of a writ of mandamus against respondent Nos. 3 and 4 viz. Commissioner of Police and Additional Commissioner of Police, Mumbai directing them to protect the petitioner's life by providing armed police security guard round the clock. Prayer (b) in the petition is for a similar direction to respondent Nos. 3 and 4 to take such adequate measures/steps as may be necessary to protect the petitioner's life.
3. This petition was filed on 6th April, 1999 and an order was passed on 12th April, adjourning the matter to 20th April, 1999 to enable the Public Prosecutor to obtain instructions. Thereafter the matter was heard on 20th April, 3rd May, and on 5th May, 1999, when this Court passed an order setting out the facts and holding that the petitioner had made out a prima facie case. Rule was issued on 5th May, 1999 which was made returnable peremptorily on 14th June, 1999. When the petition was taken up for hearing on 26th June, 1999, it transpired that two orders passed earlier granting police protection to the petitioner, namely, orders dated (i) 2nd September, 1998 and (ii) 16th April, 1999, were cancelled by the State Government on 5th May, 1999. State Government's contention was that, the two orders were passed in contravention of the relevant circular and guidelines and hence the State Government thought it fit to cancel the said orders, even while the petition was being heard in this Court for the enforcement of the said orders. In view of this rather unusual development, the learned Advocate General appeared before us on 26th August, 1999 and sought time to enable the Deputy Chief Minister to file an affidavit explaining the circumstances in which the orders dated 2nd September, 1998 and 16th April, 1999 were cancelled. Accordingly, the matter was adjourned to 9th September, 1999. Apart from the other pleadings, to which we will refer in brief, it must be mentioned at this stage that, on 31st August, 1999, the Deputy Chief Minister Shri Gopinath Munde made an affidavit explaining the circumstances in which it was thought fit to cancel the earlier orders dated 2nd September, 1998 and 16th April, 1999 granting police protection to the petitioner. The Deputy Chief Minister has stated that there was no intention to overreach this Court or to show disrespect to this Court and has expressed his regrets for having dealt with the matter during the pendency of the writ petition in this Court for enforcement of the very same orders. We will deal with this aspect of the matter at the end.
4. The petitioner claims to be a film producer having produced certain Hindi films. In para 3 of the petition, he categorically states that he knew Chota Rajan, "now a known name in the underworld". The petitioner admits his association with the said underworld gangster but states that he was falsely implicated in number of cases. He was also twice detained under the National Security Act but the said detention orders were set aside by this Court. In para 4, he refers to his being implicated in certain crimes in the month of February, 1993, pursuant to which he was proceeded against under section 110(g) of the Code of Criminal Procedure, 1973 for giving security for good behaviour by a person who is desperate and dangerous to the community. However, he says that, the order was set aside by the Sessions Court in Revision Application No. 33 of 1993.
5. In para 5, the petitioner refers to his being involved in cases under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short TADA) where he was subsequently released on bail. It is stated that the Special Court, later on transferred the case to the Court of Sessions where the case is pending. We may hasten to add that the affidavit in reply filed on behalf of the respondents discloses that the petitioner was involved in as many as 21 cases; he was acquitted in 19 cases and only two cases which are mentioned at item Nos. 12 and 15 of the chart are pending. The said chart is reproduced below:
Sr. No. C.R. No. & Under Section Police Station
1.
514/80, 324, 114 I.P.C.
Tilak Nagar
2. 552/80, 326, 114 I.P.C.
-"-
3. 653/80, 307, 114 I.P.C.
-"-
4. 1/81, 326, 114 I.P.C.
-"-
5. 495/81, 452, 326, 114 I.P.C.
6. 662/81, 326, 506(2) I.P.C.
-"-
7. 78/82 Rioting with 326 I.P.C.
-"-
8. 342/82, 342/82, 307, 302, 332 with rioting
-"-
9. 339/83, 353 I.P.C.
-"-
10. 412/83 326, 114 I.P.C.
-"-
11. 162/78, Rioting with 307 I.P.C.
-"-
12. 18/93, 342, 365, 323, 385, 386 387, 34, 120(B) I.P.C. r/w 3,25 AA 3(3), 5,6, TADA (C.R. No. 32/93 DCBCID Unit-6) (case pending)
13. 69/82, 302 I.P.C.
Lonawala
14. 87/82 Rioting Ghatkopar
15. 115/88 Rioting (case pending) Chembur
16. 128/88, 454, 457, 380 I.P.C.
Kherwadi
17. 571/89, 307, 114 I.P.C.
M.R.A. Marg
18. 4/91, 365, 341, 324, 506(2) I.P.C.
Nehru Nagar
19. 169/93, 447, 301 I.P.C.
M.I.D.C.
20. 346/94, 387, 506(2) I.P.C.
Nehru Nagar
21. 347/94 302, 34 I.P.C.
Mulund
6. The petitioner then refers to his having filed Criminal Writ Petition No. 1125 of 1994, in which this Court. (G.R. Majithia and M.L. Dudhat, JJ.) on 10th October, 1994, passed an interim order to the effect that no case will be registered against him except with the permission of Court and no search will be effected at his house except with the permission of the Court.
7. The petitioner then states that since several years, the persons connected with the film industry have been receiving threats to their lives from the underworld compelling them to pay extortion/protection money. A couple of film producers and directors were murdered since they failed to succumb to the threats from the underworld. The petitioner claims to have received similar threats from the members of Dawood Ibrahim gang since he was an associate of Chota Rajan.
8. The petitioner then refers to the incident which occured at 6 p.m. on 19th March, 1999 when he was supervising the sets for his film "Baaghi" in Mumbai when two unknown persons fired at the petitioner and his Art Director Sudhakar Manjarekar. In the said incident, the petitioner and the said Manjarekar received injuries and were hospitalised at Lilavati Hospital, Mumbai. On the complaint of Manjarekar, offences punishable under section 307 read with 34 of I.P.C. read with 3, 5, 25 and 27 of the Arms Act have been registered against two unknown persons by Bandra Police Station. The petitioner has averred in para 10 of the petition that the attack on 19th March, 1999 was by the members belonging to Dawood Ibrahim gang. This he says on the basis of the threats given by one of the assailants before the attack. 9. The petitioner has then stated that on 2nd September, 1998, the State Government has passed an order directing the Police Commissioner, Mumbai to provide armed security to the petitioner. This order was passed pursuant to the petitioner's application dated 31st August, 1998. As indicated earlier, during the pendency of the petition, which was filed on 6th April, 1999, another order was passed on 16th April, 1999, again by the State Government, under which it was ordered that the petitioner should be granted police protection and should be charged as per rules. The petition, as initially filed, was for a writ of mandamus directing respondent No. 3 Commissioner of Police and respondent No. 4 Additional Commissioner of Police to protect the petitioner's life by providing armed security guard round the clock. However, the two orders were subsequently cancelled by the State Government on 5th May, 1999, when the matter was being heard at the stage of admission. Leave was, therefore, granted to amend the petition. Accordingly, the petition has been amended. The petitioner has now contended that the order dated 5th May, 1999 cancelling the earlier two orders dated 2nd September, 1998 and 16th April, 1999 is bad in law as also null and void since there was failure to comply with the principles of natural justice. No opportunity of being heard was given to the petitioner before cancelling the said two orders.
10. The petitioner has also challenged the validity of the circular dated 9th August, 1990 issued by the State, in the name of the Governor, laying down certain guidelines for deciding as to who should be granted police protection and how. Guideline 4 in the said circular dated 9th August, 1990 was subsequently deleted on 12th May, 1997. Instead, new guideline 4 was inserted specially dealing with persons with criminal background and the desirability of providing police protection to persons who have criminal background. The petitioner has challenged the newly inserted guideline 4 since it directly affects him.
11. By consent, this petition was heard alongwith the companion Writ Petition No. 77 of 1997 of Arun Gavli. The petitioner has claimed a fundamental right under Article 21 of the Constitution. In the title of the petition, Arts. 14, 19 and 21 are mentioned. What was contended before us by the learned Counsel Shri Gupte was that the protection of life and personal liberty guaranteed by Article 21 would extend even to a person like the petitioner insisting on his getting armed police guard round the clock. There is a further claim based on Article 14 that denial of armed police protection to a person having criminal background is violative of the guarantee of equal protection of laws enshrined in Article 14 of the Constitution. Thus, the challenge is now based on Article 21 as also Article 14 of the Constitution.
12. Elaborate affidavits in reply have been filed at different stages. The first was by the then Minister of State for Home Shri Prabhakar More who filed his affidavit on 19th May, 1999 setting out the circumstances in which he had passed the earlier orders dated 2nd September, 1998 and 16th April, 1999 directing that armed police protection be granted to the petitioner. Shri More has referred to the incident of 19th March, 1999, when the petitioner and his Art Director Manjarekar were fired at by unidentified armed persons and were injured and hospitalised. The second affidavit is by Shri A.D. Karkhanis, Deputy Secretary, Home Department setting out the circumstances in which the orders were passed on 2nd September, 1998 and 16th April, 1999 without considering the guidelines dated 9th August, 1990 as amended on 12th May, 1997. Shri Karkhanis has referred to the fact that the concerned Deputy Commissioner of Police had made a reference to the State Government and the matter was required to be considered afresh in the light of the circular dealing with the question of grant of police protection, particularly to those having criminal background. The third affidavit is by Deputy Commissioner of Police Shri Pratapsingh Patankar, placing reliance on the circular dated 9th August, 1990 as amended on 12th May, 1997. He contends that the petitioner is not entitled to any police protection since he has criminal background. It is to the affidavit of Shri Patankar that a chart of cases registered against the petitioner, which we have reproduced in para 5 above, has been annexed. Perusal of the said chart would show that the 2 cases pending are at Sr. No. 12 and 15 which are for extortion and rioting.
13. In the light of the amendments to the petition, Shri Karkhanis has filed a further affidavit on 21st July, 1999, setting out that the petitioner, who indulges in criminal activities, cannot demand any police protection. It is contended that the circular of 9th August, 1990 as amended on 12th May, 1997, did not permit armed police protection being granted to persons who have criminal background and if, by one's criminal activities, a person creates enemies in the rival criminal gang and "invites enmity" it is not the State's responsibility to provide him with armed protection. It is, therefore, contended that, in the first instance, the petitioner has no right to demand armed police protection. Secondly, it is contended that since the petitioner has a criminal record, the State Government would be justified in refusing to grant police protection to him and such an action would not be violative of the provisions of Article 14 of the Constitution. It is, therefore, contended that the petitioner is not entitled to any reliefs whatsoever.
14. We have already referred to the affidavit of Deputy Chief Minister Shri Munde. He has categorically stated that the earlier orders passed by the Minister of State for Home Shri Prabhakar More, on 2nd September, 1998 and 16th April, 1999 were in violation of the circular dated 9th August, 1990 as amended on 12th May, 1997 and that, on merits, the petitioner was not entitled to any police protection and hence the Deputy Commissioner of Police was justified in refusing to comply with the orders passed by the State Government on 2nd September, 1998 and 16th April, 1999. Shri Munde has, therefore, contended that the Government was justified in cancelling the said two orders on 5th May, 1999. As indicated earlier, he has expressed his regrets for having dealt with the matter while the petition is pending in this Court.
15. We have already dealt with the legal contentions raised in this petition while deciding the writ petition of Arun Gavli being Writ Petition No. 77 of 1997. Since Shri Gupte, the learned Counsel appearing for the petitioner Ramesh Sharma, has raised identical contentions, as were raised by Shri Adik appearing for Arun Gavli, by consent, the same have been considered in the elaborate judgment and order in Arun Gavli's case. The three questions which were framed for our consideration in Arun Gavli's case are as under:
i) whether the protection of life and personal liberty guaranteed by Article 21 of the Constitution includes a right in favour of persons like the petitioner, to claim that the State must afford them armed police protection for 24 hours a day, every day i.e. round the clock.
ii) If there is no such right flowing from the mandate of Article 21, whether the State can, by an executive fiat, like the Circular dated 9th August 1990, as amended on 12th May, 1997, distinguish between law abiding persons on the one hand and persons having a criminal background on the other, for the purpose of deciding whether armed police protection round the clock is to be granted to a person?
iii) If a person like the petitioner makes out a specific case of a genuine and imminent threat to his life on a particular place, would the State be justified in refusing armed police protection even qua that particular occasion or place.
16. In view of the elaborate discussion in Arun Gavli's case the answers to the above three questions are to be found in para 68 of our judgment in Arun Gavli's case. The answers are as under:
i) The protection of life and personal liberty guaranteed under Article 21 of the Constitution does not include a right in favour of a person like the petitioner to claim that the State must afford him armed police protection for 24 hours a day, everyday, that is to say, round the clock.
ii) In the absence of any such right flowing from the mandate of Article 21, as indicated in our answer to question (i) the State can, by an executive fiat, like the Circular dated 9th August, 1990, as amended on 12th May, 1997, distinguish between law-abiding person on the one hand and a person having a criminal background on the other for the purpose of deciding whether armed police protection round the clock is to be granted or not.
iii) Despite the above, however, if a person like the petitioner, makes out a specific case of a genuine and imminent threat to his life on a particular occasion or at a particular place, the State Government would not be justified in refusing to grant armed police protection to him qua that particular occasion or place. This would, however, be subject to occasional review by the Threat Perception Committee constituted by the State Government.
17. In view of the above, this petition must also be disposed of on the same line as that of Arun Gavli. Coming to the specific reliefs prayed for in this petition, prayer (a) as it stood originally cannot be granted having regard to what is stated hereinabove. The same is, therefore, rejected. Prayer a(1) also cannot be granted since the order dated 16th April, 1999 has itself being cancelled by the State Government on 5th May, 1999. Hence, prayer a(1) is also rejected.
18. Coming to prayer (a-2), it relates to the circular dated 9th August, 1990, as amended on 12th May, 1997. For the reasons stated in our detailed judgment in Arun Gavli's case, we hold that the said circular dated 9th August, 1990, as amended on 12th May, 1997, is valid. Prayer (a-2) is, therefore, rejected.
19. Coming to prayer (a-3), it reads as under:
"a-3: that this Hon'ble Court pleased to hold that the order of the Hon'ble Dy. Chief Minister and Home Minister, Maharashtra State denying police protection to the petitioner on the basis of amended circular is violative of principles of natural justice and further violative of Constitution of India and, therefore, this Hon'ble Court be pleased to quash and set aside the said order."
We have at the outset indicated that it was during the pendency of this petition, at the stage of admission, on 5th May, 1999, that the State Government thought it necessary to cancel the two orders dated 2nd September, 1998, and 16th April, 1999. We had indicated our displeasure at the State Government's action in cancelling the said two orders dated 2nd September, 1998 and 16th April, 1999 without taking permission of this Court since this petition was pending in this Court for enforcement of the very same orders. Secondly, we had also expressed our reservation at the State Government cancelling the said orders without complying with the audi alteram partem Rule. No notice of hearing was given to the petitioner. It is in this background that prayer (a-3) is to be considered.
20. However, we must first indicate that in the light of our conclusions on the first two questions in Arun Gavli's case, we have no doubt in our mind, that the grant of armed police protection to the petitioner under the orders dated 2nd September, 1998 and 16th April, 1999 was wholly arbitrary and, to say the least, the Minister concerned had not applied his mind even to the circular dated 9th August, 1990 as amended on 12th May, 1997. We are really surprised as to how the Minister of the State for Home viz. respondent No. 6 went on passing orders repeatedly granting the request of the petitioner for armed police protection without examining the petitioner's background. The circular dated 9th August, 1990, has been issued in the name of the Governor of the State. It is an executive action taken by the State. The sixth respondent, as the concerned Minister, was expected to apply his mind to the circular and, in particular, to guideline 4 and then decide the application of the petitioner for grant of police protection. It is clear from the two orders dated 2nd September, 1998 and 16th April, 1999 that what has been ordered is a blanket police protection to the petitioner without limiting the same to a particular occasion or a place.
21. The affidavit filed by the 6th respondent Minister Shri Prabhakar More makes an unsatisfactory reading. As far as the first order dated 2nd September, 1998, is concerned, it was passed on the application dated 31st August, 1998. We have perused the affidavit of Shri A.D. Karkhanis, the concerned Deputy Secretary, Government of Maharashtra. Shri Karkhanis has filed two affidavits; one dated 19th May, 1999 and the other dated 21st July, 1999. On the question of grant of police protection to the petitioner under orders dated 2nd September, 1998, and 16th April, 1999, what is relevant is to consider the affidavit of the concerned Minister Shri Prabhakar More and the affidavit dated 19th May, 1999 made by Shri Karkhanis. It appears to us clear from a reading of the two affidavits that neither Shri More the concerned Minister nor Shri Karkhanis, the concerned Deputy Secretary applied their minds to the relevant circular dated 9th August, 1990 before passing the order dated 2nd September, 1998. There is no reference in the relevant portion of the said affidavits that while considering the application dated 31st August, 1998, made by the petitioner for grant of police protection, the Government examined the matter in the light of the relevant guidelines contained in the circular dated 9th August, 1990 as amended on 12th May, 1997. We are really surprised as to how a sensitive issue like the grant of armed police protection in general terms to a person who admits having a criminal background, is decided in such a casual manner without making a reference to the relevant circular.
22. Even the second order dated 16th April, 1999, which is on the application dated 12th April, 1999, seems to have been passed in the same arbitrary and hasty manner. It is true that there was an incident on 19th March, 1999, when two unknown persons had fired at the petitioner and his art director Sudhakar Manjarekar. Neither the order dated 16th April, 1999 nor the affidavits of Shri More and Shri Karkhanis make a reference to the consideration of the said circular dated 9th August, 1990. At any rate, the order dated 16th April, 1999 does not limit the police protection to a limited period. There is a blanket order to grant police protection. Indeed, both the orders dated 2nd September, 1998, and 16th April, 1999, are blanket orders granting armed police protection to the petitioner. The only difference between the two is that in the second order dated 16th April, 1999, armed police protection is granted subject to the petitioner paying for the same. This condition is absent in the first order dated 2nd September, 1998. It is true that in para 5 of the affidavit of Shri More, there is a reference to the "guidelines" without specifically referring to the circular dated 9th August, 1990. We wholly disapprove the manner in which the two applications dated 31st August, 1998, and 12th April, 1999, made by the petitioner were disposed of in a very casual, arbitrary and hasty manner without even referring to the relevant circular dated 9th August, 1990 containing the guidelines on the issue involved. There was obviously no application of mind to the said guidelines while passing the two orders dated 2nd September, 1998 and 16th April, 1999.
23. There is yet another aspect of the matter which needs to be referred to. It appears that there was a back reference by Deputy Commissioner of Police, Special Branch, C.I.D. (Protection Branch) namely Shri Pratapsingh Patankar. He has filed two affidavits dated 3rd May, 1999 and 20th May, 1999. It is he who has referred to the criminal background of the petitioner and has referred to the circular dated 9th August, 1990 containing the guidelines as amended on 12th May, 1997. We must appreciate the efforts made by Shri Pratapsingh Patankar, respondent No. 5 in going to the root of the matter despite the fact that there were two orders issued by none less than the Minister of State for Home Shri Prabhakar More. Obviously, the Deputy Commissioner of Police Shri Patankar found it difficult to comply with the two orders dated 2nd September, 1998, and 16th April, 1999. We must complement the bold stand taken by him. It is thereafter that the matter was reconsidered in the light of the guidelines and the Deputy Chief Minister Shri Munde passed an order on 5th May, 1999, cancelling the earlier two orders. The least that ought to have been done by the State Government before cancelling the two orders dated 2nd September, 1999 and 16th April, 1999 was to ask for permission from this Court to deal with the matter when this Court was seized of the very subject matter for the enforcement of the two orders. Secondly, notice of hearing ought to have been given to the petitioner before cancelling the two orders dated 2nd September, 1998 and 16th April, 1999.
24. However, since we have held that, on merits, the orders dated 2nd September, 1998 and 16th April, 1999 were issued arbitrarily without application of mind to the relevant circular dated 9th August, 1990, we do not think it is possible to grant relief in terms of prayer (a-3). At the out set, we have discussed the affidavit of Shri Munde wherein he has referred to the two orders dated 2nd September, 1998 and 16th April, 1999 and the circular laying down the guidelines regarding grant of police protection to a person. Shri Munde has stated that having regard to the said guidelines the two orders had to be cancelled, which were accordingly cancelled on 5th May, 1999.
25. In this view of the matter, the petitioner is not entitled to the relief in terms of prayer (a-3) since we have come to the conclusion that, on merits, the orders dated 2nd September, 1998 and 16th April, 1999, were illegal and null and void. Consequently, on merits, the order dated 5th May, 1999, passed by the Deputy Chief Minister Shri Munde was perfectly valid and hence no relief can be granted in terms of prayer (a-3). In the light of the above, no relief can be granted to the petitioner in terms of prayer (b) either since prayer (b), as it originally stood, was for consequential relief in terms of prayer (a).
26. In the result, the petition is disposed of in the above terms. Rule discharged.
27. Rule discharged.