Andhra Pradesh High Court - Amravati
A.V.Subba Reddy, vs The State Of Andhra Pradesh on 18 December, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.21551 of 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
"to issue a writ, order or direction more particularly one in the nature of writ of Mandamus to declare the action of the respondent Nos.2 and 3 in not providing interim security by arranging gunmen to the petitioner for his protection till the 2nd respondent takes decision in the Security Review Committee meeting even in spite of existence of the life threat to the petitioner as arbitrary, illegal and violation of Article 21 of the Constitution of India and consequently direct the respondents to take interim measures by providing gunmen to the petitioner till the 2nd respondent takes the decision in the Security Review Committee meeting in the interest of justice"
The petitioner is a permanent resident of Allagadda Town, Kurnool District. He is an active politician. He is carrying on business. He owned and possessed vast properties. On account of business and politics, some of the residents of town and neighbouring villages become enemies and they intended to kill the petitioner with a view to knock away his property, cause damage to his business and political career.
Since the petitioner is actively participating in the politics, Smt.Bhuma Akhila Priya, Ex-Minister developed personal grudge against him. Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu with an intention to eliminate him, conspired together and hired killers on payment of Rs.50,00,000/-. As Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu hired killers for committing the offence, police arrayed them as accused Nos.3 and 4 in Crime No.72 of 2020 dated 21.03.2020 of MSM,J WP_21551_2020 2 Chinnachowk U/G Police Station, registered for the attempt made by them to kill the petitioner.
The Chinna Chowk Police issued notice under Section 41-A of Cr.P.C. to Bhargav Ram Naidu, but he did not respond to the said notice and did not cooperate with the police. Later, the said Bhargav Ram Naidu obtained anticipatory bail from this Court in Crl.P.No.2112 of 2020 dated 10.08.2020. Thus, he was not arrested and moving freely, thereby there is any amount of threat to the petitioner on account of his active participation in politics.
The threat perception is being continued since 2018 when some persons attacked the petitioner with stones and at that time, the Gunmen promptly responded and saved his life by preventing the accused from committing murder. Since the security is withdrawn, enemies of the petitioner are taking advantage to eliminate him. In the earlier occasion, the Gunmen protected his life. In view of the existence of the life threat, the petitioner submitted a representation to respondent No.3 with a request to provide security. Respondent No.3 obtained threat perception report from the concerned police station and came to conclusion that there is a danger to the life, and forwarded the entire record to respondent No.2.
Since the petitioner is having serious life threat, respondent No.3 should have provided Gunmen for a limited period till the Security Review Committee takes decision. Since respondent No.3 already came to conclusion that providing Gunmen to protect the life is just and essential, respondent Nos.2 and 3 should have provided interim protection till the decision is taken by the Security Review Committee. The petitioner contended that no steps MSM,J WP_21551_2020 3 were taken till date to provide security as an interim measure during completion of scrutiny process of the application of the petitioner, requested to issue a direction to respondents to provide interim security on account of threat perception.
Respondents did not file any counter.
Sri P.Nagendra Reddy, learned counsel for the petitioner, has drawn the attention of this Court to various confessional statements recorded by the police in Crime No.72 of 2020 dated 21.03.2020 of Chinnachowk U/G Police Station registered against several persons including Smt.Bhuma Akhila Priya, Ex-Minister and her husband Bhargav Ram Naidu, for the offences punishable under Sections 120 (b), 302 read with 115 and 34 of Indian Penal Code (for short "I.P.C.") and Section 25 (1) (b) of Arms Act. On the strength of the confession made by other accused, it is contended that there is any amount of threat perception; Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu may put an end to the life of the petitioner in case no security is provided and it is the duty of the Government to protect life and liberty of the individual as it is a fundamental right guaranteed under Article 21 of the Constitution of India. Failure to provide security to the petitioner would amount to denial of protection to his life, and it is a clear violation of fundamental right guaranteed under Article 21 of the Constitution of India, requested to issue a direction to the respondents to provide interim protection during pendency of the process before the Security Review Committee.
Sri C.Sumon, learned Special Government Pleader for the State contended that unless there is a threat perception, the State cannot provide personal protection to anyone, that too the MSM,J WP_21551_2020 4 petitioner is engaged in business and developed grudge against different groups; it is nothing but involvement in faction, in such case, if one group leader is provided with security, other group persons will face serious threat from this petitioner. Unless Security Review Committee takes decision considering the request of the petitioner, the respondents are not under obligation to provide police protection. It is also brought to the notice of this Court that Security Review Committee may hold the meeting during the month of December, 2020 and if any decision is taken in favour of the petitioner, certainly, the Government will provide protection to the petitioner. He also relied on the judgment of this Court rendered in Writ Petition No.16540 of 2019 dated 21.11.2019.
Undoubtedly, the petitioner is a businessman involved in the politics of Allagadda, became a leading politician supporting one party, and for the present he is supporting the political party in power. Whereas, Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu belonging to the opposite political party in the State, for the present. Smt.Bhuma Akhila Priya is Ex-Minister having lot of support from the people of Allagadda and neighbouring villages. It is also not in dispute that a Crime No.72 of 2020 dated 21.03.2020 of Chinnachowk U/G Police Station, was registered against her and her husband Bhargav Ram Naidu for the offences punishable under Sections 120 (b), 302 read with 115 and 34 of I.P.C. and Section 25 (1) (b) of Arms Act and the petitioner is a victim in the said crime. However, the reason for implicating or arraying Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu as accused is the confessional statement of MSM,J WP_21551_2020 5 other accused. Merely because, they were arrayed as accused, it is difficult to conclude, at this stage, that Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu are causing threat to the petitioner till they are found guilty after conclusion of full-fledged trial. Therefore, the alleged thereat from Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu is not substantiated by any evidence before this Court to conclude that there is a threat perception to direct the respondents to provide interim personal protection.
In any view of the matter, mere registration of crime against Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu is not a conclusive proof to prove that they hired assassins to put an end to the life of the petitioner on account of political grudge or otherwise.
The State is providing personal security to some persons, which is known as "position based security", unless there is a threat perception to the petitioner or anyone, the State is not under obligation to provide such protection.
Sri C.Sumon, learned Special Government Pleader, drawn the attention of this Court to G.O.Rt.No.655 Home (SC.B) Department dated 13.03.1997, wherein the State enumerated the circumstances for providing security cover known as "General Guidelines for providing security", are as follows:
"1. While it is the duty of the State to protect every citizen, specific security cover to any individual can be provided on his threat perception.
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.
MSM,J WP_21551_2020 6
3. Constitutional Functionaries and Statutory Functionaries have to be provided security at State's cost, based on threat perception.
4. The security to categorized persons such as those who are in X, Y and Z category should be provided security at State's cost.
5. If protection is sought by political leaders during election period, they may be given security at State's cost during the election period only.
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 proper and wherever it is felt necessary to give security to such person, 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 there by 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.
9. 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.
10. Senior officers of the State depending on threat perception can be provided protection at State's Cost by the State level Security Review Committee / Competent authority.
11. The security given by the unit officer or by the Nodal Authority will be up to a maximum period of 3 months. Fresh threat perception report should be called for every 3 months and action taken as per the report. A copy of the Threat Perception Report should be sent by the Unit Officers to Inspr. Genl. of Police (Intelligence).
12. In exceptional cases, a temporary security cover to those who do not fall under any of the above categories can be provided by the Nodal Authority for a maximum period of 1 month. After this period, regular threat perception report should be called for and action taken as per the procedure and after obtaining orders of Government.
13. The personal security officers given to the subjects should be rotated one in 3 months in order to ensure proper fitness and training in weapons and tactics."
MSM,J WP_21551_2020 7 Learned Special Government Pleader mainly contended that as per guideline No.1 though it is the duty of the State to protect every citizen, specific security cover to any individual can be provided on his/her threat perception. Similarly, in respect of faction 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 proper and wherever it is felt necessary to give security to such person, the reasons for doing so shall be recorded by the competent authority (vide guideline No.7 referred supra).
The State level security review committee comprising of Joint Director S.I.B., Deputy Director, S.I.B., D.I.G. (Security), D.I.G. (Intelligence), Joint Secretary (Protocol) and I.G.P. (Grey Hounds) as members and I.G.P. (intelligence) as Nodal Authority/ Governor will meet twice a year in order to perform the function of providing security based on assessment of threat perception and also to consider fresh applications in accordance with the guidelines contained in G.O.Rt.No.655 (referred supra). The said guidelines are silent as to the time gap between two sittings specified in the G.O. In the absence of any specific time gap between two sittings specified in the G.O.Rt.No.655 (referred supra), there is every possibility of exercising the power by committee depending upon the circumstances either to provide security to the concerned or to deny the security to the persons, at the instance of political hierarchy or due to their patronage with politicians. Therefore, clause (e), which deals with constitution of State Level Security Review Committee without fixing duration between two sittings, appears to give unbridled power to such committee to hold sittings twice in a year whenever they like, such confirmation of unbridled MSM,J WP_21551_2020 8 power on them may lead to serious consequences. Therefore, specific duration is to be fixed between first sitting and the other sitting in a year.
Sri P.Sumon, learned Special Government Pleader for the State, fairly conceded that State Level Security Review Committee is likely to be held during the month of December, 2020. Therefore, the question of apprehension of delay in conducting meeting is misplaced.
Providing security cover to the individual citizen is nothing but a burden to the State and the State cannot be burdened with the liability of providing armed escort/gun-man to such of those persons who indulge in factions and group rivalry, unless it is clearly established that there is direct threat perception to their life from known and identified persons or group of persons. Even then it would not be possible for the State machinery to provide adequate security to each and every individual who on their own conduct gets involved or implicated in criminal cases. It is true that the State is duty bound to protect the threatened group from such assaults. Failure to give adequate protection may well amount to failure to perform its constitutional as well as statutory obligations. It is true that the State must act impartially and carry out its legal obligations to safeguard the life, health and well-being of the people residing in the State without being inhibited by local politics. (vide "N.H.R.C. v. State of Arunachal Pradesh1"). 1 [1996]1SCR278 MSM,J WP_21551_2020 9 The Division Bench of High Court of Andhra Pradesh at Hyderabad in "G.Subas Reddy v. State of Andhra Pradesh2", on reference by the Single Judge as to exercise of judicial review under Article 226 of the Constitution of India to compel the authorities to provide security to all the persons who are either leading factions or actively participating in the factions, laid down certain principles for the guidance of the authorities concerned in the matter of providing security to the persons concerned. One of the principles laid down is under item No.(5), which will be applicable to the present case. Principle (5) reads as under:
"(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."
In "Katasani Rami Reddy v. Government of Andhra Pradesh3" the learned Single Judge, taking note of the principles laid down by the Division Bench in "G.Subas Reddy v. State of Andhra Pradesh" (referred supra), held as follows:
"While following the principles laid down by the Division Bench, I will add further that, the questions whether 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 2 1997 (1) ALD (Crl.) 19 3 1998 Crl.L.J.3897 MSM,J WP_21551_2020 10 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, some times threat to one's life can remain life long depending upon the circumstances and the incidents which are relatable with respect to such an individual, but some times 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."
Even in "Venkata Satyanarayana v. Government of A.P.4"
and in "R.Venkateswara Rao v. State of A.P.5", this Court took similar view.
In "P.R.Muralidharan and Ors. v. Swami Dharmananda Theertha Padar6" the Apex Court held as follows:
"It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact."4
AIR 1998 AP 184 5 1999 (4) ALD 432 6 2006 (4) SCC 501 MSM,J WP_21551_2020 11 In view of the law declared in the judgments (referred supra), it is the duty of the State to provide personal security to the persons, who are facing threat perception subject to the guidelines issued in G.O.Rt.No.655 (referred above).
No straight jacket formula is fixed for providing security cover. A special machinery is provided to assess threat perception taking into consideration of the family background and involvement in any cases and the threats faced by the individuals and consequences of such threats during past, getting themselves involved in any incident due to faction or otherwise, and find out whether the threat is real or imaginary and if the threat is imaginary, the authorities are not under obligation to provide security cover to the individual. Even in the G.O.Rt.No.655 (referred above), the State enumerated the circumstances for providing security cover known as "General Guidelines for providing security" (referred supra). But, the case of the petitioner would not fall in any of the conditions laid down in the above G.O. prima facie as his threat perception report is not yet received and scrutinised by the State Level Security Review Committee.
In the present facts of the case, the contention of the State is that the petitioner, Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu involved in faction and faction is between two (2) groups in the village and surrounding area. But, there is absolutely nothing to substantiate this contention that the petitioner or their family members, who are alive or died, are the factionists. Mere branding a person as a factionist is not sufficient, there must be sufficient material to describe such individual as MSM,J WP_21551_2020 12 factionist, to deny the security cover, taking advantage of guideline No.7 of the guidelines referred supra. Registration of Crime No.72 of 2020 on the file of Chinnachowk U/G Police Station against Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu for making an attempt to eliminate the petitioner is not sufficient to conclude that Smt.Bhuma Akhila Priya and her husband Bhargav Ram Naidu bore grudge against the petitioner and attempting to eliminate the petitioner by hired assassins on payment of Rs.50,00,000/- to them. Therefore, the alleged rivalry between two groups and the alleged attempt made against the life of the petitioner by Smt.Bhuma Akhila Priya and her husband along with others by itself is not sufficient to conclude that the petitioner is facing threat perception as on today.
At the same time, the Courts observed that the Courts are not in a position to assess threat perception of an individual and the State Level Security Review Committee established by the State is undertaking such process of assessing threat perception of individual. Therefore, this Court based on the request of the petitioner i.e. alleged threat perception, cannot direct the respondents to provide interim personal security. Hence, it is difficult to issue such direction to the respondents. However, this Court is hopeful that the State Level Security Review Committee will hold its meeting and decide about the genuineness of threat perception and pass appropriate orders, at the earliest to avoid loss of life and liberty.
Applying the principles laid down in the above judgment, I am unable to accept the contention of the petitioner to issue a MSM,J WP_21551_2020 13 direction as sought for by the petitioner. However, it is left open to the State Level Security Review Committee to take appropriate action holding meeting at the earliest, to avoid damage to the property and loss of life.
In view of my foregoing discussion, the petitioner is disentitled to claim any relief. Consequently, the writ petition is liable to be dismissed.
In the result, the writ petition is dismissed with the above observations. No costs.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 18.12.2020 Ksp