Court No. - 32
Case :- WRIT - C No. - 24444 of 2019 Petitioner :- Israil And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Siddhartha Srivastava,Ajay Srivastava,Mohd. Farooq,Shiv Bahadur Singh Counsel for Respondent :- C.S.C.
Hon'ble Shashi Kant Gupta,J. Hon'ble Saurabh Shyam Shamshery,J.
1. This writ petition has been filed, inter alia, for the following relief:
"A writ order or direction in the nature of mandamus commanding the respondents to provide adequate security of at least four armed police personnel equipped with suitable weapons to the petitioners and their families, during the pendency of trial of S.T. No. 304 of 2009 ( State Vs. Brijesh Singh) in M.P./M.L.A. court at Allahabad in connection with case crime no. 251 of 2001 under section 147, 148, 149, 307, 427, 302, 120B of IPC police station Mohammadabad District Ghazipur."
2. Learned counsel for the petitioners submits that two persons were killed on the spot and petitioner no.1 was caused injuries. Thus, an F.I.R. was lodged in case crime no. 251 of 2001 under sections 147, 148, 149, 302, 307,427 I.P.C. and section 7 of Criminal Law Amendment Act , P.S. Mohammadabad District Ghazipur. While referring to Annexure -6 to the writ petition, he further submits that in the aforesaid case the main accused is one Brijesh Kumar, who is a history sheeter and about 28 criminal cases, including the cases of heinous nature, are pending against him. Trial of the aforementioned case has been transferred to the court of Special Judge MP/MLA at Allahabad in the year 2018 and the petitioners are star witnesses. They have to come to Allahabad for recording their statements on the date fixed by the court.
3. He further submits that since the accused persons, who are the hardened criminal, are extending threats from the Jail to their life on account of lodging of the aforementioned F.I.R. and being the witnesses in the case, the petitioners are apprehending danger to their lives and properties and, therefore, they had applied for providing adequate security before the trial court and the concerned authorities but since no action was taken, the petitioners were constrained to file a writ petition, being Writ-C No. 11301 of 2019, Isarail and another Vs. State of U.P and others, which was disposed of by this court on 2.4.2019, with certain directions, which, inter alia, runs as under:
"The petitioners are directed to move a suitable application in terms of the Government Order dated 9.5.2014 before the respondent no.3 within a period of three weeks from today, the respondent no.3 shall pass suitable orders and place the case of petitioners before the Committee concerned for considering the threat perception to the petitioners and suitable orders shall be passed thereupon by the District Level Committee within a period of three months from the date of production of a certified copy of this order.
Till the decision is taken by the District Level Committee on the application for grant of security to the petitioners, the respondent no.3 is directed to immediately provide security to the petitioners and ensure that the life and liberty of the petitioners is safeguarded.
The directions are being issued in view of the peculiar facts and circumstances of the case and shall not be treated as precedent. The respondent no.3 is further directed to send the compliance report indicating as to what security has been provided to the petitioners in terms of this order within a period of ten days from today by means of communication addressed to the Registrar General of this Court. The Registrar General is directed to keep the said compliance report on record in this case.
We grant liberty to the petitioners to approach in case the compliance as done by the respondent no.3 as directed above.
The writ petition is disposed off in terms of the said directions.
Learned standing counsel is directed to communicate this order to the District Magistrate and the Superintendent of Police District Ghazipur over Telephone."
4. From perusal of the record, it transpires that the respondent no.3 in pursuance of the aforesaid order dated 2.4.2019 withdrew the security of the petitioners and provided security only on the date when they are called to give their evidence by the trial court.
5. Learned counsel for the petitioner submitted that while passing the impugned order threat to the security to the petitioners even though has been accepted, still the decision has been taken to provide security to the petitioners only on the date when they are called by the trial court to give their evidence. The impugned order has been passed in a very mechanical manner without considering the relevant provisions of the "Witness Protection Scheme, 2018" approved by the Apex Court for providing security to the witnesses of heinous crimes.
6. It was further submitted that the petitioners are permanent residents of District- Ghazipur, whereas the trial has been transferred to Allahabad, as such for giving evidence they have to come from Ghazipur to Allahabad, making them more vulnerable. The main accused is a sitting Member of Legislative Council of U.P., whereas his nephew Sushil Singh is Member of Legislative Assembly from Saiyad Raja, District-Chandauli, as such the main accused are politically very resourceful and influential.
7. It was further submitted that the respondent no. 3 while passing the impugned order, has failed to consider & evaluate the threat perception to the petitioners and their family vis-a-vis the gravity of offence of which they are witnesses and the notoriety of the main accused in eliminating the witness of the offences committed by him.
8. It was further submitted that under the criminal administration of justice the ocular evidence is of great importance being the eye & ear of the court, the protection of eye witness is of immense importance to provide him the confidence to tell the truth during trial, however in the instant case, though all extraordinary circumstances exists for providing security to the petitioner, specially while the petitioner no.1 is an injured eye witness, but even then the authorities dealt with the case of petitioners in a most casual manner. The petitioners are under constant threat of elimination by the main accused, who is notorious for same, the petitioners are avoiding to appear before the trial court apprehending threat to their lives.
9. Learned counsel for the petitioner further submitted that the Govt. Orders dated 09.05.2014 & 01.01.2016 with regard to providing security are general in nature and does not specifically deal with the protection of witnesses, whereas the Hon'ble Apex Court in the case of Mahendra Chawla Vs. Union of India & Others: 2018 SCC OnLine SC 2679, decided on 05.12.2018 has specifically approved the special scheme for the protection of the witness, as such the respondent no. 3 ought to have followed the scheme as approved by the Apex Court by providing the adequate security to the petitioners during trial. So far as the government order dated 9.5.2014 is concerned, the same may be taken into consideration in addition to witness Protection scheme 2018. But the same cannot supersede or undermine the Witness Protection Scheme, 2018. It was further submitted that under the witness protection scheme 2018, the Superintendent of Police of District Police has only role to submit the threat analysis report keeping in mind the imminent threat.
10. Heard the learned counsel for the petitioner and Mrs. Kritika Singh, learned Addl. Chief Standing Counsel for the State and perused the record.
11. From perusal of the record, it transpires that the petitioners are the star witnesses in case crime no. 251 of 2001 under sections 147, 148, 149, 302, 307,427 I.P.C. and section 7 of Criminal Law Amendment Act , P.S. Mohammadabad District Ghazipur in which the main accused is Brijesh Kumar, who is a history sheeter and about 28 criminal cases, including the cases of heinous nature, are pending against him. The record further reveals that the trial of the aforementioned case has been transferred to the court of Special Judge MP/MLA at Allahabad in the year 2018 and the petitioners being the witnesses in the case have to come to Allahabad for recording their statements on the date fixed by the court. The accused persons are alleged to be hardened criminal as several criminal cases of 302 I.P.C. are pending against them and the petitioners have received threats from the Jail to their life. The petitioners are apprehending danger to their lives and properties and, therefore, they had applied for providing adequate security to the concerned authorities but since no action was taken, the petitioners were constrained to file a writ petition, being Writ-C No. 11301 of 2019, Isarail and another Vs. State of U.P and others, which was disposed of by this court on 2.4.2019, with certain directions to provide security to the petitioners. The earlier order passed by the court has already been quoted in the earlier part of the judgment. The aforesaid impugned order passed in pursuance of the order dated 2.4.2019 shows that one security personal was provided to the petitioners only on the date when they are required to appear before the trial court to give evidence.
12. From the perusal of the judgment passed in the case of Mahendra Chawla (supra), it is evident that the Central Government after taking inputs from various States and Union Territories , has finalised the Scheme and filed it before the Apex Court on November 06, 2018 supported by its affidavit with regard to providing security to the witnesses. It is notable that all the States and Union territories including the State of Uttar Pradesh were also impleaded in the said writ petition. In the said case case the Attorney General of India requested the Apex Court to pass appropriate order directing all the States to adopt that Scheme and provide witness protection in accordance therewith till the appropriate legislation in this behalf is passed. The Witness Protection Scheme , 2018 is based on the inputs received from 18 States/Union Territories, Five States Legal Services Authorities and open sources including civil society, three High Courts as well as from police personnel. It was mentioned that the aim and objective of the scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination . It aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of justice. The entire Witness Protection Scheme, 2018 has been quoted verbatim in the aforementioned judgment.
13. Before we proceed further, it would be fruitful to quote Para 35 & 36 of judgment passed by the Hon'ble Apex Court in the case of Mahendra Chawla ( supra) which reads as under :-
"35. One thing which emerges from the aforesaid discussion is that there is a paramount need to have witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system concede. At the same time no such legislation has been brought about. These are the considerations which had influenced this Court to have a holistic regime of witness protection which should be considered as law under Article 141 of the Constitution till a suitable law is framed.
36. We, accordingly, direct that :
(i) This Court has given its imprimatur to the Scheme prepared by respondent No.1 which is approved hereby. It comes into effect forthwith.
(ii) The Union of India as well as States and Union Territories shall enforce the Witness Protection Scheme, 2018 in letter and spirit.
(iii) It shall be the 'law' under Article 141 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislation on the subject.
(iv) In line with the aforesaid provisions contained in the Scheme, in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories. This should be achieved within a period of one year, i.e., by the end of the year 2019. The Central Government should also support this endeavour of the States/Union Territories by helping them financially and otherwise."
14. Thus, the Apex Court has held that the Witness Protection Scheme shall be considered as law under Article 141 of the Constitution of India till a suitable law is framed. As such, the said Scheme shall be applicable and binding on the State of Uttar Pradesh. Admittedly, no such legislation on the subject has yet been passed. The said Scheme is a comprehensive Scheme dealing with the protection of the criminal trial witnesses. Since the said Scheme has been directed to be considered as law under Article 141 of the Constitution of India, it will have overriding effect over all other laws including the aforementioned Government Orders dated 09.05.2014 & 01.01.2016.
15. It is notable that under Clause 2(c) of the Witness Protection Scheme,2018, the 'competent authority' has been defined and in clause 2(l) of the said Scheme, the procedure for filing an application before the competent authority has been provided. For ready reference the clauses 2(c) and 2(l) of the said Scheme are quoted below:
"2(c) Competent Authority" means a Standing Committee in each District chaired by District and Sessions Judge with Head of the Police in the District as Member and Head of the Prosecution in the District as its Member Secretary.
2((l) "Witness Protection Application" means an application moved by the witness in the prescribed form before a Competent Authority for seeking Witness Protection Order. It can be moved by the witness, his family member, his duly engaged counsel or IO/SHO/SDPO/Prison SP concerned and the same shall preferably be got forwarded through the Prosecutor concerned."
16. In view of the above, we are of the view that the prayer for providing security to the petitioners, who are the witnesses in the aforementioned criminal case is liable to be considered under the Witness Protection Scheme, 2018, as approved by the Apex Court.
Ms. Kritika Singh, learned Addl. Chief Standing Counsel has not disputed the aforementioned position of law.
17. Considering the facts and circumstances of the case, the petitioners are directed to move an application before the competent authority in the prescribed form (as specified in clause 2(c) and 2(l) of the said Scheme) within a period of three weeks from today. In case any such application is filed in accordance with the said Scheme before the competent authority, the same shall be considered and disposed of by the authority concerned preferably within three weeks from the date of receipt of the said application.
18. Till the decision is taken by the concerned authority for grant of protection to the petitioners, the respondent no.3, Superintendent of police, Ghazipur shall provide security to the petitioners and ensure that life and liberty of the petitioners is safeguarded, as earlier provided by it under the order of this court dated 2.4.2019 passed in writ petition no. 11301 of 2019.
19. The above interim directions are being issued in view of the peculiar facts and circumstances of the case and shall not be treated as precedent. The respondent no.3 is further directed to send the compliance report forthwith indicating as to what security has been provided to the petitioners in terms of this order by means of communication addressed to the Registrar General of this Court.
20. The Registrar General is directed to keep the said compliance report on record in this case.
21. It is made clear that in case the petitioners do not apply for their protection before the competent authority within the stipulated period, as indicated herein above, the interim protection given to the petitioners under this order shall cease to operate.
With the above observations, the writ petition stands finally disposed of.
22. Ms. Kritika Singh, learned Addl. Chief Standing Counsel undertakes to communicate this order to the S.P. Ghazipur forthwith for compliance.
Order Date :- 26.7.2019 MLK