Hon'ble Dr. Satish Chandra,J.
1. Heard learned counsel for the petitioner and learned standing counsel and perused the record. With the consent of parties' counsel, we proceed to decide the writ petition finally at admission stage.
2. Present writ petition has been preferred under Article 226 of the Constitution of India against the impugned order dated 02.01.2012 contained in Annexure-1 to the writ petition as well as order dated 26.12.2011 by which, "Z" Category Security granted to the petitioner has been withdrawn by the State Government.
3. While assailing the impugned orders, it has been submitted by learned counsel for the petitioner that the petitioner is a Member of Parliament and is possessing "Z" Category Security since 2006. According to learned counsel, lastly, "Z" Category Security was reviewed and extended to the petitioner in terms of recommendations of District Level Security Committee dated 07.11.2011. In pursuance thereof, the State Level Security Committee keeping in view the report of Intelligence Bureau, Government of India had affirmed the continuance of "Z" Category Security to the petitioner on 11.11.2011. In pursuance to the decision of State Level Security Committee, the State Government by order dated 23.11.2011 had extended the "Z" Category Security to the petitioner, which was continuing with the petitioner.
4. Submission of the petitioner's counsel is that the security continued till the petitioner was a Member of Ruling Party, namely, 'Bahujan Samajwadi Party" (in short, "BSP"). However, the petitioner left the BSP on 25.12.2011 and thereafter, the State Government, under political motivation, has withdrawn the "Z" Category Security on very next date on 26.12.2011.
5. In response to the argument advanced by the learned counsel for the petitioner, learned Standing Counsel submits that the security has been withdrawn on complaints received by the State Government. Learned standing counsel also produced the record before this Court, which reveals that one Sri Sukh Sagar Mishra "Madhur" former Member of Nagar Palika Parishad, Hardoi had made a complaint on 20.12.2011 pointing out that the petitioner is threating him to face dire consequences, in case he does not cooperate with the petitioner to meet out the political requirement. One other complaint submitted by Sri Anil Singh Viru, Member of Indian National Congress dated 16.12.2011 is also on record.
6. After receipt of these two complaints, certain inquiries were held and Government arrived to the conclusion that the contents of the complaints are true and make out a case for withdrawal of security provided to the petitioner.
7. A perusal of the impugned order dated 26.12.2011, at the face of record, reveals that after receipt of the complaints, some inquiries were conducted and the allegations against the petitioner were found to be true. The report of the inquiry was placed before the District Level Security Committee and District Level Security Committee after considering the report recommended for withdrawal of security. A perusal of the report of District Level Security Committee consisting of Superintendent of Police, Hardoi, District Magistrate, Hardoi and Inspector, Vigilance, Hardoi dated 26.12.2011, does not reveal any material which changed the circumstances with regard to 'threat perception'. However, keeping in view the report of inquiry held in pursuance to the aforesaid two complaints in which the allegations levelled against the petitioner were found to be true and further that there was no threat perception with regard to the petitioner's life, it was thought appropriate that the security provided to the petitioner should be withdrawn.
8. The perusal of the report of the District Level Security Committee reveals that the committee was constituted to inquire into the allegations made by two persons (supra) against the petitioner. It appears that behind the back of the petitioner, some inquiry/investigation was conducted and the complaints submitted by the aforesaid two persons (supra) were found to be true. The basis for withdrawing the recommendations of the District Level Security Committee seems to be complaint submitted by the aforesaid two persons. There appears to be no material on record which may disclose that the District Level Security Committee had considered certain evidence which may establish that the petitioner is not suffering from any threat perception. The observation with regard to the threat perception appears to be cryptic, causal and unreasoned.
9. Moreover, the report of District Level Security Committee seems to be of 26.12.2011 and the petitioner has left the BSP on 25.12.2011. Thus on the very next day, the petitioner left the BSP, but the District Level Security Committee recommended for withdrawal of security in consequence to the report dated 26.12.2011 and the Government directed the Superintendent of Police (Security) to withdraw the security with immediate effect, mechanically without applying its own mind.
10. The manner in which the State Government had proceeded to withdraw the security seems to suffered from the vice of the arbitrariness, that too relying upon the two complaints referred hereinabove and also without serving a show-cause notice calling explanation from the petitioner with regard to the complaints dated 16.12.2011 and 20.12.2011. In case, the allegation contained in the complaints submitted by Sri Sukh Sagar Mishra "Madhur" and Sri Anil Singh Viru were correct, prima-facie, makes it a criminal case and the Government and the Superintendent of Police, Hardoi should have proceeded against the petitioner, but instead of lodging a criminal case or FIR, the Government took a decision to withdraw the security. It is not understandable as to why the Government or the Superindent of Police, Hardoi has not got registered the FIR after receipt of the complaints of two persons (supra), though, prima-facie, cognizable office is made out. It appears that the things have been cooked up in such a manner so that the security provided to the petitioner may be withdrawn. Such action on the part of the concerned authority does not seems to be justifiable.
11. While deciding a case by judgment and order dated 22.12.2011 passed in Writ Petition No. 12592 (M/B) of 2011, Babu Singh Kushwaha vs. State of U.P. and others, in which one of us, (Justice Devi Prasad Singh) was a member, it has been held that once the security has been granted to the citizens or people's representative, then withdrawal of security must be based on some material indicating the change of circumstances which may reflects from the record. In the present case, there appears to be no material on record, which may indicate the change of circumstances. The entire decision in withdrawing the security is substantially based on complaints made by Sri Sukh Sagar Mishra "Madhur" and Sri Anil Singh Viru. Decision has been taken in hasty manner immediately within 24 hours from the date, the petitioner left BSP. We are constraint to observe that inaction on the part of the Superintendent of Police, Hardoi these two complaints (supra) creates a reasonable doubt on his bonafide.
12. In any case, once the decision is substantially based on the complaints submitted by aforesaid two persons (supra) then show-cause notice must have been issued to the petitioner calling an explanation with regard to the said complaints. Arbitrary action affecting right to life and liberty is violative of fundamental right guaranteed under Article 14 read with Article 21 of the Constitution of India. A person cannot be put to in danger in violation of principles of natural justice by placing reliance over the complaints followed by ex-parte inquiry. The District Government Authority should have issued show cause notice calling explanation from the petitioner or could have registered FIR followed by investigation in accordance to law but that has not been done.
13. It is well settled proposition of law that Government must exercise its discretion in a just and fair manner. Petitioner left BSP on 25.12.2011 and the security was withdrawn on 26.12.2011. The manner and hasty decision of the Government to withdraw security is itself indicative of arbitrary exercise of discretionary power.
14. In Babu Singh Kushwaha (supra) while considering the discretionary power of Government, this Court held as under:-
"13. While deciding the [2007 (25) LCD 1266]: Vijay Shanker Tripathi and others. Vs. Hon'ble High Court of Judicature at Allahabad and others, [Writ Petition No.3690 (M/B) of 2007:Vijay Shanker Tripathi and others. Vs. Hon'ble High Court of Judicature at Allahabad and others], a Division Bench of this Court, of which one of us (Hon'ble Mr. Justice Devi Prasad Singh) was a member, by a judgment and order dated 22.6.2007, considered the discretionary power of the State Government, as to how and in what manner, the State should exercise its discretionary power. Any decision of the State Government must be based on factual analysis of material on record. The State Government has mechanically accepted the recommendation sent by the District Level Committee for lowering down the security provided to the petitioner without taking note of the fact that there is no material change in the two reports of the District Level Committee with regard to threat perception to the petitioner. Accordingly, the impugned order passed by the State Government seems to be an instant if non-application of mind and based on unfounded facts.
14. While deciding another Writ Petition No.980 (S/B) of 2007: Dr. Yaduvir Singh. Vs. State of U.P. and others, by judgment and order dated 7.10.2010, a Division Bench of this Court (delivered by one of us Hon'ble Mr. Justice Devi Prasad Singh), considered as to how the State Government should exercise its discretionary power, to reproduce relevant portion as under:
"21. According to Webster's Encyclopaedia Unabridged Dictionary (1994), p.411, the "Discretion" means the power, right or liberty to decide one way or the other, to act according to one's own judgment; freedom of choice; to be completely under one's power or control; the freedom to decide what should be done in a particular situation.
22. In Rooke' case, (1598) 5 Co Rep 99b (100a), the "Discretion" proclaimed, Coke, "is a science of understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.
23. In Sharp v. Wakefield, reported in 1891 AC 173, 179, Lord Halsbury rightly observed as under:-
'[D]iscretion' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion..... according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself...."
24. Hon'ble Supreme Court in a case reported in 2004(2) SCC 590; Union of India v. Kuldeep Singh has held that the discretion is to know through law what is just. To quote:-
"Discretion is to know through law what is just. Where a judge has and exercises a judicial discretion his order is unappealable unless he did so under a mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did......"
Their Lordships of Hon'ble Supreme Court further proceeded to hold as under:-
"20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary)
21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office out to confine himself (per Lord Halsbury, L.C., in Sharp v. Wakefield). (Also see S.G. Jaisinghani v. Union of India)
22. The word ''discretion' standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility. "The discretion of a judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper and passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable." Said Lord Camden, L.C.J., in Hindson and Kersey".
25. In view of above in case the statutory discretion is vested in an authority then such discretion should be exercised not in arbitrary, whimsical and fanciful manner. It must be reflected from the outcome of event that the authority concerned has exercised discretion within the sound principle of law, skill and wisdom with vigilant circumspection and care. The discretionary power imposes a heavy responsibility on a person or authority. The latitude or liberty accorded by statute, Circular or Order to the higher authority does not permit to exercise such power in unjust and unfair manner. In the case of Kuldeep Singh (supra), their Lordships of Apex Court further held as under:-
"If a certain latitude or liberty is accorded by a statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of discretion, and prevents it from being wholly absolute, capricious, or exempt from review."
15. Apart from the above, right to life and liberty is guaranteed under Article 21 of the Constitution. Though, everyone cannot be provided security but once the State Government takes a decision to provide security to a person, then while lowering down or increasing the security, its discretionary power must be exercised with regard to grant of lowering or increasing security on the basis of subjective consideration of the case. The decision must be based on factual analysis and material available on record. It should not be dealt with mechanically.
In view of above, we allow the writ petition, a writ in the nature of certiorari is issued quashing the impugned order dated 02.01.2012 contained in Annexure-1 to the writ petition as well as order dated 26.12.2011 with consequential benefits and security granted to the petitioner be restored forthwith. It shall be open to the State Government to pass a fresh order keeping in view of the observations made hereinabove.
Order Date :- 8.2.2012 Rakesh-ANK/-