JUDGMENT Imtiyaz Murtaza and Amar Saran, JJ.
1. We have heard Sri P.C. Srivastava, learned Counsel for the petitioner, Sri Adish C. Agarwal, learned Addl. Advocate General, and Sri S.N. Singh, learned Counsel for respondent No. 4.
2. This writ petition has been filed by Omkar Yadav for the relief that the respondents - S.P., Sant Kabir Nagar, SHO of PS Ghanghata, District Sant Kavi Nagar - be directed to arrest and produce respondent No. 4, Rambriksh Yadav, before the CJM, Sant Kabir Nagar, in case No. 241 of 2006, under Sections 147, 148, 149, 308, 302, 323, 504, 506 IPC and 7 Criminal Law Amendment Act and Sections 134-B, 135 of the Peoples' Representation Act and/or to issue a writ order or direction which this Court may deem fit and proper.
3. At the time of gram panchayat elections which were being held at Jainarain Inter College, Gaur, Sant Kabir Nagar on 25.8.05 at 2.15 p.m. some dispute arose between the side of the informant, Rakesh Kumar, son of the deceased, Mahatam Yadav, who was supporting the candidature of his sister-in-law Smt. Champa Devi and Hanuman Yadav over casting of fake votes. Hot words were exchanged and Hanuman Yadav's supporter Manoj Gupta called Rambriksh Yadav, from Gaighat polling booth. Rambriksh arrived at the election site with his gunner, Prem Singh, and other supporters. They began assaulting the informant and others with lathis. When the public tried to intervene, respondent Rambriksh Yadav became more aggressive and cried out that Mahatam and his family members should be finished. Then he snatched the carbine machine gun of his gunner, Prem Singh, and fired at chest of the deceased Mahatam who died at the spot. As a result of the lathis plied by the supporters of Rambriksh, informant Rakesh Kumar, his uncle Janardan Yadav, Jai Prakash Yadav and Onkar Yadav were injured.
4. In that incident, although a charge-sheet was submitted against the other named accused but respondent, Rambriksh Yadav, the principal accused was exonerated.
5. A writ petition (Crl. Misc. Writ Petition No. 60 of 2006: Omkar Yadav v. State of U.P. and Ors.) was filed by the petitioner in which an order was passed by Hon. R.C. Deepak and Hon. G.P. Srivastva, JJ. on 24.3.2006 observing that as the report was lodged with great promptitude at 4.20 pm on the date of the incident and even the official gunner of Rambriksh Yadav, namely, Prem Singh, had lodged a report alleging that the Respondent had seized his carbine gun and fired at the deceased and as the main role of killing the deceased, Mahatan Yadav, was attributed to Rambriksh Yadav alone, hence the exoneration of Rambriksh Yadav on the basis of some affidavits etc. was patently illegal and it appeared to be the result of the political manipulation of Rambriksh Yadav who belonged to the ruling Samajwadi Party. The bench further observed that the investigating officer was not justified in relying on certain affidavits in preference to the statements recorded under Section 161 Cr.P.C. which had named Rambriksh as the assailant of the deceased. The cross-report of the incident, which was lodged after 16 days of the alleged occurrence by Rambriksh, appeared to be a manipulated cross version. Hence, in such circumstances, the court observed that the "Only venue where it could have settled after recording the evidence of both the parties is only the Court of Law. The police has no right to usurp its jurisdiction to itself and to exonerate anyone without even facing any semblance of any trial, a farce it is which cannot be digested by the Court." The Division bench further held that "The learned Magistrate is directed to take cognizance against him (Ramvriksh Yadav) and commit the case to the Court of Session along with other co-accused, who have already been charge-sheeted to face the trial in accordance with law." We think that the Division Bench of Hon'ble R.C. Deepak and Hon'ble G.P. Srivastava, JJ. needed to pass this strong and unusual order only because the concerned Magistrate appeared to have blithely and mechanically accepted the report exonerating the Respondent submitted by the police and to have failed to consider whether on the material on the record there was sufficient material to take cognizance against the respondent.
6. However, inspite of the clear and categorical order and observations of the Division Bench the CJM Basti, Sri M.P. Singh Yadav appears to have proceeded in a very lackadaisical manner in violation of the tenor and spirit of the order of the Division Bench dated 24.3.06 and to have merely issued summons for the appearance of the accused on 4.4.06. As the order sheet from 4.4.06 to 8.8.06 filed by the petitioner shows that for the flimsiest reasons he has permitted the accused not to appear in Court in response to the summons, and avoided taking any coercive measures such as issuing non-bailable warrants for the arrest of the Respondent No. 4, which were called for in these circumstances in the light of the provisions of Section 87 of the Code of Criminal Procedure. The said provision entitles a Court to issue warrant for the arrest of an accused if either before the issue of summons, or thereafter before the time fixed for appearance or in the event of an accused failing to appear inspite of service of summons without good reason, which gives the Court cause to believe that the accused has absconded or will not or is not obeying the summons.
7. As it was also pointed out by the learned Counsel for the petitioner that an inordinate number of gunners had been provided to respondent No. 4. Rambriksh Yadav, even though he was a hardened criminal and he had been assigned the role of committing the present murder after snatching the carbine gun of his gunner. Initially the Government Advocate had admitted that 10 gunners had been provided to respondent No. 4, Rambriksh Yadav. However, subsequently, it was clarified that five gunners had been provided to him. Later, on their numbers had been reduced to 3.
8. Dismayed by this admission we had passed an order on 25.9.2006 directing the learned AGA to produce all the files relating to provision of security to respondent No. 4, Rambriksh Yadav and also to satisfy the court as to how he was provided security when the relevant government order does not permit the provision of security to persons who are involved in criminal cases. We had directed that the case to be listed for further hearing on 4.10.2006.
9. On that date, the Additional Advocate General, Sri Adish C. Agarwal, appeared and assured us that summons which had been issued by the CJM, Sant Kabir Nagar on 4.4.2006 in pursuance of this Court's order in the earlier writ petition on 24.3.2006 would be served on respondent No. 4 by 7th October, 2006, which was the date fixed for his appearance in the case. The learned Additional Advocate General also assured this Court that the gunners provided by the State Government in violation of the concerned government order shall be withdrawn.
10. Today when the case was listed, we are happy to note that the security/gunners had been withdrawn with immediate effect. The learned Additional Advocate General has produced a letter of the in-charge SP, Sant Kabir Nagar dated 9.10.2006 in this regard.
11. We must record however that this case reflects a sorry saga, and it appears to us that nowadays if a person with criminal antecedents belongs to or joins the party in power he obtains an automatic immunity from prosecution and all action by the police. It was indeed deplorable as observed in the earlier Division Bench in Cr. Misc. Writ No. 60 of 2006 how the Respondent Rambriksh had been exonerated for a broad daylight murder committed with his gunner's carbine during the Panchayat elections when the gunner himself had nominated the respondent. Again such a person continued to enjoy the patronage of the State by having as many as 5 gunners for a very long time. Such blatant and unwarranted exercise of discretion and distribution of largesse to party men and discrimination against rivals leads to an erosion of public confidence in the independence and integrity of the government to dispense justice fairly to all citizens, or to take any steps for booking criminals if they are supporters of the ruling party.
12. It is more disturbing that many government officials in key positions in the administrative and police services who were envisioned by the framers of our Constitution to constitute the steel frame who would who would give neutral and objective advice for governance have completely relinquished this role and surrendered themselves to the dictates of the Ruling party. They rarely take a principled stance when their opinions are sought and are usually willing to bend backwards to give any opinion as desired by the political masters.
13. In the present case the file noting of the Special Secretary (Home) dated 12.7.05 shows that as per the district committee's report there were 8 criminal matters against the respondent. He also had a licensed rifle, and was economically solvent. Because of political activism he feared threat to his life from political rivals. At that stage he had two gunners but the district committee considering the risk to his life was recommending that he be given another gunner in addition to the two gunners he already possessed. The district committee report further mentioned that under the relevant government orders he could be given one shadow on 100% private costs, but the matter was directed to be put up before the C.M. for orders. Thereafter another file noting of the Anu Sachiv (Home) dated 5.12.05 notes that the respondent does not come under the eligible categories for grant of a gunner in view of the G.O. dated 25.4.2001. It may be mentioned that the said G.O. frowns upon providing security to persons with a criminal record as the same may be misused and as it casts an adverse impression that the State is protecting persons with criminal records. In this connection Clause 10 of the G.O. dated 25.4.01 reads as follows:
Samanyata aisay kisi vyaktiyo ko suraksha vyavastha nahin deejaijo apradhik kriya kalapo may lipt ho evamjinhay suraksha vyavastha diyayjanay say uskay durupyog kee Sambhavana ho.
14. However the file noting dated 5.12.05 further proceeds to record that in deference to the the Hon'ble Chief Minister's wishes the respondent's security was being extended for another 6 months on earlier terms (i.e. at State expense) and a fresh report about his life threat was being sought.
15. There is another report of the district committee signed by the S.P. and D.M. Sant Kabirnagar dated 20.4.06 which is even more shocking. It shows that there are 14 criminal cases pending against the petitioner. He has grave enmity with the M.P. from BSP Sri Bhal Chandra Yadav. In the recent gram panchayat elections of village Tidhramaur there was a firing incident where his rival was murdered. In that incident the respondent was also injured. A Criminal case was registered at P.S. Ghanghata against the respondent. As a result of the incident he is fearful for his life. The district committee report further notes that there appears to be no substance in the respondent's allegation about the threats extended by Rakesh Kumar, the informant of Crime No. 498/05. The respondent's license for a rifle was suspended in 1997. His two brothers have licensed SBBL guns. At present he has one gunner from 11.7.05 for a year. 2 armed constables from 15.9.05 until further orders. One additional gunner for 6 months from 4.12.05.
In toto he has 2 gunners and 3 armed constables attached to him. According to the report his case fell under paragraph 3, Clause 4 of the G.O. dated 25.4.2001 which entitled him to one security person at 10 % cost. But the committee finally rounds off its observations with the words, that considering his threat perception the committee has no objection if the existing level of security provided to the respondent is retained. This convoluted, and self-contradictory report is a classic example of the debasement, emasculation and complete surrender of senior IAS officers like the D.M. and district police heads before the wishes of the party in power and the less said about the issue the better. We only have some satisfaction in noting that the Chief Minister in deference to our orders has withdrawn all security to the respondent by his order dated 8.10.06. However we find that in an earlier writ petition, (Cr. Misc. Writ Petition No. 5520 of 2006, Gayur Hasan v. State of U.P. and Ors.) where we had directed the Principal Secretary (Home) inter alia to furnish the list of all persons who had been furnished gunners and security by the State in the past one year, in the State's affidavit there was no mention of the name of the Respondent Rambriksh Yadav or the provision of five gunners to him. We direct the Principal Secretary (Home) to submit an explanation for this omission within two weeks. He shall also verify whether there are any other such omissions in the affidavit submitted on behalf of the State in the said writ petition.
16. We also find that so far as the service of summonses on the respondent No. 4, Rambriksh, are concerned, it is mentioned in the faxed letter of the S.P. Sant Kabirnagar dated 9.10.06 to the Government Advocate produced before us today, that in pursuance of our last order the SO, PS Ghanghata tried to effect the service of the summons on respondent No. 4 on 6.10.2006, 7.10.2006, 8.10,2006 and 9.10.2006 but he was informed by the family members of respondent No. 4 that he had gone to Lucknow and he would appear in the concerned court on 9.10.2006. However, the service of the summonses could not be effected. The So even gave information to respondent No. 4 Rambriksh Yadav by mobile phone that he should appear before the court concerned on 9.10.2006, but in spite of the information, he did not appear on 9.10.2006. We, thereafter, called for information from the Registry about the next date fixed and we have been informed that the CJM has fixed 28.10.2006 as the next date.
17. The CJM Basti is now directed to submit an explanataion within two weeks explaining the reasons for his lethargy in securing the attendance of the respondent No. 4, and failure to issue non-bailable warrants inspite of the strong orders of the Division Bench dated 24.3.06 in Crl. Writ Petition No. 60 of 2006 and inspite of the failure of the respondent to respond to the summons issued by the CJM as far back as 4.4.06. The CJM is also directed to send an up to date copy of the order sheet of this case and the copy of the charge sheet and case diary along with his explanation.
18. Sri S.N. Singh, Advocate who has filed his vakalatnama for the Respondent No. 4 may also file his counter-affidavit within two weeks.
19. We clarify that observations hereinabove have only been made for passing of this order and shall not affect the trial of the case on merit.
20. List this case for further orders on 7.11.2006. Copy of the order to the parties within 72 hours.