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Judgment
B.K. Roy and P.K. Jain, JJ.—The petitioner has knocked the doors of this Court by taking recourse to Article 226 of the Constitution of India for grant of following three reliefs :
(i) issue a writ, order or direction in the nature of mandamus directing the respondent Nog. 1. 2 and 3 to follow the dictum contained in the Government Order date4 19.2.1996 on the subject of the provision of shadow, gunner and guard with regard to the persons having criminal history and background in all strictness or alternatively clarify or formulate the clear guideline for the citizens of State of U. P. with regard to the principles which govern the feasibility of the provisions of shadow, gunner and guard etc. to the persons having the criminal history:
(ii) issue a writ, order or direction in the nature of mandamus directing the respondents to grant the gun licence applied by the petitioner notwithstanding the pendency of the Case Crime No. 229/91 under Sections 147. 148, 149 and 302, I.P.C.. P. S. Chetganj, Varanasi against him in order to maintain the parity with respondent Nos. 5 to 7 who are now Ministers in the Cabinet of Sri Kalyan Singh Government:
(iii) issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 1, 2 and 3 to cancel the arm licences granted to respondent Nos. 5 to 7 and all other Cabinet Ministers who have criminal background or are history-sheeters to maintain the parity with the petitioner who has been refused the grant of licence vide order dated 31.5.97 passed by respondent No. 2 (Annexure-5) on the ground of pendency of a solitary criminal case against him.
At the very threshold. Mr. Kazmi, the learned counsel appearing in support of this writ petition stated that in view of the fact that the petitioner has already moved the appellate authority against the order refusing to grant D.B.B.L. gun licence to the petitioner under the provisions of the Arms Act, therefore, he is not pressing Relief No. (ii). Accordingly, this writ petition in so far as it relates to Relief No. (ii) is permitted to be withdrawn.
In regard to the remaining two reliefs. Mr. Kazmi contended, strenuously relying upon Mansaram v. S. P. Pathak. 1983 SC 1239 ; Shivsagar Tiwari Vs. Union of India (UOI) and Others, : Chaitanya Kumar v. State of Karnataka 1986 SC 825 ; Ramana Dayoram Shety v. International Airport Authority of india 1979 SC 1628; Smt. Maneka Gandhi v. Union of india 1978 SC 597; Shiuajirao Nilangker Patil v. Dr. Mahesh Madhar Cosari, 1987 SC 294 ; Food Corporation of india v. M/s. Kamdhenu Cattle Feed industries, 1993 SC 1601 ; Olga Tellis and others v. Bombay Municipal Corporation 1986 SC 180 ; D. D. Joshi and others v. Union of India 1983 SC 420; Sri Srinivasa Theatre and others etc. v. Government of Tamil Nadu 1992 SC 999 ; State of Sikkim v. Swendra Prasad Sharma 1994 SC 2342 ; Chandigarh. Administration and another u. Jagjtt Singh 1995 SC 705 ; Har Bilas Rai Bonsai v. State of Punjab 1996 SC 857 ; Dalmia Cement (Bharat) Ltd. and Another Vs. Union of India (UOI) and Others, and Dr. K. R. Lakshmanan Vs. State of Tamil Nadu and another, that the action of the State in providing security to respondent Nos. 5 to 7 who are Ministers in the present Government is hit by vice of arbitrariness apart from discrimination inasmuch as even though against the petitioners only one case being Crime No. 229 of 1991 under Sections 147. 148, 149 and 302, 1.P.C.. P. S. Chetganj. Varanasi is pending in which a history-sheeter and hardened criminal Awadhesh Rai of Varanasi was murdered by some of his rivals and even though the petitioner was innocent, he has been falsely implicated, he has been deprived of his Gunner though he was a very important trap witness in a criminal case in which the Superintendent, Naini Jail was involved of corruption charges whereas respondent Nos. 5 to 7--Ministers, though history-sheeters and facing a number of criminal cases yet they have been provided security besides licences under the provisions of the Arms Act to own/possess arms.
The sum and the substance of the submission of Mr. Kazmi is that this act of the Government is per se discriminatory and unconstitutional being violative of the equality clause enshrined under Article 14 of the Constitution of India.
The learned Advocate General Sri R. P. Goyal assisted by Sri Jagdish Tiwari, on the other hand, contended that the arguments have no force. The arguments of Mr. Kazmi on the face of it appears to be attractive but they have got no force.
It is better to reproduce the latest Government Order bearing No. 376/Chha-U-1/66 Lucknow, dated February 19, 1996 (as contained in Annexure-5A) as claimed by the petitioner:
^^''kkldh; la[;k && 376@N% & ;w&1 @96
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vaxj{kd xuj dks"Bd y[ku� % fnukWad 19 Qjojh] 1996
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A bare perusal of the aforesaid G.O. shows the reasons necessitating issuance of guidelines. Firstly it does not deal with the providing of security to His Excellency the Governor, the Ministers and other V.I.Ps. Therefore, there must be some other Government Order which the petitioner is not referring. However, we do not appreciate as to how any of the conditions have been violated while providing security to respondent Nos. 5 to 7 who are M.L.As. Clause (8) of the Government Order restrains ordinarily (underlining ours) non-providing of shadow/gunner guard, etc. to such people who have past criminal history or due to pendency of a case in any court concerning criminal charge of Implicated him in undesirable movements is not correct inasmuch as this clause starts with the word "Ordinarily" �lkekU;r%� A fortiorari it means that in special cases the terms can be relaxed. No case of relaxation of the rule can be better than that of a Minister. We do not see that this clause attracts the vice of discrimination between the petitioner vis-a-vis the Minister aforesaid.
In this context Sri Kazmi took us to the Article captioned "Rule of Law by Subhas Misra and Farzand Ahmad, published in INDIA TODAY" November 24, 1997 appended as Annexure-9, and the statements made in paragraphs 41 to 44 including extracts of the two Articles published in OUTLOOK, November, 1997 and INDIA TODAY, November 19, 1997 quoted therein concerning respondent Nos. 5 to 7 and expressed his anguish over criminalisation of politics and desired that we should stop it. This question is pending adjudication before the Supreme Court and a reply of the Government is awaited to the question put to it as to what concrete action it has taken to Implement the report of the Vohra Committee.
Respondent Nos. 5 to 7 are undoubtedly Ministers and by virtue of the chair which they are occupying, they are bound to be protected by the" Government. Really the protection has been provided to the chair and not to the occupants in their individual capacities.
The word ''Criminal'' Sirtctu Sensu means one who has committed a crime. No Judgment of any criminal court has been brought upto our notice to show that the respondent Nos. 5 to 7 were in fact convicted. In fact none of the decisions relied upon by Sri Kazml support his contention. There is a presumption of innocence under the laws of our country. Unless one is convicted, he cannot be dubbed in strict sense as criminal.
It is a peculiar feature of our parliamentary democracy that it is open for any legislative or parliamentary segment to elect their representatives who are not disqualified to contest election under the provisions of the Representation of People Act. In Vidya Charan Shukla Vs. Purshottam Lal Kaushik, , it was held by the Supreme Court that "the returned candidate cannot be said to be disqualified at the date of election, if before or during the pendency of the election petition in the High Court his conviction is set aside by the appellate court it must be held that in like circumstances the returned candidate cannot be said to be disqualified at the date of scrutiny of the nomination papers". Legislation is not the function of the High Court. If the people elect such persons as their "Messiah" who have "History Sheets", courts in absence of suitable amendments in the Representation of Peoples Act or other Acts/Codes cannot do anything by exercising its jurisdiction under Articles 14. 19 and 21 of the Constitution of india as sought to he invoked by Mr. Kazmi.
The further submission of Mr. Kazmi that the aforesaid respondents who were history-sheeters, were illegally granted licence under the Arms Act whereas the petitioner against whom there is only one case is pending but deprived of licence is not a question to be answered for these reasons : (i) the order granting licences to them have not been brought on the record, (ii) the petitioner has no locus, (iii) his action is hit by laches and (iv) even assuming that licences were granted illegally that can be of no advantage to the petitioner who has also not pressed Relief No. 1 (ii) before us.
For the reasons, aforementioned, we do not see force in the submissions of Mr. Kazmi.
However, there is yet another aspect of the matter which cannot be lost sight of by us.
The petitioner had moved earlier this Court in Criminal Miscellaneous Writ Petition No. 775 of 1995 making a grievance at that time that even though he was a most important trap witness, who was going to be examined on 4th July, 1997 still the Government had withdrawn his shadow and he may be done away. That question was considered by one of us (Binod Kumar Roy. J.) along with N. S. Gupta. J. on 27.5.1997 and the following order was passed :
"Mr. Mahendra Pratap, learned Additional Government Advocate, shows us an office order issued by the State Government taking a decision not to provide any gunner/shadow to the writ petitioner for the reasons mentioned therein. However, for the present we find that the petitioner is a most Important trap witness who is going to be examined on 4th July. 1997. If he is done to death, most vital witness is bound to disappear. Accordingly, in the interest of justice, while adjourning this case to 7th July. 1997 to enable the respondents to bring on record the office order shown to us with copy to the petitioner, we direct the respondents to see that no harm is being done to the petitioner by adopting such mode which they themselves may consider appropriate.
The office is directed to hand over a copy of this order to the learned Additional Government Advocate, Sri Mahendra Pratap for its communication to and follow up action by the respondents".
Later on, that case was placed before another Division Bench and it was finally disposed of on 12.8.97 with following directions :
"By this petition, the petitioner had prayed for security being provided to him. This Court by an order dated 27.5.1997 has found the petitioner to be an important trap witness and he is accordingly directed security to be provided to him to enable his evidence to be brought on record. In the counter-affidavit filed in this petition, it has been stated that the security which could be provided by the S.S.P. has already been provided to the petitioner consequently while observing that his security shall continue to be made available to the petitioner till the disposal of the trial. This petition is finally disposed of.
Giridhar Maivtya, J. B. K. Sharma, J."
According to Mr. Kazmi the shadow directed to be provided by this Court vide its order dated 12.8.1997 was provided but later on withdrawn on 26.10.97 before completion of the trial as directed by this Court and the petitioner has already moved this Court for initiation of proceedings in Contempt of Court.
Be that as it may. In view of the fact that the petitioner was an important trap witness for prosecution and is required to be examined as very important prosecution witness in relation to Crime No. 479 of 1995 State v. Kamta Singh, Special Case No. 5 of 1997 under Sections 7 and 13(2) of the Prevention of Corruption Act, police station Naini, Allahabad, which is said to be pending before the Special Judge, Anti-Corruption, Varariasi and if it is a fact that the Government for one reason or another had withdrawn that shadow, we hope and trust that without any delay and/or hitch or murmur the Government will restore him back unless and until the earlier orders of this Court referred to as above are modified and/or further nullified by this Court itself on a good cause shown by the Government reminding that the Government has got no powers to review our constitutional/Judicial orders- We hope and trust that before the court proceeds to take up the proceedings in contempts, the Government will not allow to face an awkward position. In the interest of justice, we also clarify that this Court had proceeded to pass its order on the backdrop that the petitioner was going to be examined in July, 1997. We do not know why his examination has been delayed. The District Judge of Varanasi is directed to apprise the Special Judge. And Corruption. Varanasi to fix a date, if already not fixed from before, for the purposes of examining the petitioner in any event within one month from the date he receives a copy of this order who shall also try to conclude the trial preferably within three months if the State cooperates.
This writ petition is dismissed with the aforementioned directions to the Government and the Special Judge, Anti-Corruption. Varanasi who is in seizin of the case referred to as above.
The office is directed to serve a copy of this order in the office of the Advocate General and despatch a copy of the same to the District Judge. Varanasi, forthwith.