P.S. Mishra, C.J.
1. In Writ Petition No. 291 of 1995, B. Sudershan Reddy, J., by his order dated 1-10-1996 has noted the facts of the case and sought a reference on the question - should this Court exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India and compel the authorities to provide security to all the persons who are either leading factions or actively participating in the factions? and that almost all of them are facing serious criminal charges and, :-
'What are the parameters of judicial review in such a situation? The legality and validity, of the Government's policy decision, withholding security to all these factionists also would fall for consideration. Can the Court substitute its own view and declare the policy of the Government as illegal or unconstitutional? It is a judicially manageable situation where appropriate directions could be issued in each case compelling the Police to provide security? Should the State be compelled to spend its limited resources to provide security to factionists and pass on the liability to tax payers? Can the State provide the services of an armed security guard to each citizen?
It is common knowledge and judicial notice can be taken about the the prevalent culture of factions in Rayalaseema which had already destroyed the peace and tranquility of the common man who is constantly living under threat of fear. What security is to be provided to those innocent victims of faction violence and by whom?'
2. Learned counsel for the petitioner, however, when the reference has been taken up, reported that the application has become infructuous and no order need be passed in it. Since, however, this Court noticed that not this case in which the learned Judge has sought the reference alone, but a number of other cases seeking command to the Police for providing security are being filed and have been filed and the Courts invariably exercised jurisdiction mostly by brief and almost dismissive orders to provide security. The Court called for all such cases which were noticed on the subject and were pending for orders and extended a comprehensive hearing to learned counsel for the parties, including Writ Petition No. 10432 of 1996, which is one by the wife of the petitioner B. Subas Reddy in Writ Petition No. 291 of 1995. We shall advert to the facts of the cases as and when necessary for specific orders, but before we do so, we propose to take a bird's eye view of the laws which speak of the maintenance of the peace and providing security to the citizens who are threatened either by anti-social elements or their personal enemies as well as those who are threatened by one or the other agency of the State including the Police itself.
3. The Act called the 'Code of Criminal Procedure, 1973' (Central Act No. 2 of 1974) which, is not in dispute, applies in respect of all offences under the Indian Penal Code as well as other laws, subject to any enactment for the time being in force, regulating the manner or place of investigation enquiring into crime or otherwise dealing with such offences in the State. The Code has broadly recognised the role of Executive Magistrates and Judicial Magistrates, the hierarchy of the investigation of the offences, subject to the provisions of the Police Acts applicable in different areas of the State and that of the Courts of Sessions. It has commanded for the appointment of the Chief Judicial Magistrate and Additional Chief Judicial Magistrate in every district, not being a metropolitan area by the High Court, as well as Special Judicial Magistrates and for the establishment of the Courts of Metropolitan Magistrates in every metropolitan area and at such places as the State Government may after consultation with the High Court by notification specify and has given the power to the High Court to appoint the Presiding Officers of such Courts. The Act is exhaustively indicative of what may be the local jurisdiction of Executive Magistrates, and the heirarchy of the Executive Magistrates being that they shall be subordinate to the Sub Divisional Magistrate in the area concerned and shall be subject to the general control of the District Magistrate. The scheme as respects the trial of the offences which has relevancy also as to who may control investigations is provided, while the High Court vested with the power to try any offence under the Indian Penal Code or any other law subject to any specific exclusion by any special law, by the Court of Session and any other Court by which such offence is shown in the First Schedule of the Code to be triable. The Code has carefully carved out the functions of the Police by defining 'cognizable offence' to mean, an offence for which, and 'cognizable case' to mean a case in which, a Police Officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant and by defining 'inquiry' to mean every inquiry other than a trial conducted by a Court or Magistrate and 'investigation' to include all the proceedings under the Code for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf, 'Judicial proceedings' is defined to include any proceeding in the course of which evidence is or may be legally taken on oath. The Code has contemplated that every person, aware of the commission of or of the intention of any other person to commit any offence punishable under various Sections of the Indian Penal Code, can inform the Police or can make complaint to a Magistrate (Judicial Magistrate) either orally or in writing. What are the powers of superior Officers of Police, when can public assist Magistrates and Police, when Police may arrest without warrant etc., and how arrest shall be made, how any place entered by person sought to be arrested shall be searched as well as search of arrested persons etc., are stated in some details in the various provisions of the Code and when it comes to preventive action by the Police and the Courts, the Court has provided for security for keeping the peace, security for good behaviour from suspected persons and security for good behaviour from habitual offenders. Two Chapters, besides the above, are devoted to maintenance of public order and tranquillity and preventive action of the Police to a State, which in nutshell, gives power to any Executive Magistrate or Officer-in-charge of a Police Station or, in the absence of such Officer-in-charge, any Police Officer, not below the rank of a Sub-Inspector, to command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; for making conditional order for removal of nuisance and further gives power to the District Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a Police Officer or other information and on taking such evidence, if any, as he thinks fit for removal of unlawful nuisance or obstruction from any public place or from any way, river or channel which is or may be lawfully used by the public, for regulation, prohibition or removal of trade articles which are injurious to the health or physical comfort of the community for prevention or stoppage of the construction of any building or the disposal of any substance which is likely to occasion conflagration or explosion, or any tree is in such a condition that it is likely to fall and thereby cause injury to the persons living or carrying on business in the neighbourhood or passing by, for fencing in such manner around any tank or well or excavation adjacent to any way or public place for preventing danger arising to the public or for destruction, confinement of disposal of any dangerous animal and in cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under Section 144 thereof and immediate prevention or speedy remedy is desirable, for such directions to any person by a written order to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety or a disturbance of the public tranquillity, or a riot, or an affray. Police is empowered to interpose, by the provisions in Chapter XI of the Code, for the purpose of preventing the commission of any cognizable offence and to arrest any person to prevent the commission of cognizable offence or to prevent any injury attempted to be committed, in his view, to any public property, moveable or immoveable, the Code has envisaged how Police shall investigate cognizable cases and what powers shall it enjoy while investigating such cases, which extends to arresting a person, subject to the condition of production of the person apprehended before the Court of the Judicial Magistrate or any such other Court which is empowered to receive any person arrested for custody.
4. The State has to reckon with three Police Acts for different areas, viz., the Andhra Pradesh (Andhra Area) District Police Act, 1859, the Andhra Pradesh (Telangana Area) District Police Act, 1329 Fasli and the Hyderabad City Police Act, 1348 Fasli which also extends to such other cities to which the Act has since been extended. Common features, however, in all these Acts are :-
(1) the superintendence of the Police is vested in the State Government throughout the State;
(2) the administration of the Police throughout the General Police District is vested in an officer to be styled the Inspector-General of Police for the Andhra area of the State of Andhra Pradesh as well as for the Telangana area (re-designated as the Director General of District Police);
(3) the Director General of Police and such other Police Officers who are empowered in this behalf shall have the powers of the Magistrate (Executive Magistrate) throughout the territory for which they are appointed such as the District Superintendent of Police shall have the power of the Executive Magistrate under the Andhra Pradesh (Andhra Area) District Police Act. Under the Andhra Pradesh (Telangana Area) District Police Act, the police administration with the local jurisdiction of the Collector of a District shall, under the general supervision and direction of such Collector of a District, be vested in the District Superintendent of Police who has the powers of the Executive Magistrate and in the city governed by the Hyderabad City Police Act, the Commissioner of Police shall have the said power. These Acts have elaborately provided for deployment of the Police force for prevention as well as, after the offence is committed, for investigation and such suitable action as the law provides for and for many other matters in which the Police has to play a positive role for prevention of crimes and investigation of cases and in doing so, the power of the Executive Magistrate is vested in the concerned Police Officer to discharge the duties of the Executive Magistrate.
5. We appreciate the anxiety of the learned single Judge who after taking notice of the activities of the petitioner in Writ Petition No. 291 of 1995 and the Government policy has rightly felt that factionists, against whom number of criminal cases pending approach this Court and invoke its extraordinary jurisdiction for issuing an appropriate Writ, directing the State to provide armed security to protect their life and observed :
'Everyday the writ admission Courts are loaded with such type of cases. These are the persons against whom criminal cases are pending. It is alleged that they take the law into their own hands. These factionists apprehending danger from the other factionists, who are also indulging in similar criminal activities, rush to this Court and invoke the extra-ordinary jurisdiction of this Court for appropriate directions. The result is that almost every factionist is in the Court asking for the protection from opponent faction group.'
6. We have every reason to reiterate that in the country governed by rule of law, no person can be deprived of his personal security, except according to procedure prescribed by law. The Constitution of India confers and guarantees certain basic rights of every human being and certain other fundamental rights on citizens. The State in discharge of its constitutional obligations is bound to protect the life and liberty of every human being. No Government can be a silent spectator and tolerate threats by one group of persons to another group of persons. The Supreme Court has in N. H. R. C. v. State of Arunachal Pradesh, : [1996]1SCR278 , the learned single Judge has also noticed, has stated;
'No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty-bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of ....... residing in the State without being inhibitted by local politics .........'
7. Any imperfection in the legal mechanics in achieving the above goal can be no excuse for the Government of the State. Political compulsions of the Government also cannot be used for extending protection to someone similarly situated and not extending such protection to another. A vigilant Government and a responsible Police force, we see no reason to think otherwise, can always ensure that those who violate laws are suitably dealt with. Those who are threatening the peace are put to bonds or apprehended in accordance with law, those who are habitual offenders are put to such securities which the laws permit and if that does not work, deal with such persons strictly in accorance with law. Problems do arise, however, when men in power tend to support one faction against the other. Whether they actually support or not, however, becomes irrelevant when security is provided to one faction and the other faction is ignored. Since we have a number of petitions before us and we have also a mention before us of the policy of the Government of the State, in respect of which learned single Judge has made observations in some details, we propose, in the instant case, to visualise ourselves situations in which the Government of the State may be required to provide security to various persons for various reasons. We see clearly that the Government of the State has to protect the constitutional functionaries, the Governor of the State, the Judges of the Courts, the Ministers who constitute the political executive of the Government and like District and Subordinate Judges, the Members of the Legislative Assembly of the State. In All India Judges' Assocn. v. Union of India, : (1993)IILLJ776SC , the Supreme Court held :
'With the inauguration of the Constitution and the separation of the State power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistent with the constitutional provisions. As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter.'
8. The State obviously has total liability and responsibility to protect all Government properties, not confined to the properties of the Government of the State, but also the properties of the Government of India, the properties of the Governments of the other States as well as public undertakings and as any loss to any such property is a loss, if caused whether it is caused by any vandalism or otherwise to the people at large the ultimate sovereign in the democratic polity. The Government can see any reasonable threat to such functionaries of the Government at the State or district level or even at lower level who are required to discharge duties which sometimes could be done in situations which endanger their person and property. They too can reasonably be failing in such category of persons, who may need the State's attention for protection and the Government may be justified in providing adequate security to such functionaries. As we have seen already, for all preventive actions as well as post offence actions, the ultimate control is vested in the Government of the State and in the police represented by the Director General of Police/Inspector General of Police and by the Police Officials in subordinate hierarchy. They are required to act whenever there is any need to prevent any likely offence to ensure that peace and public tranquillity are maintained, that all obstructions to the public are removed and they are enjoined by the law to act in such situations in the manner as prescribed. They have a duty to provide security to all persons and to their properties and to ensure the orderly flow of life in all areas whether it is the field of trade, whether it is obstruction to a public pathway, whether it is a matter causing religious disharmony or whether it is a matter when two factions or two groups of individuals are at loggerheads and if lost the sense of reason and the law. The police and the Government's reactions to all such informations have to be quick and genuine. Since it has no option as it cannot blame any other person for failings or failures of the police in preventing any unlawful activity of any person or in not taking appropriate legal action to apprehend the culprits and to punish them in accordance with law. Political interference in the administration, we would have wanted to avoid any such observation, but it has almost become a common perception, have been dividing our people in factions and have also been found using the State machinery to serve political interests. Whenever, however, any Government has chosen to use the State's machinery as a weapon to punish the political adversaries, its perpetrators have often been victims themselves when they have lost power by the use of the same weapon by the new incumbent who assumed the political power. We have received disturbing informations in course of the hearing of the instant application that there has been any number of security guards provided by the Government, just for asking to persons who are said to be close to power or who have been able to convince someone who can canvas for such favour for him or for her at the cost of the State. As we have observed earlier, there are sufficient provisions in the various laws to deal with situations of any threat to any person or persons from any other person or persons. There can be no security better than the confidence the administration can create in the society and that administration will spare no one and punish every person who is found indulging in any act of violence. The above, in our view, cannot, however, be denied unless all those who are charged by law to protect the life and liberty of law abiding people do so earnestly and truly and when they have the power to deal with any person who is indulging in any unlawful activity or committing any offence to deal with him or her effectively. A new threat perception, however, has emerged and has received serious concern which threat comes from the State to any person living on the land and particularly from the enforcers of law, including the police. Unlawful arrests by the police, torture at the police stations and even if killing someone in the custody are matters which have caused serious concern and courts have a duty to take recourse to such measures which would, on the one hand, ensure that violators of law, whether they come from the administrators or the police or from any other section of the society are legally and lawfully dealt with and on the other hand, such occurrences are prevented and avoided in all circumstances. The Court, in such a case of a threat to any person's life and of liberty at the hands of the police or any other servant or agent of the Government of the State shall be failing in discharge of its duty by not providing protection to the victims of State sponsored violence or violence perpetrated by the servants and agents of the State. The most, however, regretable part of all the happenings, in our view, is that quite a few provisions of law, which can be invoked and can effectively be used to protect violence, are not resorted to and while deciding when to provide police protection and to whom to provide police protection, care is not taken to determine on such postulations which in all circumstances should be found present to ensure that the person seeking such protection is in a real danger and danger cannot be avoided except by providing personal security or guards for the property of such a person. Public contributes by way of taxes for meeting the administrative expenses and for use of such money for the welfare of the people including development works. They do not obviously contribute their hard-earned money as a part of the revenue to the State for being expended for the purposes which do not, in any manner, appear to be reasonable or legitimate. Law, however, has taken care even for deployment of special force for protection needed in any area and to any person but has also determined that any such special treatment shall come on the basis of such reports which are credible and at the cost of such individual or individuals who demand such protection.
9. Section 13 of the Andhra Pradesh (Andhra Area) District Police Act, S. 11 of the Andhra Pradesh (Telangana Area) District Police Act and S. 9 of the Hyderabad City Police Act contemplate, inter alia, that the State Government, on the application of any person showing the necessity thereof, to appoint any additional number of police officers to keep the peace at any place within the General Police District, at charge of the person making the application, provided it shall be lawful for the person on whose application such appointment shall be made on giving one month's notice in writing to the State Government, the Director General/Inspector General of Police or Commissioner of Police of the City or Deputy Inspector General or District Superintendent of Police within their jurisdiction.
10. We are, thus, definitely of the view that there can be no mechanical order by the District Superintendent of Police, the Deputy Inspector General of Police, Inspector General of Police, Commissioner of Police of the City, Director General of Police or the State Government for security to any individual or group of individuals or for the property of any person or persons, it shall be so done only if the condition as envisaged in the above mentioned provisions of Police Acts have been found to have been satisfied and the applicant has agreed to meet the cost of additional deployment of police in the places where he has apprehended any danger to his life or to his property. The method hitherto of extending the privilege of providing security guards has been that to some the Police Superintendent of the District extended the favour, to some the superior Police Officers and to some directly the State Government. Concurrent powers are meant to be exercised with such discipline which laws demand. The only discipline which we can see which can avoid arbitrariness in grant of special favours of security to any person is to divide clearly the jurisdiction and until such division of jurisdiction is ordered to ensure that the applicant first approaches the officer at the district level and the officer at the district level make suitable order at the first instance and in case the officer at the district level has reasons not to grant the application and has rejected the same application is preferred before the higher functionaries of the police and finally if such order as the applicant has desired is not passed at the police level, application is made to the State Government. This Court's power under Art. 226 of the Constitution of India shall evidently extend to judicial review of the orders passed by the competent authorities including the State Government upon the application of any such individual or individuals and the Court, with all the self-imposed restrictions upon its power of judicial review, shall examine whether the application has been rightly rejected and if necessary suitable directions may issue.
11. Coming to the Court in situation when the Court has no version except the version of the applicant for the need for any special protection will only result in the Court asking the petitioner or the applicant to approach the competent authority at the first instance. There are, however, complaints in many cases when applications are made but they are not promptly responded to and thus before the applicant is able to get any order on the application for special protection, the threat stands executed. There are instances and reports to the said effect and there is no denial to the fact that there are some situations in which delays in making appropriate orders for protection have resulted even in killing of the person seeking protection. We do not wish to be harsh when we state curtly that no one can deny that there can be no more urgent application to be ordered than an application for protection to life and if such an application is preferred before the competent authority and response upon the same is delayed, it would only show that the authority concerned has shown no regard to life which is so valuable that the Constitution has chosen to guarantee, along with liberty under Art. 21 of the Constitution, that no one shall be deprived of life or liberty, save in accordance with the prescribed procedure of law. There shall be good reason in any case of delays by any competent authority in disposing of such applications of the applicant to make a complaint about the delay before the superior authority and even to move this Court for appropriate directions to the competent authority to act strictly in accordance with law.
12. After giving accordingly our anxious thought to the matter, we have no hesitation in concluding that there can be no pick and choose in providing security to any person and the only thing that will guide making such provisions will be the perception of threat and the duty of the Government of the State to protect the life and properties as indicated above.
13. We accordingly hold :-
(1) The State has a duty to provide necessary security to the constitutional functionaries and if there is any expense upon such security, the Government can do so out of the funds of the exchequer of the State;
(2) The Government has a duty to protect the properties of the State including the Union and other State Governments and any expenses for security of the properties of the State can legitimately be borne out of the State's exchequer;
(3) Depending upon the threat perception in respect of such statutory functionaries which are discharging duties on behalf of the State, the Government may take a policy decision and provide security to such personnel to such extent as decided by the Government and expenses for the same can legitimately be borne by the State exchequer;
(4) The State has a duty to maintain peace to ensure that the public order is not threatened and to protect the life and liberty of all persons living within the territory of the State as well as has a duty to enforce effectively such measures as laws have permitted for preventing any unlawful activity of any person or persons and the State, for such failures or failings by its servants and agents, shall be answerable to the Court as and when complaints in this behalf are made.
(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;
(6) Any person or persons, who, however, have apprehension to threat to their life or his or her property from the Government, its servants or agents, in exceptional cases, can approach the Court for suitable orders and the Court of the first instance, in our view, will be the Court of the Magistrate, who may issue necessary directions for bonds to be executed. In such cases, however, where the threat is from the police and the charge is of police excess, the party concerned can move the Court for protection;
(7) Applicant, in case his applications have been refused, can approach this Court seeking judicial review of the order of the Court with all constraints self imposed and within the bounds of rules of judicial review may examine individual cases strictly in accordance with law. Any application, however, except for judicial review in the aforesaid circumstances directly made to this Court shall not be entertainable as no cause for a mandamus by the Court shall be deemed to have been arisen if the applicant made no efforts to approach the competent authority for such security.
14. We do not propose in the instant proceeding to dilate into the question as to how the Court will view any application for protection against any overt act allegedly committed by any functionary of the State or the police more particularly when the police who are expected to enforce the law are alleged to have committed aggression or threatened the life and property of any person. The issue can well be answered only after the Court is in a position to assess whether any agency of the State or any instrument of the State is available to protect against any such apprehended violation by any force of the State or the police only when the Court has specific informations as to the nature of the threat and the personnel from whom the threat has emanated. The Court, however, shall not reject any such application at the threshold if made genuinely for good cause and examine the same as the sentinel of justice and law.
15. Reference, in our view, has to be answered as above and the applications are required to be disposed of in the light of the observations as above. Accordingly, the writ petition is disposed of. No costs.
16. Heard.
17. In view of the above, we do not think this Court shall give any direction for the protection to the petitioner's husband by any specific order unless the competent authority is approached and he, in the background of the facts as stated in the petition, decides whether to provide any protection to the petitioner and if so, to what extent and on what terms. We accordingly observe that the petitioner shall be at liberty to make appropriate application before the District Superintendent of Police, who shall consider the application in the light of the observations made by the Court, as above, and decide whether the petitioner is required to be provided with any security and if so, on what terms and conditions. The District Superintendent of Police shall make orders without delay. As we have already observed, the State has the responsibility of maintaining peace and ensuring the safety of the people at large.
18. With the observations as above, the petition is disposed of. No costs.
19. In view of the judgment above, we do not propose to entertain the instant application except to observe that it appears to be a fit case in which the District Superintendent of Police be asked to submit a report to the Court of the competent Magistrate on the allegations that the petitioner has made against Sri S. V. Sateesh Reddy, Mandal Praja Parishad President, Vempalli for appropriate action under S. 107 of the Code of Criminal Procedure. As observed by us above, the District Superintendent of Police has the duty to ensure that no one takes advantage of any position occupied by him to perpetrate any unlawful activity and in case the allegations made by the petitioner are found true, it may be said that Sri S. V. Sateesh Reddy has been unduly protected by the law, whereas the law would have proceeded against him. The District Superintendent of Police accordingly shall ensure that a report is submitted before the Court. We hope and trust the concerned Executive Magistrate shall immediately make necessary orders in accordance with law. The District Superintendent of Police shall in the mean-while ensure that the petitioner is not subjected to any violence at the hands of Sri S. V. Sateesh Reddy.
20. With the observations as above, the writ petition is disposed of.
21. Order accordingly.