G SUBAS REDDY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(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.