Sudhir Agarwal, J.@mdashThe writ petition has arisen from the order of suspension dated 23rd July, 2009 (Annexure 5 to the writ petition) and transfer order dated 24th July, 2009 (Annexure 6 to the writ petition).
2. The brief facts relating to the matter giving rise to this writ petition have already been mentioned in my order dated 13th August, 2009. It appears that a scuffle between two persons having political patronage resulted in injuries and loss of property as a result whereof both sought to lodge first information report at the police station Sahajanwa. One of such person, who along with his supporters, caused loss to the private property of other one, sought to taken in custody by the Police.
The mob mainly consisting of his supporters, Gheraoed Police Station, attacked Police officials and thereafter also caused a road jam on National Highway, which continued for a few hours. The agitation led by local member of Legislative Assembly belong to ruling party.
3. It is alleged that under political pressure Petitioner was firstly placed under suspension and thereafter transferred.
4. Considering submissions, this Court passed following order on 13th August, 2009:
"Heard learned Counsel for the parties and also 2 perused the materials on record.
At the outset Sri Dhurva Narayana, learned Counsel for the Petitioner prays for and is allowed to make corrections in the narration of Respondent No. 5 in the writ petition as well as in the stay application during the course of the day.
Sri Dhruva Narayana assailing the order of suspension submitted that a perusal thereof shows that the Additional Superintendent of Police (Rural) has been directed to conduct a preliminary enquiry and submit his report within five days, meaning thereby that the impugned order of suspension has been made pending even a preliminary enquiry and there is no disciplinary enquiry contemplated or pending as a matter of fact. Therefore, the impugned order is wholly illegal since during the course of preliminary enquiry he could not have been placed under suspension. He further submitted that the transfer order shows that it is transferring the Petitioner, who is under suspension, though an employee one suspended, during the course of suspension, he cannot be transferred since he is not holder of a post.
It is also contended that in discharge of the official duties pursuant to the FIR against some political persons, the Petitioner went to arrest Ravindra Upadhyay, a Gram Pradhan. A mob gathered near Police Station trying to jam the road and when the Petitioner tried to protect the public property, which was being damaged by the said crowd, led by some political party, the higher authorities have chosen to first attach him in the Police Lines and thereafter he has 3 been placed under suspension vide order dated 23rd July 2009 passed by the D.I.G., Gorakhpur and simultaneously he has also been transferred by an order of the same date i.e.
23rd July 2009 of the D.I.G. (Establishment), U.P. from Gorakhpur to Badaun. It is contended that the entire episode is politically motivated and under the influence of Respondents No. 4 and 5 to victimise the Petitioner and to please Ravindra Upadhyay, who is a leader of the present ruling party.
The record shows that a mob gathered near Police Station not only pelted stones on the Police authorities but also damaged some public property and set Government properties on fire and forced closure of the nearby markets.
The public also misbehaved with the police authorities and their badges etc., were snatched.
It is really surprising that in broad day light the insurgent mob surrounded the police officers and indulged in arsoning, tearing the uniform of police officers and snatching their badges but no action or even an attempt has been shown by the higher authorities to identify the persons indulged in such activities instead a police officer, who was trying to safeguard the public and Government property, has been chosen to be transferred. It is unfortunate state of affairs that the unruly mob damaged the public/Government property and none of them was arrested and a police officer has been made the escape goat.
This Court can take judicial notice of the fact that these days such arsoning and rioting are going on increase 4 day by day. Valuable public and private property of innocent people is being damaged but instead of taking any effective action against some person or persons leading the mob and recover the loss from them, the Government authorities are sitting tight as silent spectators in such matters. It is really surprising and shocking.
Considering the entire facts and circumstances as averred in the writ petition, this Court is prima facie satisfied that the impugned orders have been passed on consideration other than the administrative purposes.
Learned standing counsel for Respondents No. 1, 2 and 3 prays for and is allowed three weeks time to file counter affidavit.
Issue notice to Respondents No. 4 & 5 returnable at an early date. Respondents No. 4 & 5 may file counter affidavit within two weeks after receiving the notice. Steps be taken by Wednesday i.e. 19.08.2009.
Considering the facts and circumstances of the case, this Court directs that the operation of the impugned order dated 23rd July 2009 and 24th July 2009 (annexures 5 and 6 to the petition) shall remain stayed until further orders of the Court.
The Respondents No. 1, 2 and 3 shall file counter affidavit specifically stating therein as to what action the State has taken or is proposing to take in such matters where the public and private property in such type of agitations is put to loss. Further, every such agitation is led by some political party or political leaders and recovery of 5 the loss can be made from those who are leading the agitation or who are sponsoring these kinds of processions thus why the same is not being done. The counter affidavit shall be filed by an Officer not below the rank of Special Secretary (Home), U.P.
List the matter on 30th September 2009."
5. Pursuant to this order, separate counter affidavits have been filed by Respondents No. 1 to 4.
6. First, I propose to come to the counter affidavit filed on behalf of Respondent No. 3, who has chosen to give reply to the facts as they were on the spot according to his information. This affidavit has been sworn by Sri Maya Ram Verma, Circle Officer, Campier Ganj, Gorakhpur on behalf of Deputy Inspector General of Police, District Gorakhpur. It says that on 27th June, 2009 in the morning, Ravindra Kumar Upadhyay, Gram Pradhan of Village Jagdishpur (elected in 2005) while attempting to dig soil under Jamun trees of Bali Ram Upadhyay, entered in a quarrel causing damage of two Maruti Vans of Bali Ram Upadhyay by the supporters of Sri Ravindra Kumar Upadhyay, and some bolily injuries to Ravindra Kumar Upadhyay.
7. Sri Ravindra Kumar Upadhyay said to reach police station between 9:00 to 10 A.M. where Circle Officer, Campierganj and SubDivisional Magistrate, Sahjanwa, both were present, being Tehsil Diwas. The family members of Ravindra Kumar Upadhyay requested the Petitioner, Station Officer, Police Station Sahjanwa to register report but they were advised to first take Ravindra Kumar Upadhyay for medical treatment since the report could be registered at any time. When these persons had gone to 6 Primary Health Centre for medical treatment, in the meantime, Sri Bali Ram Upadhyay along with one woman came to Police Station and complained about plundering of his house by some people whereof the Petitioner observed that it must have been done by Gram Pradhan and sent one Shailendra Rai, Sub Inspector along with four constables to village Jagdishpur but they informed that none was present there. The Petitioner became angry, got Ravindra Kumar Upadhyay brought to police station, and thereafter beat him mercilessly and also placed him in lock up. Sri Ravindra Kumar Upadhyay received serious head injury and cut in his hand. In the meantime, Sri Yashpal Rawat, M.L.A. of the area also reached. He intercepted the Petitioner stating that he cannot beat a representative of the people. The Petitioner thereafter left police station by his jeep. However, on the rumour spread in the public that M.L.A. of the area was misbehaved by Station Officer, people gathered, blocked the traffic, created a road jam. Senior officials came to spot and pacified angry people.
8. In support of these averments report dated 18.7.2009 of Ram Soch Ram, Deputy Inspector of Police, Pragyan (Local Intelligence Unit) Gorakhpur is relied (Annexure C.A.1 to the counter affidavit). It is also said that report lodged by Bali Ram Upadhyay was registered as Criminal Case No. 1220 of 2009 under Sections 147, 148, 323, 504, 506, 336, 452, 427 I.P.C.
read with Section 7 of Criminal Law Amendment Act against Ravindra Kumar Upadhyay and 6 others. After investigation charge sheet dated 22nd August, 2009 under Sections 323, 504, 506, 427 I.P.C. has been sent to the Court where it is pending.
9. Further F.I.R. lodged by Ravindra Kumar Upadhyay was 7 registered as Criminal Case No. 1220A of 2009 under Sections 395 and 397 of I.P.C. against Bali Ram Upadhyay and 5 others.
After investigation a charge sheet dated 03.09.2009 under Sections 147, 148, 323, 504 and 506 I.P.C. has been submitted in trial Court where it is pending.
10. There is a third first information report being Criminal Case No. 1221 of 2009 under Sections 147, 148, 336, 332, 353, 341, 504, 507, 427 IPC and Section 7 of Criminal Law Amendment Act registered against 3040 unnamed persons which is under investigation.
11. It is said that on account of the Petitioner''s handling of situation in an illegal manner, law and order situation arises and it is for this reason suspension and transfer of the Petitioner took place. The order of suspension was passed by Respondent No. 3 on 23rd July, 2009. On the same day his transfer was recommended by him which was given effect to by the Respondent No. 2 on the same date (a copy whereof had filed as Annexure C.A.5 to the counter affidavit).
12. The Respondent No. 2 has basically tried to justify the order passed by him and therefore has referred to the recommendation dated 23rd July, 2009 of Respondent No. 3 for transferring Petitioner. It also shows that after 27th June, 2009 another Dharna Pradarshan was observed under the austiseas of Rashtriya Panchayati Raj Sangathan on 2nd July, 2009 before the office of District Magistrate.
13. In order to reply the queries made by this Court with respect to frequent road jam, damage of public properties by the people led by political party and political leaders, the 8 Respondent No. 1 has filed counter affidavit referring to the provisions of "Prevention of Damage to Public Property Act, 1984" (hereinafter referred to "1984 Act") and certain guidelines laid down by the Hon''ble Apex Court in the case of
have been launched whereagainst 11 have been decided, 8 conviction and 3 acquittal. A chart in this regard has been filed as Annexure C.A.2 to this counter affidavit.
14. Then comes a detailed counter counter affidavit filed by Sri Yashpal Singh Rawat, M.L.A., Son of Sharda Prasad Rawat, former Minister in Uttar Pradesh Cabinet. He has also reiterated to some extent the story narrated in the affidavit filed on behalf of Respondent No. 3. In para 9 he said that he was also misbehaved by Petitioner who torn his clothes as a result whereof the public blocked the road. It is interesting to note that this paragraph has been sworn on the basis of record. The injury report of Ravindra Kumar Upadhyay, Gram Pradhan has been filed as Annexure 3 to the counter affidavit. He has also filed certain newspaper reports which shows that the G.D. of Police Station torn by mob. They also beat police constables. It also 9 shows that there was serious altercation between the two groups led by Ravindra Kumar Upadhyay and Bali Ram Upadhyay.
There was a manhandling, beating causing injury, and loss of property. He says that he does not belong to ruling party but was elected as an independent candidate from Sahjanwa constituency.
15. It is also said that one Ajimullah, a Class III employee of Medical College, Gorakhpur had filed an application u/s 156(3) Code of Criminal Procedure before the Judicial Magistrate for lodging a report against the Petitioner while he was posted as SubInspector Police Station Gulhariya, Gorakhpur. The Petitioner is habitual of the kind of illegal activities he has shown on 27th June, 2009, hence there was nothing wrong in his suspension and transfer order.
16. The reply of the Respondents No. 3 and 4 has been contradicted by the Petitioner by filing a detailed rejoinder affidavit in respect to the allegations made against the Petitioner for beating Ravindra Kumar Upadhyay, Gram Pradhan. It is said that no report has been lodged by Ravindra Kumar Upadhyay Gram Pradhan against Petitioner even after his transfer and suspension though the Petitioner handed over charge. In the report lodged by Ravindra Kumar Upadhyay on 28th June, 2009, at 12.10 P.M. by which the Petitioner had already handed over charge of the police station, there is nothing against Petitioner which shows that whatever has been said against Petitioner about alleged ill treatment of Ravindra Kumar Upadhyay, has no basis. So far as report of Deputy Superintendent of Police, Local Intelligence Unit is concerned, the Petitioner has placed on record a copy of subsequent report of November, 2009 10 submitted by Sri R.P. Pandey, Superintendent of Police, Rural, Gorakhpur wherein he found complaint against Petitioner, false and incorrect. For loss of public property, road jam etc. on the part of Ravindra Kumar Upadhyay as well as local M.L.A. Sri Yash Pal Yadav and their supporters he found them responsible.
17. Whether the aforesaid reports are correct or not, is a subject matter of investigation. In this case the legality of transfer and suspension order is basically concerned. Besides other, one of the question, if a police officer try to control breach of peace, is it open to a people''s representative to create hindrance in the functioning of the police and in furtherance thereof cause damage to public property, interruption of free flow of traffic on public road and highways, attack and damage to property in a police station and thereby to go scot free by exercising their political power and influence by getting the police officials either suspended or transferred.
18. It is in this context and also taking note of such kind of activities frequently being observed, of which a judicial cognizance has been taken, which is also resulting in lowering morale of Police Force in the State, causing serious apprehension of security and safety of public at large, hence the order dated 13.08.2009 was passed seeking information from Respondents No. 1 to 3. Whatever they have supplied is really disturbing and shows virtually a total omission/failure on the part of the State Government and its authorities in evolving and finding out effective checks and measures to counter such activities and also to take deterrent steps against the erring people.
19. The Parliament''s enactment came 26 years back but 11 despite repeated and frequent activities almost every second day we read in media, only 585 prosecutions could have been launched and thereto merely 11 have been decided, meaning thereby it comes to less than half a case per year. Further in the past 26 years, only 8 convictions have taken place.
20. To prevent such activities and to punish guilty persons, Parliament intervened by enacting 1984 Act with an intention to provide deterrent punishment to the guilty persons. However, this Act appears to have remained more on statute book than in practice. Very regularly, we come across activities of damage to public property in the hands of unruly mob, processionists, agitationists etc.. They depicts their action as if it is something very heroic or laudable without having even a dint of fear or apprehension that this may cause serious action against them.
Complete apathy on the part of law enforcement machinery fortify their confidence since actual action is normally missing in all these matters.
21. Police merely complete paper work by registering a report sometimes, and that too against unnamed/unknown persons, even if the processionists or agitationists are sponsored or led by well known political parties and/or political persons.
22. This menace when reached its heights, the Apex Court intervened and that too in vacations by suo moto taking notice in public interest and passed an order on 5rd June, 2007 reported in 2007(4) SCC 474 (Destruction of Public & Private Properties, In Re) which reads as under:
"1. It has come to our notice that in the last one week there has been largescale destruction of public and private 12 properties and no preventive action appears to have been taken and unfortunately it does not prima facie appear that any action has been taken against the offenders who were responsible for destruction of such properties. As the electronic media shows, the offenders feel that they have done some very heroic or laudable thing because they show their beaming faces when the TV camera is focused on them.
2. At our request, Dr. Rajeev Dhavan, Senior Advocate, present in Court, has agreed to assist this Court as an amicus curiae. Dr. Dhavan may ask the TV channels concerned to provide the footage of the telecasts to the police authorities as also to him so that appropriate orders can be passed in the matter. Dr. Dhavan submitted that even if there may be a right to protest in some cases, that does not give licence to anybody to destroy properties and/or indulge in acts of vandalism.
3. We direct the Director Generals of Police of the States of Harayana, Rajasthan and Uttar Pradesh and the Commissioner of Police, Delhi to file affidavits in this Court as to what actions have been taken and/or are proposed to be taken against the offenders. The affidavits shall also indicate if no action has been taken as yet, and the cause therefor. The affidavits shall be filed within 10 days from today.
4. The matter shall be listed on 1862007."
23. Later on, the Apex Court constituted two Committees one headed by retired Judge Hon''ble K.T. Thomas and another by well known jurist Mr. F.S. Nariman, Senior Advocate.
24. The reports of the aforesaid committees were considered by the Court. The matter was disposed of vide judgment dated 16th April, 2009 [reported in
In para 29 of the judgment, Court said that the guidelines laid down therein shall be observed and the same would ceased to be operative as and when appropriate legislation consistent with the guidelines indicated above are put in place and/or any fast track mechanism is created by the statute(s).
25. We have already seen, the State of U.P. through its Director General of Police was a party in the aforesaid public interest litigation. Unfortunately these guidelines have also remained on paper in this State. The State Government though appears completed formality by issuing only a Government Order dated 3rd November, 2009 directing Director General of Police U.P., Lucknow to inform all Superintendent of Police and other Field Officers about the guidelines issued by Apex Court. A copy of the judgment was appended with the said Government Order.
What were the guidelines, in what manner the same ought to be observed, how to be observed, and in case of failure, whether any deterrent steps would be taken against the erring official etc., nothing was stated. The reply submitted by Respondent No. 1 does not show that in turn the Director General of Police issued any consequential order/circular to subordinate officers, responsible for maintaining law and order in the State and if issued, in what manner they were instructed and guided. The apathy and lack of sincerity in dealing with this kind of menace is evident from the own document shown by the Respondent 14 No. 1 (Annexure C.A.2), wherein it has shown that in the last 26 years, after the enactment of 1984 Act, only 585 cases have been filed throughout the State and that too only 11 thereof have been decided so far. No further details have been given as to when these cases were initiated, whether the delay in disposal is attributable to the prosecution or to the judiciary or for any other reason.
26. Considering number of such incidents regularly being faced by the people of this State, number of cases mentioned in Annexure C.A.2 is nothing but a small boulder out of an entire hill. Every day, somewhere in the State, public property is mercilessly damaged by unsocial, unruly collection of persons, mainly under patronage of persons having some kind of political patronage/affinity. We have seen sometime similar kind of demonstration by even highly qualified professionals collected together like doctors, lawyers in District Courts and even in High Court etc. It appears that everybody believe that public property has no custodian. It is like an orphan. It is the birthright to destruct and damage it in a manner they like without any sense of responsibility, apprehension of adverse action, and feeling of duty and obligation to the nation whose property they are destroying. What is more disturbing is that law enforcement machinery mostly is a silent spectator watching destruction of public property. They normally react to clean and clear the spot after everything is over. If and where, they show some sense of duty by taking steps for prevention, the administrative wrath fall back upon them. The erring groups try to justify their action by blaming and taking recourse to such activities of enforcement machinery. The administration 15 ordinarily, to pacify the things, prefer to refrain itself from taking action against the rioters and antisocial elements who have committed this national crime.
27. Public property is nothing but investment of people''s money, i.e. money spent by Government from the funds it has collected in the form of taxes out of hard earned money of the citizens and people of India. Such funds cannot be allowed to be vested without corresponding liability of the person(s) responsible for such damage. May be insufficient, but a legislation exists in the form of 1984 Act. Further, directions are in operation in the form of the Apex Court''s judgment yet nobody in the Government has bothered to follow the same and take appropriate action accordingly by taking real meaningful steps.
28. The reason, it appear is that mainly the political leaders and parties led these kind of activities. Therefore, it is lack of political will which is being carried out by Executive of the State. This is nothing but a complete failure on the part of Executive in observance of its constitutional and statutory obligations. I do not propose to make a further detailed observations at this stage since it would be appropriate first to direct the Respondent No. 1 to file a proper affidavit giving details of some more information and their stand as also tentative suggestion which this Court feels to issue for future action.
29. Keeping in mind practicability in such matters, tentatively, this Court is of the view that certain directions further be issued.
Respondent No. 1 is called upon to file its affidavit, sworn by 16 Secretary (Home) himself placing stand of the Government on these directions.
(i) As and when any incident of damage to public property takes place, if such agitation/procession etc. has been called at the invitation or instance of a political party or a sitting or former people''s representative, report shall be registered by concerned police station against such political party/person by name. Similar would be the action if such loss is caused by any other identifiable person or group.
(ii) The damage suffered to public property shall be assessed, the concerned department, local body, public corporation etc., i.e., the owner of the property shall file a claim for realization of such amount from the political parties/persons, as directed above, before the Competent Authority, as nominated by the Government in this regard, within next seven days.
(iii) It will be open to any person in the area where such public property is damaged to approach the Competent Authority, as nominated above, for assessment of loss of the public property and realization from the person concerned in case no such action, as directed above, is taken by the authorities. Such application shall be attended by the Competent Authority as if filed by the authority whose public property is damaged but the amount of money, if any, awarded and realized from the responsible persons, shall be furnished to the concerned Department/ Authorities to which the lost/damaged 17 public property belong.
(iv) After giving an opportunity of hearing to the concerned persons, Competent Authority shall pass appropriate order within next 30 days. In case it is found that persons, against whom such claim is filed, were responsible for the said loss, the amount assessed and awarded by such Competent Authority shall be realized, if not paid on its own by the person responsible within such time as directed by such authority, as arrears of land revenue. A certificate to this effect shall be issued and sent by the competent authority to the concerned District Magistrate.
(v) For the above purpose, i.e. item (ii)and (iii), the State Government shall nominate an Officer not below the rank of an Additional District Magistrate in every District.
(vi) If the authorities responsible for taking steps, as directed above, failed to observe their duties within the specified time, it shall be treated to be a misconduct justifying disciplinary action.
(vii) Failure to take preventive and deterrent action shall be treated failure of discharge of duties on the part of Station Incharge of the area concerned at the first instance, and, simultaneously the Circle Officer as well as Superintendent of Police/DIG of the District shall also be responsible for lack of supervisory duties. It shall amount to misconduct under the Rules justifying disciplinary action in this regard.
(viii) If agitations and the loss of public property is recorded on camera by print or electronic media, they shall assist 18 Police by providing one copy of the byte /negative of the film/ photographs etc., as the case may be, or in whatever form it is, so that it may be utilized as evidence in criminal case registered and to be investigated by police.
(ix) The police shall register cases as far as possible mentioning names of the persons, if agitations, processions etc.; resulting in loss to public property are participated by the people''s representative or political persons whose identity is well known.
(x) The Police shall ensure to invoke provisions of 1984 Act without fail, wherever applicable.
(xi) Regarding punishment etc., the Apex Court has taken the view that maximum punishment shall be imposed. For a lenient view, reasons shall be assigned. The Apex Court''s decision laying down various guidelines shall be processed. The relevant guidelines relating to Executive and Judiciary shall be communicated to the concerned authorities as well as the Courts by the Government as well as High Court, as the case may be.
(xii) The Government shall also ensure that criminal cases, in which senior officers of the Government, holding Class I posts or above i.e. the members of State Services or All India Services are involved, they shall be prosecuted without avoidable delay. The sanctions, if any required, shall be decided within one month from the date of receipt of the letter from the concerned authority.
(xiii) The trial shall be given top priority. In this regard, all possible steps shall be taken by requesting the concerned 19 Courts to expedite trial in such matters.
(xiv) Similar steps shall also be taken for expeditious disposal of criminal trials against political persons in particular involving elected people''s representative(s) since it is in the interest of public at large that the question of blot, if any, on their conduct and character be adjudicated at the earliest. If they are clean, their record should become straight at the earliest; and, if they are really culprit, they should be punished at the earliest so that they may not be able to further misuse their position on account of mere pendency of trials.
(xv) Investigation, inquiry in criminal matters whether pending with Civil Police or C.B.C.I.D. or with any other agency of the Government, shall be concluded in a time bound manner; and for this purpose, a proper scheme shall be submitted by the Government.
(xvi) The State Government shall constitute a high powered monitoring committee consisting of Principal Secretary (Law)/ Legal Remembrancer, Government of U.P, Lucknow as Chairman and two members, i.e. Director General of Police, U.P., Lucknow and one Officer from Home Department Government of U.P., Lucknow, not below the rank of Special Secretary as Members. The District Magistrate and S.P./ S.S.P./D.I.G. of the concerned district shall submit a monthly report to the high powered committee by 10th of the succeeding month.
(xvii) The aforesaid high powered monitoring committee shall review the reports received from various districts every 20 month and take appropriate steps if it finds anything wanting and in case it finds any lapses on the part of some Officer(s)/authorities it shall recommend appropriate action against the officer(s)/authorities who shall proceed accordingly without fail.
30. The Respondent No. 1 shall also give the following informations in the affidavit:
(i) In the last ten years how many incidents of loss of public property have been registered in the State.
(ii) What is the total quantum of money which has been lost in those incidents.
(iii) What is the present status of investigation/inquiry in such matters made by Police or other agencies. If any inquiry or investigation is pending for more than one year, the reason for such delay shall be given.
(iv) In respect of 585 prosecutions, which have been mentioned in Annexure C.A.2 of the counter affidavit of Respondent No. 1, he shall give details of the period of those prosecutions, present status of trial; and the reasons for delay, if the trial is pending for more than two years.
31. List this matter on 21st December, 2010 by which date the Respondent No. 1 shall positively file affidavit, as directed above, failing which he shall appear in person before this Court.
