# Raj Prakash v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1219
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-10-14
- **Case number:** Civil Misc. Writ Petition No. 40344 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-prakash-v-state-of-u-p-and-others-41947
- **Pages:** 12

## Headnote

Constitution of India, Article 226- "U.P.
Police an organized Gang of Dacoits"-
observation of Apex Court fully proved in
case in hand-in mid night-searching the
Fire Arm of petitioner without any
authority of law-to justify their misdeed
got registered so many false criminal
cases-Police
Officer
of
District
in
question being uncontrolled can do any
legal nor illegal activities-District Police
Officer
failed
to
check
them-taking
possession
of
weapon
of
petitioner
wholly arbitrary illegal-chief Secretary to
take disciplinary action against S.O.-
Petition allowed with cost of Rs.50,000

Held: Para 37

In view of the above, I have no manner
of doubt in declaring action of taking
away of petitioner's firearm licence and
weapon by respondent No.4 to be wholly
illegal
and
arbitrary.
However,
considering the above discussion, the
writ petition is disposed of with the
following directions:

A. Chief Secretary, U.P. Lucknow
shall look into the matter and find out
involvement, dereliction and collusion of
various
officials
of
District
Police,
Ghaziabad and thereafter shall take such
departmental
and
other
action
as
provided in law within a period of three
months and submit a progress report to
this Court.

B. The petitioner shall be entitled to
cost,
exemplary
in
nature,
for
harassment and illegal action of the
respondents to which he has made to
suffer, which I quantify to Rs.50,000/-.
The aforesaid cost at the first instance
shall be paid by respondent No.1 but it
shall be at liberty to recover the same
from the officials concerned who are
responsible after making such enquiry as
directed above and provided in law.

C. This case shall be listed in the
first week of February, 2012 only for the
purpose of considering progress report
as directed above but otherwise it stands
disposed of.
Case law discussed:
(1991) 4 SCC 406; (1980) 3 SCC 526; (1995) 3
SCC 757; (2004) 5 SCC 26

## Text

3 All] Raj Prakash V. State of U.P. and others
1219
respondent no. 2 rejecting the claim of the
petitioner for compassionate appointment,
cannot be sustained and is hereby
quashed.

15. Writ petition stands allowed
with the direction to the respondents to
consider the claim of the petitioner for
grant
of
compassionate
appointment
expeditiously,
preferably
within
two
months from the date of production of a
certified copy of this order before him.

16. However, in the facts and
circumstances, there shall be no order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 40344 of 2011

Raj Prakash

 ...Petitioner
Versus
State Of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.V. Singh
Sri S.L. Singh

Counsel for the respondents:
C.S.C.

Constitution of India, Article 226- "U.P.
Police an organized Gang of Dacoits"-
observation of Apex Court fully proved in
case in hand-in mid night-searching the
Fire Arm of petitioner without any
authority of law-to justify their misdeed
got registered so many false criminal
cases-Police
Officer
of
District
in
question being uncontrolled can do any
legal nor illegal activities-District Police
Officer
failed
to
check
them-taking
possession
of
weapon
of
petitioner
wholly arbitrary illegal-chief Secretary to
take disciplinary action against S.O.-
Petition allowed with cost of Rs.50,000

Held: Para 37

In view of the above, I have no manner
of doubt in declaring action of taking
away of petitioner's firearm licence and
weapon by respondent No.4 to be wholly
illegal
and
arbitrary.
However,
considering the above discussion, the
writ petition is disposed of with the
following directions:

A. Chief Secretary, U.P. Lucknow
shall look into the matter and find out
involvement, dereliction and collusion of
various
officials
of
District
Police,
Ghaziabad and thereafter shall take such
departmental
and
other
action
as
provided in law within a period of three
months and submit a progress report to
this Court.

B. The petitioner shall be entitled to
cost,
exemplary
in
nature,
for
harassment and illegal action of the
respondents to which he has made to
suffer, which I quantify to Rs.50,000/-.
The aforesaid cost at the first instance
shall be paid by respondent No.1 but it
shall be at liberty to recover the same
from the officials concerned who are
responsible after making such enquiry as
directed above and provided in law.

C. This case shall be listed in the
first week of February, 2012 only for the
purpose of considering progress report
as directed above but otherwise it stands
disposed of.
Case law discussed:
(1991) 4 SCC 406; (1980) 3 SCC 526; (1995) 3
SCC 757; (2004) 5 SCC 26

(Delivered by Hon'ble Sudhir Agarwal, J. )

1. Police is Police. None can police
the Police. It can make wonders and
miracles. Hardened criminals can be
1220 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
shown totally innocent. Similarly, totally
innocent, honest and simple person may
be depicted a hard core criminal. It can
terminate hardened criminals in the name
of encounter in the same manner as it can
do by terminating a poor innocent person
in the garb of encounter. It is for this
reason at one point of time, i.e. about
three decades ago, Apex Court (Hon'ble
V.R. Krishna Iyer, J.) had observed:

"Who can police the Police."

2. We all have no manner of doubt
that Police constitute real backbone of
State's police power to maintain law and
order but it is possible only when the
agency work with real devotion and
honesty to its constitutional and legal
obligation instead of satisfying its petty
materialistic demands. The case in hand is
a real illustration to remind the off quoted
statement of a very learned Judge of this
Court long back that "U.P. Police is an
organized gang of dacoits, ..." though, the
said observation was later on expunged. It
appears that fact remains despite paper
expunction.

3. I do not intend to condemn entire
police force of the State but unfortunately
the manner in which hierarchy from lower
to highest has shown its apathy to correct
erring officials and on the contrary their
darity to go to the extent of supporting
erring officials by even manufacturing
documents has really surprised this Court.

4. The real complaint of the
petitioner was so simple that it ought to
have been redressed by the District Chief
of Police, but not only it has travelled to
this Court but in the zeal of justifying an
admitted illegal action, the respondents
have gone to the extent of preparing
documents sometimes with back-dates
making
things
more
serious
and
complicated leaving no option to the
Court but to place on record its anguish.

5. The petitioner Raj Prakash came
to this Court raising his grievance that his
firearm licence and weapon have been
taken away by respondent No.4 in the
night of 12/13 July, 2011 illegally and
despite
his
complaint
to
Senior
Superintendent of Police, Ghaziabad,
respondent No.3 vide application dated
15.07.2011, none has shown any interest
to redress his grievance. The petitioner
also sent copies of letter dated 15th July,
2011 to Director General of Police, U.P.,
Chief Minister, U.P. besides others. The
petitioner apprehended and may be rightly
that his weapon, took away illegally by
respondent No.4, may be used for
committing some crime and thereby to
implicate the petitioner falsely therein. In
such circumstances, he had no alternative
but to approach this Court.

6. The brief facts the petitioner
disclosed in the writ petition are that he is
residing in outskirts of Village Niwari in
the vicinity of his agricultural property
District Ghaziabad. He possessed a
firearm licence No.194/August, 2010
which was granted on 23rd August, 2010
by District Magistrate, Ghaziabad. The
petitioner also possessed a firearm namely
Revolver 0.32 bore purchased by him
from Fieldgun Factory on 02.02.2011
which was endorsed on the aforesaid
licence.

7. At about 11.30 P.M. in the night
of 12/13 June, 2011 when the petitioner
was sleeping with his family, Sri Om
Prakash Singh, Station House Officer,
P.S. Niwari, District Ghaziabad came to
3 All] Raj Prakash V. State of U.P. and others
1221
his house along with police party and
knocked the door. The petitioner owing to
late night refused to open the door. The
respondent No.4 threatened to break open
the door forcibly as a result whereof
petitioner opened the door of his house.
The police people thereupon abused and
beat the petitioner and directed to show
his weapon and firearm licence. When
shown, the same were taken by the Police
headed by respondent no.4 and petitioner
was directed to come to the Police Station
next day.

8. On 13th July, 2011, when
petitioner went to the police station,
respondent No.4 gave him receipt of
deposit of his weapon and firearm licence
along with 12 cartridges. No reason was
assigned by respondent No.4 as to how
and under what authority he had taken
away firearm licence and weapon and has
been deposited with the police.

9. When the two things were not
returned, petitioner made a complaint to
respondent No.3 and a copy of complaint
was endorsed to Home Minister, Chief
Minister of the State as also Director
General of Police but in vague. The writ
petition was filed in the Registry on 19th
July, 2011 and it was taken up on 21st
July, 2011. This Court required learned
Standing Counsel to explain under what
authority firearm licence and weapon
were taken away by respondent No.4 and
kept in police custody.

10. Learned Standing Counsel
sought a short time to seek instructions
and the matter was fixed for 26th July,
2011. On that day, learned Standing
Counsel made a statement that firearm
licence and weapon was taken away by
respondent No.4 entering the petitioner's
house and he also could not dispute that
this action of respondent No.4 was illegal
and unauthorized. He seeks a short time to
file affidavit explaining relevant facts.
This Court in the circumstances passed
following order:

"Pursuant to this court's order dated
21.7.2011, learned Standing Counsel
after receiving instructions admitted that
respondent no.4 S.H.O. Om Prakash
Singh admittedly entered the petitioner's
residence and took away his fire arm and
license, etc. He also could not dispute that
the aforesaid action of the S.H.O. was
illegal and unauthorized. He further prays
for and is allowed three days time to file
an affidavit explaining these facts. He
also stated that the fire arm and the
license which were taken away from the
petitioner have been returned to him,
which fact has not been disputed by
petitioner.

As prayed, put up this matter on
Monday.

A copy of this order shall be made
available to learned Standing Counsel
today itself for communication to the
respondent."

11. A counter affidavit sworn by one
Nirankar
Singh,
Circle
Officer,
Modinagar, District Ghaziabad was filed.
It tried to stress upon the fact that
petitioner has a long criminal history and
several criminal cases are pending against
him. Paras 7, 12 and 13 of the counter
affidavit read as under:

"7. That it is relevant to mention here
that petitioner is criminal in nature and
many F.I.R. have been lodged against the
1222 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
petitioner and Criminal cases are pending
against the petitioner.

12. That the contents of paragraph
No.5 of the writ petition are not admitted
as stated, hence denied. It is submitted
that there are Eight cases are registered
against the petitioner which are as
under:-

i. Case Crime No. 114/89 under
Section 307 I.P.C. at Police Station
Niwari.

ii. Case Crime No. 93/90 under
Section 147/148/149/307 I.P.C. at Police
Station Niwari.

iii. Case Crime No. 33/92 under
Section 356 I.P.C. at Police Station
Sihane Gate.

iv. Case Crime No. 13/92 under
Section 2/3 of Gangster Act at Police
Station Niwari.

v. Case Crime No. 22/92 under
Section 110 Cr.P.C. at Police Station
Niwari.

vi. Case Crime No. 46/96 under
Section 3/1 of U.P. Gunda Act at Police
Station Niwari.

vii. Case Crime No. 38/96 under
Section 323/504 I.P.C. at Police Station
Niwari.

viii. Case Crime No. 64/2000 under
Section 3/1 of Gunda Act at Police Station
Niwari.

13. That the contents of paragraph
Nos.6 & 7 of the writ petition are not
admitted as stated, hence denied. It is
submitted that petitioner is a criminal and
many criminal cases are pending against
him. It is further submitted that petitioner
has obtained the Fire Arm Licence by
concealing the material fact and mislead
the authority concerned."

12. It also said that two complaints
were received against petitioner lodged
one by Sukkhan Khan, S/o Kale Khan,
R/o Ward No.5, Kasba & P.S. Niwari,
District Ghaziabad and another by one
Guruved S/o Om Pal Singh R/o Village &
Post
-Paugi,
P.S.
Niwari,
District
Ghaziabad alleging that petitioner had
threatened them to kill. These complaints
were registered at P.S. Niwari, and,
respondent No.4 went for investigation at
11 a.m. on 13th July, 2011 to the house of
petitioner for inquiry and took away
firearm and licence which were deposited
in Malkhana at 4.00 P.M. on 13th July,
2011.

13. The above counter affidavit was
controverted by petitioner in his rejoinder
affidavit. He pointed out that neither on
the date when respondent No.4 visited
petitioner's house nor on the date when
counter affidavit was filed, nor even on
the date when firearm licence was granted
to the petitioner, any criminal case was
pending for investigation or trial against
him. In respect to 8 cases referred to in
para 19 of counter affidavit, petitioner
stated that six have already resulted in
acquittal long back vide court's judgments
dated 16.7.1993, 16.6.1995, 23.7.1997,
19.4.1999 and 13.6.2003. With respect to
alleged complaints of Sri Guruved and
Sukkhan Khan, petitioner said that
Guruved S/o Om Pal Singh has given an
affidavit that he did not make any
complaint on 13th July, 2011 to the police
as alleged in counter affidavit and in
3 All] Raj Prakash V. State of U.P. and others
1223
respect to Sukkhan Khan, petitioner filed
a copy of voter list showing that no such
person is residing in ward No.5 at all. He,
therefore, contended that both these
documents i.e. Annexure C.A.3 and 4 are
forged and fictitious. He reiterated that
firearm licence and weapon both were
taken away by respondent no.4 in the
night of 12/13th July, 2011 when he
visited petitioner's house at around 11.30
p.m. and receipt was handed over on the
next date i.e. 13th July, 2011 when the
petitioner along with some other villagers
went to police station.

14. This Court initially was not
inclined to go into the question of
culpability or whether the petitioner is a
history-sheeter or not but simply wanted
to know whether respondent No.4, in law,
was authorized to take away firearm along
with licence from lawful possession of a
person concerned without there being any
order
of
the
District
Magistrate
suspending the licence or directing for
surrender of firearm or any other such
order by the competent authority or when
it was not seized as a case property under
Code of Criminal Procedure. The court
also wanted to know that firearm, if as
stated in the counter affidavit, was taken
in custody by respondent No.4 pursuant to
an investigation made in the two alleged
complaints of Sri Sukkhan Khan and
Guruved, when he visited petitioner's
house at 11 a.m. on 13th July, 2011, why
it remained with him for almost five hours
and could be deposited in Malkhana only
in the evening around 4 p.m.

15. The learned Standing Counsel,
when not able to reply above queries,
sought time. This Court thus passed
following order on 1st August, 2011:

"Learned Standing Counsel admitted
that firearm of the petitioner was taken
away by respondent No.4 and was kept in
Malkhana but he could not tell under
which provision and what authority it was
seized or taken away by respondent No.4.
He also could not tell whether for this
illegal
and
unauthorized
act
of
respondent No.4, any action was taken by
respondent No.1 and 3.

As requested, put up day after
tomorrow i.e. 03.08.2011 to enable him to
seek instructions in the matter."

16. A supplementary counter
affidavit sworn by Nirankar Singh, Circle
Officer, Modinagar, District Ghaziabad
on 2nd August, 2011 at 6.10 p.m. was
filed. He appended two letters/orders of
S.S.P. Ghaziabad. One is dated 14th July,
2011 said to have been issued by
respondent No.3 directing Sri Ajay
Kumar, S.P., Rural, Ghaziabad to hold a
preliminary enquiry against illegal action
of respondent No.4 of seizure of firearm
and licence without any authority and
submit report within five days. The
second is the letter dated 1st August, 2011
whereby Sri Om Prakash Singh, Sub
Inspector, Civil Police, S.H.O. Niwari,
was placed under suspension under Rule
17(1)(a) of U.P. Police Officer of
Subordinate Rank (Punishment & Appeal)
Rules 1991 on the allegation of taken
custody of firearm licence of petitioner
without any reason. The endorsement No.
4 to the said suspension order is to S.P.,
Rural with reference to respondent No.3's
letter dated 14th July, 2011 directing him
to submit preliminary enquiry report
within three days.

17. This matter was heard by Court
for some time on 5th August, 2011 and
1224 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
this Court prima facie found that counter
affidavit filed by Sri Nirankar Singh,
Circle Officer on behalf of respondents
No.3 and 4 apparently contains false
averments. The documents appended in
the counter affidavit on one hand show
that alleged complaint of Sukkhan Khan
refers to the threat allegedly extended by
the petitioner at 11 a.m. on 13th July,
2011 near Holi Chowk and at the same
time respondent No.4 had claimed that
after
receiving
this
complaint,
he
proceeded for enquiry at 11 a.m. on 13th
July, 2011. When the incident itself
alleged to have taken place at 11 a.m. at
some distance, it was wholly impossible
that
simultaneously
after
recording
complaint, respondent No.4 could have or
would
have
proceeded
for
investigation/enquiry in the matter at the
same time i.e. 11 a.m. on 13th July, 2011
and to this extent the police record i.e.
Rawangi and complaint both could not
have been correct.

18. Besides, in respect to old
criminal cases, counter affidavit said that
they are pending while six out of eight
resulted in acquittal several years back
and two cases were not connected to the
petitioner yet it was stated in the counter
affidavit as if all these matters are still
pending and petitioner is facing those
criminal
cases.
The
court
required
respondents as also the deponent of
counter affidavit to explain these apparent
inconsistencies in the counter affidavit
which demonstrates that counter affidavit
contained false statements.

19. Three affidavits thereafter have
been filed; one is an affidavit dated 10th
August, 2011 of Om Prakash Singh, the
then Station House Officer, P.S. Niwari,
District Ghaziabad respondent No.4 in
which
he
had
reiterated
the facts
regarding alleged complaints of Sukkhan
Khan and Gurved as also his visit of
petitioner's house at 11 a.m. on 13th July,
2011. Nothing has been explained by him
about the long time weapon remained
with him without any authority. He has
tried
to
cast
expursion
on
the
officers/officials
on
whose
recommendation firearm licence was
granted to the petitioner and has referred
to two letters dated 13th July, 2011 and
19th July, 2011 sent to respondent No.3
informing about seizure of firearm licence
and weapon from petitioner and also
recommending cancellation of licence. No
dispatch number had been given in these
two letters. There is no acknowledge,
therefore it is difficult to ascertain receipt
of the letters in the office of respondent
No.3. What is important is that he has
filed a photocopy of the affidavit filed by
petitioner where in para 5 he has said, on
20th July, 2010 neither any case is
registered in any Court nor he has been
found guilty.

20. The respondent No.4 claims that
this part of affidavit is false but on a
query of the Court, learned Standing
Counsel could not tell as to which case
was found registered on 20th July, 2010
against the petitioner. The six cases,
which were registered between 1.9.1989
to
2000
already
resulted
in
acquittal/discharge
of
petitioner
and
therefore they cannot be said to register
against the petitioner and admittedly, it is
not the case of respondents that petitioner
was found guilty in any of those matters.
The interesting aspect of this affidavit is
that in para 8, respondent no.4 admits that
his action of taking away revolver from
the petitioner is not backed by any order
3 All] Raj Prakash V. State of U.P. and others
1225
by the competent authority. Paras 8 and 9
read as under:

"8. That it may be clarified that the
conduct of the deponent while taking the
revolver and bringing it to the police
station though was not backed by any
order of the competent authority but the
action was taken in good faith so that a
person of such bad repute must not have
fire arm license, which he has obtained by
manipulating the things. In fact, when a
person applies for grant of license as per
Rule, he is supposed to given an Affidavit
clarifying regarding criminal cases. The
petitioner has deliberately moved a false
affidavit before the Licensing Authority
wherein he went to the extent of denying
the registration of the criminal cases
against him. For the sake of convenience
the affidavit furnished by the petitioner
for grant of fire arm license is being
annexed
herewith
and
marked
as
Annexure No. 3 to this Personal Affidavit.

9. That neither there was bad
intention on the part of the deponent in
taking away the revolver nor any
arbitrariness has been done. The intention
of the deponent was to verify the weapon
and license and the circumstances in
which it was granted as the deponent was
apprehended that in case the weapon and
license is not taken from the custody of
the petitioner then he may try to flee with
weapon etc. and will try to terrorize the
complainants."

21. Sri Nirankar Singh, deponent of
the counter affidavit and supplementary
counter affidavit appeared before the
Court in person and stated that he had no
personal knowledge of the matter but had
come to Allahabad in respect to some
other matter when he was directed by
respondent No.3 i.e. S.S.P., Ghaziabad to
swear
a
counter
affidavit
and
supplementary counter affidavit in this
case also and he complied the said order.
He admits that he could not verify facts
stated in the counter affidavit. He also
tenders unconditional apology for filing
counter affidavit with lapses and assured
the Court that he shall check up proper
facts before filing an affidavit in the Court
in future. Paras 3 and 5 of his affidavit
dated 12th August, 2011 read as under:

"3. That in continuation of the oral
undertaking given on behalf of the
deponent, the deponent do hereby offers
unconditional apology for the lapses done
by him while filing counter affidavit to the
above writ petition.

5. That the deponent do hereby
undertakes that in future he will take
necessary precaution and will ensure that
proper facts must be placed on record
before the Hon'ble Court whenever any
affidavit is sworn by him. The deponent
further undertakes that he will not repeat
the mistake in future."

22. Another affidavit has been filed
by Sri Om Prakash Singh tendering his
apology for the lapses.

23.

Sri
C.S.Singh,
learned
Additional Chief Standing Counsel also
informed the Court that on 11th August,
2011 pursuant to petitioner's letter dated
15th July, 2011 a first information report
being Case Crime No.113 of 2011 has
been registered at 1.30 p.m. against Sri
Om Prakash Singh, Incharge Inspector,
P.S. Niwari.

24. A photocopy of petitioner's letter
dated 15th July, 2011 and photocopy of
1226 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
first information report show that District
Magistrate marked it to S.S.P. i.e.
respondent No.3 with the endorsement on
18.7.2011 ^^d`I;k fu;ekuqlkj vko';d dk;Zokgh
lqfuf'pr djsa^^ Thereafter the said letter was
marked to C.O. Modinagar by respondent
No.3 on 27th July, 2011. It remained
pending without any action for almost 15
days. On 11th August, 2011, when
respondents found some trouble in the
Court, it appears that this FIR was
registered.

25. Learned Addl. C.S.C. despite
repeated query could not defend action of
respondent
No.4
in
taking
away
petitioner's firearm licence and weapon.
He also could not defend stand of
respondent No.4 that he proceeded for
enquiry at 11 A.M. on 13th July, 2011
after receiving a complaint of Sukkhan
Khan and Gurved of alleged threat
rendered by the petitioner he could not
explain that Sukkhan Khan, if complained
to have alleged threat at 11 A.M. on 13th
July, 2011 at some other place, how it is
possible that simultaneously complaint
could have been submitted in the police
station
and
immediately
thereupon
respondent No.4 could have proceeded for
enquiry. This Court has no manner of
doubt
that
general
diary
kept
by
respondent No.4 in the police station has
been manufactured by showing his
Rawangi at 11 A.M. on 13th July, 2011
referring to the two complaints of
Sukkhan Khan and Gurved. Whether
these two persons actually made any
complaint, whether they are real persons
or not are not the matter need be enquired
by this Court for the reason that reading
Annexure C.A.4 i.e. alleged complaint of
Sukkhan as also the general diary of
police station showing respondent No.4
Rawanagi (departure) at 11 A.M. on 13th
July, 2011 it is evident that either
Rawanagi timing is incorrect or time of
incident mentioned in the complaint is
incorrect. Since both the documents have
been relied by respondent No.4 in his
defence to justify that firearm and licence
were not taken away in the night but in
day time and the two documents are self
contradictory, I have no option but to
infer that respondent No.4's claim that he
visited petitioner's premises in the day
time on 13th July, 2011 is incorrect. The
custody of two items namely licence and
weapon
is
admittedly
without
any
authority of law. This fact came to the
notice
of
respondent
No.3
S.S.P.
Ghaziabad
admittedly
when
the
petitioner's letter dated 15th July, 2011
was
communicated
to
him.
The
documents produced by the respondents
before this Court namely endorsement
made on petitioner's letter to Circle
Officer, Modinagar on 27.7.2011 shows
that before that S.S.P. Ghaziabad had not
reacted to the matter at all. He did not find
anything
wrong
in
the
action
of
respondent No.4. Meaning thereby police
officials in District Ghaziabad are free
and uncontrolled to do whatever they like,
legal or illegal without any intervention
from the District Superintendent who had
the ultimate responsibility of controlling
all these officials.

26. Inaction, in the circumstances,
can be inferred to be deliberate. I am
constrained to observe for the reason that
letter dated 14th July, 2011 filed as
Annexure 1 to the supplementary counter
affidavit said to have been issued by
S.S.P., Ghaziabad directing S.P., Rural to
hold
a
preliminary
enquiry
against
respondent No.4, in my view, is an antidated letter, to cover up lapses on the part
of respondent No.3. There are several
3 All] Raj Prakash V. State of U.P. and others
1227
reasons for this inference. In the counter
affidavit sworn on 13th July, 2011 by Sri
Nirankar Singh on behalf of respondents
No.3 and 4, he has not referred to any
such letter and on the contrary there is one
dimensional effort that is to justify action
of respondent No.4. Therefore up to 30th
July, 2011 there was no attempt on the
part of respondent No.3 either to treat
anything wrong on the part of respondent
No.4 or to get any enquiry conducted in
the matter. It is only when the respondents
were confronted with a self contradictory
incorrect
or
incomplete
information
contained
in
the
counter
affidavit,
demonstrated by the petitioner by filing a
rejoinder affidavit on 1st August, 2011,
that a letter of suspension was passed
simultaneously and back dated letter was
prepared and mentioned therein so as to
create a defence that respondent No.3 had
already reacted to the situation and
prompt action has been taken. Moreover
the order dated 14th July, 2011 require the
S.P., Rural to submit preliminary enquiry
report within five days but no such
enquiry report appears to have been
submitted and that is why in the
suspension order respondent No.3 require
S.P., Rural to submit preliminary report
thereafter within three days.

27. In fact, this is inaction of
respondent No.3 which has compelled this
Court to draw inference that illegal and
anti public activities of Police are shielded
and protected by superior officers either
by
total
inaction
or
by
creating
documents,
may
be
backdated
or
otherwise. It is this nexus of superior
officers shielding subordinate's illegal and
unauthorized action which has compelled
this Court to make observation against
police officers/ officials in general.

28. From 21st July, 2011 and
onwards the matter was heard by this
Court on various dates. State of U.P.
through Secretary (Home) was also a
party. In law, there is presumption that
learned Standing Counsel must have
conveyed notice of the case to respondent
No.1 also, particularly when this Court
prima facie found at some stage that a
false affidavit has been filed and therefore
an action under Section 340 Cr.P.C. may
also be required against deponent of the
counter affidavit. But at no stage
respondent no.1 has shown to take any
step enquiring as to how and in what
circumstances such things are happening
in the district concerned.

29. Police force is meant for
protection of the people. Its sole aim and
purpose is to maintain law and order by
preventing crime and if committed, to
find out and book the guilty person so as
to get punished in accordance with law.
There is no other agency in the State
except the Police who has this statutory as
well as constitutional obligation for
protection of people. But unfortunately it
is still living in the colonial State of
affairs when Police used to be deployed
against public to crush their genuine
demands. The Police, at that time,
reflected the glorified image of the ruling
Colonial State. It treated inhabitants of the
country as slaves and that is why always
tried not to allow them to raise their voice
against ruling empire. More than half a
century
India
has
attained
its
independence. Now is governed by
Constitution given by the people to itself
so as to function, ''for the people', ''by the
people', ''of the people' principle but the
police has not mend its ways. Today the
people are frightened more with police
than the criminals. There is virtually a
1228 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
lack of confidence with this Uniformed
Force. Judicial cognizance can be taken of
several heinous crimes being committed
almost daily and many a times with the
nexus of politicians/criminals whereby
common and innocent people are being
made target. The criminality on the part of
Police is highly dangerous being a double
edged weapon. When they commit crime,
they are themselves being investigating
agency, naively cover up the matter. The
result is that the Courts of law ultimately
ordinarily fail to punish guilty for want of
proper evidence for which the agency is
responsible. In criminal prosecution, eye
and ear of the courts of law, basically is
the prosecuting agency, and when the
agency itself is indulged in a cover up
mission, it is almost impossible to bring
guilty person to book and punish. Police
officials have become so daredevil that
they do not hesitate in committing day
light and daring offences and thereby to
stick to it, may be for the reason that they
are well equipped with the system of
covering it up. The situation is really
alarming and needs immediate remedial
measures. The public dissatisfaction and
distress cannot wait indefinitely if it is not
attended now. It may be too late in the
day and may burst in a people's revolution
we are witnessing in some other parts of
the world.

30. In Delhi Judicial Service
Association Vs. State of Gujarat &
Ors., (1991) 4 SCC 406 where brutal
behaviour of police in arresting and
assaulting a Chief Judicial Magistrate of
Nadiad was considered by the Court in
contempt petition as well as writ petitions
entertained directly. The Apex Court
observed:

"Aberrations of police officers and
police excesses in dealing with the law
and order situation have been the subject
of adverse comments from this Court as
well as from other courts but it has failed
to have any corrective effect on it.." (Para
39)

31. Hon'ble Krishna Ayer, J in Prem
Shankar
Shukla
Vs.
Delhi
Administration, (1980) 3 SCC 526
observed:

"If today freedom of the forlorn
person falls to the police somewhere,
tomorrow the freedom of many may fall
elsewhere with none to whimper unless
the court process invigilates in time and
polices the police before it is too late."

32. In a concurring judgment in
Dhananjay
Sharma
Vs.
State
of
Haryana & Ors. (1995) 3 SCC 757
Hon'ble Faizan Uddin, J in para 58
observed:

"58. It is in common knowledge that
in recent times our administrative system
is passing through a most practical phase,
particularly, the policing system which is
not as effective as it ought to be and
unless some practical correctional steps
and measures are taken without further
delay, the danger looms large when the
whole orderly society may be in jeopardy.
It would, indeed, be a sad day if the
general public starts entertaining an
impression that the police force does not
exist for the protection of society's
benefits but it operates mainly for its own
benefit and. once such an impression
comes to prevail, it would lead to
disastrous consequences."
3 All] Raj Prakash V. State of U.P. and others
1229

33. The Court took judicial notice in
para 57 of the judgment that every
morning one opens the newspapers and
goes through its various columns, one
feels very much anguished and depressed
in reading reports of custodial rapes and
deaths, kidnapping, abduction and faked
police encounters and all sorts of other
offences and lawlessness by the police
personnel, of which countless glaring and
concrete examples are not lacking.

34. In Daroga Singh & Ors. Vs.
B.K. Pandey (2004) 5 SCC 26 the Court
remarked object with which the Police
Force was created and said that police is
the executive force of the State to which
is entrusted the duty of maintaining law
and order and of enforcing regulations for
prevention and detection of crime. It is
considered by society as an organised
force of civil officers under the command
of the State engaged in the preservation of
law and order in the society and
maintaining peace by enforcement of laws
and prevention and detection of crime.
One who is entrusted with the task if
maintaining discipline in the society must
first itself be disciplined. Police is an
agency to which social control belongs
and therefore the police has to come up to
the expectations of the society.

35. Then it had reminded itself the
policing role the country witnessed during
British Raj and in para 44 the court said:

"44. We have not been able to forget
the policing role of the police of British
Raj wherein an attitude of hostility
between the police and the policed under
the colonial rule was understandable. It is
unfortunate that in one of the largest
constitutional democracies of the world
the police has not been able to change its
that trait of hostility."

36. Unfortunately, observation and
expectations of Courts have gone in vain
as the police force have not mend its
ways. Most of the matters do not come to
the Court and when somebody dares to
take up the matter to the Court only then
the extent to which the Police act
ruthlessly and arbitrarily is experienced
by the Courts also. The situation is really
very grim and disappointing. It is high
time when State should look into large
spectrum of reforms to correct Police and
policing in the State else the things may
not rendered uncontrollable.

37. In view of the above, I have no
manner of doubt in declaring action of
taking away of petitioner's firearm licence
and weapon by respondent No.4 to be
wholly illegal and arbitrary. However,
considering the above discussion, the writ
petition is disposed of with the following
directions:

A. Chief Secretary, U.P. Lucknow
shall look into the matter and find out
involvement, dereliction and collusion of
various
officials
of
District
Police,
Ghaziabad and thereafter shall take such
departmental and other action as provided
in law within a period of three months and
submit a progress report to this Court.

B. The petitioner shall be entitled to
cost, exemplary in nature, for harassment
and illegal action of the respondents to
which he has made to suffer, which I
quantify to Rs.50,000/-. The aforesaid
cost at the first instance shall be paid by
respondent No.1 but it shall be at liberty
to recover the same from the officials
concerned who are responsible after
1230 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
making such enquiry as directed above
and provided in law.

C. This case shall be listed in the first
week of February, 2012 only for the
purpose of considering progress report as
directed above but otherwise it stands
disposed of.

38. Copy of this order shall be sent
to Chief Secretary, U.P. at Lucknow by
Registrar
General
forthwith
for
information and compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Mic. Writ Petition No. 40817 of 2011

Vinay Kumar

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.N. Yadav
Sri Ashok Khare

Counsel for the Respondent:
C.S.C.
Sri Rajesh Kumar Pandey

Constitution of India, Article 226-locus
standi-petitioner
being
strangerchallenged the action of R-3-in grant of
fire arm licence to a hurdened criminaleven convicted in by life imprisonment in
number cases-rejection of complaint on
ground mere lodge FIR-can not be
ground
fro
cancellation-but
nothing
whisper regarding major punishmentsuch dubious manner if allowed to
perpetuate cause serious consequences
to determent of public-can be questioned
by strangers.

Held: Para: 11

Though
I
am
inclined
to
uphold
preliminary objection of learned counsel
for respondent no.7 that the petitioner is
a mere complainant hence cannot be
allowed to challenge the order passed by
the
licensing
authority
withdrawing
show cause notice and dropping the
proceedings under Section 17(3) of the
Arms Act 1959 but exercising the powers
in
constitutional
extraordinary
jurisdiction under Article 226 this Court
cannot remain a silent spectator if it
comes to the knowledge of the Court
that
the
executive
authorities
in
sensitive
matter
like
regulation
of
firearm are acting in a dubious manner
which if allowed to perpetuate may
result in more serious consequences to
the detriment of public at large. In the
circumstances, I decline to interfere in
the order impugned in the writ petition
at the instance of the petitioner

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. This writ petition has been filed by
one Vinay Kumar assailing the order dated
27.5.2011, passed by Additional District
Magistrate, City, Allahabad revoking show
cause notice dated 30.1.2010 under Section
17(3) of the Indian Arms Act, 1959 and
consigning proceedings initiated against Sri
Ram Kishore Yadav, respondent no.7 .

2. In brief submission of counsel for
the petitioner is that respondent no.7 is a
convict in two criminal cases for an offence
under Section 302 read with Section 34 IPC
yet proceedings for cancellation of his arms
licence has been revoked by respondent
no.3 in a wholly illegal and perverted
manner. It is alleged that the impugned
order has been passed by respondent no.3
with antedating when an application for
transfer of the case was moved before the
District
Magistrate
on
9.6.2011.