B.K.ROY, P.K.JAIN, J. - (1.) THE petitioner has knocked the doors of this Court by taking recourse to Article 226 of the Constitution of India for grant of fol ­lowing three reliefs : - (i) issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 1, 2 and 3 to follow the dictum contained in the Government order dated 19 -2 -1996 on the subject of the provision of Shadow, gunner and guard with regard to the persons having criminal history and background in all strictness or AL ­TERNATIVELY clarity or formulate the clear guideline for the citizens of State of U.P. with regard to the principles which govern the feasibility of the provisions of shadow, gunner and guard etc. to the persons having the criminal history. (ii) issue a writ, order or direction in the nature of mandamus directing the respondents to grant the gun licence applied by the petitioner notwithstanding the pendency of the case crime No. 229/91 under Sections 147, 148, 149 and 302, I.P.C., PS -Chetganj, Varanasi against him in order to maintain the parity with respondent Nos. 5 to 7 who are now Ministers in the Cabinet of Sri Kalyan Singh Government. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 1, 2 and 3 to cancel the arm licences granted to respondent Nos. 5 to 7 and all other Cabinet Ministers who have criminal back ­ground or are history sheeters to maintain the parity with the petitioner who has been refused the grant of licence vide order dated 31 -5 -97 passed by respondent No. 2 (Annexure -5) on the ground of pendency of a solitary criminal case against him. 2, At the very threshold Mr. Kazmi, the learned Counsel appearing in support of this writ petition stated that in view of the fact that the petitioner has already moved the appellate authority against the order refusing to grant DBBL gun licence to the petitioner under the provisions of the Arms Act, therefore, he is not pressing relief No. (ii). Accordingly, this writ peti ­tion in so far as it relates to relief No. (iii) is permitted to be withdrawn. 3. In regard to the remaining two reliefs, Mr. Kazmi contended, strenuously relying upon Mansaram v. S.P. Pathak, AIR 1983 SC 1239 ; Shiv Sugar Tewari v. Union of India, 1996 (6) SCC 558 ; Chaitanya Kumar v. The State of Karnataka, AIR 1986 SC 825 ; Ramana Dayaram Shety v. The International Airport Authority of India, AIR 1979 SC 1628; Smt, Maneka Gandhi v. Union of India, AIR 1978 SC 597; Shivajirao Nilangker Patil v. Dr. Mahesh Madhar Gosari, AIR 1987 SC 294 ; Food Corporation of India v. Mis. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601 ; Olga Tellis and others v. Bombay Municipal Corporation, AIR 1986 SC 180 ; D.D. Joshi and others v. Union of India, AIR 1983 SC 420 ; Sri Srinivasa Theatre and others etc. v. Government of Tamil Nadu, AIR 1992 SC 999 ; State of Sikkim v. Surendra Prasad Sharma, AIR 1994 SC 2342; Chandigarh Administration and another v. Jagjit Singh, AIR 1995 SC 705 ; Har Bilas Rai Bansal v. The State of Punjab, AIR 1996 SC 857; Dalmia Cement (Bharat) Ltd. v. Union of India, 1996(4) JT (SC) 555 and Dr. K.R. Lakshmanna v. State of Tamil Nadu and others, 1996 (1) JT (SC) 173, that the action of the State in provid ­ing security to respondent Nos. 5 to 7 who are Ministers in the present Government is hit by vice of arbitrariness apart from discrimination inasmuch as even though against the petitioners only one case being Crime No. 229 of 1991 under Sections 147, 148, 149 and 302, I.P.C. P.S. Chetganj, Varanasi is, pending in which a history sheeter and hardened criminal Awadhesh Rai of Varanasi was murdered by some of his rivals and even though the petitioner was innocent, he has been falsely impli ­cated, he has been deprived of his Gunner though he was a very important grap wit ­ness in a criminal case in which the Super ­intendent, Naini Jail was involved of cor ­ruption charges whereas respondent Nos. 5 to 7 Ministers, though history sheeters and facing a number of criminal cases yet they have been provided security besides licences under the provisions of the Arms Act to own/possess arms. The sum and the substance of the submission of Mr. Kazmi is that this act of the Govt. is per se discrimination/and un ­constitutional being violative of the equality clause enshrined under Article 14 of the Constitution of India. 4. The learned Advocate General Sri R.P. Goyal assisted by Sri Jagdish Tiwari on the other hand contended that the argu ­ments have no force. The arguments of Mr. Kazmi on the face of it appears to be attractive but they have got no force. 5. It is better to reproduce the latest G.O. bearing No. 376/Chha -U -l/96 Luck -now, dated February 19, 1996 (as con ­tained in Annexure -5 -A) as claimed by the petitioner: A bare perusal of the aforesaid G.O. shows the reasons necessitating issuance of guidelines. Firstly it does not deal with the providing of security to His Excellency the Governor, the Ministers and other V.I.Ps. Therefore, there must be some other G.O. which the petitioner is not referring. However, we do not appreciate as to how any of the conditions have been violated while providing security to respondent Nos. 5 to 7 who are M.L.A's. Clause (8) of the G.O. restrains ordinarily (underlining ours) non -providing of Shadow/Gunner Guard etc. to such people who have past criminal history or due to pendency of a case in any Court concerning criminal charge of implicated him in undesirable movements is not correct inas ­much as this clause starts with the word Ordinarily. A fortiorari it means that in special cases the terms can be relaxed. No case of relaxation of the rule can be better than that of a Minister. We do not see that this clause attracts the vice of discrimination between the petitioner vis ­a -vis the Minister aforesaid. In this context Sri Kazmi took us to the Article captioned Rule of Law by Sub -has Misra and Farzand Ahmad, published in INDIA TODAY? November 24, 1997 appended as Annexure -9, and the state ­ments made in paragraphs 41 to 44 includ ­ing extracts of the two Articles published in OUTLOOK, November, 1997 and INDIA TODAY, November 19, 1997 quoted therein concerning respondent Nos. 5 to 7 and expressed his anguish over criminalisation of politics and desired that we should stop it. This question is pending adjudication before the Supreme Court and a reply of the Government is awaited to the question put to it as to what concrete action it has taken to implement the report of the Vohra Committee. 6. Respondent Nos. 5 to 7 are un ­doubtedly Ministers and by virtue of the chair which they are occupying they are bound to be protected by the Government. Really the protection has been provided to the chair and not to the occupants in their individual capacities. The word 'Criminal' Strictu Sensu means one who has committed a crime. No judgment of any criminal court has been brought up to our notice to show that the respondent Nos. 5 to 7 were in fact con ­victed. In fact none of the decisions relied upon by Sri Kazmi support his contention. There is a presumption of innocence under the laws of our country. Unless one is convicted, he cannot be dubbed in strict sense as Criminal. 7. It is a peculiar feature of our par ­liamentary democracy that it is open for any legislative or parliamentary segment to elect their representatives who are not disqualified to contest election under the provisions of the Representation of People Act. in Vidya Charan Shukla's case AIR 1981 SC 547, it was held by the Supreme Court that the returned can ­didate cannot be said to be disqualified at the date of election, if before or during the pendency of the election petition in the High Court his conviction is set aside by the appellate Court it must be held that in like circumstances the returned candidate cannot be said to be disqualified at the date of scrutiny of the nomination papers. Legislation is not the function of the High Court. If the people elect such persons as their Masiah who have History Sheets Courts in absence of suitable amendments in the Representation of Peoples Act or other Acts/Codes can not do anything by exercising its jurisdiction under Articles 14,19and21 of the Constitution of India as sought to be invoked by Mr. Kazmi. 8. The further submission of Mr. Kazmi that the aforesaid Respondents who were history sheeters, were illegally granted licence under the Arms Act whereas the petitioner against whom there is only one case is pending but deprived of licence is not a question to be answered for these reasons: (i) the order granting licen ­ces to them have not been brought on the record, (ii) The petitioner has to locus (iii) His action is hit by laches, and (iv) Even assuming that licences were granted il ­legally that can be of no advantage to the petitioner who has also not pressed relief No. l(ii) before us. 9. For the reasons aforementioned, we do not see force in the submissions of Mr. Kazmi. 10. However, there is yet another aspect of the matter which cannot be lost sight of by us. The petitioner had moved earlier this Court in Criminal Misc. Writ Petition No. 775 of 1997, making a grievance at that time that even though he was a most im ­portant trap witness, who was going to be examined on 4th July, 1997 still the Government had withdrawn his shadow and he may be done away. That question was considered by one of us (Binod Kumar Roy, J.) along with N.S. Gupta, J. on 27 -5 -1997 and the following order was passed: - Mr. Mahendra Pratap, learned Addl. Govt. Advocate, shows us an office order issued by the State Government taking a decision not to provide any gunner/shadow to the writ petitioner for the reasons mentioned therein. However, for the present we find that the petitioner is a most important trap witness who is going to be examined on 4th July, 1997. If he is done to death most vital witness is bound to disappear. Accordingly, in the interest of justice, while adjourning this case to 7th July, 1997 to enable the respondents to bring on record the office order shown to us with copy to the petitioner, we direct the respondents to see that no harm is being done to the petitioner by adopting such mode which they themselves may consider appropriate. The office is directed to hand over a copy of this order to the learned Addl. Government Advocate Sri Mahendra Pratap for its com ­munication to and follow up' action by the respondents. Later on that case was placed before another Division Bench and it was finally disposed of on 12 -8 -97 with following directions: - By this petition, the petitioner had prayed for security being provided to him. This Court by an order dated 27 -5 -1997 has found the petitioner to be an important trap witness and he is accordingly directed security to be provided to him to enable his evidence to be brought on record. In the counter -affidavit filed in this petition it has been stated that the security which could be provided by the S.S.P. has al ­ready been provided to the petitioner conse ­quently while observing that his security shall continue to be made available to the petitioner till be disposal of the trial. This petition is finally disposed of. Giridhar Malviya, J. B.K. Sharm, J. According to Mr. Kazmi the shadow directed to be provided by this Court vide its order dated 12 -8 -1997 was provided but later on withdrawn on 26 -10 -97 before completion of the trial as directed by this Court and the petitioner has already moved this Court for initiation of proceed ­ings in Contempt of Court. Be that as it may in view of the fact that the petitioner was an important trap wit ­ness for prosecution and is required to be examined as very important prosecution witness in relation to crime No. 479 of 1995, State v. Kamta Singh, Special Case No. 5 of 1997 under Sections 7 and 13 (2)of the Prevention of Corruption Act, Police Station Naini, Allahabad, which is said to be pending before the Special Judge, Anti Corruption, Varanasi and if it is a fact that the Government for one reason or another had withdrawn that shadow, we hope and trust that without any delay and/or hitch or murmur the Governor will restore him back unless and until the earlier orders of this Court referred to as above are modified and/or further nullified by this Court itself on a good cause shown by the Govt. Reminding that the Government has got no powers to review our constitu ­tional/judicial orders. We hope and trust that before the Court proceeds to take up the proceedings in contempts the Govern ­ment will not allow to face an awkward position. In the interest of justice we also clarify that this Court had proceeded to pass its order on the backdrop that the petitioner was going to be examined in July, 1997. We do not know why his ex ­amination has been delayed. The District Judge of Varanasi is directed to apprise the Special Judge, Anti Corruption, Varanasi to fix a date, if already not fixed from before, for the purposes of examining the petitioner in any event within one month from the date he receives a copy of this order who shall also try to conclude the trial preferably within three months if the State co -operates. 11. This writ petition is dismissed with the aforementioned directions to the Government and the Special Judge, Anti Corruption, Varanasi who is in seisin of the case referred to as above. 12. The office is directed to serve a copy of this order in the office of the Advo ­cate General and dispatch a copy of the same to the District Judge, Varanasi, forthwith. Petition dismissed. [1998 JIC 317 (All)] B. K. Roy and P. K. Jain, JJ. - The petitioner has knocked the doors of this Court by taking recourse to Article 226 of the Constitution of India for grant of fol ­lowing three reliefs : - (i) issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 1, 2 and 3 to follow the dictum contained in the Government order dated 19 -2 -1996 on the subject of the provision of Shadow, gunner and guard with regard to the persons having criminal history and background in all strictness or AL ­TERNATIVELY clarity or formulate the clear guideline for the citizens of State of U.P. with regard to the principles which govern the feasibility of the provisions of shadow, gunner and guard etc. to the persons having the criminal history. (ii) issue a writ, order or direction in the nature of mandamus directing the respondents to grant the gun licence applied by the petitioner notwithstanding the pendency of the case crime No. 229/91 under Sections 147, 148, 149 and 302, I.P.C., PS -Chetganj, Varanasi against him in order to maintain the parity with respondent Nos. 5 to 7 who are now Ministers in the Cabinet of Sri Kalyan Singh Government. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 1, 2 and 3 to cancel the arm licences granted to respondent Nos. 5 to 7 and all other Cabinet Ministers who have criminal back ­ground or are history sheeters to maintain the parity with the petitioner who has been refused the grant of licence vide order dated 31 -5 -97 passed by respondent No. 2 (Annexure -5) on the ground of pendency of a solitary criminal case against him.
(2.) AT the very threshold Mr. Kazmi, the learned Counsel appearing in support of this writ petition stated that in view of the fact that the petitioner has already moved the appellate authority against the order refusing to grant DBBL gun licence to the petitioner under the provisions of the Arms Act, therefore, he is not pressing relief No. (ii). Accordingly, this writ peti ­tion in so far as it relates to relief No. (iii) is permitted to be withdrawn. In regard to the remaining two reliefs, Mr. Kazmi contended, strenuously relying upon Mansaram v. S.P. Pathak, AIR 1983 SC 1239 ; Shiv Sugar Tewari v. Union of India, 1996 (6) SCC 558 ; Chaitanya Kumar v. The State of Karnataka, AIR 1986 SC 825 ; Ramana Dayaram Shety v. The International Airport Authority of India, AIR 1979 SC 1628; Smt, Maneka Gandhi v. Union of India, AIR 1978 SC 597; Shivajirao Nilangker Patil v. Dr. Mahesh Madhar Gosari, AIR 1987 SC 294 ; Food Corporation of India v. Mis. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601 ; Olga Tellis and others v. Bombay Municipal Corporation, AIR 1986 SC 180 ; D.D. Joshi and others v. Union of India, AIR 1983 SC 420 ; Sri Srinivasa Theatre and others etc. v. Government of Tamil Nadu, AIR 1992 SC 999 ; State of Sikkim v. Surendra Prasad Sharma, AIR 1994 SC 2342; Chandigarh Administration and another v. Jagjit Singh, AIR 1995 SC 705 ; Har Bilas Rai Bansal v. The State of Punjab, AIR 1996 SC 857; Dalmia Cement (Bharat) Ltd. v. Union of India, 1996(4) JT (SC) 555 and Dr. K.R. Lakshmanna v. State of Tamil Nadu and others, 1996 (1) JT (SC) 173, that the action of the State in provid ­ing security to respondent Nos. 5 to 7 who are Ministers in the present Government is hit by vice of arbitrariness apart from discrimination inasmuch as even though against the petitioners only one case being Crime No. 229 of 1991 under Sections 147, 148, 149 and 302, I.P.C. P.S. Chetganj, Varanasi is, pending in which a history sheeter and hardened criminal Awadhesh Rai of Varanasi was murdered by some of his rivals and even though the petitioner was innocent, he has been falsely impli ­cated, he has been deprived of his Gunner though he was a very important grap wit ­ness in a criminal case in which the Super ­intendent, Naini Jail was involved of cor ­ruption charges whereas respondent Nos. 5 to 7 Ministers, though history sheeters and facing a number of criminal cases yet they have been provided security besides licences under the provisions of the Arms Act to own/possess arms. The sum and the substance of the submission of Mr. Kazmi is that this act of the Govt. is per se discrimination/and un ­constitutional being violative of the equality clause enshrined under Article 14 of the Constitution of India.
(3.) THE learned Advocate General Sri R.P. Goyal assisted by Sri Jagdish Tiwari on the other hand contended that the argu ­ments have no force. The arguments of Mr. Kazmi on the face of it appears to be attractive but they have got no force.;