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Arvind Kejriwal's role in leading a protest while holding constitutional office on Friday came under the scrutiny of the Supreme Court which slammed law enforcing agencies of allowing unlawful assembly of supporters of the chief minister in the heart of national capital.
The apex court disapproved the Delhi Police inaction in permitting people to gather outside the Rail Bhavan despite prohibitory orders under section 144 of Code of Criminal Procedure barring assembly of five and more persons being in force.
"How did they (people) assemble when prohibitory orders under section 144 of CrPC was clamped. Why did you let it happen in the first place when the mob is already there," a bench comprising justices R M Lodha and Shiva Kirti Singh asked Delhi Police Commissioner B S Bassi.
"Why did police at all permit people to gather when it will amount to breach of prohibitory orders. What we are inclined to know is whether police acted," the bench said while adding that "by allowing five people it swelled into 500 and thereafter into thousands".
Observing that "the task in hand is to see that the constitutional provisions are respected," the bench sought explanation by Janaury 31 from the Police Commissioner why people were allowed to gather unlawfully at the site of dharna by Kejriwal.
AAP party was demanding action against policemen who refused to carry out a raid on an alleged drug and prostitution ring on a Delhi minister Somnath Bharti's directive last week.
"We want information on two queries as to why despite the prohibitory order under section 144 of CrPC the law enforcing agencies/police permit five and more persons unlawfully.
"Second whether law enforcing agencies/police acted appropriately and with utmost expedition in dispersing the unlawful assembly by force under section 129 (2) of CrPC after such assembly was informed under section 129 (1) of CrPC to disperse and despite such command the assembly did not disperse," the bench said in its order.
The bench, which was hearing the PIL filed by advocate M L Sharma, issued notice to the Centre through the Ministry of Home Affairs and Delhi government and sought their response within sex weeks on the issue whether constitutional post holder can resort to agitation in violation of law.
"Constituion is supreme and every institution is a product of Constitution and every individual who holds the office is governed by the Constitution," the bench observed while adding that "We are only concerned with Constitutional issues".
It agreed to examine "whether chief minister/minister is allowed to play a double role, i.e. holding constitutional office and street agitator against the constitutional systems in a same time, under the constitution of India? The bench also tagged the petition filed by another advocate N Rajaraman, who also raised identical issues. The court was told that the "law makers have become law breakers" and this has been manifested by Kejriwal and his ministers who staged the dharna, hampering preparations for the Republic Day.
Before seeking explanation from the Delhi Police Commissioner, the bench raised several questions to Additional Solicitor General Siddharth Luthra, who had contended that there was no need to go into the petition filed by Rajaraman as the prayers made by him has become infructuous.
Luthra had submitted that police had swung into action on January 19 evening by issuing prohibitory orders but people violated it and started gathering aroung the site of Kejriwal's dharna the next day.
When the ASG explained the process for dealing the violation of prohibitory order, the bench questioned why there was delay on the part of the cops to disperse the unlawful assembly of people.
"These are matters of law and order. How did they (people) assemble. Mob is already there and you are allowing the gathering to swell," the bench said and added that law enforcing agencies should have acted under the legal provision by issuing a command that people should disperse.
"Our concern is when we are empowered to enforce law why did it allow it to happen (unlawful assembly)," the bench said.
When ASG said police generally wait for 45 minutes after the command, the bench declined to accept his explanation and gave an example of the terror strike at World Trade Centre in United States. "In three minutes, the WTC collapsed in US," the bench said.