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Allahabad High Court · body

2003 DIGILAW 1815 (ALL)

Mohd. Akhtar v. State of U. P.

2003-08-13

A.MATEEN, VISHNU SAHAI

body2003
A. MATEEN, J. ( 1 ) HEARD learned Counsel for the petitioner and learned Additional public Prosecutor. ( 2 ) THE present writ petition has been preferred by the petitioner, praying therein that History-sheet Nos. SHA/45-A dated 27th April, 1997, which has been opened by the respondents of the petitioner be quashed and surveillance thereto arising out of the same be stopped. ( 3 ) IT has been argued by the learned counsel for the petitioner that since the police of police-station Safipur, District Unnao was annoyed with the petitioner and thus had opened the history-sheet of Class-A re ferred to above, in the year 1997 and since then the petitioner has been put on surveillance. It has further been argued that after 1993 no criminal case was registered against the petitioner. The petitioner was elected as chairman of Town Area Safipur in the year 1995 and remained as such up to the year 2000. ( 4 ) IT comes out from the pleadings that a criminal case under Sections 302/307,i. P. C. was registered against the petitioner of an incident, which had taken place in the year 1977 and of which in Sessions Trial the petitioner was acquitted on 6-2-79. It has also been pleaded that in all other pases in which petitioner was involved along with other coaccused persons have also resulted in acquittal, details of which have been given in para 5 of the petition. It has been argued that the History-sheet of the petitioner, was opened on 27-4-1997, and in all the criminal cases, which were lodged against the petitioner, and other co-accused persons along with him, had already resulted in acquittal on 4-1-1997 and after that he was not challaned in any criminal case till filing of the writ petition. It has also been argued that after 1993 no criminal case was registered against the petitioner and historysheet was opened in the year 1997. ( 5 ) LEARNED counsel for the petitioner vehemently urged that Class-A history-sheet of the petitioner could not be opened in view of (sic) contained in the provisions of Police regulations. He urged that para 231 of the police Regulations also provides that the subject of history-sheet of Class-A shall continue for two consecutive years and, thereafter surveillance shall be discontinued unless some special reason is recorded by Superintendent of Police. He urged that para 231 of the police Regulations also provides that the subject of history-sheet of Class-A shall continue for two consecutive years and, thereafter surveillance shall be discontinued unless some special reason is recorded by Superintendent of Police. We also find that in para 11 of the petition it has been pleaded that Station House Officer, Police Station safipur Unnao i. e. opposite party No. 3 initiated the opening of history-sheet of the petitioner which was approved by Superintendent of Police Unnao, vide order dated 27-4-1997, vide History-sheet No. SHA/45-A, and as such the petitioner is under surveillance. ( 6 ) COUNTER-AFFIDAVIT of one B. R. Yadav, sub-Inspector of Police Station Safipur, District Unnao, has been filed on behalf of opposite party, who has stated that since the petitioner is a habitual offender just to keep on surveillance upon his activities, the history sheet has been opened. It has further been stated in para 6 of the said counteraffidavit that due to fear of the petitioner, no one had come forward to depose against him during the trial of the cases, which were going on against him and, as such, all the cases ended in acquittal. In para 9 of the counter-affidavit it has been admitted that the petitioner has been elected as Chairman oftown Area Safipur from 1995 to 2000 and thereafter, at present his wife is Chairman of the Town Area Safipur. ( 7 ) REJOINDER-AFFIDAVIT to the said counter-affidavit has been filed in which contents of writ petition has been reiterated and it has been stressed that since the petitioner has not been challaned in any case since 1993, history-sheet against him cannot be opened by the respondents in the year 1997. It has been vehemently denied that the Sessions Trials of the petitioner have resulted in acquittal on the basis of the threat given to the witnesses and on the contrary Judgments of the courts below which have been annexed along with writ petition, for a perusal of which it, comes out that the acquittal of the petitioner is based upon the evidence led by the prosecution. ( 8 ) FOR opening of history-sheet it is necessary that Regulations 228, 229, 230 and 231 Police Regulations be taken into consideration. ( 8 ) FOR opening of history-sheet it is necessary that Regulations 228, 229, 230 and 231 Police Regulations be taken into consideration. It has been argued by learned counsel for the petitioner that Regulation 228 of the Police Regulations provides that history-sheet should be opened only for persons, who are likely to become habitual criminals or abettors of such criminals and having regard to the fair antecedents of the petitioner after 2001 the history sheet opened ought to have been closed by the respondents and the surveillance discontinued altogether. It has further been argued that the Regulation 229 read with Regulation 230 makes it clear that protracted surveillance shall be exercised only if the subject of an A Class history-sheet is thought to be so dangerous or incorrigible. It has been contended that in the garb of keeping surveillance respondent No. 3 has been harassing and humiliating the petitioner and other inmates of the family day in and day out and the entire family of the petitioner has thus become greatly fear stricken. It has been contended that the police has no authority of law to pay domiciliary visits even at the dead of night and awake the family members of the petitioner when they are fast asleep and ruthlessly disturb their peace and tranquillity. In substance it has been urged that all this is clearly violative of the fundamental right guaranteed to the petitioner by article 21 of the Constitution of India. Thus, prayed that a writ of mandamus be issued. ( 9 ) LEARNED counsel for the petitioner Sri r. N. S. Chauhan has argued that on the basis of Regulations 228, 229, 230 and 231 of the Police Regulations three Division Bench decisions of the Court in Jugla Sharan v. Superintendent of Police, Gonda (1989 LLJ 345), Guru Bux Singh Bakshi v. State of u. P. , reported in (1994 LLJ 82) and Rajesh kumar v. State of U. P. reported in (1999 L cr R 39 : (1999 Cri LJ 2388 : 1999 All LJ 912) and in view of the facts and circumstances mentioned in the writ petition, counter-affidavit and rejoinder-affidavit, that continuance of surveillance of petitioner is bad and the history-sheet be directed to be quashed. ( 10 ) LEARNED Public Prosecutor submitted that since many criminal cases against the petitioner were filed and he was tried in a number of cases, (although they have resulted in acquittal) seeing the criminal tendency of the petitioner to keep a watch/surveillance on him and members of his family was thought to be necessary and as such history-sheet of Class A has rightly been opened and this writ petition is liable to be dismissed. ( 11 ) NOW we propose to consider Regulations 228 to 231 of the Police Regulations which read as follows : "regulation-228. Part V consists of History-sheets. These are the personal records of criminals under surveillance. Historysheets should be opened only for persons who are or are likely to become habitual criminal or abettors of such criminals there will be two classes of history-sheet. (i) Class A History-sheet for dacoits, burglars, Cattle thieves, Railway goods wagon thieves, and abettors thereof. (ii) Class B History-sheet for confirmed and professional criminals who commit crime other than dacoity, Burglary, cattle theft and theft from railway goods wagons e. g. professional cheats and other experts for whom criminal persons files are maintained by the Criminal Investigating Department, poisoners, catties poisoners, Railway passenger thieves, bicle thieves, expert pick pockets, forgers, coiners cocaine and opium smugglers, hired fulfains and goondas telegraph wire cutters, habitual illicit distillers and abettors thereof. History-sheets of both classes will be maintained in similar form, but those for class B will be distinguished by a red bar marked at the top of the first page. No history-sheet of Class B may be converted into a history-sheet of Class B found to be also addicted to dacoity, Burglary, cattle theft or theft from railway goods wagons. A class as well as B class surveillant may under paragraph 238 be applied to him. In the event of a Class A history-sheet man becoming adicted to miscellaneous crime his historysheet may be converted into a Class B History-sheet with the sanction of the Superintendent. " "regulation 229 This classification of history-sheet as A and B is based on the principle, that whereas there is always hope of a dacoit, burglar, or cattle thief or railway goods wagon thief mending his ways the expert miscellaneous criminal is as a general rule incapable of reform. " "regulation 229 This classification of history-sheet as A and B is based on the principle, that whereas there is always hope of a dacoit, burglar, or cattle thief or railway goods wagon thief mending his ways the expert miscellaneous criminal is as a general rule incapable of reform. The classification therefore solely on the kind of crime to which suspects are addicted and is designed to regularity only : (a) the length of time for which a suspect should ordinarily remain, under surveillance in the absence of complaints against him; (b) the kind of surveillance which is big activities require. The degree of surveillance of the appropriate kind to be exercised over a suspect will depend not on his classification but on the extent to which he is believed to be active at any particular time. "regulation 230. If the subject of an A class history-sheet is thought to be so dangerous or incorrigible as to require more protracted surveillance than the generality of his class, he may be started by the order of the Superintendent. Here again the fact that a history-sheet man is started will necessarily indicate, only that he is to be kept under continuous surveillance for a longer period. It will not necessarily indicate that his surveillance while it lasts is to be more intense. The aim is to concentrate the most intense surveillance on the criminal whether started or unstarted who is believed to be temporarily active. Superintendent of District Police may not give orders for the starting of or discontinuance of surveillant over any history-sheeter of a Railways Police suspect without the concurrence of the Superintendent of Govt. Railway Police. " "regulation 231. The subject of historysheet of Class A will unless they are started remain under surveillance for at least two consecutive years of which they have spent no part in jail. When the subject of a history-sheet of class A whose name has not been started who has never been convicted of cognizable offence and has not been in jail or suspected of any offence or absented himself in suspicious circumstances for two consecutive years his surveillance will be discontinued, unless for special reasons to be recorded in the inspection book of the police Station the Superintendent decides that it should continue. When the subject of a history-sheet of Class A is started he will remain starred for at least two consecutive years during which he has not been in jail or been suspected of a cognizable offence or had any suspicious absence recorded against him. At the end of that period if he is believed to have reformed he will cease to be starred but will remain subjected to surveillance will be discontinued only if during that period no complaints have been recorded against him. In closing the history-sheet of an unstarring ex-convicts and especially ex-convict dacoits great care should be exercised. " 11-A. In this context it is also relevant to notice Regulation 23 which reads thus :"without prejudice to the right of Superintendents of Police to put into any legal measures, such as shadowing in cities, by which they find they can keep in touch with suspects in particular localities or special circumstances, surveillance may for most practical purpose be defined as consisting of one or more of the following measures : (a) Secret picketing of the house of approaches to the house of suspects. (b) Through periodical inquiries by officers not below the rank of Sub-Inspector into route, habits, associations, income, expenses and occupation; (c) The reporting by constables and chaukidars of movements and absence from home; (d) The verification of movements and absence by means of inquiry slips; (e) The collection and record on a history-sheet of all information bearing on conduct. " Regulation 237 provides that all "history-sheet men" of Class A "starred" and "unstarred" would be subject to all these measures of surveillance. ll. B Article 21 of the Constitution of india reads thus : "21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. " ( 12 ) IN Kharak Singh v. State of U. P. (1963 (2) Cri LJ 329) : (1964) 1 SCR 332 : air 1963 SC 1295 , the Supreme Court through its majority judgment observed/ held as follows : "regulation 228 which occurs in Chapter XX of the Police Regulations defines history-sheets as the personal records of criminals under surveillance. That regulation further directs that a history-sheet should be opened only for persons who are likely to become habitual criminals or the aiders or abettors of such criminals. These history-sheets are of two classes. That regulation further directs that a history-sheet should be opened only for persons who are likely to become habitual criminals or the aiders or abettors of such criminals. These history-sheets are of two classes. Class A for dacoits, burglars, cattle-thieves, and railway goodswagon thieves, and Class B for those who are confirmed and professional criminals who commit crimes other than dacoity, burglary, etc. like professional cheats. " ". . . . . . . the regulations contained in Chapter XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police of fleers. They would not, therefore, be a law which the State is entitled to make under the irrelevant Clauses 2 to 6 of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Article 19 (1), nor would the same be a procedure established by law within Article 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner, the petitioner would be entitled to the relief of mandamus which he seeks to restrain the State from taking action under the regulations. " "regulation 236 (b) which authorizes domiciliary visits is struck down as unconstitutional. " ( 13 ) IN Jugla Sharan v. Superintendent of Police, Gonda, 1989 LLJ 345 and gurubux Singh Bakshi v. State of U. P. ,jic 299 (Alld) (LB), the two Division Benches of this Court, one of the Principal Bench and the other of the Lucknow Bench, had categorically laid down that in no case the surveillance could continue after lapse of two years period specially when no order was passed by the Superintendent of Police for its continuance by giving any special reason, and in absence of such order, surveillance could not continue beyond two years and that the history-sheet cannot be allowed to continue in an arbitrary mariner. Regulation 231 provides that subject to history-sheet of Class A shall continue for two consecutive years and thereafter the surveillance will be discontinued unless some special reason is recorded by the Superintendent of Police. Regulation 231 provides that subject to history-sheet of Class A shall continue for two consecutive years and thereafter the surveillance will be discontinued unless some special reason is recorded by the Superintendent of Police. ( 14 ) IT has been contended by Sri R. N. S. Chauhan, learned counsel for the petitioner that as the right of privacy has been held to be a fundamental right by the Apex Court regulation 228 of U. P. Pdliee Regulations be declared ultra vires to Article 19 (l) (d) and article 21 of the Constitution of India. ( 15 ) AFTER hearing learned counsel for the petitioner and learned counsel for the opposite parties, we are of the View that no doubt the right of privacy has been declared as a fundamental right and a person cannot be deprived of the freedom of movement guaranteed by the Article 19 (l) (d) as well as personal liberty guaranteed under Article 21, but it cannot be said that such right is absolute right; on contrary it is subjected to reasonable restrictions and for that reason in a case reported in (1975 Cri LJ 1 i 1 : AIR 1975 SC 1378 ) Govind v. State of Madhya pradesh, their Lordships of the Apex Court had held that The right to privacy will necessarily have to go through a process of case by case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, it cannot be held that the right is absolute. " ( 16 ) THE question which deserves consideration before this Court is as to whether the regulation in question gives an unbridled, uncanalised power to the police to use the power under the regulation in such a way to squeeze out the fundamental freedom of the citizen. In that regard, note of caution was given in Malak Singh v. State of P. and H. (1981 Cri LJ 320): (1981)1 SCG 420 : ( AIR 1981 SC 760 ), wherein Honble mr. In that regard, note of caution was given in Malak Singh v. State of P. and H. (1981 Cri LJ 320): (1981)1 SCG 420 : ( AIR 1981 SC 760 ), wherein Honble mr. Justice Chinnappa Reddy (as he then was) speaking on behalf of bench observed that : "but, surveillance may be instructive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the freedom of movement guaranteed by Article 19 (l) (d ). That cannot be permitted. " It was further observed that "history-sheeter and Surveillance registers" have to be and are confidential documents. Neither the person whose name is entered in the register nor any other member of the public can have access to the surveillance register. It was further indicated :"but all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who, do not fall within the categories mentioned in Rule 23. 4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limit prescribed by the rules, will entitle a citizen to the courts protection which the Court will not hesitate to give. " It was also observed that "surveillance" therefore, has to be unobtrusive and within bounds," it was further observed that:"ordinarily the names of persons with previous criminal record alone are entered in the surveillance register. They must be proclaimed offenders, previous convicts, or persons who have already been placed on. security for good behaviour. In addition, names of the persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered. It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register. But, here, the entry can only be made by the order of Superintendent of Police who is prohibited from delegating his authority under Rule 23. 5. It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register. But, here, the entry can only be made by the order of Superintendent of Police who is prohibited from delegating his authority under Rule 23. 5. Further it is necessary that the Superintendent of Police must entrain a reassonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property. While it may be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief. " ( 17 ) IN light of the aforesaid observations of the Honble Supreme Court, we have to look into the factual matrix as set out in the writ petition, counter-affidavit and rejoinder-affidavit from which it comes out cases which were registered against the petitioner resulted in acquittal. Further after 1993 and up to 4-1-97 no criminal case was registered against the petitioner. No criminal case was pending against the petitioner at the time of filing of the present petition. It is also manifest that opposite party No. 3 i. e. Station house Officer, Police Station Safipur, District Unnao opened the History-sheet no. SHA/45-A dated 27-4-1997 and the petitioner also remained elected as Chairman of Town Area Safipur District Unnao from 1997 to 2000. It is urged that opening of the said History-sheet is not justified. ( 18 ) IT has also been submitted by the learned counsel for the petitioner that the police of Police Station Safipur, District unnao had been watching the activities of the petitioner and encroached upon the privacy of the petitioner as it used to knock the door of his house during mid-night. It has been contended that the history-sheet of the petitioner was opened on account of enmity with the police, in order to downgrade the prestige of the petitioner. It has been urged that the surveillance has created hurdle in the free movement of the petitioner and his routine activity and his work has been disturbed due to interference of the local police and he cannot go anywhere without informing the local police. It has been urged that the surveillance has created hurdle in the free movement of the petitioner and his routine activity and his work has been disturbed due to interference of the local police and he cannot go anywhere without informing the local police. It has been contended that action on the part of the police is in violation of the fundamental right of freedom of the movement guaranteed by the Article 19 (l) (d) of the Constitution of India. ( 19 ) WHILE going through the paras of the police Regulations we find that opening of the history-sheet of the petitioner on 27-4-1997 suffers from non-application of mind. Even in the life of the criminal or habitual offender, time may come where he starts living a peaceful life. According to counter-affidavit, admittedly, at the time of the opening of history-sheet, all the criminal cases, which were pending against the petitioner, had resulted in acquittal. The history-sheet of the petitioner has to be yearly reviewed but, in the present case, we find that there exists no allegation against the petitioner that he used to indulge in any criminal activities after 4-1-97 (the last sessions trial which resulted in acquittal ). As such we are of the view that the petitioner cannot be termed as a confirmed and professional criminal. In our view there existed no justification for continuance of his name being mentioned in the history-sheet even after april, 2001 (after expiry of three consecutive years) and thereafter his surveillance should have been discontinued unless some special reason was recorded by the Superintendent of Police, (as provided in para 281 of Police Regulation ). ( 20 ) WE are definitely of the view, as also laid down in the judgments by the Apex court and High Court referred to above that in the facts and circumstances of the present case, the opening of history-sheet and police surveillance of the petitioner has seriously encroached upon the privacy of the petitioner and his fundamental right of personal liberty and freedom of movement guaranteed to him by Articles 21 and 19 (l) (d) of the Constitution of India respectively. We find that in the instant case the care and caution, which the police is required to observe, in the matter of surveillance been completely brushed aside. We find that in the instant case the care and caution, which the police is required to observe, in the matter of surveillance been completely brushed aside. ( 21 ) WE find that there was no sufficient ground for Superintendent of Police to entertain a reasonable belief that the surveillance was required in the case of the petitioner and since there existed no evidence to support the fact that the surveillance of the petitioner was further necessary after 27-4-200, it cannot be disputed that by opening a history-sheet the personal liberty of the petitioner is affected and, therefore, the same cannot be allowed to continue in an arbitrary manner and for unlimited period. ( 22 ) CONSIDERING the overall circumstances, we are of the view that continuance of life of history-sheet of the petitioner No. SHA/45-A opened on 27th April, 1997 and surveillance thereof should not be allowed to continue as it is against law and dictum of this Court, as well as the Apex Court and constitution of India. Therefore, in our view, the petitioner is entitled to the reliefs claimed for. ( 23 ) IN the result, this writ petition succeeds. Respondents are directed to closedown the History-sheet No. SHA/45-A dated 27th April, 1997, opened against the petitioner and to discontinue his surveillance and domiciliary visits to his house. Petition allowed. . .