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2004 DIGILAW 1355 (PNJ)

Musa Khan v. State Of Punjab

2004-12-15

AMAR DUTT, BINOD KUMAR ROY

body2004
Judgment Amar Dutt, J. 1. Musa Khan has filed this petition for issuance of a direction to the respondent to delete his name from Register No. 10 maintained by the Police Station Kotwali, Patiala under the Punjab Police Rules, 1934 (in short "the 1934 Rules") as also to issue a direction that the action of the Station House Officer of the aforesaid Police Station displaying his name and photograph on the notice board of the Police Station amounts to interference with the life and liberty of the petitioner. 2. The relevant facts pleaded for decision of the petition are that Musa Khan had participated in the National Weightlifting Championships in the year 1989-90 and secured first place in those Junior Inter State Weightlifting Championships and was declared best weightlifter of the Union Territory of Chandigarh (wrongly mentioned as Chandigarh State). He is presently running a business of property dealer at Uday Street, Adalat Bazar, Patiala and is also having contractorship of Cycle Stands in Civil Secretariat, Patiala. He claims that he is paying income tax since 1996-97. According to him, Inspector Varinder Singh, Station House Officer, Police Station Sadar, Patiala had on 21.12.2000 moved an application under Section 110 of the Code of Criminal Procedure (in short "the Code") before the Sub Divisional Magistrate, Patiala praying that the petitioner be asked to execute a security bond for good behaviour. This application was dismissed on 20.3.2001. According to the petitioner, the order of Sub Divisional Magistrate, Patiala indicates that the police was harassing the petitioner in one way or the other. Inspector Varinder Singh was replaced by Inspector Didar Singh, who took charge of Police Station, Sadar, Patiala in January, 2003 and started requiring the petitioner to come to Police Station time and again. The petitioner had apprised him about the outcome of the calendra under Section 107 of the Code on account whereof the Inspector made it his prestige issue to harass and implicate the petitioner. To achieve his purpose, the Inspector evolved a novel idea and put the name and photograph of the petitioner on the notice board of the Police Station Sadar, Patiala indicating that he was habitual offender. When the petitioner came to know of this fact he asked the Inspector to remove his name and the photograph. Inspector Didar Singh had required the petitioner to pay a sum of Rs. 10,000/- for removing the same. When the petitioner came to know of this fact he asked the Inspector to remove his name and the photograph. Inspector Didar Singh had required the petitioner to pay a sum of Rs. 10,000/- for removing the same. On the basis of these assertions, Musa Khan submits that Inspector Didar Singh is out to harass him for obvious reasons. 3. It is in this background that the petitioner apprehended that his name must have been entered in a Surveillance Register maintained under Rule 23.4 of the 1934 Rules for displaying the name of a person on the notice board as a habitual offender requires (a) that his name must have been entered in the Surveillance Register No. 10 as per Rule 23.4, and (b) he must have been convicted in the cases registered against him and none of these conditions are available in the case of the petitioner. Aggrieved by these actions of the Patiala Police, Musa Khan had approached this court through Civil Writ Petition No. 4340 of 2003 and the same was disposed of by a Division Bench of this Court directing the petitioner to move a representation before the Senior Superintendent of Police, Patiala pointing out his grievances whereafter the Senior Superintendent of Police, Patiala was directed to decide the representation expeditiously in accordance with law. 4. The representation, which was moved, was rejected by the office of the Senior Superintendent of Police, Patiala by mentioning a list of 14 cases which had been registered against the petitioner. Musa Khan submits that for the last more five years, he has not been involved in any crime and in all the cases, which have been mentioned in the list, Annexure P-13, he has been acquitted. He also asserts that request of the police to initiate proceedings under Section 110 of the Code had been rejected and, therefore, a case was made out for removal of the name of the petitioner from Register No. 10 and prayed that the requisite directions be issued. 5. The response of the State to the averments contained in the petition is available in the affidavit of Shri Bhupinder Singh, Deputy Superintendent of Police City-I, Patiala. In the reply, the respondents admit the issuance of direction in Civil Writ Petition No. 4340 of 2003 and submit that 15 cases were registered against the petitioner in which he has been acquitted due to a compromise. In the reply, the respondents admit the issuance of direction in Civil Writ Petition No. 4340 of 2003 and submit that 15 cases were registered against the petitioner in which he has been acquitted due to a compromise. It was admitted that calendra under Section 110 of the Code was presented and their request had been dismissed. It was submitted that it was on the basis of this record that the representation made by the petitioner had been rejected by the Deputy Superintendent of Police, City-I, Patiala. The assertion that in the last five years, no case has been registered against the petitioner was denied and it was mentioned that following three cases have been registered against the petitioner :- (1) FIR No. 629 dated 14.12.2000 under Section 307 IPC Police Station Civil Lines, Patiala. (2) FIR No. 408 dated 19.10.2002 under Sections 457/380 IPC. Police Station Kotwali, Patiala. (3) FIR No. 399 dated 31.10.2003 under Sections 323/149/149 IPC Police Station Kotwali, Patiala. Although it was also admitted that in first case the petitioner had been declared innocent, the second case has been sent up as untraced while third case is still pending, in view of the details given in the petition about the criminal propensities of the petitioner it was asserted that a case was made out to warrant retention of the name of Musa Khan in Surveillance Register No. 10 and, therefore, the writ should be dismissed. 6. We have heard learned counsel for the parties and perused the record. 7. It is the admitted case of the parties that the maintenance of the Surveillance Register No. 10 is warranted by the provisions of Chapter XXIII of the 1934 Rules. These spell out what was required to be done by the members of the Police Force for ensuring the prevention of offences. Rules 23.4 and 23.5 of the 1934 Rules read as under :- "23.4 Surveillance Register No. X. - (1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in form 232.4(1). (2) In part I of such register shall be entered the names of persons commonly resident within or commonly frequenting the local jurisdiction of the police station concerned, who belong to one or more of the following classes :- (a) All persons who have been proclaimed under Section 87, Code of Criminal Procedure. (2) In part I of such register shall be entered the names of persons commonly resident within or commonly frequenting the local jurisdiction of the police station concerned, who belong to one or more of the following classes :- (a) All persons who have been proclaimed under Section 87, Code of Criminal Procedure. (b) All released convicts in regard to whom an order under Section 565, Criminal Procedure Code, has been made. (c) All convicts the execution of whose sentence is suspended in the whole, or any part of whose punishment has been remitted conditionally under Section 401, Criminal Procedure Code. (d) All persons restricted under Rules of Government made under Section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918. (3) In Part II of such register may be entered at the discretion of the Superintendent - (a) persons who have been convicted twice, or more than twice, of offences mentioned in Rule 27.29; (b) persons who are reasonably believed to be habitual offenders or receivers of stole property whether they have been convicted or not; (c) persons under security under Section 109 or 110, Code of Criminal Procedure; (d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without the imposition of any conditions Note. - This must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein. 23.5(1) The Surveillance Register shall be written up by the officer in charge of the police station personally or by an Assistant Sub-Inspector in a clear and neat script. No entry shall be made in Part II except by the order of the Superintendent, who is strictly prohibited from delegating this authority. No entry shall be made in part I except by the order of a gazetted officer. Entries shall be made either under the personal direction of, or on receipt of a written order from an officer authorised by this rule to make them. In the latter case original orders shall be attached to the register until the entry has been attested and dated by a gazetted officer. (2) Ordinarily, before the name of any person is entered in Part II of the Surveillance Register a history sheet shall be opened for such person. In the latter case original orders shall be attached to the register until the entry has been attested and dated by a gazetted officer. (2) Ordinarily, before the name of any person is entered in Part II of the Surveillance Register a history sheet shall be opened for such person. If, from the entries in the history sheet, the Superintendent is of opinion that such person should be subjected to Surveillance he shall enter his name in Part II of the Surveillance Register, provided that the names of persons who have never been convicted or placed on security for good behaviour shall not be entered until the Superintendent has recorded definite reasons for doing so. The record of such reasons shall be treated as confidential and the person concerned shall not be entitled to a copy thereof." 8. Rule 23.4 of the 1934 Rules gives the details of how names of the persons commonly resident within or commonly frequenting the local jurisdiction of the police station concerned would be incorporated in Part I of Surveillance Register No. X Part II thereof spells out the details of the persons whose names may be entered in the register at the discretion of the Superintendent of Police. A perusal of the aforesaid Rule makes it clear that the same specifies the type of persons, whose names can be entered in the Surveillance Register. The case of the petitioner, in our opinion, does not fall within Rule 23.4(2)(a) to (d) of the 1934 Rules as it is not the case of the State that the petitioner has been declared a proclaimed offender under Section 87 of the Code or that after his conviction any order under Section 565 of the Code has been made or the sentence imposed upon him in any of the trial has been remitted conditionally under Section 401 of the Code or that any order under Section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918 (in short "the 1918 Act") had been passed. A perusal of Sub-Rule (3) of Rule 23.4 of the 1934 rules shows that the case of the petitioner does not fall under any of the sub-clauses as admittedly there is no conviction recorded against him nor is there any order under clause (b) of sub-rule (3) for recording the belief of the competent authority that he is habitual offender or receiver of stolen property. Since there is no assertion regarding any security proceedings initiated against the petitioner under Sections 109 and 110 of the Code, Clause (c) of Sub-Rule (3) of Rule 23.4 of the 1934 Rules would also not cover the case of the petitioner nor it would fall in clause (d) thereof because there is nothing on the record to show that he has been released before the expiration of his sentence under the Prisons Act and Remission rules without the imposition of any conditions. The proceedings initiated against the petitioner under the 1918 Act were unsuccessful and, therefore, in the case of the petitioner, no material has been produced before us which could justify the retention of his name in the Surveillance Register. 9. The State has also not made available for perusal of this Court any order of the Superintendent of Police to warrant the inclusion of the name of the petitioner under Rule 23.4(3)(b) of the 1934 Rules. 10. Looked at from any angle, the retention of the name of the petitioner in the Surveillance Register cannot be justified and as the act of respondent No. 3, transgresses the fundamental rights as enshrined under Articles 19 and 21 of the Constitution of India, there is no warrant for condoning the same as also the inaction of respondent No. 2 on the representation of the petitioner. 11. For the reasons recorded above, we accept the petition and direct the State to ensure that the name of the petitioner is removed from Register No. 10 as till date, there is no material, which would warrant the inclusion of his name in either Part I or Part II of the aforesaid register. As name of the petitioner cannot be included in Register No. 10, therefore, a direction is also issued to the State to ensure that the photograph and amount of fine that had been imposed upon the petitioner be removed from the notice board of the police station. 12. As name of the petitioner cannot be included in Register No. 10, therefore, a direction is also issued to the State to ensure that the photograph and amount of fine that had been imposed upon the petitioner be removed from the notice board of the police station. 12. Before parting with the judgment, we direct that a copy of the same be sent to the Director Generals of Police, Punjab and Haryana and Inspector General of Police, Union of Territory, Chandigarh, who in turn would forward the same to the District Police Chiefs with a direction to re-examine the Surveillance Registers maintained in the Police Stations of their districts and to bring in conformity with the observations contained in this judgment. The process, it is hoped, would be completed within two months.