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2010 DIGILAW 2479 (MAD)

M. Rajkumar v. State of Tamil Nadu

2010-06-22

N.PAUL VASANTHAKUMAR

body2010
Judgment : The prayer in the writ petition is to quash the order dated 15.7.2005 wherein the Deputy Superintendent of Police, Vaniyambadi Sub-Division, Vaniyambadi, Vellore District directed the Inspector of Police, Vaniyambadi Town Circle to open a history sheet against the petitioner and one Shanmugam who are named as accused in Crime No. 659 of 2005, Vaniyambadi Police Station under Sections 294(b), 441, 386, 468 and 506 (ii) of the Indian Penal Code and initiate action under section 107 of the Code of Criminal Procedure. 2. The case of the petitioner is that he is a journalist serving as a reporter of a magazine called ‘Udal Echerrikkai’ and on 24.6.2005, one Nabil alias Mohammed Nabil belonging to Vaniyambadi Kottai area was caught red-handed by the Teachers of T.V.K.V. School and the local public for sexually assaulting and molesting a girl child studying in the said School and he was produced before the Vaniyambadi Police Station and at that time, the petitioner was present. The petitioner reported the said incident to the Inspector of Police, who enquired the victim girl who identified the said Nabil as accused and explained the act committed by the said person. According to the petitioner, the Inspector of Police received a telephone call and requested the petitioner and the other person namely Shanmugam to wait outside the police station. The other person viz, Mr. Shanmugam, was the publisher of a newspaper ‘Kannottam’. 3. According to the petitioner, after some time, the Inspector of Police Came out and stated that the father of the victim girl viz., Balu had given a request in writing asking the Inspector of Police not, to register the case. The petitioner and the said Shanmugam gave complaint regarding the said incident and consequently, the Inspector of Police said that a case would be registered against the said Nabil and requested the Head Constable to draft a complaint. It is alleged in the affidavit that the said Shanmugam was prevented from taking any photographs of the said Nabil. However, he took photographs while he was coming out of police station. It is also averred in the affidavit that the Inspector of Police asked the petitioner and Shanmugam to publish only the news item as found in the FIR. 4. On 28.6.2005, the Inspector of Police summoned the petitioner and warned for pursuing the said case. However, he took photographs while he was coming out of police station. It is also averred in the affidavit that the Inspector of Police asked the petitioner and Shanmugam to publish only the news item as found in the FIR. 4. On 28.6.2005, the Inspector of Police summoned the petitioner and warned for pursuing the said case. According to the petitioner, he threatened the petitioner and the said Shanmugam about writing of complaint to the Superintendent of Police and the Deputy Inspector General of Police regarding the alleged bribe taken by the Inspector of Police on the information that the petitioner has planned to print notices. The petitioner pleaded ignorance. However, he was threatened and the Inspector of Police obtained undertaking from the petitioner stating that he would not indulge in such activities. The incident happened on 24.6.2005 was published in the newspaper Kannottam in the first week of July 2005. 5. On 1.7.2005, at about 11.15 pm when the petitioner was returning to his house, the third respondent apprehended the petitioner and forcibly seized the petitioner’s two-wheeler, camera and cell phone. Similar treatment was given to Shanmugam and his belongings were also seized. The petitioner and the said Shanmugam were taken to Vaniyambadi Town Police Station where they were beaten and tortured apart from abusing them. The police obtained signatures in several blank papers and the said assault continued till 4.00am. the petitioner and the said Shanmugam were produced before the learned Judicial Magistrate, Vaniyambadi after registering a case in Crime No. 659 of 2005 for offence under sections 294(b), 384 and 506(ii) of the Indian Penal Code on the basis of a complaint given by one Nilofer Kabil. 6. The learned Judicial Magistrate, Vaniyambadi, on seeing the injuries, referred the petitioner and the said Shanmugam for medical treatment. Medical treatment having not given and due to humiliation and torture at the hands of the Inspector of Police, submitted a representation to the District Collector, Vellore, Superintendent of Police, Vellore and the Director General of Police, Chennai on 29.7.2005 demanding action against the Inspector of Police. Medical treatment having not given and due to humiliation and torture at the hands of the Inspector of Police, submitted a representation to the District Collector, Vellore, Superintendent of Police, Vellore and the Director General of Police, Chennai on 29.7.2005 demanding action against the Inspector of Police. On 29.9.2005, the second respondent issued a statement under Section 161 of the Code of Criminal Procedure and stated that a case registered on 2.7.2005 against the petitioner and the said Shanmugam on the basis of anonymous calls and letters referred him stating that the petitioner and the said Shanmugam are extorting money from VIPs and hence a history sheet was been opened against the petitioner and the said Shanmugam on 15.7.2005. 7. The said order is challenged in this writ petition by the petitioner on the ground that the history sheet opened against the petitioner is on mala fide reasons by abusing the powers vested with respondents 2 and 3. The petitioner is neither a habitual offender nor an abettor or attemptor of any of commission of offence involving breach of peace. The ingredients of Police Standing Orders 779 for opening a history sheet are not made out. 8. The respondents have filed counter affidavit contending that the petitioner was indulging in publishing unauthorised news items under the name of Kannottam by falsely representing it to be registered. On 24.6.2005 at 10.00am, when the Women Sub Inspector of Police viz., K. Shanthi, while on duty near the Muslim Higher Secondary School at Kbttai Vaniyambadi, found the accused Nabil @ Mohammad Nabil scolding the public by using filthy language and therefore, the women Sub Inspector of Police, alongwith her party, arrested the accused Nabil @ Mohammad Nabil and registered a case in Vaniyambadi Town Police Station Crime No. 636 of 2005 under section 75 of the MCP Act. The said accused was convicted and sentenced to pay a fine of Rs.200/-. The allegation that one girl aged about nine years of T.V.K.V. School was molested and sexually assaulted by the said person were false. The petitioner and the said Shanmugam, with curiosity and imagination without the consent of the girl or her guardian, under the guise of investigating journalism, took photographs with ulterior motive. On information about the saidfact, the police warned the petitioner not to indulge any such blackmailing activities which will tarnish the reputation of the said girl. The petitioner and the said Shanmugam, with curiosity and imagination without the consent of the girl or her guardian, under the guise of investigating journalism, took photographs with ulterior motive. On information about the saidfact, the police warned the petitioner not to indulge any such blackmailing activities which will tarnish the reputation of the said girl. The contention of the petitioner about seizing of the cell phone, camera, two-wheeler, etc., is denied and ill-treatment in the police station is also denied. 9. Thus, there are allegations and counter allegations made by the petitioner as well as third respondent in the affidavit as well as in the counter affidavit. For deciding the matter in issue, that is the validity of the history sheet opened against the petitioner, the said facts need not be gone into detail. 10. Learned counsel appearing for the petitioner argued that for opening a history sheet, the second respondent is bound to follow Police Standing Orders 749 (Old Police Standing Orders 779) under which even persons convicted and not convicted but believed to be addicted to crimes can be included in a history sheet. However, as far as the petitioner is concerned, except one criminal case registered as stated supra, no other criminal case was registered and therefore, he was not implicated in any other criminal case on the date when the history sheet was opened. The learned counsel further submits that the mandatory requirement contained in the Police Standing Order 749 has not been satisfied to include the name of the petitioner in the history sheet. 11. Learned Government Advocate, on the basis of the counter affidavit, submitted that the petitioner had not only involved in the said criminal case viz., Crime No. 659 of 2005, but also involved in another case in Crime No. 884 of 2005 for a reported occurrence on 22.9.2005 for which charge sheet was filed on 30.11.2005. 12. The learned counsel appearing for the petitioner submits that the subsequent registration of the crime against the petitioner or filing of charge sheet has nothing to do with the order dated 15.7.2005 as except the Crime No. 659 of 2005, the petitioner was not involved in any other crime on the said date. Therefore, the impugned order is liable to be set aside. 13. I have considered the rival submission made, by the counsel for the petitioner as well as the Government Advocate. Therefore, the impugned order is liable to be set aside. 13. I have considered the rival submission made, by the counsel for the petitioner as well as the Government Advocate. 14. Police Standing Order 749 reads as follows: The following persons shall be classed as suspects and history sheets shall be opened for them under orders of the Superintendent of Division Officer, if so empowered by the Superintendent: (a) Persons once convicted under any section of the Indian Penal Code are considered to be likely to commit crime; (b) Persons, not convicted, but believed to be addicted to crimes. 15. A perusal of the above provision which is relied upon by the respondents in the counter affidavit for passing the order against the petitioner for opening a history sheet makes it clear that for opening a history sheet against a person, he should have been convicted under any section of the Indian Penal Code or not convicted but believed to be addicted to crimes. Admittedly, the petitioner’s name was included in only one case and he was not convicted in any offences till date or on the date of passing the impugned order i.e., on 15.7.2005. A person can be said to be addicted to crime if he habitually involves in criminal cases. That means, he should have involved in more than once case at least on the date when his name was ordered to be included in the history sheet. 16. Similar issue was considered by this Court in the decision in Vani v. Superintendent of Police (2008) 3 MLJ (Crl) 1525 wherein the learned Judge considered the judgment of the Supreme Court in Malak Singh and Others v. State of P&H and Others (1981) 1 SCC 420 and held that opening of history sheet in the name of persons are arbitrary, unreasonable and whimsical and it would amount to denial of right guaranteed under Article 21 of the Constitution of India and allowed the writ petition. In para 19 and 20 of the said judgment, it is held as follows at pp. 1532 and 1533 of MLJ (Crl): “19. In para 19 and 20 of the said judgment, it is held as follows at pp. 1532 and 1533 of MLJ (Crl): “19. In Malak Singh and Others v. State of P&H and Others (supra) the Supreme Court, while holding that entry for surveillance register should be made on the basis of the materials, though they may be kept as a confidential document and it does not require observance of Principles of Natural Justice before opening the history sheet, in para Nos.9 and 10 of the said judgment, the Court provided for judicial review over illegal actions and those passages may be usefully extracted below: Para.9. “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 those 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 limits prescribed by the rules, will entitle a citizen to the Court’s protection which the Court will not hesitate to give. The very Rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed. The note following Rule 23.4 is instructive. It enjoying a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule. Similarly Rule 23.7 demands that there should be no illegal interference in the guise of surveillance. Surveillance, therefore, has to be unobtrusive and within bounds.” Para 10. “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 persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered. They must be proclaimed offenders, previous convicts, or persons who have already been placed on security for good behaviour. In addition, names of 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 the Superintendent of Police who is prohibited from delegating his authority under Rule 23.5. Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose; names are to be entered in Part II are habitual offenders or receivers of stolen property. While it may not 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. In fact in the present case we sent for the relevant records and we have satisfied ourselves that there were sufficient grounds for the Superintendent of Police to entertain a reasonable belief.” 20. Therefore, in the light of the facts narrated and the legal precedents, it must be held that the actions of the respondents in all the three Writ Petitions are condemnable. Opening of the history sheets in the name of three petitioners are arbitrary, unreasonable and whimsical and it would amount to denial of right of citizens provided under Article 21 of the Constitution of India to have the right of privacy. Though opportunities were given to the respondents, they have not shown any credible materials to justify their action before this Court. The superior officer though had considerable responsibility to oversee such records have acted in a mechanical fashion to put their initials periodically without any verification.” 17. Though opportunities were given to the respondents, they have not shown any credible materials to justify their action before this Court. The superior officer though had considerable responsibility to oversee such records have acted in a mechanical fashion to put their initials periodically without any verification.” 17. It is also seen from the records filed by the petitioner that the said Shanmugam who was also detained alongwith the petitioner and the petitioner approached the State Human Rights Commission and claimed compensation for causing injury to them and the State Human Rights Commission ordered compensation of Rs.25,000/- to the said Shanmugam and the petitioner was not granted compensation on the ground that he sustained only simply injury and his complaint No. SHRC 7340/2005 was closed. The third respondent herein challenged the order passed by the State Human Rights Commission in W.P.No.47861 of 2006 and this Court, found that there was human rights violation and upheld the order of the State Human Rights Commission and ordered to recover the said amount of Rs.25,000/- from the salary of the Inspector of Police who was in charge of the third respondent Police Station at that time. Thus, it is manifest that the alleged incident which is relied on to open a history sheet against the petitioner was seriously viewed by the Division Bench of this Court and still the petitioner’s name is not removed from the history sheet. 18. A journalist/reporter, who is discharging his professional duty, cannot be subjected to humiliation or ill-treatment at the hands of the police merely because something is written against the police. If really any damage of reputation of a police officer is caused, it is open to the officer concerned to claim damages/initiate appropriate legal action. Using third degree methods or opening a history sheet in violation of Police Standing Order is impermissible. 19. By considering the undisputed fact that except, one crime registered against the petitioner in Crime No.659 of 2005 as on 15.7.2005, I am of a firm view that the respondents have not, made out a case to open a history sheet against the petitioner on 15.7.2005. Hence, the impugned order is quashed. The writ petition is allowed. No costs. The connected miscellaneous petition is closed. Petition allowed.