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2012 DIGILAW 3945 (MAD)

K. Vediappan v. Secretary to Government

2012-09-20

K.CHANDRU

body2012
Judgment :- 1. This writ petition is filed by the petitioner seeking to challenge an action of the respondents in opening a History sheet in his name in H.S.No.516/D, dated 02.04.2009 on the file of the 4th respondent, i.e., the Inspector of Police, Harur Police Station, Dharmapuri District and after setting aside the same seeks for a direction to pay compensation of Rs.5 lakhs to the petitioner. 2. When the writ petition came up on 16.7.2012, this court ordered notice on admission and had directed the learned Special Government Pleader to get instructions from the respondents. Accordingly, a counter affidavit, dated 31.7.2012 has been filed by the Superintendent of Police, Dharmapuri District, i.e., the second respondent. The original file relating to the History sheet was also circulated. 3. It is the case of the petitioner that he is the District Organizer of Periyar Diravidar Kazhagam in Dharmapuri District. The said organization is a non political social organization. He is a strong follower of Thanthai Periyar E.V.Ramasami and Baba Saheb Dr.B.R.Ambedkar. He also undertakes contract works on sub contract basis from the registered contractors. From his younger days, he has been working for the upliftment of the downtrodden people. He had also used the provisions of the RTI Act to bring out the illegal activities of certain Government functionaries. During the year 2006, one P.Churchil, an Advocate in Harur, had received huge amounts from his client one Shanmuganathan by using the name of the then District Munsif. He did not hand over the amount and also did not fulfill the promise made by him. On 31.3.2006, the said Shanmuganathan had asked for the refund of the amount. A wordy quarrel took place and that the petitioner intervened in the said dispute. However, the said Advocate gave a complaint against the petitioner in the Harur Police Station in Crime No.206 of 2006 under various offences. On 16.12.2007, the people of the locality made a complaint against the TNEB line man by name Ramaswamy for his irregularities. Hence he had assumed that it was under the instigation of the petitioner, the public made a complaint against him. Therefore, a complaint was made against the petitioner which was registered in Crime No.1087 of 2007. For both cases, so far no charge sheet has been filed. The petitioner had come out on bail. 4. Hence he had assumed that it was under the instigation of the petitioner, the public made a complaint against him. Therefore, a complaint was made against the petitioner which was registered in Crime No.1087 of 2007. For both cases, so far no charge sheet has been filed. The petitioner had come out on bail. 4. The petitioner had given several interviews to 'Junior Vikatan', a Tamil Biweekly as well as in other news papers against the atrocities of the local police. On 16.08.2009, he had given an interview against the malpractices committed by one Dr.T.Selvam (5th respondent). He made an application to the fifth respondent asking for some particulars. On 27.11.2009, a Senior Civil Surgeon of the hospital had furnished some particulars. On 14.12.2009, he had paid money for copying of documents. But the fifth respondent had refused to give documents. This news item was published in 'Dinamani' daily. As against the refusal, the petitioner had gone on appeal to the appellate authority. On 09.02.2010, when he had visited the hospital for taking treatment, the 5th respondent had appeared in the scene and scolded him by caste name. It is in this context, some complaints were made by both sides. The 4th respondent came to the house of the petitioner on 11.9.2011 and entered the house along with local rowdies. He was forcibly taken to the A.Pallipatti Police Station and kept in the lock up room without his clothes. His signatures were obtained in blank papers. He was also threatened that he will be finished off in an encounter. His arrest was also not informed to his relatives contrary to the D.K.Basu's guidelines. It was stated that the respondents had opened a History sheet without any justification. There were no materials for opening the history sheet and no case has been registered against him for contacting his party leader Kolathur Mani and also for the alleged support given to the terrorist. Even the allegation that moneys were collected to erect the statue of late Naveen Prasad, a known Naxalite, was also false. No statue has been erected. In opening the history sheet, the guidelines under PSO 749 was not followed. 5. Even the allegation that moneys were collected to erect the statue of late Naveen Prasad, a known Naxalite, was also false. No statue has been erected. In opening the history sheet, the guidelines under PSO 749 was not followed. 5. In the counter affidavit filed by the respondents, apart from setting out cases against the petitioner, it was stated that the name of the petitioner was entered in an history sheet as per the PSO 746 as there were credible materials available with the 4th respondent. The said history sheet was counter signed by the third respondent Deputy Superintendent of Police after he was fully satisfied. It is not correct to state that Article 21 was violated in opening the history sheet. A reference was also made to a judgment of the Supreme Court in Malak Singh and others V. State of P & H and others reported in (1981) 1 SCC 420 . As per the PSO 746, the history sheet should contain the name of persons who are the residents permanently or temporarily in the station limits, who are known or believed to be addicted to or to aid and abet the commission of crime whether convicted or not, or who are believed to be habitual receivers. The averment that the petitioner was a RTI activist and was doing social services as well as law abiding citizen was denied. In the criminal case, he was lawfully arrested and sent to judicial custody. He was also doing "Katta Panchayat". 6. In the file produced against the petitioner, it was stated that the petitioner was collecting moneys from public by promising them that he will get things done in the Government offices. He also enters into Government Offices and threatens Government officials. He was regularly contacting his party leader Kolathur Mani. He was also helping the extremists indirectly. He was collecting moneys for installing a statue for one Naveen Prasad who was killed in a police encounter. The background history was also referred to as well as an incident took place on 31.3.2006 in relation to crime No.206 of 2006 and the other incident dated 16.12.2007 relating to Crime No.1087 of 2007. 7. As rightly contended by the petitioner, in both the cases, which are more than 5 years old, no charge sheet has been filed. The background history was also referred to as well as an incident took place on 31.3.2006 in relation to crime No.206 of 2006 and the other incident dated 16.12.2007 relating to Crime No.1087 of 2007. 7. As rightly contended by the petitioner, in both the cases, which are more than 5 years old, no charge sheet has been filed. But however based upon the entries, the Deputy Superintendent of Police had counter signed the file and directed that his activities should be closely watched. A direction was given to the Inspector to open a history sheet to watch his activities very closely and report compliance. This was vide an order dated 2.4.2009. Subsequently, the Inspector of Police put up a memo on 01.01.2011 seeking for continuation of the history sheet upto 31.12.2011 on the ground that the activities of the petitioner was not satisfactory. Thereafter, the Deputy Superintendent of Police made an endorsement stating that the history sheet shall be retained till 31.12.2011. Once again, the Inspector of Police made a similar extension request on 31.12.2011 and the Deputy Superintendent of Police had made an extension mechanically to retain the history sheet upto 31.12.2012. 8. It is admitted that the petitioner was working for the Periyar Diravidar Kazhagam and still his activities are watched. Assuming that some grounds were made available to open the history sheet, it is not clear as to how the Deputy Superintendent of Police can mechanically extend it on the same materials for more than two times. Even in the original history sheet, the incidents relating to the year 2006 and 2007 were referred to, for which cases, there has been no charge sheet filed even after six years and the petitioner is on bail. The incident relating to entering into the Government Hospital and having altercation with the 5th respondent arose out of the request made under the RTI Act which led the wordy quarrel. It is not clear as to how these incidents will have any relevance for opening a history sheet. 9. It is pertinent to point out that opening of History Sheets, surveillance list and domicilary visits came to be considered by the Supreme Court in several decisions. In Kharak Singh Vs. It is not clear as to how these incidents will have any relevance for opening a history sheet. 9. It is pertinent to point out that opening of History Sheets, surveillance list and domicilary visits came to be considered by the Supreme Court in several decisions. In Kharak Singh Vs. State of U.P. and others ( AIR 1963 SC 1295 ), a Larger Bench of the Supreme Court while dealing with a regulation authorising domicilary visits to the houses of suspect individuals exhorted the values of personal liberty. In the majority opinion in paragraphs 14 and 18, it was observed as follows: "14.) The question that has next to be considered is whether the intrusion into the residence of a citizen and the knocking at his door with the disturbance to his sleep and ordinary comfort which such action must necessarily involve, constitute a violation of the freedom guaranteed by Art. 19(1)(d) or "a deprivation" of the "personal liberty" guaranteed by Article 21. Taking first Article 19(1)(d) the "freedom" here guaranteed is a right "to move freely" throughout the territory of India. Omitting as immaterial for the present purpose the last words defining the geographical area of the guaranteed movement, we agree that the right of "move" denotes nothing more than a right of locomotion, and that in the context the adverb "freely" would only connote that the freedom to move is without restriction and is absolute, i.e., to move wherever one likes, whenever one likes and however one likes subject to any valid law enacted or made under clause (5). It is manifest that by the knock at the door, or by the man being roused form his sleep, his locomotion is not impleaded or prejudiced in any manner. Learned Counsel suggested that the knowledge or apprehension that the police were on the watch for the movements of the suspect, might induce a psychological inhibition against his movements but, as already pointed out, we are unable to accept the argument that for this reason there is an impairment of the "free" movement guaranteed by sub-clause (d). Learned Counsel suggested that the knowledge or apprehension that the police were on the watch for the movements of the suspect, might induce a psychological inhibition against his movements but, as already pointed out, we are unable to accept the argument that for this reason there is an impairment of the "free" movement guaranteed by sub-clause (d). We are not persuaded that Counsel is right in the suggestion that this would have any effect of diverting or impeding his movement, we are clear that the freedom guaranteed by Article 19(1)(d) has reference to something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomotion. .... 18.) It is true that in the decision of the U.S. Supreme Court from which we have made these extracts, the Court had to consider also the impact of a violation of the Fourth Amendment which reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized" and that our Constitution does not in terms confer any like constitutional guarantee. Nevertheless, these extracts would show that an unauthorised intrusion into a person's home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man - an ultimate essential of ordered liberty, if not of the very concept of civilisation. An English Common Law maxim asserts that "every man's house is his castle and in Semayne's case, (1604) 5 Co Rep 91a : 1 Sm.L.C.(13th Edn.) 104 at p. 105 where this was applied, it was stated that "the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose." We are not unmindful of the fact that Semayne's case (1604) 5 Co Rep 91a : 1 Sm L.C.(13th Edn.) 104 at p 105 was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which transcends mere protection of property rights and expounds a concept of "personal liberty" which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value." 10. In Gobind Vs. State of Madhya Pradesh and another [ (1975) 2 SCC 148 ], the Supreme Court while upholding the regulations 855 and 856 of the Madhya Pradesh Police Regulations providing for surveillance made certain researches on the point. In paragraphs 28 and 30, the Supreme Court struck a note of caution, which is as follows:- "28. The right to privacy in any event 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, we do not think that the right is absolute. ....... 30. ....... Our founding fathers were thoroughly opposed to a Police Raj even as our history of the struggle for freedom has borne eloquent testimony to it. The relevant Articles of the Constitution we have adverted to earlier, behove us therefore to narrow down the scope for play of the two regulations. We proceed to give direction and restriction to the application of the said regulations with the caveat that if any action were taken beyond the boundaries so set, the citizen will be entitled to attack such action as unconstitutional and void." 11. We proceed to give direction and restriction to the application of the said regulations with the caveat that if any action were taken beyond the boundaries so set, the citizen will be entitled to attack such action as unconstitutional and void." 11. In Malak Singh and others V. State of P & H and others reported in (1981) 1 SCC 420 , the Supreme Court while holding that entry for surveillance register should be made on the basis of 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 paragraph Nos.9 and 10 of the said judgment, the Court provided for a judicial review over illegal actions and those passages may be usefully extracted below: "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 enjoins 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. 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. Surveillance, therefore, has to be unobtrusive and within bounds. 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. 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 of 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."(Emphasis added) 12. Very recently, the entire scope of opening a history sheet by the police in terms of the Police Standing Order was considered vide judgment in Ganesan Vs. The District Superintendent of Police, Virudhunagar District reported in 2010 (6) CTC 507 , wherein S.Manikumar, J., had observed in paragraph 71 as follows : "What is disclosed in the files is only periodical bald entries made by the Sub-Inspector of Police, sitting in his police station, by asking the petitioner to go over to the police station every month. There is not only procedural impropriety, but there is also no prima facie material for seeking extension, i.e. retention of his name in the History Sheet. The Sub-Divisional Officer who is enjoined with the power to consider the request, after examination of all the details has mechanically approved the request, without any application of mind. There is not only procedural impropriety, but there is also no prima facie material for seeking extension, i.e. retention of his name in the History Sheet. The Sub-Divisional Officer who is enjoined with the power to consider the request, after examination of all the details has mechanically approved the request, without any application of mind. Perusal of the same, shows that both the officers have grossly failed in their duties and not applied their mind, to the object sought to be achieved and there is absolutely nothing to indicate their subjective satisfaction on the basis of the twin tests, "relevance and reason", which are to be satisfied, where discretion is conferred on any authority." 13. In the light of the above, it can be safely concluded that even if the initial action of opening the history sheet against the petitioner can be held to be valid, the continued retention of the petitioner's name is really humiliating especially he is a District level leader of a non political social reform organization. Therefore, a direction is issued to the respondents to delete the name of the petitioner from the history sheet maintained against him by the 4th respondent. 14. But with reference to the award of compensation this court is not satisfied that any case has been made out for the grant of compensation. Hence that relief stands disallowed. Accordingly, this writ petition will stand allowed to an extent indicated above. No costs.