JUDGMENT 1. - The matter comes up on an application (CRLMA No.7/2015) for early listing of the case. The next date fixed in the case is 03.02.2015. 2. Learned counsel for the petitioner as well as learned Public Prosecutor are ready to argue the matter finally, hence, the application (CRLMA No.7/2015) for early listing of the case is disposed of and with the consent of both the counsels, the matter is heard finally. 3. This Criminal Misc. Petition has been filed by the petitioner under Section 482 Cr.P.C. being aggrieved with the existence of his name in the history-sheet of Police Station, Kotwali, District Barmer which was opened by the order of the Superintendent of Police, Barmer vide order dated 25.04.2006. 4. Learned counsel for the petitioner has submitted that name of the petitioner has entered into history-sheet on the ground that in four criminal cases, the police has filed charge-sheets against him. It is also informed by learned counsel for the petitioner that during the pendency of these charge-sheets, another criminal case was registered against the petitioner in the year 2008 for the offence punishable under Sections 342, 324 and 427 IPC. Learned counsel for the petitioner has submitted that though in all the five criminal cases, the charge-sheets have been filed against the petitioner, however, he has been acquitted in four cases and has been granted benefit of probation in one case by the competent criminal courts. It is further contended by learned counsel for the petitioner that after year 2008, no criminal case is registered against the petitioner and looking to the fact that out of five criminal cases registered against the petitioner, the petitioner has been acquitted in four cases and in one case he was granted probation, the continuance of name of the petitioner in history-sheet is illegal and a direction may be issued to the Superintendent of Police, Barmer to remove the name of the petitioner from the history-sheet. 5. Learned counsel for the petitioner has placed reliance upon the decisions of this Court rendered in Ibrahim Khan v. State of Rajasthan reported in 2006 Raj CANDID 1509 and Ramgopal Jain v. State of Rajasthan & Ors. reported in 2013(3) WLC (Raj.) 466 . 6. A reply to this Criminal Misc. 5. Learned counsel for the petitioner has placed reliance upon the decisions of this Court rendered in Ibrahim Khan v. State of Rajasthan reported in 2006 Raj CANDID 1509 and Ramgopal Jain v. State of Rajasthan & Ors. reported in 2013(3) WLC (Raj.) 466 . 6. A reply to this Criminal Misc. Petition is preferred on behalf of the S.H.O., Police Station, Kotwali, District Barmer, wherein it is mentioned that name of the petitioner was entered in the Surveillance Register as per the direction given by the Superintendent of Police, Barmer because the petitioner is a habitual offender and as many as four criminal cases were registered against the petitioner and in all the criminal cases, he was charge-sheeted. It is also argued that even during the pendency of the history-sheet against the petitioner, one another criminal case was registered against him in the year 2008 and in that case also, he was charge-sheeted. Learned Public Prosecutor has contended that as there is no provision under Rajasthan Police Rules, 1965 to remove the name of the person from the historysheet/ surveillance register, the relief prayed for by the petitioner cannot be granted. However, learned Public Prosecutor has fairly conceded that in all those criminal cases, registered against the petitioner, the trial court has passed the final judgment and in four cases, the petitioner was acquitted, however, in one case, he was granted benefit of probation. 7. Heard learned counsel for the parties and perused the material available on record. 8. Rule 4.9 of the Rajasthan Police Rules, 1965 (hereinafter referred to as the 'Rules of 1965') provides for opening of the History sheets, reads as under:- "4.9 History Sheets when opened. - (1) A history sheet, if one does not already exist, shall be opened in Form 4.9 for every person whose name is entered in the surveillance register, except conditionally released convicts. (2) A history sheet may be opned by or under the written orders of a police officer not below the rank of Inspector for any person not entered the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such person." (3) The Government Railway Police will maintain the history sheet of criminals known or suspected to operate on the railway in accordance with Police Rule 4.8. They will open history sheets themselves for criminals living in railway premises, who have been absent from their original homes so long that the railway premises may be regarded as their permanent residence. They may also open history sheets for wandering strangers reasonably believed to be habitually addicted to crime on the railway, whose original homes cannot be traced." 9. Rule 4.4 of the Rules of 1965 deals with Surveillance Register No.8 to be maintained in every police station in Form 4.4(1) which reads as under:- "4.4 Surveillance Register No.8 - (1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in Form 4.4.(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. (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 8 of the Rajasthan Habitual Offenders Act, 1953. (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 8.22; (b) persons who are reasonably believed to be habitual offenders or receivers of stolen 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 rule must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein." 10. As per Clause (1) of Rule 4.9 of the Rules of 1965, a history-sheet can be opened against a person, whose name is entered in the Surveillance Register, except conditionally released convicts. Note:-This rule must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein." 10. As per Clause (1) of Rule 4.9 of the Rules of 1965, a history-sheet can be opened against a person, whose name is entered in the Surveillance Register, except conditionally released convicts. As per Clause (2) of Rule 4.9 of the Rules of 1965, a history-sheet can be opened under the written orders of a police officer not below the rank of Inspector against any person, whose name has not been entered in the Surveillance Register but who is reasonably believed to be habitually addicted to commit crime or to be an aider or abettor of such person. 11. Rule 4.4 of the Rules of 1965 clearly reveals that there are two categories of persons whose names may be entered in the Surveillance Register: the first category deals with persons, who are commonly resident within or commonly frequenting the local jurisdiction of the police, and who are either proclaimed under Section 87 of Code of Criminal Procedure, or released convicts in regard to whom an order under Section 565 Criminal Procedure Code, has been made, or all convicts the execution of whose sentence is suspended in the whole, or any part under Section 401 Criminal Procedure Code. The second category of persons are those who at the discretion of the Superintendent of Police have been convicted twice, or more than twice, of offences mentioned in Rule 8.22; Rule 8.22 deals with specific offences in Chapter XI, XII, XIII, XVI, XVII and XXI of I.P.C. or under Chapter VIII of Cr.P.C. or under Gambling Ordinance, Indian Arms Act or where the previous conviction would lead, but enhanced conviction subsequently. Another category covered under the second category are those persons who are reasonably believed to be "habitual offenders" or receivers of stolen property "whether they have been convicted or not", or persons under security under Sections 109 or 110, Code of Criminal Procedure, or convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without imposition of any conditions. 12. 12. It is already noticed that as per the reply filed by the SHO, Police Station, Kotwali, Barmer, name of the petitioner was entered into the surveillance register as per the directions given by the Superintendent of Police, Barmer as the petitioner is a habitual offender. 13. The word "habitual offender" has not been defined in the Rules of 1965, but has been defined in the Rajasthan Habitual Offender Act, 1953 (hereinafter referred to as 'the Act of 1953'). Section 2(a) of the Act of 1953 reads as under:- "(a) 'habitual offender' means a person who, during any continuous period of five years, whether before or after the 15th day of September, 1952 or partly before and partly after the said day, has been sentenced on conviction on not less than three occasions since he attained the age of eighteen years to a substantive terms of imprisonment for any one or more of the scheduled offences committed on different occasions and so connected together as to form parts of the same transaction, such sentence not having been reversed in appeal or revision: Provided that in computing the continuous period of five years referred to above any period spent in jail either under a sentence of imprisonment or under detention shall not be taken into account;" 14. As per the definition of the 'habitual offender', provided under the Act of 1953, a person can be declared as habitual offender, if he has three convictions recorded against him. In the present case, single conviction has been recorded against the petitioner, however, in all other cases, he was acquitted by the competent criminal court, therefore, he does not fall within the definition of word "habitual offender". 15. Looking to the above facts and circumstances, it is clear that the petitioner does not falls within the definition of 'habitual offender' under the Act of 1953 and it can be held that the existence of the name of petitioner in the history-sheet/Surveillance Register is illegal. 16. Hence, this criminal misc. petition is allowed the Superintendent of Police, Barmer as well as SHO, Police Station, Kotwali, District Barmer are directed to remove the name of the petitioner from the history-sheet/Surveillance Register of the Police Station, Kotwali, District Barmer.Petition Allowed. *******