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2021 DIGILAW 2194 (RAJ)

Kamal Kishore v. State of Rajasthan

2021-11-22

VINIT KUMAR MATHUR

body2021
ORDER : Vinit Kumar Mathur, J. 1. The present criminal Misc. Petition has been filed for quashing the order dated 28.05.2015 passed by Superintendent of Police, Jaisalmer, whereby a direction was given for opening of the history sheet against the petitioner. 2. Heard learned counsel for the parties. 3. Learned counsel for the petitioner submits that opening of history sheet against a person is governed by Rajasthan Police Rules, 1965 (For short the "Rules of 1965") and the said Rules envisage a procedure to be adopted prior to opening of a history sheet. Learned counsel for the petitioner emphasizes that in the present case, the Rules governing the opening of the history sheet have not been adhered to. Learned counsel further submits that even a bare perusal of the order impugned dated 28.05.2015 shows that there is no application of mind to "reasonably believe" that the petitioner is a habitually addicted person to crime or aider or abettor of the crime. He, therefore, submits that on both these grounds, the order impugned dated 28.05.2015 is laconic and prays for quashing of the same. 4. Per contra, learned Public Prosecutor submits that a detailed reply has been filed by the State showing the involvement of the petitioner in a number of criminal cases which reveals that the petitioner is a habitual offender. He submits that 9 FIRs were pending against the petitioner under various offences of the Indian Penal Code. The pendency of those cases clearly shows involvement of the petitioner in the nefarious activities causing breach of peace in the society and therefore, the order dated 28.05.2015, whereby the history sheet was opened against the petitioner is perfectly justified. He further submits that since 9 cases are pending against the petitioner, the Superintendent of Police, Jaisalmer has taken into consideration the criminal track record by applying the mind in the present case and thus, the order dated 28.05.2015 does not suffer from any infirmity. 5. I have considered the submissions made at the Bar and perused the material available on record. 6. Admittedly, 9 FIRs were filed against the petitioner but merely pendency of criminal cases is not sufficient as per the Rules for opening of the history sheet against the petitioner. 5. I have considered the submissions made at the Bar and perused the material available on record. 6. Admittedly, 9 FIRs were filed against the petitioner but merely pendency of criminal cases is not sufficient as per the Rules for opening of the history sheet against the petitioner. Rules 4.4 and 4.9 of the Rajasthan Police Rules, 1965 provide a procedure for opening of a history sheet 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 as 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 mode 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. (4) 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 sections 109 or 110, code of Criminal Procedure; (d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without 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." "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. Note:-This rule must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein." "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 opened by, or under the written orders of, a police officer not below the rank of Inspector for any person not entered in the surveillance registered who is reasonably believed to be habitually addicted to crime or to be an aider or abettor such persons. (3) the Government Railway Police will maintain the history sheets 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." 7. In view of the Rules enumerated hereinabove, as per sub Rule 1 of Rule 4.9 of the Rules of 1965, the history sheet can be opened if the name of a person is entered in the Surveillance Register maintained by the Police and the Superintendent of Police can enter the name of such person in Part II of that register for opening of the history sheet. The name of the person can also be directly entered in the history sheet without entering his name in Surveillance Register in accordance with Sub Rule 2 of Rule 4.9 of the Rules of 1965, but then, there is a condition precedent that the concerned officer should have "reasonably believed" that a person is habitually addicted to crime or to be aider or abettor such persons. 8. In the present case, since the name of the petitioner has not been entered in the Surveillance Register, therefore, the order dated 28.05.2015 has been passed in pursuance of sub Rule 2 of Rule 4.9 of the Rules of 1965. The same has to pass the test of "reasonably believed" to be habitually addicted to crime or to be aider or abettor such persons. The same has to pass the test of "reasonably believed" to be habitually addicted to crime or to be aider or abettor such persons. The order dated 28.05.2015 reads as under: ^^dk;kZy; ftyk iqfyl v/kh{kd tSlyesj Øekad% tSly@dkŒ ÁŒ'kk@fgLVªh'khV@2015@2956&59 fnukad% 28-5-2015 Ásf"kr] Fkkukf/kdkjh] iqfyl Fkkuk jkexढ ftyk tSlyesjA fo"k;%& vijk/kh deyfd'kksj iq= Jh eaxykjke tkfr HkkxZo mez 32 o"kZ fuoklh vkuaniqjk iqfyl Fkkuk jkexढ tSlyesj dh ,pŒ,lŒ i=koyh [kksyus ckcr~A Álax%& vkidk i= Øekad 2154 fnukad 21-05-2015 ds Øe esaA mijksDr fo"k; ,oa Álax ds lanHkZ esa ys[k gS] fd vijk/kh deyfd'kksj iq= Jh eaxykjke tkfr HkkxZo mez 32 o"kZ fuoklh vkuaniqjk iqfyl Fkkuk jkexढ tSlyesj tks vkys ntsZ dk cnek'k o >xM+kyw Áo`fr dk 'k[l gS ftldk vketu esa Hk; dk ekgkSy gS tks yksxksa ds lkFk ekjihV djus dk vknru vijk/kh gSA bldh ^^,** Js.kh dh ,pŒ,lŒ i=koyh [kksyus o vkijkf/kd xfrfof/k;ksa ij fuxjkuh ds vkns'k fn;s tkrs gSa rFkk vijk/kh ds QksVks o fQaxj fÁaV ,oa O;fDrxr lwpuk 'kkfey ,pŒ,lŒ i=koyh fd;s tkdj ikyuk fjiksVZ 10 ;kSe esa dk;kZy; esa Ásf"kr djsaA lgh@& ¼Mk- jktho ipkj vkbZŒihŒ,lŒ½ ftyk iqfyl v/kh{kd tSlyesjA** 9. A bare perusal of the order dated 28.05.2015 shows that there is no discussion for the foundation of "reasonably believed" as the order impugned is bereft of any details of the First Information Reports filed against the petitioner and under what circumstances, the petitioner has been proceeded and the involvement of the petitioner in the crime. The order dated 28.05.2015 is not a reasoned order fulfilling the requirement of the mandate of sub Rule 2 of Rule 4.9 of the Rules of 1965. 10. Since the name of petitioner has not been entered in Part-I of the Surveillance Register and the procedure in accordance with Rule 4.4 and sub Rule (1) of Rule 4.9 of the Rules of 1965 has not been followed, then it is all the more necessary for the Superintendent of Police to pass a reasoned order in compliance of mandate of Sub-Section 2 of Section 4(9) of Rules of 1965. Thus, the order dated 28.05.2015 is not sustainable and the same is liable to be quashed. 11. Hon'ble the Supreme Court in the case of Dhanji Ram Sharma Vs. Superintendent of Police reported in 1966 Cri.L.J. 1486 held as under:- "6. Thus, the order dated 28.05.2015 is not sustainable and the same is liable to be quashed. 11. Hon'ble the Supreme Court in the case of Dhanji Ram Sharma Vs. Superintendent of Police reported in 1966 Cri.L.J. 1486 held as under:- "6. Under Section 23 of the Police Act, 1861, the police is under a duty to prevent commission of offences and to collect intelligence affecting the public peace. For the efficient discharge of their duties, the police officers are empowered by the Punjab Police Rules, 1934 to open the history sheets of suspects and to enter their names in police register No. 10. These powers must be exercised with caution and in strict conformity with the rules. The condition precedent to the opening of history sheet under Rule 23.9(2) is that the suspect is a person "reasonably believed to be habitually addicted to crime or to be an aider or abettor of such person". Similarly, the condition precedent to the entry of the names of the suspects in Part II of police register No. 10 under Rule 23.4(3)(b) is that they are "persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not". If the action of the police officers is challenged, they must justify their action and must show that the condition precedent has been satisfied." 12. In view of the above, the present criminal misc. petition is allowed and the order dated 28.05.2015 passed by Superintendent of Police, Jaisalmer is quashed and set aside. However, the State is not precluded from passing a fresh order in accordance with the provisions of Rules of 1965, if the occasion so arises.