Allahabad High Court
Firoj Malik vs State Of U.P. And 4 Others on 21 January, 2025
Bench: Siddharth, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. 2025:AHC:9549-DB Reserved on 18.12.2024 Delivered on 21.01.2025 Case :- CRIMINAL MISC. WRIT PETITION No. - 4818 of 2022 Petitioner :- Firoj Malik Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- J.B. Singh,Rajiv Lochan Shukla Counsel for Respondent :- G.A. With Case :- CRIMINAL MISC. WRIT PETITION No. - 4820 of 2022 Petitioner :- Sajid Malik Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- J.B. Singh,Rajiv Lochan Shukla Counsel for Respondent :- G.A. With Case :- CRIMINAL MISC. WRIT PETITION No. - 4870 of 2022 Petitioner :- Imran Malik Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- J.B. Singh,Rajiv Lochan Shukla Counsel for Respondent :- G.A. With Case :- CRIMINAL MISC. WRIT PETITION No. - 3586 of 2022 Petitioner :- Nizam Malik @ Kabadi @ Nizamuddin Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- J.B. Singh,Rajiv Lochan Shukla Counsel for Respondent :- G.A. Hon'ble Siddharth,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Sri J.B. Singh and Sri Rajiv Lochan Shukla, learned counsel for the petitioner; Ms. Manju Thakur, learned A.G.A.-1 for the State-respondents and perused the material on record.
2. The petitioners in Criminal Misc. Writ Petition No. 4818 of 2022 (Firoz Malik), in Criminal Misc. Writ Petition No. 4820 of 2022 (Sajid Malik), and Criminal Misc. Writ Petition No. 4870 of 2022 (Imran Malik) are sons of Nizam Malik, the petitioner, in Criminal Misc. Writ Petition No. 3586 of 2022. History sheets have been opened against all of them on the basis of implication in common cases. Hence the above noted writ petitions preferred by three sons and their father named above are being decided by this common judgement.
3. The above noted writ petitions have been filed by all the petitioners praying for quashing the impugned order dated 16.6.2021 passed by respondent no.3, Deputy Commissioner of Police, Greater Noida, District Gautam Budh Nagar, whereby approval for opening history sheet of Category-B against the petitioners has been granted. Further prayer has been made for directing the respondents to stop surveillance of the petitioners in pursuance of the aforesaid order passed by respondent no.3.
4. The brief facts pleaded in the writ petition no.4818 of 2022 are that the petitioner is a businessman and has established his firm/ company in the name of Auctus E-recycling Solution Private Limited, M/s Hindustan Metals and is running his business and paying income tax to the government. A politically motivated Case Crime No.336 of 2019, Police Station - Site-5, Geater Noida, was registered against the father of the petitioner and others under Section 2 of U.P. Gangsters and Anti - Social Activities (Prevention) Act, 1986, on 30.12.2019 without there being any prior criminal history of his father (Nizam Malik) against which he approached this Court whereby Criminal Misc. Writ Petition No. 140 of 2020 and interim order was passed in his favour. After counter affidavit was called in the aforesaid writ petition, the police realized that it would be difficult to resist the challenge to the FIR lodged under Gangsters Act before this Court hence Case Crime No.408 of 2020, under Section 386 IPC was got registered against the petitioner, his brothers and father, named above, on 30.7.2020 with thhe help of one, Azad Kumar, at Police Station - Bita-2, District Gautam Budh Nagar. Petitioner, his father and brothers were enlarged on anticipatory bail in the aforesaid case, but subsequently charge-sheet was filed and it was challenged before this Court by means of Criminal Misc. 482 Cr.P.C. No. 11237 of 2021. On the basis of aforesaid FIR dated 30.7.2020, the petitioners were implicated in a case under Gangsters Act, being Case Crime No. 710 of 2020, Police Station - Kasna (Now Bita-2), District Gautam Budh Nagar on 10.11.2020 and they were enlarged on bail by Special Judge, Gautam Budh Nagar, on 10.3.2021. On the basis of aforesaid criminal cases registered against the petitioner, his father and brothers, Station House Officer, Police Station - Bita-2, District Gautam Budh Nagar, submitted report before the respondent no.3 on 17.4.2021 for opening Class-'B' history sheet of the petitioner, his father and brothers. The respondent no.3 by the impugned order dated 16.6.2021 has accepted the same and directed opening of history sheet bearing H.S. No. 21(B), which is subject matter of challenge before this Court. The petitioners made number of representations against the same before the respondent no.3 and higher authorities, but in vain.
5. Learned counsel for the petitioners has submitted that prior to lodging of first information dated 30.7.2020, registered as Case Crime No.408 of 2020, under Section 386 IPC, Police Station Kasna (Now Bita-2), District Gautam Budh Nagar, there were no criminal antecedents of the petitioners. The police has tried to connect the petitioners with Sunder Bhati Gang or Navin Bhati Gang, with whom the petitioner (Nizam Malik) had no connection. Rather the aforesaid gang had threatened the petitioner and his family members and his brother, Imran Malik, lodged FIR against three members of Sunder Bhati Gang on 20.7.2018 registered as Case Crime No.203 of 2018, under Sections 386, 392 IPC and the police submitted charge-sheet against the accused on 19.9.2018. There are only two cases registered against the petitioner being Case Crime No.408 of 2020, under Section 386 IPC and Case Crime No.710 of 2020, under Section 2/3(1) of U.P. Gangsters Act, Police Station - Bita-2, District Gautam Budh Nagar and opening of history sheet of Category-B on their basis is absolutely unjustified. According to Section 228 of U.P. Police Regulation, the history sheet of criminals has been described in two parts, Class-A and Class-B; Class-B history sheets is opened for "confirmed and professional criminals, who commit crime other than dacoity, burglary, cattle-theft and theft from railway goods, wagons, e.g., professional cheats and other experts for whom criminal personal files are maintained by the Criminal Investigation Department. Class - B history sheets are opened for criminals involved in cases of offences other than these covered under Class-A. Opening of Class-B history sheet against the petitioners is unjustified and order passed against them deserves to be quashed.
6. Counter affidavit has been filed on behalf of State-respondents stating therein that vigil over the activities of the petitioner is required in the interest of society. The petitioner alongwith his father and brothers have formed a gang which is involved in number of crimes. Hence opening of history sheet against the petitioners is justified. They are habitual and professional criminals.
7. Rejoinder affidavit has been filed by learned counsel for the petitioner wherein he has denied averments made in the counter affidavit.
8. A Division Bench of this Court in Criminal Misc. Writ Petition No.9174 of 2022, Aftab Alam Vs. State of U.P. and two others at the occasion of considering the object behind opening of history sheets as follows:-
"3. When the term "history-sheeter" is mentioned, it conjures an image of a seasoned criminal with an extensive record. The question arises: who exactly are these history-sheeters, and how does the police categorize someone as such? What disadvantages does a criminal face after being labeled a history-sheeter, and what consequences does it entail? These queries find answers in the following exploration.
4. In essence, a history sheeter is a designation employed by the police to identify individuals with a significant criminal history. This label is affixed to those who have been implicated in numerous offenses, with the details of their criminal activities duly recorded by the police. Before initiating the history sheet for any offender, the police verify the individual's current criminal status.
5. The process begins when an individual, already proven guilty in multiple cases and/or consistently engaging in criminal activities, attracts the attention of the police station's SHO. A report is subsequently sent to the SSP or SP, and upon receiving the necessary orders, the history sheet is opened. This comprehensive document contains detailed information about the criminal, including a criminal profile, associates, and known relatives. In certain scenarios, where individuals hesitate to report crimes related to organized rackets or extortion, the police, relying on local sources, maintain surveillance on such potential threats to society. The opening of history sheets is guided by calls, daily entries in the police control room, and the ongoing assessment of those posing a danger to society.
6. The presence of a history sheet serves as a deterrent, as it subjects the criminals to constant police scrutiny. Once a history sheet is opened, the criminals are required to regularly register their presence at the police station; failure to comply prompts the police authorities to visit their residences. Furthermore, a history sheet aids in tracing the source of income for criminals, enabling authorities to determine whether they have transitioned to legitimate means of earning. This scrutiny helps identify instances where an individual, previously engaged in illegal activities, displays signs of leading a luxurious lifestyle despite being unemployed.
7. The process of opening "History Sheet" is governed by the Police Rules of the concerned State or the Act governing habitual offenders.
8. Criminals often attempt to evade capture by frequently changing addresses. To counter this, the police communicate with other districts or States, sharing information about potential areas of relocation and requesting vigilant monitoring. Employing various strategies like crime mapping and identifying hot spots, law enforcement aims to curb criminal activities and maintain public safety.
9. History sheets are analogous to our criminal intelligence databases, but are more subject to legal constraints. At the same time, they are more vulnerable to public disclosure because they call for intensive and frequently conspicuous monitoring both by police and civilian leaders.
10. Since the days of the British regime, Indian police departments have created history sheets for persons believed to pose a risk of future criminality. The "history-sheeters" may have been convicted, or have criminal charges pending. History sheeters are subject to monitoring and surveillance. In India, the system of maintaining criminal record varies from State to State. All States require automatic creation of a history sheet for persons with certain criminal records. For example, Tamil Nadu requires creation of a history sheet for a person convicted once of a serious violent crime, twice for house breaking, three times for theft and certain other offenses. The police generally also have discretion to create a history sheet on an individual who has not been convicted, but whom police consider "addicted to crime" or a threat to public order. The police must have an articulable reason for creating a history sheet and they must notify the record-subject that a history sheet has been opened.
11. The police, with the assistance of the village officials are obliged to surveil and record information about the activities and movements of history-sheeters who reside in their jurisdiction. There are court restrictions and police best practise guidelines, varying from State to State, on the level of permissible monitoring and surveillance. There are many factors regulating when a history sheet can be opened, how long it can be kept and the intensity of surveillance that it authorizes. Courts have held that surveillance of history-sheeters must not be excessive. For example, some State courts and some police agencies have issued guidelines stating that first-time history-sheeters should be especially closely watched; surveillance should be discrete; domiciliary visits are not permitted; family members must not be harassed; police officers should make periodic and routine inquiries about the history-sheeter's habits, associations, income, expenses and occupation; the police officers shall record history-sheeter's movements and absences from his domiciliary home or area where he lives, and the like guidelines.
12. The history sheet has been subject to constitutional challenge on privacy grounds. The Supreme Court has recognized that police surveillance based upon a history sheet implicates a limited right to privacy implicit in the Constitutional right to life and personal liberty. According to the Court, every individual's autonomy should be respected; there is a right to be left alone. However, the right to privacy is not absolute and the creation of a history sheet and surveillance of the history-sheeter is not unconstitutional if carried out in compliance with legal standards or, in the absence of standards, if conducted reasonably. In one case, the Hon'ble Supreme Court struck down home visits as infringing on the right to personal liberty and freedom of movement.
13. Police is supposed to update the file periodically with both favorable and unfavorable information gathered via routine police patrols and enquiries. Such information should be recorded impartially, not with an eye toward compiling a negative case against the record-subject. The history sheet, including a photo of the history-sheeter, is a confidential record. The police is not authorized to disclose to public or private employers whether a job applicant or employee is a history-sheeter, much less what information the history sheet contains. However, the surveillance/crime control purpose of the history sheet requires that police officers have easy access to the history sheet. Local police can only monitor and surveil record-subjects if they know who they are. The history sheet is supposed to be shared with the Railway Police. If the history-sheeter moves to another jurisdiction, the history sheet is transferred to the new jurisdiction's police department. Moreover, for proper reasons, the police may show the public a history-sheeter's photos, when necessary, to capture a fugitive or solve a crime.
14. In sum, Indian law and policy recognize that police records, though necessary for crime control, implicate privacy and individual autonomy. The courts have struggled to regulate the history sheet system by providing court review for individuals objecting to their history sheet designation and by limiting police discretion to open, maintain and conduct surveillance.
15. When above is the situation and philosophy behind opening of history sheets and to keep the history sheeters on surveillance depending on the circumstances, can it be said that opening of history sheet or continuing with the surveillance is stigmatic in so far as the individual is concerned and whether permanent closure of history sheet or its quashing by a court of law would at all be justified? The answer would be - No. The reason is that the police needs a mechanism to control the crime, both individual and organized. Surveillance of suspects, habitual and potential offenders, may be necessary and so the maintenance of history sheet and surveillance register for the purpose of prevention of crime. Permissible surveillance is only to the extent of a close watch over the movements of the person under surveillance and no more. Further, transfer of police officials from one place to other on frequent basis is a normal phenomenon in India. During their short tenure at a particular place of posting, concerned police officers may have some inputs about a criminal but after they leave that particular place and new officer joins, as to what would be the data available with the new incumbent to know about the criminal activities in a particular area, village or city, is a matter of significance. Past record, including a history sheet as well as record of keeping a history sheeter under surveillance, therefore, would then be a guiding factor. A history sheet, therefore, is simply a sacrosanct idea to have inputs and information about criminals and their past record for a better police administration."
9. Provisions concerning history sheets, as contained under U.P. Police Regulations are reproduced as under:-
"228. Part V consists of history sheets. These are the personal records of criminals under surveillance. History-sheets should be opened only for persons who are or likely to become habitual criminal or abettors of such criminals. There will be two classes of history-sheets:
(1) Class A history-sheets for dacoits, burglars, cattle-thieves, railway-goods wagon thieves, and abettors thereof.
(2) Class B history-sheets for confirmed and professional criminals who commit crimes other than dacoity, burglary, cattle-theft, and theft from railway goods wagons, e.g., professional cheats and other experts for whom criminal personal files are maintained by the Criminal Investigation Department, poisoners, cattle poisoners, railway passenger thieves, bicycle thieves, expert pick-pockets, forgers, coiners, cocaine and opium smugglers, hired ruffians and goondas, telegraph wire-cutters, habitual illicit distillers and abettors thereof.
History-sheets of both classes will be maintained in similar form, but those for class B will be distinguished by a red bar marked at the top of the first page. No history-sheet of class B may be converted into a history-sheet of class A, though should be the subject of a history-sheet of class B be found to be also addicted to dacoity, burglary, cattle-theft or theft from railway goods wagons. A class, as well as B class, surveillance may under paragraph 238 be applied to him. In the event of a class A history-sheet man becoming addicted to miscellaneous crime his history-sheet may be converted into a class B history-sheet with the sanction of the Superintendent.
229. This classification of history-sheets as A and B is based on the principle that, whereas there is always hope of a dacoit, burglar, or cattle thief or railway goods wagons thief mending his ways, the expert miscellaneous criminal is as a general rule incapable of reform. The classification, therefore, solely on the kind of crime to which suspects are addicted and is designed to regulate only-
(1) the length of time for which a suspect should ordinarily remain, under surveillance in the absence of complaints against him, (2) the kind of surveillance which his activities require.
The degree of surveillance of the appropriate kind to be exercised over a suspect will depend not on his classification, but on the extent to which he is believed to be active at any particular time.
230. If the subject of an A class history-sheet is thought to be so dangerous or incorrigible as to require more protracted surveillance than the generality of his class, he may be ''started' by the order of the Superintendent. Here, again, the fact that a history-sheet man is started will necessarily indicate only that he is to be kept under continuous surveillance for a longer period. It will not necessarily indicate that his surveillance while it lasts is to be more intense. The aim is to concentrate the most intense surveillance on the criminal, whether starred or unstarred, who is believed to be temporarily active.
Superintendent of district police may not give orders for the starring of or discontinuance of surveillance over any history- sheeter of a railway police suspect without the concurrence of the Superintendent of Government Railway Police.
231. The subjects of history-sheets of class A will unless they are ''starred' remain under surveillance for at least two consecutive year of which they have spent no part in jail. When the subject of a history-sheet of class A whose name has not been ''starred' who has never been convicted of cognizable offence and has not been in jail or suspected of any offence or absented himself in suspicious circumstances for two consecutive years his surveillance will be discontinued, unless for special reasons to be recorded in the inspection book of the police station the Superintendent decides that it should continue.
When the subject of a history-sheet of class A is ''starred' he will remain starred for at least two consecutive years during which he has not been in jail or been suspected of a cognizable offence or had any suspicious absence recorded against him. At the end of that period if he is believed to have reformed he will cease to be ''starred' but will remain subject to surveillance will be discontinued only if during that period no complaints have been recorded against him.
In closing the history-sheets of an ''unstarring' ex-convicts and especially ex-convict dacoits great care should be exercised.
232. 'B' Class History Sheets- History-sheet of 'B' class will be continuously open records and the subjects of these sheets will, except for very special reasons remain under surveillance until death. This being so it is unnecessary to 'star' suspects of this class.
233. The discontinuance of surveillance of the subject of a history-sheet does not entail closing that history-sheet. A history-sheet which is only a record of information need never be considered closed. In the case of persons whose surveillance is discontinued a note should be made to this effect in the history-sheet, and thereafter no periodical or other entries need be made unless something comes to notice which it is desirable to enter in the sheet. Sheets persons whose surveillance has been discontinued should remain in these village crime-note book but if the number is as much as to make the volume too bulky, they should be kept in a separate volume attached to the note-book. They will only be destroyed on the death of the subject of the sheet, or if, on opinion of the Superintendent their further retention is not likely to be of any value.
234. No history-sheet of class A may be discontinued without the sanction of the Superintendent of Police. If it is denied to discontinue the surveillance of the subject of a history sheet of class B, the sanction of the Deputy Inspector-General or Superintendent, Railway Police, must be obtained. Proposals from station officers for the discontinuance of history-sheets and for the ''starring or unstarring' of a class suspects must be made through the circle inspector unless dealt with directly by a gazetted officer in the course of an inspection.
240. History-sheets of both classes may be opened (1) on suspicion or (2) on conviction or acquittal. No history-sheet may be opened without the orders of the Superintendent of Police.
(1) On suspicion.- Whenever as a result of investigation into a case of dacoity, burglary, cattle theft from railway goods wagons or into a case of miscellaneous crime of a professional type, the officer-in-charge of a police station applies for the name of any person to be entered in the crime register as reasonably suspected, he must at the same time report whether the suspect is under surveillance, and if not, whether a history-sheet should in his opinion be opened for him. Should the gazetted officer-in-charge of a subdivision on receiving such a report and after such further inquiry as he may think necessary consider that a history-sheet is required he will forward the report to the Superintendent who if he accepts the proposal will define the class of history-sheet to be opened and pass orders as to whether the suspect should be ''starred'. Similarly whenever an officer-in-charge of a police station finds reason to believe, otherwise than in the course of an investigation, that any resident of his circle is addicted to crime, or whenever a gazetted officer or circle inspector for any reason believes that a history-sheet for any person is necessary a report must be submitted to the Superintendent, who will pass orders on it as laid down above.
(2) On conviction or acquittal.- Whenever any person is sent for trial on a charge of dacoity, burglary, cattle theft or theft from a railway goods wagons or of miscellaneous crime of a professional type, the officer-in-charge of the police station must state in his diary whether the accused has a history-sheet and if not, whether he recommends that a history-sheet should be opened for him. It will be the duty of the public prosecutor, if the accused is acquitted to inform the Superintendent, in his report on the acquittal or otherwise, whether in his opinion a history-sheet is required. On this the Superintendent will pass any orders to the station officer that may be necessary. If the accused is convicted, the public prosecutor must, in the remarks column of the daily report of convictions and acquittals (Form No. 107) enter in red ink the words, ''On H.S.' if a history-sheet is already open, or the letters ''H.S.' if he recommends that one should be prepared. In either case he must prepare and attach to the daily report of convictions and acquittals a P.R. slip (Form No. 313). If a history-sheet is already open or if the Superintendent agrees that a history-sheet should be opened he will sign this P.R. slip and initial the letters ''H.S.' or ''On H.S.' on the daily report of convictions and acquittals. The public prosecutor will then communicate the Superintendent's orders for the opening of a history-sheet to the police station concerned and will forward the P.R. slip to the Superintendent of Jail. If no history-sheet is opened and if the Superintendent does not agree that one should be prepared, he will not sign the P.R. slip, which will be cancelled.
10. It is clear from the pleadings on record that the father of the petitioners, Nizam Malik, was implicated in Case Crime No.336 of 2019, under Section 2 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, Police Station Kasna (Bita-2), District Gautam Buddh Nagar and on its basis, petitioner and his brothers, namely, Sajid Malik and Imran Malik and his father were subsequently implicated in Case Crime No. 408 of 2020, under Section 386 IPC by the same police station and at the time of filing of writ petitions and exchange of affidavits, charge-sheet had been submitted against the petitioners named above. Subsequently, the petitioner and his brothers were implicated in Case Crime No.710 of 2020, under Sections 2/3(1) of U.P. Gangsters Act. There are no other criminal antecedents of the petitioners on record. In Case Crime No.336 of 2019, under Section 2 of Gangsters Act, only father of the petitioners, namely, Nizam Malik, was implicated and therefore, against three petitioners, namely, Firoz Malik, Sajid Malik and Imran Malik, there was only one case registered at that time under Section 386 IPC. Aforesaid case shows that FIR was lodged by two private persons, namly, Azad Kumar, s/o Dharmvir Singh and Rajkumar, s/o late Balraj, residents of village Dadupur, Police Station Dankaur, District Gautam Buddh Nagar. There is allegation in the FIR against the petitioners and five named and 9-10 unknown accused regarding commission of offence of extortion. On the basis of above implication, the petitioner and his brothers were implicated in Case Crime No.710 of 2020, under Sections 2/3(1) of U.P. Gangsters Act. The implication of the father of the petitioners, namely, Nizam Malik, under Section 2 of U.P. Gangsters and Anti Social Activities Prevention Act, 1986 was without any base case. 54 persons were implicated in the aforesaid case alongwith the father of the petitioners and the arrest of the father of the petitioner was stayed by this Court in Criminal Misc. Writ Petition No. 140 of 2020 vide order dated 10.1.2020.
11. To arrive at a just and proper conclusion, it is necessary to consider what are the parameters that should be followed by the police before opening history-sheet of a person.
12. There is a whole chapter in the Police Regulation, namely, Chapter XX with a Heading called "REGISTRATION AND SURVEILLANCE OF BAD CHARACTERS". The entire Chapter consists of Regulation 223 to Regulation 276. Relevant Regulations for our purpose would be Regulations 223 to 252. A perusal of these regulations shows that the entire tone and tenor of these regulations reflect the then colonial state of mind as it speaks of "Criminal Tribe Act", (an Act, which has already been repealed in the year 1956) and further provisions are also reflective of a bygone colonial era where a group or individuals or castes were recorded as "criminal tribes" and put under surveillance. It speaks of "habitual criminals" and not only this it goes on to say that there are certain types of criminals, who are "incapable of reform".
13. The challenge here is limited, but legality of the various provisions of the "Police Regulations", appear to be draconian. Reference to the seemingly repulsive provisions of the Police Regulations is to give an idea of the time and era when such Regulations were framed under the Police Act, 1861.
14. Regulation 228 of the Police Regulations speaks about two classes of history-sheets ''Class-A' and ''Class-B'. Class A is a history-sheet for dacoits, burglars, cattle-thieves, railway-goods wagon thieves, and abettors thereof and Class B is history-sheet for confirmed and professional criminals who commit crimes other than dacoity, burglary, cattle-theft, and theft from railway goods wagons, e.g., professional cheats and other experts for whom criminal personal files are maintained by the Criminal Investigation Department.
15. For the authors of this Police Regulations, the two set of crimes (i.e. Class ''A' and Class ''B') are of entirely different nature. Regulation 228 of the U.P. Police Regulations further states that though the manner in which the records of surveillance and manner in which the history-sheet is to be opened in Class ''A' or in Class ''B' is the same, yet where a Class ''B' history-sheet is opened it has to be opened with a red bar mark at the top of the first page and never can Class ''B' history-sheeter be converted into a Class ''A' history-sheeter, though in case, a person, who is under Class ''B' is also seen of indulging in crime relating to history Class ''A' then surveillance of both types of crimes have to be opened against him. However, it is possible that the history-sheeter of Class ''A' is converted into a history-sheeter of Class ''B'.
16. Normally one has to assume that since history-sheet of Class ''A' carries with it crimes of greater magnitude such as dacoity, burglary etc., the history-sheet opened in such cases is of a more serious nature. But this is not true, in fact reverse is the truth. As per Regulation 229 of the U.P. Police Regulations the classification of history-sheet as "Class A" and "Class B" are based on the principle that whereas there is always hope of a dacoit, burglars, or cattle thieves or railway-goods wagons thief mending his ways, the expert miscellaneous criminal (of Class ''B' history-sheet) is as a general rule "incapable of reform". The classification, therefore, is solely on the kind of crime to which suspects are addicted to and it is designed to regulate. Regulation 229 of the Police Regulations reads as under:-
"229. This classification of history-sheets as A and B is based on the principle that, whereas there is always hope of a dacoit, burglar, or cattle thief or railway goods wagons thief mending his ways, the expert miscellaneous criminal is as a general rule incapable of reform. The classification, therefore, solely on the kind of crime to which suspects are addicted and is designed to regulate only- (1) the length of time for which a suspect should ordinarily remain, under surveillance in the absence of complaints against him. (2) the kind of surveillance which his activities require. The degree of surveillance of the appropriate kind to be exercised over a suspect will depend not on his classification, but on the extent to which he is believed to be active at any particular time."
17. There is a further classification of history-sheeter of Class ''A'. The more serious nature of the persons under surveillance is the ''starred' category. Their surveillance is more vigorous and have a greater length of time whereas since a history-sheeter of Class ''B' is "incapable of reform", as per the authors of the Police Regulations. The Regulations 232 of the Police Regulations says that it is not necessary to star suspects of Class ''B'. Regulation 232 of the Police Regulations reads as under:-
"232. History-sheet of B class will be continuously open records and the subjects of these sheets will, except for every special reasons remain under surveillance until death. This being so it is unnecessary to star suspects of this class."
18. Director General of Police, U.P., vide communication dated 03.11.2022, has framed guidelines under the U.P. Police Regulation to be followed by the respective Police Officers while opening/reviewing the History Sheet Class A category.
The guidelines reads as thus:
"ज्ञातव्य है कि उ०प्र० पुलिस रेगुलेशन के पैरा-228 में अभ्यासिक अपराधियों एवं उसके दुष्प्रेरक शीर्षक के अन्तर्गत दोनों वर्गों की हिस्ट्रीशीट को वर्गीकृत किया गया है। वर्ग "क" की हिस्ट्रीशीट में डकैत, सेंधमार, पशुचोर, रेल के डिब्बों के माल चोर और उसके दुष्प्रेरक वर्णित हैं, परन्तु दोनों वर्गों के लिए शीर्ष पर जो महत्त्वपूर्ण विश्लेषित है, वह अभ्यासिक अपराधी शब्द है। वर्ग "क" की हिस्ट्रीशीट को पुलिस रेगुलेशन के पैरा-231 के अन्तर्गत 02 वर्ष बाद पुर्नाविलोकित किये जाने की प्रक्रिया अपनाए जाने का प्राविधान है, अतः मा० उच्च न्यायालय द्वारा निर्गत आदेश के आलोक में हिस्ट्रीशीट खोले जाने की कार्यवाही को अधिक न्यायसंगत एवं वस्तुपरक बनाये जाने हेतु निम्नलिखित दिशा-निर्देश निर्गत किये जा रहे हैं-
1- 18 वर्ष से कम आयु के किसी भी व्यक्ति की हिस्ट्रीशीट नहीं खोली जायेगी।
2- हिस्ट्रीशीट खोलने के लिए उ०प्र० पुलिस रेगुलेशन के पैरा 228 से 240 तक का गहन अध्ययन करके उसी के अनुरूप कार्यवाही की जाये।
3- हिस्ट्रीशीट ऐसे व्यक्तियों की खोली जाये जिनके बारे में यह विश्वास करने का युक्तियुक्त आधार हो कि आदतन अपराधी है या हो सकता है। रूटीन में हिस्ट्रीशीट न खोली जाये।
1- हिस्ट्रीशीट ऐसे व्यक्तियों की खोली जाये जिनकी गहन निगरानी (Intense Surveillance) की आवश्यकता हो।
ii- जो ऐसे अपराधियों के दुष्प्रेरक हों अथवा उनका ऐसा होना सम्भावित हो।
iii- निजी रंजिश में दर्ज अभियोगों अथवा अन्य असंगत आधारों पर किसी व्यक्ति की हिस्ट्रीशीट न खोली जाये।
iv- उत्तर प्रदेश गिरोहबंद और समाज विरोधी क्रियाकलाप अधिनियम/उ०प्र० गुण्डा नियंत्रण अधिनियम के अन्तर्गत की गयी कार्यवाहियों को हिस्ट्रीशीट खोलने का आधार न बनाया जाये।
v- चूंकि हिस्ट्रीशीट जनपद के पुलिस अधीक्षक के आदेश से खोली जाती है, अतः वे पूर्णतया आधारों से संतुष्ट होने पर ही हिस्ट्रीशीट खोलने का अनुमोदन करें।
vi- थाना प्रभारी द्वारा प्रेषित हिस्ट्रीशीट का सम्बन्धित क्षेत्राधिकारी एवं अपर पुलिस अधीक्षक द्वारा सघन परीक्षण करने के उपरान्त ही वरिष्ठ पुलिस अधीक्षक/पुलिस अधीक्षक द्वारा हिस्ट्रीशीट खोलने अनुमोदित किया जाये।
4- उत्तर प्रदेश पुलिस रेगुलेशन के पैरा 228 में 276 में वर्णित प्रावधानों के अन्तर्गत 18 वर्ष से अंधिक तथा 21 वर्ष तक के अपराधियों की हिस्ट्रीशीट खोलने से पूर्व वरिष्ठ अधीक्षक / पुलिस अधीक्षक द्वारा सूचनार्थ पुलिस महानिरीक्षक, सी.बी.सी.आई.डी. को इस आशय से प्रेषित की जायेगी कि उन्हें कोई आपत्ति हो तो पत्र प्राप्ति के दिनांक 15 दिवस के अन्दर वह अपनी टिप्पणी सहित सम्बन्धित जिला मुख्यालयों को भेजेंगे।
5- पुलिस महानिरीक्षक, सी.बी.सी.आई.डी. द्वारा यदि कोई आपत्ति व्यक्त की जाती है, तो जनपद के वरिष्ठ पुलिस अधीक्षक/पुलिस अधीक्षक द्वारा प्रकरण का परीक्षण किया जायेगा एवं यदि अब भी हिस्ट्रीशीट खोलने के लिए उपयुक्त पाया जाता है तो उसकी हिस्ट्रीशीट खोलकर इसकी सूचना पुलिस महानिरीक्षक, सी.बी.सी.आई.डी. को प्रेषित की जायेगी।
6- यदि पत्र की प्राप्ति के 15 दिनों के अन्दर पुलिस महानिरीक्षक, सी.बी.सी.आई.डी. द्वारा उक्त प्रकरण में कोई आपत्ति नहीं की जाती है तो यह मान लिया जायेगा कि उनको वरिष्ठ पुलिस अधीक्षक / पुलिस अधीक्षक द्वारा संस्तुत की गयी आख्या पर कोई आपत्ति नहीं है।
अतः आप सभी को निर्देशित किया जाता है कि उ०प्र० पुलिस रेगुलेशन के उपरोक्त पैरा एवं मुख्यालय स्तर से निर्गत निर्देशों/परिपत्रों का पुनः गहनता से अध्ययन कर लें एवं जनपद स्तर पर कार्यशाला का आयोजन कर अपने अधीनस्थ राजपत्रित अधिकारियों को विस्तार से अवगत करा दें और यह भी सुनिश्चित करें कि इन निर्देशों का कड़ाई से अनुपालन किया जाए।
19. A bare perusal of Regulation 228 would show that the language used therein is unambiguous and there is a clear mandate that history sheet can be opened only for persons who are or likely to become habitual criminal or abettors of such criminals. Classification of history sheets in Class 'A' and Class 'B' is also clearly spelt out and since challenge in the present writ petition has been laid to history sheet of Class 'B', sub-regulation (2) of Regulation 228 needs a look that clearly provides that such history sheet can be opened for 'confirmed and professional criminals' who commit crimes other than dacoity, burglary, cattle-theft etc etc, as described in the said sub-regulation.
20. Regulation 232, however, casts an obligation upon the authorities to keep history sheet continuously open and to keep the history sheeter under surveillance until death. However, for such an action, the authorities have to record special reasons. Regulation 233 clearly provides that discontinuance of surveillance of the subject of a history sheet does not entail closing of the history sheet itself and the history sheet which is only a record of information need never be considered as closed. It casts a further obligation on the authorities to make a note as regards discontinuance of surveillance on the history sheet and, thereafter, no periodical or other entries need be made unless something comes to the notice of the authorities which is desirable to be entered in the sheet.
21. After perusal of the guidelines of Director General of Police, U.P. mentioned hereinabove, it is clear that as per sub clause (iii) the history sheet is not required to be opened, in Class- 'A' where the case has been lodged due to personal rivalry. In the present case, case under Section 386 IPC has been registered by private persons on account of business rivalry of sale/purchase of scrap with petitioners. In sub clause (iv) of the above guidelines, it is mentioned that implication in a case under U.P. Gangsters and Anti - Social Activities (Prevention) Act, cannot be basis of opening history sheet of Class - 'A'. Therefore it is clear that the history sheet has been opened against the petitioners by the impugned order dated 16.6.2021, which is against the clause (iii) and (iv) guidelines framed by Director General of Police, U.P. on 03.11.2022, but it applies to history sheet of Class- 'A' only and not to Class- 'B' history sheets. Hence it is of no help for the petitioners against whom history sheet of Class - 'B' has been opend.
22. Further, the impugned order of Deputy Commissioner of Police, Greater Noida, Gautam Buddh Nagar, in this case does not shows any application of mind. It only accepts the report of S.H.O. in-charge, Police Station Bita-2, Gautam Buddh Nagar and District Committee. No reasons have been assigned for accepting the report aforesaid.
23. Police regulation is a pre-independence regulation when the Constitution of India had not come into existence, yet the requirements of Article 14 of the Constitution of India do not appear to have been observed in the acceptance of the report aforesaid and direction of opening history sheet against the petitioners. Even in the statute/regulation/rule/ law where the application of principle of natural justice has not been provided, the mandate of Article 14 of the Constitution of India is required to be read in such provisions.
24. The Apex Court in the case of Mangi Lal Vs. State of M.P., (2004) 2 SCC 447, has held in paragraph no.10 regarding the observance of mandate of Article 14 of the Constitution of India as follows:-
"Even if a statute is silent and there are no positive words in the Act or Rules made thereunder there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected, by the orders that may be passed, and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute, unless there is clear mandate to the contrary. No form or procedure should ever be permitted to exclude the presentation of a litigant's defence or stand. Even in the absence of a provision in procedural laws, power inheres in every Tribunal/Court of a judicial or quasi-judicial character, to adopt modalities necessary to achieve requirements of natural justice and fair play to ensure better and proper discharge of their duties. Procedure is mainly grounded on principles of natural justice irrespective of the extent of its application by express provision in that regard in given situation. It has always been a cherished principle. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. (See Swadesi Cotton Mills etc. etc. v. Union of India etc. etc., AIR 1961 SC 818). Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validly made. They are means to an end and not an end in themselves. The principles of natural justice have many facets. Two of them are: notice of the case to be met, and opportunity to explain.
"96. The rule of natural justice with which we are concerned in these appeals and writ petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence. The process of a fair hearing need not, however, conform to the judicial process in a Court of law, because judicial adjudication of causes involves a number of technical rules of procedure and evidence which are unnecessary and not required for the purpose of a fair hearing within the meaning of audi alteram partem rule in a quasi-judicial or administrative inquiry. [...] (emphasis supplied)"
25. In the context of Article 19 of the Constitution of India, this Court has considered the effect of opening of Class- 'B' history sheets in the case of Munna Lal Gupta Vs. State of U.P. and others, reported in 2016 SCC Online All 3023 as follows:-
"9. It is apparent that there exists no justification for continuance of his name being mentioned in history-sheet. It is also pertinent to know that four cases mentioned in history-sheet relate to year 1982,1987 and 1988, but according to the counter affidavit, this Class-B history-sheet was opened in year 1979. None of the contentions of affidavit of petitioner filed alongwith the writ petition was denied in counter affidavit and only this much was mentioned that :
"However it is submitted that the history-sheet was opened by the Superintendent of Police on the basis of report submitted before him regarding involvement of petitioner in criminal case."
10. Thus it is apparent that without being involved in overt-act or any criminal activity, the Class-B history-sheet was opened for the petitioner in year 1979. It is evident that this history-sheet was opened without verifying the facts and without application of mind. Therefore, we are satisfied that there were no sufficient grounds for the Superintendent of Police to entertain a reasonable belief that the surveillance was required in the case of petitioner and there existed no evidence to support the fact that surveillance of the petitioner was necessary.
11. Article 19(1)(a) of the Constitution of India protects the fundamental right of a citizen when it provides that 'all citizens shall have the right to freedom of speech and expression.' Article 19(1)(d) of the Constitution provides that 'all citizens shall have the right to move freely throughout the territory of India.' Article 21 of the Constitution protects the fundamental right of a citizen regarding his life and personal liberty when it reads that 'no person shall be deprived of his life or personal liberty except according to procedure established by law'. These fundamental rights are subject to reasonable restrictions.
12. This leads us to the question as to whether the petitioner's fundamental right under Art. 19 (1) (d) is also infringed by history sheet and surveillance. What is the content of the said fundamental right ? It is argued for the State that it means only that a person can move physically from one point to another without any restraint. This argument ignores the adverb "Freely" in clause (d). If that adverb is not in the clause there may be some justification for this contention; but the adverb "freely" gives a larger content to the freedom. Mere movement unobstructed by physical restrictions cannot in itself be the object of a person's travel. A person travels ordinarily in quest of some objective. He goes to a place to enjoy, to do business, to meet friends, to have secret and intimate consultations with others and to do many other such things. If a man is shadowed, his movements are obviously constricted. He can move physically, but it can only be a movement of an automaton. How could a movement under the scrutinizing gaze of the policemen be described as a free movement? The whole country is his jail. The freedom of movement in clause (d) therefore must be a movement in a free country, i.e., in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do.
13. Assuming that Art. 19(1)(d) of the Constitution must be confined only to physical movements, its combination with the freedom of speech and expression leads to the conclusion we have arrived at. The act of surveillance is certainly a restriction on the said freedom? It cannot be suggested that the said freedom is also bereft of its subjective or psychological content, but will sustain only the mechanics of speech and expression. An illustration will make our point clear. A visitor, whether a wife, son or friend, is allowed to be received by a prisoner in the presence of a guard. The prisoner can speak with the visitor; but, can it be suggested that he is fully enjoying the said freedom. It is possible for him to express his real and intimate thoughts to the visitor as fully as he would like. But the restrictions on the said freedom are supported by valid law. To extend the analogy to the present case is to treat the man under surveillance as a prisoner within the confines of our country and the authorises enforcing surveillance as guards, without any low of reasonable restrictions sustaining or protecting their action. So understood, it must be held that the petitioner's freedom under Art. 19(1)(a) of the constitution is also infringed.
14. In A.K. Gopalan v. State of Madras, AIR 1950 SC 27 Hon'ble Apex Cpurt had held :
"If a man's person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his 'own inclination may direct', reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business. These are attributes of the freedom of the person and are consequently attached to the person"
15. The petitioner under the shadow of surveillance is certainly deprived of this freedom. Due to presence of such history-sheet, the petitioner is deprived of his freedom of movement as well as right of privacy under the shadow of surveillance by police. He can move physically, but he could not do so freely for all his activities because he is watched and noted. After knowledge of this history-sheet he could not act as freely as he would like to do in absence of such history-sheet.
16. Where the police officer has not given any reason for his belief that the petitioner was a desperate character, and a habitual offender, the history-sheet opened against him is not in accordance with the mandate of the relevant rules, and as such it would be just to order closure of such history-sheet. The exercise of the power by the police under the cover of surveillance which invades into personal liberty of the petitioner as regards his free movement in day to day life, when there is no material to continue the history-sheet for him, is violative of Article 21 of the Constitution of India.
17. For the reasons discussed above, we hold that Class-B history-sheet for the petitioner Munna Lal Gupta was an erroneous act done without the facts being verified and without reasonable satisfaction being reached or mind being applied by the then Superintendent of Police. This history-sheet was never reviewed because rules provided that Class-B history-sheet shall continue till death."
26. When the police regulations regarding opening of history sheets were made for the "subject Indians" by colonial rulers, no requirements of observance of principles of natural justice were incorporated because the State at that time was not a democratic State and therefore, whatever the State decided was final. After promulgation of Constitution of India, the requirements of observations of the rules of natural justice, enshrined in the Article 14 of the Constitution of India, has become imperative. Its observance is more required where the right to life, livelihood and liberty of an individual is involved. The order of opening of history sheet is passed by the Senior Officer of Police by only approving the report of the police station. The opening of history sheet is not the same as implication of an individual in a criminal case because of committing some crime. By opening history sheet the police gets the right of surveillance of the history sheeter. Whether the police report submitted before the higher police authority for approval is correct or not is not considered nor the person sought to be made a history sheeter is ever afforded opportunity to put his version against the police report. After opening of Class-B history sheet, the history sheeter remains under surveillance for life and his right to liberty is severely effected in the name of surveillance. He is vulnerable to police dictate, threat and coercion throughout his life. In such a situation subjecting a citizen of a sovereign democratic State to surveillance cannot be said to be in accordance of Articles 14 and 21 of the Constitution of India. Such a person is condemned unheard. The concept of equality of law and equal protection of law provided under Article 14 of the Constitution of India is brutally violated. The offence enumerated for opening Class-A history sheet are dacoity, burglary, cattle-theft railway-goods wagon theft and abetment thereof. It is notable that the offences enumerated in the Class-A of his history sheet are not much committed now. Therefore, the police has unfettered power to implicate anyone on the basis of any offence by making a report to the higher police authority for opening Class-B history sheet. Considering the present state of affairs, rampant false implications, because of personal and political rivalry, provisions regarding opening of history sheets need to be reviewed. State has realized that the police regulations regarding opening of history sheets are being misused and therefore the guidelines dated 3.11.2022 were framed by Director General of Police, U.P. providing for opening/reviewing of history sheets of Class-A only while no such guideline has been issued for opening/review of Class-B history sheet. Therefore, we find that the police has absolute powers of opening Class-B history sheet against any citizen of the country on any pretext, like implication in single case under Gangsters Act and implication of other petitioners in one case of exhortation on account of personal/business rivalry with the informant and implication in another case under Section 2/3 (1) of Gangsters Act on its basis. The police is clearly acting against the mandate of the Constitution of India laid down under Articles 14, 19 and 21 of the Constitution of India on the basis of pre-independence regulations. It is high time that this practice should be stopped and before opening of history sheet of Class-A or Class-B against any citizen of the State, he should be given one opportunity to submit his objection before it is accepted by higher official of the police and before such officer directs opening of any Class of history sheet against a citizen. While directing opening of history sheet of Class -A and Class -B, the higher police authority shall record his reasons for directing opening of history sheet of any Class after considering the objection of the citizen filed against the report of the police station.
27. Accordingly the impugned history sheet/sheets opened with regard to the petitioners noted above by the order of respondent no.3, Deputy Commissioner of Police, Greater Noida, Gautam Buddh Nagar, dated 16.6.2021 are hereby quashed. The surveillance of petitioners shall be stopped forthwith.
28. The State Government is directed to look into the procedure of opening of history sheet and make/ issue necessary amendments/guidelines for providing opportunity of objection to the person, against whom, the police submits report recommending the opening of history sheet of Class-A or Class-B before the Senior Police Official. The State Government will also provide for review of the history sheets opened against the citizen, every year, so that, in the cases where implication of persons against whom history sheet was opened and who have been subsequently exonerated/acquitted of the criminal charges, their history sheets are closed and shadow of surveillance by police on their life and liberty gets removed.
29. The Registrar (Compliance) of this Court is directed to communicate this order to the Principal Secretary (Home) State of U.P., Lucknow, within a period of one week.
30. The Principal Secretary aforesaid will submit compliance report to this Court, within a period of three months, which shall be kept on record by the Registrar (Compliance) of this Court. If the report is not received from the Principal Secretary aforesaid, the Registrar (Compliance) will put this matter before the Court again after expiry of period of three months.
31. The record of these writ petitions shall be retained by the office till compliance report of Principal Secretary aforesaid is received by this Court.
32. All the criminal writ petitions are allowed.
Order Date :- 21.1.2025
Ruchi Agrahari
(Subhash Chandra Sharma,J.) (Siddharth, J.)