Andhra Pradesh High Court - Amravati
Donkada Rama Krishna, vs State Of Andhra Pradesh on 11 September, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION No.177 of 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus questioning the action of respondents in opening 'Rowdy sheets' and continuation against the petitioners on the file of the 4th respondent, Chinakudama Police Station, as illegal, arbitrary, unjust and consequential direction to the respondents to close the 'Rowdy sheets' henceforth.
The 1st petitioner is a resident of Chinakudama Village, Jiyyammavalasa Mandal, Vizianagaram District, 2nd petitioner is native of Pedamerangi Village, Jiyyammavalasa Mandal, Visakhapatnam District, both of them belong to BC community and they are agriculturists by profession. The 1st petitioner's village- Jiyyammavalasa Mandal forms part of Kurupam Assembly Constituency. At the instance of local MLA, who is the Hon'ble Deputy Chief Minister, the 4th respondent, addressed a letter to the 3rd respondent seeking permission to open Rowdy sheets against both the petitioners in the last week of May, 2019. The 3rd respondent- Assistant Superintendent of Police mechanically granted permission on 01.06.2019 to open Rowdy sheets against the petitioners. Accordingly, the 4th respondent opened Rowdy sheets against the petitioners due to involvement of the petitioners in Crime No.43 of 2019 for the offences punishable under Sections 353, 354, 342, 323, 324, 109 r/w.14 of Indian Penal Code (for short 'IPC') and Sections 3(1)(r), 3(1)(s) and 3(2) (va) of SC ST (POA) Act, 1989 on the ground that the petitioners are the members of unlawful assembly and prevented the YSR Congress Party candidate on the election day at -2- the Polling Booth. Therefore, opening of Rowdy sheets basing on the said Crime is illegal and arbitrary exercise of power by respondent No.4-Staion House Officer and calling the petitioners to the police station regularly is nothing but an infringement of fundamental right guaranteed under Article 21 of the Constitution of India and requested to close the Rowdy sheets opened against the petitioners.
The respondents filed counter affidavit denying all the allegations in the petition, while contending that the Rowdy sheets were opened against the petitioners pursuant to Memo No.CNo.9/Genl 81/Y.Sec/L&O/2019, dated 06.05.2019 issued by Director General of Police, Andhra Pradesh, Mangalagiri, regarding violation of preventive section of law, accorded instructions to 2nd respondent. 21455 persons violated security proceedings by indulging in criminal cases. Hence, the 2nd respondent-Superintendent of Police was advised to complete the forfeiture proceedings against 22 persons and also taken action against them by opening Rowdy sheets. As per the instructions pursuant to Memo No.C No.15/D1/DCRB/VZM/2019 of Superintendent of Police, Vizianagaram, dated 27.05.2019 due to involvement of the petitioners in Crime No. 43 of 2019 for the offences punishable under Sections 3(i)(r)(s), 3(2) V A SC/ST POA Act, and Sections 353, 354, 332, 342, 324, 109, r/w 149 IPC on the file of the 4th respondent, Rowdy sheets were opened against the petitioners in terms of Standing Order No.601 of the Andhra Pradesh Police Manual. It is also contended that, on account of registration of crime against the petitioners, none of the villagers are coming forward to lodge complaint against the petitioners, even though they were involved in grave offences. Hence, Rowdy sheets cannot be closed against the petitioners. -3-
Admittedly, Rowdy sheets are opened against the petitioners pursuant to the directions issued by the 2nd respondent- Superintendent of Police vide Memo No.C NO.9/Genl 81/Y.Sec/L&O/2019 dated 06.05.2019 as the petitioners are involved in Crime No.43 of 2019 for the offences punishable under Sections 353, 354, 342, 323, 324, 109 r/w 149 IPC and Sections 3(1)(r), 3(1)(s) and 3(2) (va) of SC ST (POA) Act, 1989. At this stage, it is relevant to refer to Andhra Pradesh Police Standing Orders 602(2), which read as follows:
"602(2) : merely because a suspect/rowdy, having a history sheet, is not figuring as accused in the previous 5 years after the last case in which he was involved, it should not preclude the SD/DCP/CP to continue his history sheet if SP/DCP/CP is of the considered view that his activities are prejudicial to the maintenance of the public order or one affecting peace and tranquility in the area or the victims are not coming forward to give complaint against him on account of threat from him".
According to the Standing Order 602(2) of Andhra Pradesh Police Manual, it should not preclude the SD/DCP/CP to continue history sheets/rowdy sheets if SP/DCP/CP is of the considered view that his activities are prejudicial to the maintenance of the public order or one affecting peace and tranquility in the area or the victims are not coming forward to give complaint against the petitioners. The offences punishable under Sections 353, 354, 342, 323, 324, 109 r/w.149 I.P.C and Sections 3(1) (r), 3 (1) (s) and 3 (2) (va) of SC ST (POA) Act, 1989 in connection with Crime No.43 of 2019 are not enumerated in the Standing Orders to continue the Rowdy Sheets against the petitioners. But, in the counter, it is specifically contended that the rowdy sheets can be opened against the persons, who, habitually attempting to commit or abet the commission of offences under Chapters-VIII, XV, XVII and XXII of I.P.C, persons bound over under Sections 106, 107, 108(1)(i) and 110-E & G of Criminal Procedure Code, persons who habitually tease women and -4- girls and pass indecent remarks including offences punishable under Sections 354-A, B, C and 354-D I.P.C and persons who incite, instigate and participate in communal/caste or political riots.
During hearing, learned counsel for petitioners, Mr.N.Siva Reddy, reiterated the contentions while drawing attention of the Court to the order of this Court in W.P.No.5615 of 2019 to substantiate his contentions and requested this Court to order closure of Rowdy Sheets opened against the petitioners.
This Court dealt with the similar issue of habitual offender in W.P.No.5615 of 2019 and by order dated 28.11.2019, in Beerjepally Venkatesh Babu v. State of A.P1 wherein the word 'habitual offender' is analyzed in para-3 of the said judgment. The crucial expressions used in Standing Order 601 indicate that the person must habitually commit or attempt to commit or abets the commission of offences involving breach of peace, disturbance to public order and security. In other words, one must be a habitual offender or keeps abetting commission of offences, which is a plural of the expression 'offence'. Therefore, if the petitioner has involved himself in a single crime, he cannot be described as a 'habitual offender'. For one to become a habitual offender, propensity of repetition of the same conduct should be witnesses. Otherwise, involvement in a single crime cannot be described as 'habitual offender'. Therefore, in the opinion of the court, the first criteria for the petitioner to be described as a 'rowdy' as per Standing Order 601 is not satisfied. Similarly, even assuming that the person is intimidating by threats or use of physical violence or other unlawful means for parting with movable and immovable properties. Similar issue came up for consideration before the 1 LAWS (APH) 2014 3 87 -5- Court. The word habitual offender is analyzed in catena of judgments.
In Dhanji Ram Sharma V. Superintendent of Police2, the Apex Court held that:
"A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repletion of crimes. Reasonably belief of the police officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under Rules 23.4(3)(b) and 23.9(2). Mere belief is not sufficient. The belief must be reasonable, it must be based on reasonable grounds. The suspect may or may not have been convicted of any crime. Even apart from any conviction, there may be reasonable grounds for believing that he is a habitual offender."
In other Judgments in Kamma Bapuji v. Station House Officer, Brahmasamudram and Puttagunta Pasi alias Penta Pasi v. Commissioner of Police, Vijayawada and another3, the Court took similar view and held as follows:
"A Rowdy sheet can be opened against a person classified as a rowdy, if such person habitually commit, attempt to commit or abet the commission of offence involving a breach of the peace. In plain language a person who habitually commit, attempt to commit or abet the commission of offences alone can be classified as a rowdy and rowdy sheet can be opened, provided such offence relates to involving breach of the peace. If the offence even habitually committed, or attempted to be committed or abet commission of the offence, but not involving a breach of the peace, would not enable and authorize the police officer concerned to open rowdy sheet and classify a person as rowdy. It is in this area, a Police officer has to consider the material available on record and satisfy himself that commission of offence habitually by a person has resulted or is likely to result in breach of peace. The satisfaction is required to be arrived at in an objective manner and on the basis of the material available on record.
In the instant case, the petitioners are involved only in two cases and these cases have nothing to do with breach of the peace. It is not the case of the respondent, that commission of these offences has resulted in breach of the peace in the village or town, as the case may be. Involvement in two cases itself would not attract Clause 9a) of S.O.742 and the person/persons cannot be treated as rowdy and no rowdy sheet can be opened against such person(s). Be that as it may, even the said two cases registered against the petitioners, admittedly, had not resulted in any breach of peace. Viewed from any angle, the rowdy sheets opened against the petitioners are ultra vires to the Police Standing Orders. The action of the respondents in opening rowdy sheets against the petitioners is illegal and unconstitutional.2
AIR 1966 SC 1766 3 (1998) 3 ALT 55 (DB) -6- In the case of Puttagunta Pasi 's case (3rd cited supra), this Court held as follows:
" From the above, it is clear that rowdy sheets cannot be opened against any individual in a casual and mechanical manner. Dubbing a person as an habitual offender and to open a rowdy sheet is not sufficient. On the other hand, due care and caution shall be taken by the Police before characterizing a person as a rowdy. The important element that has to be seen in the acts of an offender is whether the acts so committed by a person will have a tendency to disturb public peace and tranquility. In Kamma Bapuji's case, the learned single Judge, following the decisions already rendered by the Supreme Court and this Court as cited above, held that opening of a rowdy sheet against the petitioner therein viz., Kamma Bapuji is incorrect. The question involved in this Writ Appeal is almost similar to the one involved in Kamma Bapuji's case. Apart from this, the appellant himself has filed an affidavit today swearing that in future he will not give room for any action to be taken against him for any offences. If the rowdy sheet opened against him is cancelled, he assures that he would make a decent living without attempting to disturb public peace and tranquility. The said affidavit is taken on record. From the facts narrated, it is very difficult to bring the appellant within the definition of a 'habitual offender'. The mention of his name in the rowdy sheet is of non-application of mind by the authorities to the relevant provisions viz., Standing Orders 741 and 742 of the Police Standing Orders. The learned single Judge would have agreed with the judgment rendered by his Lordship Justice B.Sudershan Reddy in the case of Kamma Bapuji's case and would have quashed the proceedings relating to opening of rowdy sheet if the said judgment was placed before his Lordship. Accordingly, the appeal is allowed and the order of the learned single Judge (B.Sudershan Reddy, L.) rendered in Kamma Bapuji's case.
In the case of Shaik Mahaboob v Commissioner of Police, this court held as follows:
"Admittedly the two cases registered against the petitioner have ended in acquittal. The third reference that a report was received from Special Branch Police that the petitioner threatened the Managing Editor of Siasat daily 'for not publishing in that paper about his organization' and also threatened to burn the newspaper, cannot be taken as 'copiously substantiated'. Something more is required so as to hold that threat was real which requires preventive measures as either the complainant himself would have registered a complaint or the police ought to have taken some initiative on this threat. In the absence of this it is not in accord with law to treat the said situation as a cogent evidence so as to bring within the ambit of the person being habitual offender taking that case as a third incident. True whether commission of an offence or attempt to commit an offence could be taken as the relevant factor for the purpose of entering the name of a person in a rowdy sheet within the meaning of S.O.742 but mere assertion does not lead to the situation that a person attempted to commit an offence.
In view of the law declared the Apex Court and High Court of Judicature at Hyderabad, the petitioners cannot be described as 'habitual offenders', as no material is placed before this Court to -7- conclude that the petitioners repeated similar offence as described in their Standing Order No.601 of Andhra Pradesh Police Manual. In the absence of any material to prove that the petitioners repeated such offences, continuation of Rowdy Sheets are without any basis and thereby the act of the 4th respondent is irregular, illegal and it is arbitrary exercise of power conferred on the police by Standing Order 601 of Andhra Pradesh Police Manual. Hence, opening of Rowdy sheets against the petitioners is against the law.
The main contention of the respondents are follows:
1) The petitioners were arrayed as accused in Crime No.29 of 2019 under Section 107 of Cr.P.C. of Chinamerangi Police Station vide M.C.No.31 of 2019 pending before Mandal Executive Magistrate, Jiyyammavalasa.
2) Petitioners teased and passed indecent remarks towards the complainant in the present case on hand.
3) Petitioners violated the MCC and involved in Crime No.43 of 2019 under Sections 353, 354, 323, 324, 109 read with 149 of I.P.C. and Sections 3(1) (r) (s) and 3(2) (v) (a) of S.Cs and S.Ts. (POA) Act.
4) Petitioners have potential influence the people and may commit further offences of same type unless a close watch is maintained on the activities of the accused.
As the petitioners arrayed as accused in Crime No.29 of 2019, rowdy sheets appears to have been opened against the petitioners invoking clause (i) (ii) (iv) and (ix) of Standing Order 601 of A.P.Police Manual.
However, as seen from the material on record, mere registration of crime for the offence punishable under Sections 3(1)(r)(s) and 3(2) (v) (a) of S.Cs and S.Ts. (POA) Act does not -8- amount to committing offences of communal/caste or political riots It is only insulting a person belonging to Scheduled Caste or Scheduled Tribe. Therefore, basing on Clause (ix) of Standing Order 601 of A.P.Police Manual, opening of rowdy sheets are unsustainable.
The other contention of the petitioners is that he is a party to M.C.No.31 of 2019 pending before the Mandal Executive Magistrate, Jiyyammavalasa, who initiated proceedings under Section 107 of Cr.P.C. The orders passed, if any, under Section 107 of Cr.P.C. will remain in force for a period of six months, and six months period is already over. Therefore, opening of rowdy sheets against the petitioners invoking clause (ii) of Standing Order 601 of A.P.Police Manual is an illegality.
The respondents contended that the petitioners are habituated to commit or abet the commission of offences involved breach of peace, disturbance to public order and security besides offences under chapter VIII, XV, XVII, XVIII and XXII of I.P.C. But the petitioners cannot be described as habitual offenders in view of the law declared in the above judgments since the petitioners are not committing the offences repeatedly.
Last ground urged by the respondents for opening of rowdy sheets is that the petitioners are habituated to tease women and girls and pass indecent remarks including offences under Sections 354-A, B, C and 354-D of I.P.C. According to the material available on record, the petitioners involved in Crime No.43 of 2019 registered for the offence punishable under Sections 353, 354, 323, 324, 109 read with 149 of I.P.C. and Section 3 (1) (r)(s) and 3 (2) (v)
(a) of S.Cs and S.Ts (POA) Act. But the petitioners did commit no -9- offence punishable under Section 354-A, B, C and 354-D of I.P.C. Hence, opening of rowdy sheets invoking clause (iv) of Standing Order 601 of A.P.Police Manual is another illegality.
No material is placed for continuation of rowdy sheets covered by Second Part of Clause (2) of Standing Order 602 of Andhra Pradesh Police Manual, which is an illegality and violative of the fundamental right guaranteed under Article 21 of Constitution of India. Coming to Clause(2) of Standing Order 602 of Andhra Pradesh Police Manual, there is nothing to show that these petitioners committed breach of peace and tranquility to attract any other offence which would fall under Sections 108(1)(i) & 110-E and G of Cr.P.C, except making bald allegations no material is produced. Further, in the absence of recording satisfaction by SD/DCP/CP about involvement of the petitioners in any activities prejudicial to the maintenance of the public order or one affecting peace and tranquility cannot be sustained.
On over all consideration of the facts and circumstances of the case and the law declared in the Judgments (referred above), I find that it is a fit case to declare that the rowdy sheet opened against the petitioners is illegal and arbitrary and liable to be set aside.
In the result, Writ Petition is allowed declaring the action of respondents in opening Rowdy sheets opened against the petitioners, is illegal and arbitrary. However, the 4th respondent-Station House Officer is directed to close the rowdy sheet opened against the petitioners forthwith. No costs.
As a sequel, Interlocutory Applications pending, if any, shall stand closed.
_______________________________________ JUSTICE M. SATYANARAYANA MURTHY 11.09.2020 VSL
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THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
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Writ Petition No.177 of 2020 Date: 11.09.2020 VSL