Madras High Court
Ganesan vs The District Superintendent Of Police on 11 August, 2010
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/08/2010 CORAM THE HONOURABLE MR. JUSTICE S.MANIKUMAR W.P.(MD)No.10979 of 2005 Ganesan ... Petitioner Vs 1.The District Superintendent of Police, Virudhunagar District, Virudhunagar. 2.The Deputy Superintendent of Police, Aruppukottai Sub-Division, Aruppukottai, Virudhunagar District. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records pertaining to the order passed by the second respondent herein vide his proceedings dated 24.10.2005 and quash the same. !For Petitioner ... M/s.T.Muruganantham ^For Respondents ... Mr.K.Balasubramanian, Additional Government Pleader. :ORDER
Aggrieved by the order dated 24.10.2005, passed by the Deputy Superintendent of Police, Aruppukottai Sub-Division, Aruppukottai, Virudhunagar District, rejecting the request of the petitioner, to delete his name from the history sheet of rowdies, the petitioner has come forward with the present Writ Petition to quash the same.
2. According to the petitioner, he is an agriculturist. Due to property dispute, his paternal uncle lodged a complaint with the Sub-Inspector of Police, M.Reddiapatty Police Station, Virudhunagar District and that a case in Crime No.99 of 2002 was registered against the petitioner and others, under Sections 448, 427 and 506(2) IPC. As there was an illegal demand to delete the name of the petitioner and his family members from the criminal case, the same was refused by the petitioner. The Sub-Inspector of Police, M.Reddiapatty Police Station, became inimical towards the petitioner and others. Though a final report was filed in C.C.No.100 of 2003, on the file of the Learned Judicial Magistrate, Aruppukottai, the criminal Court acquitted the petitioner of the charges, as no witnesses supported the prosecution.
3. Another criminal case in Crime No.435 of 2004 was registered against the petitioner under Sections 365 and 307 IPC and at the time of filing of the writ petition, the same was pending committal in P.R.C. No.12 of 2005 on the file of the Learned Judicial Magistrate, Aruppukottai.
4. It is the contention of the petitioner that though the criminal case registered against him in 2003 had ended in acquittal, on the basis of the information given by the then Sub-Inspector of Police, M.Reddiapatty Police Station, his name was included in the History Sheet (Rowdies), by the Deputy Superintendent of Police, Aruppukottai Sub-Division, Virudhunagar, the second respondent herein and that the petitioner has been frequently directed to appear before the police, under the pretext of enquiry and surveillance. As retention of the petitioner in History Sheet (Rowdy) has affected his reputation in the society, he made a representation, dated 25.07.2005 to the second respondent, to delete his name. As the said representation was not considered, he was constrained to file W.P.No.7031 of 2005.
5. By an order, dated 03.08.2005, this Court directed the Deputy Superintendent of Police, Virudhunagar District, Virudhunagar, to pass orders on the representation. Pursuant to the directions, of this court, the Deputy Superintendent of Police, Aruppukottai Sub-Division, Aruppukottai, has rejected the request, which is impugned in this present writ petition.
6.Assailing the correctness of the impugned order, Mr.T.Muruganantham, learned counsel appearing for the petitioner, submitted that the first respondent has failed to consider that when the impugned order was passed only one case was pending against the petitioner in P.R.C.No.12 of 2005, on the file of the learned Judicial Magistrate, Aruppukottai. The other case in Crime No.99 of 2002 registered under Sections 448, 427 and 506(2) IPC, on account of property dispute, which culminated in C.C.No.100 of 2003, on the file of the Judicial Magistrate, Aruppukottai, had ended in acquittal.
7.Learned Counsel appearing for the petitioner further contented that the History Sheet (Rowdy List) has been opened mechanically by the second respondent, without proper consideration of the facts and the impugned order of rejection, is not in accordance with Police Standing Orders 747 and 749.
8 Placing reliance on the decision of this Court in Selvaraj and others v. The Inspector of Police, Kaliakavilai Police Station, Kanyakumari District and others reported in 2010-1-L.W. (Crl.) 497, learned counsel for the petitioner submitted that pendency of a single case without any conviction is not a valid ground to include the name of the petitioner in the list of History Sheeted Rowdies. He also submitted that continuation of the petitioner in the said sheet, amounts to violation of his right to life and personal liberty guaranteed under Article 21 of the Constitution of India. For the above said reasons, he prayed that a suitable direction may be issued to the respondents to remove the name of the petitioner from the History Sheet.
9. Per contra, based on the counter affidavit filed by the Deputy Superintendent of Police, Aruppukottai, Virudhunagar District, dated 5th December, 2005, Mr.K.Balasubramanian, learned Additional Government Pleader, submitted that the petitioner, was involved in many criminal cases before 2005 and the details of the cases are, (i) Crime Nos.65 of 2000 under Section 326, 506(ii) of IPC; (ii) Crime No.27 of 2001 under Sections 307, 436 and 506(ii) of IPC; (iii) Crime No.53 of 2001 under Sections 294(b) and 506(ii) of IPC and (iv) Crime No.99 of 2002 under Sections 452, 427 and 506(ii) of IPC. He further submitted that all the cases were registered on the file of M.Reddiapatty Police Station and that he was also involved in law and order problem. As the petitioner, was involved in the abovesaid criminal cases and indulged himself in law and order problem there was reason to believe that his conduct required vigil and surveillance and therefore, a requisition dated 04.03.2003 was made by the Sub-Inspector of Police, M.Reddiapatty Police Station, Virudhunagar District to the Deputy Superintendent of Police, Aruppukottai Sub-Division, Virudhunagar District, the second respondent herein, to open a History Sheet (Rowdy) for the petitioner.
10. and considering the request of the Sub-Inspector of Police, M.Reddiapatty Police Station and on perusal of the connected records, the Deputy Superintendent of Police, the second respondent herein, by his order dated 07.03.2003, has granted permission to open a History Sheet (Rowdy) for the petitioner. He therefore submitted that there is no manifest illegality in opening the History sheet for the petitioner. As regards retention of his name, by rejecting the petitioner's request he submitted that as petitioner had involved in law and order problem, the same cannot be said to be arbitrary.
11. It is to be noted that after registration of the cases in the year 2001-2002, no other criminal case has been registered and therefore this court deems it fit to consider as to retention of the petitioner in the history sheet as on the date of hearing of this Writ Petition is necessary or not.
Heard the learned counsel for the parties and perused the materials available on record.
12. Before going into the merits of the case, let me extract the relevant provisions contained in Police Standing Orders.
"PSO 746. Part-IV - History Sheets.
(1) Part V (Form No.111) shall contain the History Sheets of the persons resident permanently or temporarily in their Station limits who are known or believed to be addicted to or to aid and abet the commission of crime, whether convicted or not, or who are believed to be habitual receivers."
(G.O.Ms.No.364, Home, 15th Feb. 1943) One sheets Nos.1,3,7 and 8 are to be maintained in the History Sheet forms in use in Station. Sheet No.9 should also be maintained, if a photograph of the criminal is available.
Note: This sub-paragraph will not effect the History Sheets maintained in Crime Records Bureau.
(2) At the back of sheet No.1, below item 7, the following descriptive details should be shown:
Age, Height, Complexion, and Particular marks of identification.
(3) In sheet 8 under heading the "Current doings" entries which are informative and useful based on the facts ascertained both by the Sub-
Inspector and his men since the date of last entry, shall be made month-wise for close watch bad characters and quarterly for non-close watch bad characters. Anything of interest coming to notice, in respect of a bad character during a month should be entered then and there, without waiting for the end of the month or the quarter.
(4) The entries in the various columns in the History Sheet should be checked by the Sub-Inspector personally and brought upto-date once a year. The fact of such verification should be certified by him in the column under the "Current doings".
PSO 747. Automatic opening of History Sheets:
(1) History sheets shall be opened automatically at the time of conviction for persons convicted as under and shall be retained for two years after release from jail.
Persons are how convicted Numbers of times convicted (1) (2) Persons released from imprisonment for life under Chapters XII and XVII, Indian Penal Code Professional Prisoners Indian Penal Code, Ss.395 to 402 Once Indian Penal Code, Ss.392 to 394 Twice if convicted or liable to conviction under S.75, Indian Penal Code House breaking Twice Theft Thrice Conviction under S.109, Cr.P.C. Twice Conviction under S.110, Cr.P.C. Once (G.O.Ms.532, Judl,20 Feb, 1906 and 497, Law (Genl.) 10th Feb 1923)
Note : (1) Order No.747 need not be strictly applied to such persons, but History Sheets should be opened under that order in respect of individuals for whom the Superintendent or Sub Divisional Officer thinks it advisable "on account of their active criminality."
(G.O.Ms.No.3434, Home, 5th Nov.1964) (2) The History Sheet of a Known Depredator, against whom an order has been passed under Section 356 Criminal Procedure Code, shall not be closed until the period during which he is required to report changes of residence has elapsed.
(3) Persons convicted as above will be styled Known Depredators.
Note : Inmates or ex-inmates of a Borstal Institution should not be styled as "Known Depredators".
PSO 748. Discontinuance of History Sheets.--
(1) History sheets shall be closed by the definite orders of an officer of and above the rank of Assistant Superintendent of Police/Deputy Superintendent of Police and shall be filed in the Station. The History Sheets of persons who have died shall be destroyed under orders of an officer of and above the rank of Assistant Superintendent of Police/Deputy Superintendent of Police. The Superintendent of Police may order the closure of a History Sheet at any time but a Divisional Officer may only do so on the expiry of the period named above.
(G.O.Ms.No.3929, Home, 5th Sept.1950) (2) "Where retention of a History Sheet is considered necessary after two years of registration," orders of an officer of and above the rank of Assistant Superintendent of Police/Deputy Superintendent of Police must be taken for the extension in the first instance upto the end of the next December and further annual extensions from January to December.
(3) The above orders shall apply to Rowdy Sheets also.
PSO 749. Suspects.--
(1) The following persons shall be classed as suspects and History Sheets shall be opened for them under orders of the Superintendent or Divisional Officer, if so empowered by the Superintendent.--
(a) Persons once convicted under any Section of the Indian Penal Code are "considered to be likely" to commit crime;
(b) "Persons, not convicted, but believed to be addicted to crime." (2) The following persons may be classified as rowdies and Rowdy Sheets (Form No.112) may be opened for them under the orders of the Superintendent or Sub Divisional Officer:
(a) Persons who "habitually commit," attempt to commit or abet the commission of offences involving a breach of peace.
(b) Persons bound over under Sections 106 and 107, Criminal Procedure Code.
(c) Persons who have been convicted under Section 75 of the Madras City Police Act or twice in two consecutive years under Section 3 Clause 12 of the Town Nuisance Act.
(d) Persons who are illicit distillers and known purveyors of liquor.
(G.O.Ms.No.3461, Home, 10th Dec. 1956) Persons either convicted under Section 49-A of the Madras City Police Act, 1888 (Madras Act III of 1888) or under Section 4 of the Madras Gaming Act, 1930 (Madras Act III of 1930), or reasonably suspected to be habitually committing or abetting the commission of.
(3) The fact that a History Sheet has been opened for a suspect other than an ordinary criminal shall be kept confidential.
(G.O.Ms.No.480 Judl. 10th Aug.1921) (4) All registered rowdies should be kept under the same type of watch as envisaged for registered suspects. The names of History-Sheeted rowdies should be entered in the Station Check Register of K.Ds and the rowdies should be checked regularly by beat Police Constables in rural Police Stations and by rowdy patrols in large towns as also by the Sub Inspectors (Law and Order). The checking however should be discretely done by the method of enquiries and not in the manner of domiciliary checks.
(5) Inspectors and Divisional Officers when they visit the area should make their own independent enquiries and not their findings in the History Sheets and in Inspection Reports, if any.
(6) All reports against notorious rowdies entered in the General Diary of the Station or matter brought to light on enquiries in the petitions should be entered against them in the personal sheets and should be dated.
(7) Rowdies are often employed for committing breaches of peace and of intimidating opponents in times of political or communal tension. Inspectors of Police should take effective and timely action to control their activities. The active ones among these should be dealt with appropriately under Section 110(a) and (f) of the Criminal Procedure Code or under Section 160 I.P.C., or under Section 75 of the Madras City Police Act and Section 106 of the Criminal Procedure Code.
(8) Besides registered rowdies for whom separate sheets are maintained there are a set of anti-social elements in every street and village who intimidate the local people and exploit them for their selfish ends. They are often believed to be keeping brothel houses clandestinely for promoting prohibition or offences under the Gaming Act. Sometimes they have political backing also. The activities of these persons also require vigilant watch and check. For this purpose a register in Form No.112 shall be maintained in all Police Stations. The categories of persons which should be entered into the registers are:
(a) All persons for whom rowdy sheets are maintained under Order No.749.
(b)(i) Anti-social elements who intimidate people and exploit them for selfish ends, or actively promote communal disharmony.
(ii) Persons believed to be keeping brothels or opium dens or promoting offences under the Gaming Act.
(c) Persons bound over under Section 110(e) and (f) Criminal Procedure Code.
(d) Persons convicted under Section 294, I.P.C.
(e) Known drunkards."
13. In Police Standing Orders, the words, "known" or "believed to be" "Consider it necessary" are widely used, for arriving at a conclusion, as to whether, a History or Rowdy Sheet, for Rowdies, suspects, etc., should be opened or retained. Therefore, this Court deems it fit to consider some of the decisions, where the Supreme Court has defined and explained the words, "knowledge", "belief", "reason to believe" and "consider it necessary".
14. In Joti Parshad Vs. State of Haryana reported in 1993 Supp (2) Supreme Court Cases 497, the Supreme Court while explaining the words, "knowledge", "reason to believe" under the Indian Penal Law held that "under the Indian Penal Law, guilt in respect of almost all the offences is fastened either on the ground of 'intention' or 'knowledge' or 'reason to believe'. We are now concerned with the expressions 'knowledge' and 'reason to believe'. 'knowledge is an awareness on the part of the person concerned indicating his state of mind. "reason to believe is another facet of the state of mind. 'reason to believe is not the same thing as 'suspicion' or 'doubt' and mere seeing also cannot be equated to believing. 'reason to believe' is a higher level of state of mind. Likewise, 'knowledge' will be slightly on a higher plane than 'reason to believe'. A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same.
15. In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements, i.e. 'knowledge' and 'reason to believe' have to be deduced from various circumstances in the case.
16. The expression "considers it necessary" for opening or retention of the history sheet has to be given its meaning, that there should be a consideration of the facts or things, taken into account, in deciding or judging the conduct of the person, against whom a history sheet is opened or retained. The Apex Court in Barium Chemicals Ltd. Vs. A.J.Rana reported in 1972 2 SCR 752 has explained the meaning of the expression 'consider it necessary' as follows:
"The words 'considers it necessary' postulate that the authority concerned has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking to pass an order. The dictionary meaning of the word 'consider' is to view attentively, to survey,examine, inspect (arch), to look attentively, to contemplate mentally, to think over, mediate on, give heed to, take note of, to think deliberately, be think oneself, to reflect (vide shorter Oxford Dictionary). According to Words and Phrases - Permanent Edition, Vol.-A 'to consider' means to think with care. It is also mentioned that to'consider' is to fix the mind upon with a view to careful examination; to ponder; study; mediate upon, think or reflect with care"
17.To consider as to whether Police Standing Orders confer absolute discretion on the authorities to open and retain history sheet, or whether the orders contain any inbuilt restrictions, this Court deems fit to consider some of the decisions of the Supreme Court dealing with "discretion" and as to how, it should be exercised by the authorities, administrative, quasi
- Judicial and Judicial.
18.In Suman Gupta and others v. State of Jammu and Kashmir and others reported in (1983) 4 SCC 339, the Supreme Court while explaining as to how administrative discretion should be exercised, at paragraph No.6, held as follows:
"The exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason - relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so. Wherever the exercise of such power affects individual rights, there can be no greater assurance protecting is valid exercise than its governance by these twin tests. A stream of case law radiating from the now well known decision in this Court in Maneka Gandhi v. Union of India reported in (1978) 1 SCC 248 has laid down in clear terms that Article 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and arbitrariness. It must be remembered that our entire constitutional system is founded in the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.
In the above reported judgement, the Apex Court further held that, "We do not doubt that in the realm of administrative power the element of discretion may properly find place, where the statute or the nature of the power intends so. But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority. One is power controlled by law countenanced by the Constitution, the other falls outside the Constitution altogether."
19.Reiterating as to how the discretionary power has to be exercised, the Supreme Court in Sant Raj and another v. O.P.Singla and others reported in (1985)2 SCC 349, held that "whenever, it is said that something has to be done, within the discretion of the authority, then that something has to be done, according to the rules of reason and justice and not according to private opinion, according to law and not humour. It is to be not arbitrary, vague and fanciful but legal and regular and it must be exercised within the limit to which an honest man to the discharge of his office ought to find himself. Discretion means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful.
20.In Fasih Chaudhary v. Director General, Doordarshan and others reported in 1989 1 SCC 89, the Supreme Court held that exercise of discretion should be legitimate, fair and without any aversion, malice or affection. Nothing should be done which may give the impression of favouritism or nepotism. While fair play in action in such matters is an essential requirement, 'free play in the joints' is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi- administrative sphere as the present one.
21.While considering, a litigation arising out of Bangalore Development Authority Act, 1976, the Supreme Court in Bangalore Medical Trust v. B.S.Muddappa and others reported in (1991) 4 SCC 54, held that "discretion is an effective tool in administration. It provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authority to abuse the law or use it unfairly. Where the law requires an authority to act or decide, 'if it appears to it necessary' or if he is 'of opinion that a particular act should be done' then it is implicit that it should be done objectively, fairly and reasonably. In a democratic set up the people or community being sovereign the exercise of discretion must be guided by the inherent philosophy that the exerciser of discretion is accountable for his action. It is to be tested on anvil of rule of law and fairness or justice particularly if competing interests of members of society is involved. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to person affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and purposive approach. Public interest or general good or social betterment have no doubt priority over private or individual interest but it must not be a pretext to justify the arbitrary or illegal exercise of power. It must withstand scrutiny of the legislative standard provided by the statute itself. The authority exercising discretion must not appear to be impervious to legislative directions. The action or decision must not only be reached reasonably and intelligibly but it must be related to the purpose for which power is exercised. No one howsoever high can arrogate to himself or assume without any authorisation express or implied in law a discretion to ignore the rules and deviate from rationality by adopting a strained or distorted interpretation as it renders the action ultra virus and bad in law.
22. In Shiv Sagar Tiwari v. Union of India and others reported in 1997 1 SCC 444 the Supreme Court held that the discretionary power has to be exercised to advance the performance, to subserve for which the power exists.
23. In Rakesh Kumar v. Sunil Kumar reported in (1999) 2 SCC 489, the Supreme Court has held that administrative action/quasi-judicial function is the duty of the authority to give reasons/record reasons/and it should be a speaking order.
24. In A.P. Aggarwal v. Govt. of NCT of Delhi reported in (2000) 1 SCC 600, the Supreme Court held as under:
"The conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual."
25. In State of NCT of Delhi v. Sanjeev, reported in (2005) 5 SCC 181, the Supreme Court explaining the scope of judicial review of executive action has held as follows:
"15. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside, if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (see State of U.P. v. Renusagar Power Co.). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn. at pp.285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarised as follows:
The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
26. In Indian Railway Construction Co. Ltd. v. Ajay Kumar reported in (2003) 4 SCC 579, at paragraphs No.13 to 15, the Supreme Court explained the manner in which discretionary power has to be exercised, while discharging an administrative function. In the above judgment, the Supreme Court held that in matters relating to administrative functions, if a decision is tainted by any vulnerability as such illegality, irrationality and procedural impropriety, Courts should not hesitate to interfere, if the action falls within any of the categories stated supra.
"14. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops, entering into international treaties etc. The distinctive features of some of these recent cases signify the willingness of the courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is "illegality", the second "irrationality", and the third "procedural impropriety". These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (commonly known as CCSU case). If the power has been exercised on a non- consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See CIT v. Mahindra and Mahindra Ltd.) The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their book Applications for Judicial Review, Law and Practice thus:
"There is a general presumption against ousting the jurisdiction of the courts so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government's claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service this is doubtful. Lords Diplock, Scarman and Roskill appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject-matter of a particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney-General's prerogative to decide whether to institute legal proceedings on behalf of the public interest."
(Also see Padfield v. Minister of Agriculture, Fisheries and Food)
15. The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above: like illegality, irrationality and procedural impropriety. Whether the action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
17. Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (KB at p.229 :
All ER pp.682 H-683 A). It reads as follows:
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. ... In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another."
Lord Greene also observed: (KB p.230 : All ER p.683 F-G) "... it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. ... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another." (emphasis supplied)
18. Therefore, to arrive at a decision on "reasonableness" the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view.
27. In Union of India v. Kuldeep Singh reported in (2004) 2 SCC 590, the Supreme Court while testing the correctness of the judgment rendered under the Narcotic Drugs and Psychotropic Substances Act, 1985, and the discretion to be exercised by the High Court, explained the principles governing the mode of exercise of the discretionary power for public functionaries as follows:
"20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law.
21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.
22. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste;evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility. "The discretion of a judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper and passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable," said Lord Camden, L.C.J., in Hindson and Kersey reported in (1680) 8 HOW St Tr 57.
23. If a certain latitude or liberty is accorded by a statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of discretion, and prevents it from being wholly absolute, capricious, or exempt from review."
28.While testing the validity of Central Electricity Regulatory Commission (Procedure, terms and conditions for grant of trading licence and other related matters) (Amendment) Regulations, 2006, the Supreme Court in Global Energy Limited and another v. Central Electricity Regulatory Commission, reported in 2009 (15) SCC 570, started the judgment with an epilogue and it reads as follows:
Epilogue
71. The law sometimes can be written in such subjective manner that it affects efficiency and transparent function of the Government. If the statute provides for pointless discretion to agency, it is in essence demolishing the accountability strand within the administrative process as the agency is not under obligation from an objective norm, which can enforce accountability in decision-making process. All law-making, be it in the context of delegated legislation or primary legislation, have to conform to the fundamental tenets of transparency and openness on one hand and responsiveness and accountability on the other. These are fundamental tenets flowing from due process requirement under Article 21, equal protection clause embodied in Article 14 and fundamental freedoms clause ingrained under Article 19. A modern deliberative democracy cannot function without these attributes.
29. The power conferred on the authority without any guidelines may likely to be abused or arbitrarily exercised and in such circumstances, the guidance and the control of exercise of such power has to be gathered from the object of conferment of power. Non-consideration or non- application of mind to relevant factors renders exercise of discretion manifestly erroneous and it cause for judicial interference.
30.Let me now consider some of the decisions of the Courts dealing with History Sheets.
31.In Kharak Singh Vs State of U.P., and Others reported AIR 1963 SC 1295, the Constitutional validity of U.P. Police Regulations 236, authorising domicilary visits was challenged as violative of Article 21 of the Constitution of India. The Larger Bench of the Supreme Court, while dealing with the rights of life and personal liberty under Article 21 of the Constitution of India, at paragraphs 14 and 18, held as follows:
14. The question that has next to be considered is whether the intrusion into the residence of a citizen and the knocking at his door with the disturbance to his sleep and ordinary comfort which such action must necessarily involve, constitute a violation of the freedom guaranteed by Article 19(1)(d) or "a deprivation" of the "personal liberty" guaranteed by Art. 21. Taking first Art.19(1)(d) the "freedom" here guaranteed is a right "to move freely"
throughout the territory of India. Omitting as immaterial for the present purpose the last words defining the geographical area of the guaranteed movement, we agree that the right of "move" denotes nothing more than a right of locomotion, and that in the context the adverb "freely" would only connote that the freedom to move is without restriction and is absolute, i.e., to move wherever one likes, whenever one likes and however one likes subject to any valid law enacted or made under Cl.(5). It is manifest that by the knock at the door, or by the man being roused from his sleep, his locomotion is not impleaded or prejudiced in any manner. Learned Counsel suggested that the knowledge or apprehension that the police were on the watch for the movements of the suspect, might induce a psychological inhibition against his movements but, as already pointed out, we are unable to accept the argument that for this reason there is an impariment of the "free" movement guaranteed by sub-clause (d). We are not persuaded that Counsel is right in the suggestion that this would have any effect of diverting or impeding his movement, we are clear that the freedom guaranteed by Article 19(1)(d) has reference to something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomotion.
18. It is true that in the decision of the U.S. Supreme Court from which we have made these extracts, the Court had to consider also the impact of a violation of the Fourth Amendment which reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized. "
and that our Constitution does not in terms confer any like constitutional guarantee. Nevertheless, these extracts would show that an unauthorised intrusion into a person's home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man - an ultimate essential of ordered liberty, if not of the very concept of civilisation. An English Common Law maxim asserts that "every man's house is his castle and in Semayne's case, (1604) 5 Co Rep 91a : 1 Sm.L.C.(13th Edn.) 104 at p. 105 where this was applied, it was stated that "the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose." We are not unmindful of the fact that Semayne's case (1604) 5 Co Rep 91a : 1 Sm.L.C.(13th Edn.) 104 at p. 105 was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which transcends mere protection of property rights and expounds a concept of "personal liberty" which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value."
32. In Dhanji Ram Sharma v. Superintendent of Police, North District Delhi Police and Others reported in AIR 1966 SC 1766, the Apex Court dealing with the powers of the police officers to make entries in the surveillance register at paragraphs No.6 and 7 observed as follows:
"6. Under S.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 R 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 R.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.
7. A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. Reasonable 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 Rr.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."
33.In Gobind v. State of Madhya Pradesh and another reported in AIR 1975 SC 1378 : (1975) 2 SCC 148, the Supreme Court while testing the constitutional validity of regulations 855 and 856 of the Madhya Pradesh Police Regulations, which empowered the police to keep surveillance, at paragraph Nos.28 and 30, held as follows:
28. "The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.
30. .......Our founding fathers were thoroughly opposed to a Police Raj even as our history of the struggle for freedom has borne eloquent testimony to it. The relevant Articles of the Constitution we have adverted to earlier, behove us therefore to narrow down the scope for play of the two regulations. We proceed to give direction and restriction to the application of the said regulations with the caveat that if any action were taken beyond the boundaries so set, the citizen will be entitled to attack such action as unconstitutional and void."
34.While dealing with the question as to whether opening of a surveillance register require observance of the principles of natural justice and of the duties of a police officer, while making entries in the said register, the Supreme Court, in Malak Singh and others Vs State of Punjab & Haryana and others reported in 1981 (1) SCC 420 at paragraphs No.9 and 10, held that, "9. But all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the court's protection which the court will not hesitate to give. The very Rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed. The note following Rule 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule. Similarly Rule 23.7 demands that there should be no illegal interference in the guise of surveillance. Surveillance, therefore, has to be unobtrusive and within bounds.
10. Ordinarily the names of persons with previous criminal record alone are entered in the surveillance register. They must be proclaimed offenders, previous convicts, or person who have already been placed on security for good behaviour. In addition, names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered. It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register. But, here, the entry can only be made by the order of the Superintendent of Police who is prohibited from delegating his authority under Rule 23.5. Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property. While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the court when an entry is challenged that there are grounds to entertain such reasonable belief. In fact in the present case we sent for the relevant records and we have satisfied ourselves that there were sufficient grounds for the Superintendent of Police to entertain a reasonable belief. In the result we reject both the appeals subject to our observations regarding the mode of surveillance. There is no order as to costs."
35. In Vijay Narain Singh v. State of Bihar reported in 1984 Cri.L.J. 909 the Supreme Court while explaining the term habitual offender, held that habitual offenders are, persons who habitually commit, attempt to commit or abet the commission of, offences involving breach of peace. The Court further held that the expression "habitually" means repeatedly or persistently. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. A single act or omission, cannot, therefore, be characterised as a habitual act or omission. Because of the idea of habit involves an element of persistence and tendency to repeat the acts or omissions of the same class or kind, if the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them they cannot be treated as habitual offenders.
36. In P.Apparao v. Government of Andhra Pradesh, rep. by its Secretary, Home Department, Hyderabad and others reported in 1998(4) ALT 398, a rowdy sheet was opened against the petitioner therein in the year 1975 and continued upto 1996, and there was nothing on record to suggest that the matter was reviewed, but the competent authority felt that there was necessity to retain the history sheet. In such circumstances the retention was set aside.
37.In Pulla Bhaskar v. Superintendent of Police, Warangal and others reported in 1999 (5) ALD 155, the petitioner therein was acquitted in a criminal case in the year 1994 and from 1994 to 1997, there was no criminal case registered against him. In such circumstances, the High Court of Andhra Pradesh, held that the petitioner cannot be treated as an habitual offender and consequently directed the respondents therein to delete his name from the rowdy list.
38.In K.M.Sheriff v. The Superintendent of Police, Pudukottai District and another reported in 2006 Madras Weekly Notes (Criminal) 421, this Court, considered a case where a representation of the petitioner therein to remove his name from the rowdy history sheet, was not considered by the Superintendent of Police, Pudukottai District. After extracting the relevant Police Standing Orders, at paragraph No.11 of the judgment, this Court held that, "when the rights of the citizens are seriously affected, while including their names in the history sheet, the first respondent therein should have taken proper care and immediate action on the basis of the representation submitted by the petitioner. It was further, observed that non-consideration of the representation in time seriously affected the future prospects of the petitioner therein. Further, in the above case, though the petitioner brought to the notice of the Superintendent of Police, Pudukottai District, that all the cases against him were dropped and requested for removal of his name from the rowdy history sheet, there was no response. In such circumstances, the Court, ordered removal of the name of the petitioner therein from the rowdy history sheet.
39.In S.Vani v. Superintendent of Police, Sivagangai District and others reported in (2008) 3 MLJ (Crl) 1525, three writ petitions were filed challenging, the action of the Station House Officers in opening history sheets in the name of the petitioners therein. In one writ petition, the petitioner sought for even compensation of rupees two lakhs for having published her photograph in the habitual offenders list. After considering the principles of law dealing with freedom of liberties guaranteed under Article 19(1)(d) of the Constitution of India and personal liberty, guaranteed under Article 21 and the observations made in Kharak Singh v. State of U.P. and others, reported in AIR 1963 SC 1295, infringement of right of privacy, right to move freely throughout the territory of India and freedom of speech, where surveillance was kept on an individual, and the decision of the Supreme Court in Gobind v. State of Madhya Pradesh and another reported in 1975 SC 1378 : (1975) 2 SCC 148, the need to consider the materials, the conditions for making entries in the surveillance register, with degree of caution and care, with which, the police officers are required to proceed and following the principles of law, propounded in Malak Singh and others v. State of Punjab and Haryana and others reported in (1981) 1 SCC 420, Hon'ble Mr.Justice Chandru, at paragraph 20 of the Judgement in S.Vani's case (cited supra), held that opening of history sheets in the name of three petitioners therein were arbitrary, unreasonable and whimsical and it would amount to denial of right of citizens, provided under Article 21 of the Constitution of India, to have the right of privacy. The learned Judge has further held that though the superior officers had considerable responsibility to oversee such records, have acted in a mechanical fashion to put their initials periodically, without any verification.
40.In G.Raja v. State through the Inspector of Police, Kalayarkovil Police Station, Sivagangai District and others reported in 2009 (2) Madras Weekly Notes (Criminal) 416, an Headmaster of a Elementary School was included in history sheet, on the ground that three criminal cases were registered against him. To quash the above said proceeding, recourse to the extraordinary remedy under Section 482 Cr.P.C., was taken. It was inter- alia contended that inclusion of his name in the history sheet was done with a mala fide intention and no opportunity was given to the petitioner before passing such order, resulting in violation of the principles of natural justice. It was also contended that the offences alleged to have been committed by the petitioner therein were not against public or to cause public disturbance. The said petition was opposed on the ground that history sheet was opened as contemplated under the Police Standing Order 749 and it would be valid for a period of one year and it was only to watch the conduct of a person against whom, history was opened and if the conduct proved satisfactory, then it would be closed, otherwise, it would be renewed for another year.
41.After considering a Judgment of this Court in S.Vani v. Superintendent of Police, Sivagangai District and others reported in (2008) 3 MLJ (Crl) 1525, this Court in G.Raja's case, held as follows:
"I am of the considered view that opening of the history sheets in the name of the petitioner is arbitrary, unreasonable and whimsical and it would amount to denial of right of citizens provided under Article 21 of the Constitution of India to have the right of privacy. The cases are based on a complaint given by private individuals for specific offences under IPC, which are not warranted as a threat to public disturbances. "
42.A Division Bench of this Court in Selvaraj and others v. The Inspector of Police, Kaliakavilai Police Station, Kanyakumari District and others reported in 2010-1-L.W. (Crl.) 497, while testing the correctness of the orders of a learned Single Judge, dismissing the writ petitions, challenging the unjust inclusion of the names of the appellants before the Division Bench, having regard to the importance of personal liberty guaranteed under Article 21 of the Constitution of India, as laid down in Maneka Gandhi v. Union of India reported in (1978) 1 SCC 248 and of the fact of non- furnishing any details to this court, as to whether history sheets were continued or not, held that the respondents therein shall strictly follow the police standing orders before passing any orders. The relevant portion of the judgment in Maneka Gandhi's case, pressed into service is reproduced as follows:
"The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19."
43.In a recent judgment of this Court made in L.Ravindran v. The Commissioner of Police, Chennai and others, reported in 2010 CIJ 161 IPJ the petitioner therein, sought for a direction to remove his name from the rowdy list. The Inspector of Police (L&O), K-5, Peravallur Police Station, Chennai addressed a letter to the Assistant Commissioner of Police (L&O), Secretariat Colony, Chennai, intimating that the petitioner therin and others were involved in a murder case due to group rivalry. The petitioner therein was tried in S.C.No.204 of 1994, on the file of the learned Additional Sessions Judge, Chennai. However, the case ended in acquittal. The Inspector of Police further stated that discreet enquiries about the accused in that case revealed that they were acting as Goondas and never corrected their ways. On the basis of the abovesaid report, the Assistant Commissioner of Police (L&O), Sembium, Madras, ordered to open rowdy sheets for the three accused involved in the abovesaid crime and directed to keep a watch on them till 31.12.1998. One of the accused, who sought for direction to the Commissioner of Police and the Inspector of Police, K-5 Police Station, to remove his name from the rowdy list. It was inter alia contented that even during the pendency of the trial and acquittal, he did not involve himself in any activity warranting the respondents to open History Sheet and one stray case of alleged involvement in an offence cannot be a ground to include him in the rowdy history list.
44.Referring to the decisions of the Supreme Court in Dhanji Ram Sharma v. Superintendent of Police, North District Delhi Police and Others reported in AIR 1966 SC 1766, Malak Singh and others v. State of Punjab and Haryana and others reported in (1981) 1 SCC 420, and the judgments of this Court in K.M.Sheriff v. The Superintendent of Police, Pudukottai District and another reported in 2006 (2) Madras Weekly Notes (Crl.) 421, G.Raja v. State through the Inspector of Police, Kalayarkovil Police Station, Sivagangai District and another reported in 2009 (2) Madras Weekly Notes (Crl.) 416, a learned Judge in R.L.Ravindran's cited supra, at paragraphs No.6,8,9,10 and 11 has held as follows:
6. By virtue of PSO 746, a form is prescribed for opening History Sheets of the persons residing permanently or temporarily in their station limits who are known or believed to be addicted to or to aid and abet the commission of crime, whether convicted or not or who are believed to be habitual receivers. That standing order is very clear that there should be materials to show that a person is known or believed to be addicted to or to aid and abet the commission of a crime.
8. The showing of name in History sheet is to keep surveillance on a person. Such surveillance cannot be such as to squeeze the fundamental right guaranteed and for the matter, the human right recognised to every citizen. Human rights are basic rights as freedom to which all human beings are entitled. The quality of a nation's civilisation can be largely measured by the methods the police use in the enforcement of law and the police should not use shortcuts and arbitrary methods in their performance of duties. A history sheet normally refers to a person who has long criminal record.
9. The High Court exercises control over the Government functioning and in their obedience of rules and law by enforcing proper, fair and just performance of duty. Where the Governmental authority passes an order which is contrary to the rules or laws, as in this case contrary to the Police Standing Orders, it becomes amenable to correction by the Courts in exercise of writ jurisdiction.
10. It is true that the police have the responsibility of protecting law and order, to keep vigil and surveillance not only on the accused but also on suspected persons in the interest of general public. But before showing a person as history sheet rowdy, the action of the police must be supported by materials and it cannot be on the whims and fancies of a particular officer. Such action, if allowed, would definitely infringe the right of an individual for his free movement, as the opening of history sheet against a person would certainly result in restriction of his movement due to the surveillance and he will be undermined in the public opinion. Law enforcement agencies, while opening history sheet against a person for surveillance and observance, frequently used to bring those persons shown in history sheet for questioning whenever there were crimes committed in a given region.
11. This Court further held that though the respondent-police have got every right to place an anti-social element in the History Sheet of rowdies in order to keep a vigil on his activities, the question would be whether his valuable right of freedom of movement could be curtailed for the alleged sole involvement in a murder case, be it a serious offence. Unless the requirement of a person to be shown as History Sheet rowdy on the ground that he habitually indulges in either committing or attempting to commit or abetting the commission of offence involving breach of peace, habitual illicit distiller and known purveyor of liquor and so forth, in my opinion, for a stray incident of alleged involvement in a murder case which in fact ended in acquittal of the petitioner and without any other material to show that he is a habitual offender, the respondents are not justified in including the name of the petitioner in the History Sheet of rowdies and they should be directed to remove the name of the petitioner from such record maintained by the respondent-police.
45.Reading of the Police Standing Orders dealing with opening and retention of history sheets for different kinds of persons, such as, convicts, rowdies, known depredators, suspects and others shows that the authorities who are empowered to open and retain such sheets, have to arrive at a subjective satisfaction, as to whether the abovesaid persons, either by habit or disposition commit, attempt to commit, aid or abet the commission of offences involving breach of peace. An isolated act or comission cannot be characterised as a habitual act or comission involving breach of peace or law and order. While forming an opinion that the person is believed to be addicted to or aid or abet, the commission of crime, whether convicted or not, the Sub-Inspector of Police and his men have to collect information and that the same has to be ascertained before making a recommendation to an officer of and above the rank of Deputy Superintendent of Police, in whose jurisdiction, such person is ordinarily resident either permanently or temporarily.
46.Opening of history sheet in the case of persons convicted for offences involving imprisonment for life under Chapter XII and XVII and conviction for offences under Section 395 to 402, I.P.C. in the case of professional prisoners, Sections 392 to 394, I.P.C. and under Sections 75 of the Indian Penal Code, house breaking theft Section 109 Cr.P.C., 110 Cr.P.C. depending upon the number of convictions stated in Police Standing Order 747, is automatic, at the time of conviction of such persons.
47.Whereas, in the case of opening of history sheets for rowdies as per Form 112, where, some persons are classified as rowdies, the orders of the Superintendent of Police or concerned Sub-divisional Officer have to be obtained, on the basis of the information and facts ascertained by the Station House Officer, and his men. Persons who habitually commit, attempt to commit, or abet, the commission of offences involving breach of peace or (b) Persons bound over under Sections 106 and 107, Criminal Procedure Code or (c) Persons who have been convicted under Section 75 of the Madras City Police Act or twice in two consecutive years, under Section 3 Clause 12 of the Town Nuisance Act, or (d) Persons either convicted under Section 49-A of the Madras City Police Act, 1888 (Madras Act III of 1888) or under Section 4 of the Madras Gaming Act, 1930 (Madras Act III of 1930), or reasonably suspected to be habitually committing or abetting the commission of the offences, are classified as rowdies. Clause 4 of Police Standing Order 749, enjoins a duty on the police to enter the names of history-sheeted rowdies in the station register of a known depredator and that rowdies should be checked regularly by beat Police Constable Constables in rural Police Stations and by rowdy patrols in large towns, as also by the Sub-Inspectors (Law and Order). The checking, however should be discretely done by the method of enquiries and not in the manner of domiciliary checks.
48.Police Standing Order dealing with opening and retention of History Sheets in relation to the nature of offences stated in Police Standing Order 749(2)(a) to (d), makes it explicit that a duty is cast on the Sub-Inspector of Police, Station House Officer/ Inspector of Police and his men to collect, verify and ascertain as to whether a person is known or believed to be addicted to or aid and abet, the commission of crime and that there should be active criminality, affecting breach of peace or law and order. Criminality, as conceived in the police Standing Orders, is commission of offences by the individual or aiding commission of offences or, by inducing/instigating commission of offences by other some person.
49.History sheet is ordinarily retained for two years, in the case of persons convicted of offences mentioned in Police Standing Order 747. Where retention of history sheet is considered necessary after two years of registration, orders of an officer of and above the rank of Assistant Superintendent of Police/Deputy Superintendent of Police, must be taken for extension in the first instance upto the end of the next December and further annual extension from January to December. Police Standing Orders, thus, makes it clear that the conduct and activities of history-sheeted persons shall be monitored for a specified period during which period, they should not come to any adverse notice and the authority empowered to extend the period of retaining his name in the history sheet, should have reason to believe that such history- sheeted person is habitually addicted to or aid or abet, the commission of offence.
50.Keeping surveillance or vigil on a history-sheeted person should not be made permanent, mechanically, as it would affect his freedom of life and liberty. The discretion conferred on the police is both objective and subjective in nature. Objective satisfaction with reference to the conduct of a history-sheeted person, to prevent commission or aiding or abetting of offences, by such persons, involving breach of peace or law and order. The subjective satisfaction should be based on valid materials and it cannot be at the whims and fancies of the police officers. Reading of the Police Standing Order shows that the discretion conferred on the police officers is in-built, subject to the limitations, including a specific period, provided under the said orders and it is not for any unlimited period, unless the conduct of the history-sheeted person is required to be monitored continuously.
51.As the discretionary jurisdiction conferred on the Police Officers to open and retain a history sheet is to curtail his freedom and right of privacy, there should be awareness on the part of the authority and it should be on the basis of surveillance materials, where that a reasonable man would by probable reasoning arrive at a conclusion or infer that a person has to be necessarily included in the History sheet. 'Belief', in the case on hand, means a degree of conviction of the truth of something especially based on a consideration or examination of the evidence and the authorities vested with discretion of opening and retaining history sheets should prove that on the examination of the data that there is awareness on their part indicating their state of mind that by probable reasoning, they come to a conclusion or infer, about the conduct of person, for whom a History sheet is opened or retained. The record of events and the materials should be considered with care and the authority concerned should pass an order, reflecting that he has thought over the matter deliberately with care and it has been found necessary, as a result of such careful examination, an order opening or retaining a history sheet is required to be passed.
52. The Discretion conferred on the authorities is controlled by factors which are in built in PSO 746, which states that history sheets can be broadly opened in respect of persons who are "known or believed to be addicted to or aid and abet the commission of crime, whether convicted or not, or who are believed to be habitual receivers". History sheets can also be re-opened in respect of following persons:
"a)Persons once convicted under any section of the Indian Penal Code are considered to be likely to commit crime;
b)Persons, not convicted, but believed to be addicted to crime"."
53.PSO 747 deals with automatic opening of history sheets at the time of conviction for persons convicted and shall be retained for two years after release from jail. It also deals with opening of a history sheet of a known depredator against whom an order has been passed under Section 356 Cr.P.C., and it shall not be closed, until the period during which he is required to report changes of residence, has elapsed. History sheet can be opened for suspects, under the orders of the Superintendent or Divisional Officer, if so empowered by the Superintendent for the persons included in PSO
749.
54.As per PSO 749 (4), all registered rowdies should be kept under the same type of watch as envisaged for registered suspects. The names of History sheeted rowdies should be entered in the Station check register of KDs and the rowdies should be checked regularly by beat police constables in rural police stations and by rowdy patrols in large towns as also by the Sub Inspectors (Law and Order). The checking however should be discretely done by the method of enquiries and not in the manner of domiciliary checks. Inspectors and Divisional Officers when they visit the area should make their own independent enquiries and note their findings in the history sheets and in inspection reports, if any. All reports against notorious rowdies entered in the General diary of the Station or matters brought to light on enquiries in the petitions should be entered against them in the personal sheets and should be dated.
55.As per PSO 748, where retention of a history sheet is considered necessary after two years of registration, orders of an officer of and above the rank of Assistant Superintendent of Police/Deputy Superintendent of Police must be taken for the extension in the first instance upto the end of the next December. The above order shall be applied to the rowdy sheets also.
56. As per PSO 751, history sheets for suspects shall be maintained from the date of registration upto the end of December, after which, orders of an Officer of and above the rank of Assistant Superintendents of Police/Deputy Superintendent of Police, as to their discontinuance, or retention for a further period from January to December where necessary, shall be obtained. As per PSO 752, the following persons are to be closely watched:
"1)Persons for whom history sheets have been opened shall be informally watched by the Police or village headman.
2)Close watch bad characters should be written, K.Ds. First and then suspects, in red ink as contemplated in Police Standing Order No.368(3) followed by non-close watch bad characters in blue or black ink, in the same order. All these entries should be beat wise.
3)The date of expiry of the History sheet shall be noted in the remarks column against each bad character.
4)Whenever a history sheet is opened for a bad character for the first time, he shall be under close watch.
5)The bad character returning from jail should be under close watch. If they settle down and are of good character, close watch can be removed".
57.PSO 759 deals with transfer of history sheets. The said order states that history sheet of a person who changes his residence to another station limits, shall be forwarded to that station through the Divisional Officer. (2)The history sheet of a bad character who changes his residence from police station in the State of Tamil Nadu to a Station in another State shall be forwarded by the Station House Officer of the Tamil Nadu Station to the Superintendent of Police, through the usual channel, and the latter shall forward the sheet confidentially to the Superintendent of Police of the District in which the individual concerned has taken up residence. Reciprocal arrangements have been made with other States in this matter and History sheets of bad characters who have changed their residence from other States, when received by the Superintendents of Police from the Police authorities of these State will be dealt within accordance with Orders Nos.757, 758, 759 (1).
58.As per PSO 762, the surveillance of a suspect, other than ordinary criminal shall be conducted in a confidential manner. As per PSO 763, persons for whom history sheets have been opened may, at the discretion of the Station House officer, be entered in the village headman's register of known depredators and suspects (Appendix XVIII to the village officer's and riot manual, 1931 edition) and it shall be obligatory upon the village headman to report their movements to the police station.
59.Chapter XLIII deals with Surveillance and PSO 764 deals with reporting movements. As per said order,
i)movements of persons closely watched under order No.752 and of those registered under the Tamil Nadu Restriction of Habitual Offenders Act, 1948, shall be promptly reported by one Station House officer to another (in Enquiry Roll Form A) (Form No.118). The receipt of such roll shall be immediately acknowledged and a report as to the presence of the bad character made with the least possible delay. If the bad character is a person to be closely watched and becomes a temporary resident within the limits of another station, he should be entered by the police of the latter station in the register in Form No.57, vide order No.368.
ii)The roll shall be retained until the individual moves on,when it will be forwarded to the Station of his destination. If this State is other than the one at which the criminal is registered, the Station House Officer of the latter station shall be informed of the movement. When persons closely watched under Order No.752 are likely to use the Railway, intimation of their movements should also be given to the nearest Railway Police Station.
60. Police Standing Orders makes it explicit that the Sub Inspector of Police has to make necessary enquiries and ascertain the same before making a request to the Sub Divisional Officer to open or retain a history sheet. The Sub Divisional Officer or the Superintendent of Police after consideration of the surveillance report should arrive at a reasonable conclusion, as to the existence of materials warranting retention of the rowdy list. The discretion conferred on the police authorities under the Police Standing Orders is to subserve the object, viz., to control the prevention of crime and protection to others from crime and the surveillance data has to be carefully examined by the Station House Officer or the Competent Person, while recommending opening or retaining a rowdy list.
61.Thus it could be seen, that an elaborate procedure and the manner in which the surveillance data has to be collected and ascertained, are set out in the Police Standing Orders. Intimation of the movements of the persons closely watched under PSO 752 is also given to the nearest railway police stations. Needless to say that when movements of the persons are watched, there is an invasion of right of privacy. This intrusion of privacy is authorised to control, prevention of crime and to protect others from crime and if the person against whom the history sheet is opened is free from any taint or suspicion for over a considerable period of time, the Sub Divisional Officers/Superintendent of Police has to exercise his discretion in favour of those branded as rowdy, so as to allow himself to be free in the best interest of the society. The Sub Divisional Officers should not be swayed away by any bald statement of his subordinates seeking opening or retention of history sheets, unless it is considered necessary or where an automatic opening of history sheet is necessary, as in the case of conviction for the offences stated in the police standing orders.
62.In a situation of this nature, keeping in mind the nature of the duties required to be performed by the law enforcing agencies, the discretion to be exercised by the second respondent should be on sound principles of fairness, reasonableness and it should be in accordance with the object sought to be achieved while opening or retaining a rowdy history sheet.
63. In Global Energy Limited and another v. Central Electricity Regulatory Commission reported in 2009 15 SCC 570, the Supreme Court held that the exercise of discretion has to be in conformity with the purpose for which, it is conferred, object sought to be achieved and reasons to be recorded.
64.The power has to be exercised with regard to the duty arising from the nature of the action to be performed by the Sub-Divisional Officers. The conditions on the basis of which the power has to be exercised and the repercussions or consequences of such exercise on the price and freedom of the individual has to considered. It has to borne in mind, that the power exercised, restricts the freedom and liberty of an individual.
65. The criteria for opening a history sheet therefore, is the subjective satisfaction of the authority and it has to be arrived at, on the reasonable belief or knowledge that the person, for whom the history sheet is opened or retained, is habitually addicted or aid or abet, the Commission of Crime, whether convicted or not etc. While arriving at the subjective satisfaction, current doings in other words, the activities of such persons which are informative and useful, based on the facts ascertained both by the Sub-Inspector and his men from the date of last entry shall be made month- wise for close watch of characters and quarterly for non-close watch of characters.
66.When it is said that something has to be done within the discretion of the authorities, that something has to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself.
67.Branding a person as a history sheeted rowdy has a tainted image in the society as compared to others. Needless to say that his relationship with others and the prospects of personal development may not remain the same. Characterisation of a person is stigmatic, if any photographs is displayed in some conspicuous places in the area where he resides, or in public places, and it affects not only his personal rights, but there is every likelihood of damage being caused to the members of his family and it cannot be lost sight of. Innocent children of such persons could be even looked down, if the officer, mechanically under the guise of prevention of crime and to protect others, open or extend history sheets, which has an impact on the right of privacy of not only the individual against whom the order is passed, but also causes harm to other person's rights. Therefore, a fair and reasonable decision should be taken, taking into consideration the Constitutional rights under Article 21 of the Constitution of India and the interests of the State. It should be noted that at time of opening a history sheet, the individual is not informed of the decision taken by the authorities behind his back and that the information collected is discreet. Needless to say that every person wants to live with dignity and he cannot be condemned arbitrarily. It is also to be borne in mind that estrangement of the members of a history sheeted rowdy, in social gatherings, etc., is not uncommon in our society. Therefore, opening or retention of history sheets, which interferes with the right of privacy of a person, should be done strictly adhering to the parameters inbuilt in the Police Standing Orders, keeping in mind the object sought to be achieved.
68. A perusal of the files shows that the petitioner was branded as a rowdy and that a history sheet has been opened on 07.03.2003, on the request made by the Sub-Inspector of Police, M.Reddiapatty Police Station, Virudhunagar District. The order of the Deputy Superintendent of Police, Aruppukottai, Virudhunagar District reads as follows:
"Permitted to open a rowdy history sheet."
69.A few sample entries made by the Sub Inspector of Police, Virudhunagar District, between 25.03.2003 and 31.12.2003 are extracted hereunder to show the arbitrary and capricious manner in which the officer has made such entries without recording any details, based on which, he had come to a conclusion that the conduct of the petitioner as not satisfactory during the relevant period:
25.03.2003 ,e;j nghf;fphpia gw;wp tprhuiz bra;a eltof;ifapy; jpUg;jp ,y;iy. ,tdJ eltof;if bjhlh;e;J fz;fhzpf;fg;gl;Ltug;gLk;.
27.04.2003 ,e;j nghf;fphpia gw;wp tprhhpf;f M$h;. ,th; mUg;g[f;nfhl;ilapy; bjhHpy;
bra;J tUfpwhh;. ,tuJ eltof;iffs; jpUg;jpfukhf ,y;iy. bjhlh;e;J fz;fhzpj;J tUfpnwd;.
22.05.2003 ,e;j nghf;fphpia gw;wp tprhhpf;f M$h;. ,th; mUg;g[f;nfhl;ilapy; bjhHpy; bra;J tUfpwhh;. ,tuJ eltof;iffs; jpUg;jpfukhf ,y;iy. bjhlh;e;J fz;fhzpj;J tUfpnwd;.
19.06.2003 ,e;jg; nghf;fphpiag;gw;wp tprhhpf;f M$h;. ,th; mUg;g[f;nfhl;ilapy; bjhHpy; bra;J gpiHj;J tUfpwhh;. ,tuJ eltof;iffs; jpUg;jpfukhf ,y;iy. ,Ug;gpDk; bjhlh;e;J fz;fhzpj;J tUfpnwd;.
27.07.2003 ,d;W ,e;j nghf;fphpia gw;wp tprhhpf;f M$h;. ,th; mUg;g[f;nfhl;ilapy; jpdf;Typ ntiy bra;J gpiHj;J tUfpwhh;. ,tuJ eltof;iffs; jpUg;jpfukhf ,y;iy. ,Ug;gpDk; bjhlh;e;J ,tuJ eltof;ifia fz;fhzpj;J tUfpnwd;. 08.08.2003 ,d;W ,e;j nghf;fphpia gw;wp tprhhpf;f M$h;. ,th; mUg;g[fnfhl;ilapy; jpdf;Typ ntiy bra;J gpiHj;J tUfpwhh;. ,tuJ eltof;iffs; jpUg;jpfukhf ,y;iy. ,Ug;gpDk; bjhlh;e;J ,tuJ eltof;ifia fz;fhzpj;J tUfpnwd;. 26.09.2003 ,d;W ,e;j nghf;fphpia gw;wp tprhhpf;f M$h;. Typ ntiy bra;J gpiHg;g[ elj;jp tUtjhf TWfpwhh;. ,tuJ elj;ij bjhlh;e;J fz;fhzpf;f ntz;oapUg;gjhy; fz;fhzpj;J tUfpnwd;.
14.10.2003 ,d;W ,e;j nghf;fphpia gw;wp tprhhpf;f M$h;. Typ ntiy bra;J gpiHg;g[ elj;jp tUfpwhh;. ,th; kPJ ntW g[fhh; VJkpy;iy. ,Ug;gpDk; ,tuJ elj;ijia bjhlh;e;J fz;fhzpj;J tUfpnwd;.
26.11.2003 ,d;W ,e;j nghf;fphpia jzpf;if bra;a M$h;. Typ ntiy bra;J gpiHg;g[ elj;jp tUfpwhh;. ,th; kPJ g[fhh; VJkpy;iy. ,Ug;gpDk; ,tuJ elj;ijia bjhlh;e;J fz;fhzpj;J tUfpnwd;.
30.12.2003 ,d;W ,e;j nghf;fphpia jzpf;if bra;a M$h;. Typ ntiy bra;J gpiHg;g[ elj;jp tUfpwhh;. ,th; kPJ g[fhh; VJkpy;iy. ,Ug;gpDk; ,tuJ elj;ijia bjhlh;e;J fz;fhzpj;J tUfpnwd;.
31.12.2003 gzpe;J rkh;g;gpf;fpnwd;.
,e;j rhpj;jpu Vl;oy; fz;l nghf;fphpapd; elj;ij jpUg;jpfukhf ,y;iy vdnt ,e;j rhpj;jpu Vl;il 31.12.2004k; njjptiu ePl;og;g[ bra;a cj;jput[ gpwg;gpf;FkhW ntz;Lfpnwd;.
Sd./-
Sub-Inspector of Police M.Reddiapatty P.S. Virudhunagar District.
rkh;g;gpf;fpnwd;.
,e;j rhpj;jpu Vl;oid 31.12.2004k tiu ePl;of;f cj;jputpl ntz;Lfpnwd;.
Sd./-
Inspector of Police Tiruchuli-626 129.
Virudhunagar District.
70. At the end of December 2003, the Inspector of Police, Tiruchuli, Virudhunagar District, has simply made a note stating that the conduct of the petitioner is not satisfactory and therefore, sought for extension upto 31.12.2004. Though a duty is cast on the Assistant Superintendent of Police/Deputy Superintendent of Police to arrive at the subjective satisfaction, on the basis of the materials, as to whether retention of the person in the history sheet beyond the period 31.12.2004 is required or not, for the object sought to be achieved, the Deputy Superintendent of Police, Aruppukottai, mechanically, without any application of mind, has simply ordered the petitioner to be retained in the history sheet till 31.12.2004. The order made by the Deputy Superintendent of Police dated 28.01.2004 is as follows:
"Retain till 31.12.2004."
71. What is disclosed in the files is only periodical bald entries made by the Sub inspector of Police, sitting in his police station, by asking the petitioner to go over to the police station every month. There is not only procedural impropriety, but there is also no prima facie material for seeking extension, ie., retention of his name in the history sheet. The Sub Divisional Officer who is enjoined with the power to consider the request, after examination of all the details has mechanically approved the request, without any application of mind. Perusal of the same, shows that both the officers have grossly failed in their duties and not applied their mind, to the object sought to be achieved and there is absolutely nothing to indicate their subjective satisfaction on the basis of the twin tests, "relevance and reason", which are to be satisfied, where discretion is conferred on any authority.
72. Characterisation of the petitioner as a rowdy for a longer period without any materials and on the basis of the report without following the procedure contemplated in the Police Standing Orders and without recording any reason is nothing but reflection of arbitrariness. The extracts made above, makes it abundantly clear that both the authorities have only concluded that the petitioner has to be retained as history sheeted rowdy without any reason. Such an arbitrary exercise of power is nothing but a breach of all the norms and requirements under the Police Standing Order by the above said officers and the invasion of the privacy of the petitioner sought to be justified by the Deputy Superintendent of Police, Virudhunagar District, that the petitioner was lateron involved in an offence and that the public out of fear are unable to come forward to lodge a complaint against the petitioner and that he used to assault people and abuse them in filthy language is not supported any materials. Without there being any materials in the history sheet, recorded either by the Station House Officer or any one of the officers competent to make entries, the arbitrary action of both the officers clearly expose their illegality, irrationality and procedural impropriety in passing indiscriminate orders extending the period which does not satisfy the test of reasonableness.
73. The details of the monthly entries made by Sub-
Inspector of Police, M.Reddiapatty Police Station, Virudhunagar District shows that periodically, the petitioner has been directed to appear before the Sub- Inspector of Police and without conducting any enquiry or collecting information or facts regarding the conduct or criminality of the petitioner and without ascertaining as to whether the petitioner is reasonably believed to be habitually addicted to crime or to have aided or abetted a crime, the Sub- Inspector of Police has formed an opinion that the petitioner's activities, as not satisfactory. The entries, show that the Sub-Inspector of Police, sitting in his office, has directed the petitioner to appear before him for enquiry.
74.The power to open or retain a history sheet is not absolute or uncontrolled. It has to be exercised only within the defined limits and it cannot be done according to private opinion. The competent authority has to examine the materials and then decide objectively and rationally, as to what serves the best interest of the society vis-a-vis an individual's rights. In the case on hand, though a detailed procedure is provided for collection of surveillance evidence or facts, the Sub Inspector of Police, M.Reddipathy Police Station, has remained in his police station and has been making entries, as if he has reason to believe that the conduct of the petitioner was not satisfactory right from the date of opening an History Sheet. As stated supra, it is evident from the entries made in the rowdy sheet that the Sub Inspector of Police has simply made the petitioner to appear every month and recorded a bald and routine statement that the conduct of the petitioner was not satisfactory and that he was under surveillance. Even though the petitioner was lastly convicted in a criminal case which according to him, was due to a family dispute, there is no incriminating material between 2003 to 2007, that the petitioner had come to adverse notice between 2003 to 2007 and no details of any alleged occurrence, such as involvement in a crime or aiding or abetting, is recorded.
75.The facts of this case do not reflect adherence to fairness, reason and exercise of discretion in the manner expected of, as per the principles of law. It is well-settled that arbitrariness is anthesis of law, if a statutory authority dealing with matters, relating to right to life and liberty, acts arbitrarily without any rhyme or reason, this Court exercising writ jurisdiction, dealing with the most cherished rights of dignity and freedom of movement has no hesitation to declare that the action of the statutory authority in continuing the history sheet of the petitioner as illegal.
76. In the light of the discussions, this Court is of the considered view that retention of the petitioner in the rowdy history sheet, has been done mechanically by the second respondent, without proper application of mind and in these circumstances, deems it fit to direct the second respondent to remove the name of the petitioner from the rowdy history sheet within a period of three weeks from the date of receipt of a copy of this order.
77.Though the Secretary to the Government, Home Department and the Director General of Police, Chennai, are not parties to this Writ, a direction is issued to them to issue appropriate instructions to all concerned to review retention of History Sheets, K.D. Sheets, Rowdy Sheets, etc., in all the Police Stations in the State of Tamil Nadu and direct them to remove the names, wherever necessary. Registry is directed to issue the order copy to the Secretary to the Government, Home Department, Chennai and the Director General of Police, Chennai, for appropriate action.
78. With the above direction, this writ petition is disposed of.
sms/skm To
1.The District Superintendent of Police, Virudhunagar District, Virudhunagar.
2.The Deputy Superintendent of Police, Aruppukottai Sub-Division, Aruppukottai, Virudhunagar District.
3. The Secretary to Government, Home Department, Fort St. George, Chennai-9.
4. Director General of Police, Mylapore, Chennai-4.