Kerala High Court
Rasheed.M.H vs State Of Kerala on 12 February, 2021
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942
WP(C).No.26924 OF 2020(M)
PETITIONER:
RASHEED.M.H.
AGED 48 YEARS
S/O.AHAMMED, MANNARKATTIL HOUSE,
KUNJUNNIKKARA, KADUNGALLOOR P.O.,
ERNAKULAM P.O., PIN-683 108.
BY ADV. SRI.DINESH MATHEW J.MURICKEN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT, PALAYAM P.O.,
THIRUVANANTHAPURAM DISTRICT,
PIN-695001.
2 THE SUPERINTENDENT OF POLICE(RURAL), ALUVA,
OFFICE OF THE SUPERINTENDENT OF POLICE,
POWER HOUSE JUNCTION, SUB JAIL ROAD,
PERIYAR NAGAR, ALUVA, ERNAKULAM DISTRICT,
PIN-683101.
3 THE CIRCLE INSPECTOR OF POLICE,
ALUVA EAST POLICE STATION, SUB JAIL ROAD,
PWD QUARTERS, ERNAKULAM DISTRICT, PIN-683101.
R1-R3 BY GOVERNMENT PLEADER SRI SUNIL NATH N.B
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.26924 OF 2020(M)
2
JUDGMENT
The petitioner, who is a resident within the jurisdiction of the 3rd respondent Station House Officer, Aluva East Police Station, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3 rd respondent not to harass him. The petitioner has also sought for a writ of mandamus commanding the 2nd respondent to consider Ext.P1 complaint and take appropriate action.
2. On 04.12.2020, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions.
3. Along with the memo filed by the learned Government Pleader, a statement of the 3rd respondent Station House Officer is placed on record. Paragraphs 2 to 4 of that statement reads thus:
"2. It is respectfully submitted that the petitioner Sr.Rasheed, S/o.Ahammed, Kodoppilly House, Kadungalloor, Aluva was involved in Cr.1018/2001 U/s. 395 IPC of Aluva East Police Station. Rowdy History Sheet has been opened against 72 persons they are involved in various crimes within the limits of the Aluva East Police Station and is being checked from time to time to ascertain they are not involved such cases again.
3. It is respectfully submitted that, as part of the WP(C).No.26924 OF 2020(M) 3 investigation into the accused persons involved in serious crimes reported in Aluva East Police Station limit in the year 2020, verified all ex-offenders has been ascertained their presence, those included in the anti-social list within the Police Station limits, the presence of the petitioner has also been verified. But neither the petitioner nor his relatives were intimated in any way or any other legal action was taken. Further, the petitioner was not summoned to Aluva East Police Station or his statement was not recorded.
4. It is respectfully submitted that, during the investigation into the crime cases reported at Aluva East Police Station, the accused were involved (sic: the involvement of the accused) in serious offences in the past are being investigated."
4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents.
5. Clause 259 of the Kerala Police Manual, 1970 deals with Station Crime History Part VI (Rowdy History Sheet). As per sub- clause (1) of Clause 259, Rowdy History Sheet is a record maintained individually in KPF 174(D) to keep a progressive record and watch the activities of persons found to be indulged in rowdyism. These sheets will be opened on the orders of the Sub Divisional Police Officer or any higher authority on the basis of the reports from the local police officer or from other sources. Sub- clause (2) of Clause 259, which deals with the main forms of WP(C).No.26924 OF 2020(M) 4 rowdyism, reads thus;
"(2) The main forms of rowdyism are: -
(1) Indecent behaviour towards women and girls at educational centres, bus stands, parks, Railway Stations, running trains etc. by passing obscene remarks etc. This is popularly known as "eve- teasing".
(2) Habitually committing affray and rioting. (3) Habitually committing offences involving stabbing (Section 324 IPC).
(4) Threatening and beating up prosecution witnesses in court premises and forcing them to turn hostile, by hirelings employed by political parties, moneyed people etc. (5) Intimidation of peace loving people by acts of violence or by show of force or by abusive language.
(6) Rowdyism in cinema halls, theatres, sports stadiums, milk booths, bus stands, toddy shops, running trains etc. (7) Habitual gambling, smuggling of foodgrains and illicit distillation.
(8) Forcible collection of subscriptions.
(9) Drunken and disorderly behaviour.
(10) Decoying persons to houses of ill-repute by pimps.
(11) Snatching of gold chains, etc. (12) Any other anti-social activity associated with violence."
WP(C).No.26924 OF 2020(M) 5
6. As per sub-clause (3) of Clause 259 of the Kerala Police Manual, the History Sheets will be maintained, separately for each individual, as shown in the said sub-clause. As per sub-clause (4) of Clause 259, Rowdy History Sheets in a Station shall be numbered serially in the manner specified in the said sub-clause. As per sub-clause (5) of Clause 259, the Sub Inspector of Police in charge of the Station should maintain the Rowdy History Sheets personally or under his direct supervision. Whenever any entry is made in the G.D. Non-cognizable Case Register or Petty Case Register about an individual for whom a History Sheet is maintained, relevant notes from the above registers should be made in the History Sheets also.
7. As per sub-clause (6) of Clause 259 of the Kerala Police Manual, the Circle Inspector of Police should check the Rowdy History Sheets of a Station during the visits and inspections and make a record of it with instructions, if any, in Section IV of the Sheet. As per sub-clause (7) of Clause 259, activities of non- resident rowdies should be promptly communicated to the concerned Police Station in B.C. Rolls after making entries in Item 12, Section II of Station History Sheet. As per sub-clause (8) of WP(C).No.26924 OF 2020(M) 6 Clause 259, a Rowdy History Sheet may be closed on the orders of the Superintendent of Police, based on the recommendations of the Circle Inspector of Police routed through the Deputy Superintendent of Police/Assistant Superintendent of Police. As per sub-clause (9) of Clause 259, list of Rowdies of a Circle will be maintained in the Office of the Circle Inspector of Police. The Circle Inspector of Police will check the list with the Rowdy History Sheets in the respective Police Station every half year.
8. As per sub-clause (10) of Clause 259 of the Kerala Police Manual, rowdies may be dealt with under the provisions of Law enumerated in sub-clauses (1) to (9), namely, (1) Section 106 Cr.P.C. (security for keeping the peace, on conviction); (2) Section 107 Cr.P.C. (security for keeping the peace etc.); (3) Section 109 Cr.P.C. (security from vagrants etc.); (4) Section 110(g) Cr.P.C. (security for good behaviour from a person so desperate and dangerous, etc.); (5) Sections 48, 51 and 51A of the Kerala Police Act (for being found armed between sunset and sunrise intending to commit an offence, drunken and disorderly conduct, riotous or indecent behaviour in street etc. respectively); (6) Prosecution in appropriate cases for obscene acts and songs - Section 294 IPC; WP(C).No.26924 OF 2020(M) 7 and (7) Prosecution for any other specific offence that may be committed.
9. In Rajesh. R. v. State Police Chief and others [2019 (1) KLD 306 : 2018 KHC 888] a Division Bench of this Court was dealing with a writ petition that has been preferred by the petitioner therein seeking a direction against respondents 1 to 3 not to harass him. The petitioner has further sought for a direction to take immediate action in Ext.P1 representation and to remove his name from the 'goonda' list. The Division Bench noticed that there is no case for the respondents that the petitioner has been indulging in or about to indulge in or abet any anti-social activity within their area warranting an action under the Kerala Anti Social Activities (Prevention) Act, 2007. As per sub-clause (8) of Clause 259 of the Kerala Police Manual, Rowdy History Sheet may be closed on the orders of the Superintendent of Police, based on the recommendations of the Circle Inspector of Police routed through the Deputy Superintendent of Police/Assistant Superintendent of Police. When that is the position, certainly, the petitioner has been facing the brunt of the insult of including his name in the rowdy list for the last ten years without any reason whatsoever. If the WP(C).No.26924 OF 2020(M) 8 assertion made by the petitioner in Ext.P1 representation is correct, the respondents are obliged to ensure the fundamental right to life guaranteed to the petitioner under the Constitution, including his right to live with dignity. Hence, the Division Bench directed the 2 nd respondent to consider Ext.P1 representation, hear the petitioner and pass appropriate orders thereon, in terms of sub-clause (8) of Clause 259 of the Kerala Police Manual, within a period of two months from the date of receipt of a copy of the judgment. The Division Bench had made it clear that, if at all the petitioner involves himself in any criminal activities in future and if a considered opinion is formed by the respondents based on materials and solid evidence, appropriate action in accordance with law can still be taken against him. Paragraphs 7 to 10 of the said decision read thus;
"7. Basically, it is the responsibility of the Station House Officers to find out whether there are 'known rowdies' indulging in or about to indulge in or abet any anti-social activity within their area and furnish the necessary inputs to the respective Superintendent of Police, who is the sponsoring authority. On the information received from such a sponsoring authority, it is for the Government or authorised officer (District Magistrate) to pass an order of detention, in exercise of their powers under Section 3(1) of the Kerala Anti WP(C).No.26924 OF 2020(M) 9 Social Activities (Prevention) Act, 2007. Preventive detention under the English Common law, is discernible from The King (at the Prosecution of Arthur Zadig) v. Halliday [1917 AC 260]. It was held that preventive detention is not punitive but a precautionary measure to prevent apprehended objectionable activities. Lord Macmillan in Liversidge v. Sir John Anderson and another [1942 AC 206] held that, the object of preventive detention is not to punish a person for having done something but to intercept him before he does it and prevent him from doing it. Both the above decisions were approved by the Supreme Court in A. K.Gopalan v. State of Madras [AIR 1950 SC 27].
8. There is no case for the respondents that the petitioner has been indulging in or about to indulge in or abet any anti- social activity within their area warranting an action under the KAA(P)A. The jurisdiction of such an action is suspicion or reasonable probability and not the criminal conviction which can be warranted by legal evidence after the accused is found guilty in a trial in which the accused has the fullest opportunity to defend himself from the charges. Though four crimes were registered against the petitioner by the Station House Officer, Kottiyam Police Station, the petitioner has already been acquitted in the said cases after recording the evidence. In fact, the petitioner has not committed any offence or breach of peace for the last ten years. The petitioner cannot therefore be termed as a habitual offender.
9. Paragraph 259(8) of the Kerala Police Manual provides that Rowdy History Sheet may be closed on the orders of the Superintendent of Police, based on the recommendations of WP(C).No.26924 OF 2020(M) 10 the Circle Inspector of Police routed through the Deputy Superintendent of Police/Assistant Superintendent of Police. When that is the position, certainly, the petitioner in the present case has been facing the brunt of the insult of including his name in the rowdy list for the last ten years without any reason whatsoever.
10. The fundamental right guaranteed under Article 21 of the Constitution of India assures every one "right to life and personal liberty", which includes the right to lead meaningful, complete and dignified life. As far as personal liberty is concerned, it means freedom from physical restraint of a person by personal incarceration or otherwise, and it includes all the varieties of rights other than those provided under Article 19 of the Constitution. If the assertion made by the petitioner in Ext.P1 representation is correct, the respondents are obliged to ensure the fundamental right to life guaranteed to the petitioner under the Constitution including his right to live with dignity. Hence, there will be a direction to the second respondent to consider Ext.P1 representation, hear the petitioner and pass appropriate orders thereon in terms of paragraph 259(8) of the Kerala Police Manual, at any rate within a period of two months from the date of receipt of a copy of this judgment. Needless to say, if at all the petitioner involves himself in any criminal activities in future and if a considered opinion is formed by the respondents based on materials and solid evidence, appropriate action in accordance with law can still be taken against the petitioner."
10. Clause 265 of the Kerala Police Manual deals with WP(C).No.26924 OF 2020(M) 11 general instructions regarding surveillance. As per sub-clause (1) of Clause 265, persons for whom History Sheets have been opened shall be informally watched by the Police. When a History Sheet shows that the individual is leading a criminal existence, the Superintendent of Police or the Sub Divisional Officer, if so empowered by the Superintendent of Police, shall decide whether the individual should be 'closely watched' or not. As per sub-clause (2) of Clause 265, whenever a History Sheet is opened for a bad character for the first time, he shall be under 'close watch' for a specified period. As per sub-clause (3) of Clause 265, the bad characters returning from jail should be under 'close watch'. If they settle down and are of good character 'close watch' can be removed. As per sub-clause (4) of Clause 265, there should be free transfer of bad characters from 'close watch' to 'non-close watch' and vice versa. Orders for such transfers should be obtained from the Sub Divisional Officer or the Superintendent of Police as the case may be. A bad character who continues to be under 'close watch' for a considerable period, is a fit person for action under Section 110 of the Criminal Procedure Code. As per sub-clause (5) of Clause 265, the surveillance of a suspect or rowdy other than an WP(C).No.26924 OF 2020(M) 12 ordinary criminal shall be conducted in a confidential manner. As per sub-clause (6) of Clause 265, under the History Sheet heading '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 the last entry shall be made month-war 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. As per sub-clause (7) of Clause 265, when any information favourable to an individual for whom a History Sheet is being kept is received, it shall be entered therein. As per sub-clause (8) of Clause 265, 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 to by him in the column under 'current doings'.
11. In the instant case, the name of the petitioner is included in the Rowdy History Sheet maintained in Aluva East Police Station, under Clause 259 of the Kerala Police Manual. It is in such circumstances that, the Police Officers attached to Aluva East Police WP(C).No.26924 OF 2020(M) 13 Station undertook surveillance in terms of the general instructions contained in Clause 265. Such surveillance by the Police Officers cannot be said to be police harassment, in order to seek interference of this Court under Article 226 of the Constitution of India.
Seeking closure of Rowdy History Sheet, under sub-clause (8) of Clause 259 of the Kerala Police Manual, the petitioner filed Ext.P1 application before the 2nd respondent Superintendent of Police (Rural). In such circumstances, this writ petition is disposed of by directing the 2nd respondent to call for a report from the 3 rd respondent Circle Inspector of Police, through the concerned Deputy Superintendent of Police, within three weeks from the date of receipt of a certified copy of this judgment and thereafter take an appropriate decision on Ext.P1 application, taking note of the provisions under the Kerala Police Manual referred to hereinbefore and also the law laid down by the Division Bench of this Court in Rajesh R. [2019 (1) KLD 306], as expeditiously as possible, at any rate, within a further period of two months.
Sd/-
ANIL K.NARENDRAN
JV JUDGE
WP(C).No.26924 OF 2020(M)
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMPLAINT LODGED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT WITH
ACKNOWLEDGMENT DATED 10.11.2020