Delhi High Court
B.R. Chopra vs Commissioner Of Police And Ors. on 18 October, 1985
JUDGMENT Malik Shariek-Ud-Din, J.
(1) The petitioner was driven to register this petition under Articles 226 and 227 of the Constitution of India on the basis of a newspaper report which had been published in the national press very recently in which it was stated that the petitioner, even though a registered bad character at police station. Kalkaji New Delhi, had thrown a dinner party at his farm house at Mehrauli in which very high officers of the State participated. This was perhaps done to show that the petitioner, even though a bad character, has links with very high officials and this was not taken notice of by the high officials of the State who attended the party. In all probability this was done to show how bad characters are linked with high officials of the State. For a while this undoubtedly caused furore in the enlightened section of the society and many eye brows were raised as to what sort of things are happening. In fact, this newspaper report led even to a raid of the firm house and the business premises of the petitioner.
(2) The petitioner's case is that this caused him a great deal of anxiety and despite his best efforts to know the details and the reason of his being described as a history- sheeter at police station Kalkaji, he got no help. He as such has moved this petition with the prayer that this court may call for the records and quash the entry about the petitioner as history sheeter at police station Kalkaji and direct the police station to destory such record.
(3) It appears that it was only after this newspaper report and after a great deal of efforts put in by the Petitioner that he came to know that a history sheet was opened against him. A case Fir No. 136 of 1963 police station Civil Lines had been registered against the petitioner under sections 3 and 4 of Suppression of Immoral Traffic Act in which he was involved with two more persons, one V.S. Garg a partner and the other a Manager of the hotel. At the relevant time the petitioner was a partner with V. S. Garg in the then Grand Hotel. The petitioner submits that his name was not even mentioned in that F.I.R. and that he was arrayed as accused three days after the registration of the case. He further submits that he was acquitted in the said case on 3rd October 1968 by the order of Shri P. V. Jai Kishan, S.D.M. Delhi. According to him the whole case was fabricated and false and that this case was falsely recorded against him by one Mr. Bathura D.S.P. on account of animosity.
(4) It would be noticed from the return submitted by the respondents that the history sheet against' the petitioner was opened on 23-10-63 that 1s within a few months of the registration of the aforesaid case and this according to the respondents was opened under para 23.9(2) of the Punjab Police Rules, 1934.
(5) The petitioner admitted that another case was registered against him a police station Lodhi Colony vide F.I.R. No. 264180 under secion 324134, 341 &506 Indian Penal Code but this was due to the fact that the President of Delhi Flying Club in the year 1980 he had terminated the services of a junior clerk who on the instigation of the opposite camp in the club had lodged this false complaint against tha petitioner, the Secretary of the Club and another Managing Committee member hut the moment this case went to the court it came to be compromised. We may notice that this case was not at any stage made the basis for the opening of the history sheet or for the satisfaction of the concerned authorities to arrive at a reasonable belief that the petitioner was habitually abdicated to crime.
(6) We may at this stage also notice the back-ground and the social status of the petitioner as there is no challenge to these facts highlighted by the petitioner in this connection. The petitioner is an established business man and income-tax assessed. Even his wife and children are also assessed to income-tax and wealth-tax. He is the Chairman of Delhi State Industrial Cooperative Federation Limited for the last 7 years and for the years 1977 to 1979 he was nominated Director of Mis Samachar Bharti and member Advisory Committee of All India Radio by the Ministry of Information and Broadcasting, Government of India. He was elected President of Delhi Flying Club for four years and has remained Vice President of the Aero Club of India for about 2 years. He was thereafter elected as President of Aero Club of India for another two years and was also elected the Vice President of the Federation of Aeronautique International de Paris. At present he is a very well established business man and has high business connections. The petitioner further maintains that he is the holder of Indian Passport and has been issued gun licenses from time to time after the verification of his character and antecedents by the police. According to him he took a delegation of members of Aero Club of India during 1977 to 1979 after it was approved by the Government of India according to well established procedure which is tha the members of delegation are only selected after a thorough scrutiny. According to the petitioner the maintenance of history sheet against him by the respondents got publicity in the newspapers which has put at stake his entire life, honour and dignity and that the respondents have no justification to maintain such history sheet or to keep the petitioner under surveillance.
(7) We may notice that in the counter affidavit filed by Shri J. P. Singh, Deputy Commissioner of Police, Head Quarters Ii, Delhi, the background and the status in society of the petitioner has not been challenged. The respondents admit that the petitioner's history sheer was opened on 23-10-63 and his name was ordered to be kept in Bundle 'B' by the then Asstt. Superintendent Police on 23-10-63. As may repeat that this was done in pursuance of Fir No. 136 of 1963 under sections 3 and 4 of Suppression of Immoral Traffic Act at police station Civil Lines, Delhi and this history sheet was opened within a few months of the registration of the case in which the petitioner has been finally acquitted on 3rd October 1968.
(8). It would be noticed that in the counter affidavit the respondents has tried to scandalize the petitioner in as much as it says that the petitioner B. R. Chopra is believed to be indulging in nefarious activities such as indulging in flesh trade by making girls available for immoral purposes and thereby not only influencing people in position but also affecting the society at large and that, this fact is sufficiently evidenced by a diary containing addresses and telephone numbers of numerous girls which was recovered from his farm house at Mehrauli by the Directorate of Enforcement, Ministry of Finance, Government of India when raid was conducted. In respect of issuance of gun licenses, the counter-affidavit states that these were procured by the petitioner cleverly by mis-representing facts. As to the fact whether the petitioner was kept under surveillance or not the return of the respondents is inconsistent in as much as even though it is admitted that they are keeping a discreet watch on the activities of the petitioner, it is denied that the petitioner is being kept' under surveillance.
(9) One of the most surprising aspect of the return submitted by the respondents is that it is not stated as to how and in what manner the petitioner was indulging in immoral trafficking of women and this has been allowed to remain as vague as anything. Admittedly, therefore, the history sheet against the petitioner has been opened on the basis of single incident of Fir No. 136163 under sections 3 and 4 of Suppression of Immoral Traffic Act at Police Station Civil Lines, Delhi. It is not specifically denied that there is no further history of crime attached to the petitioner.
(10) In view of the vague and elusive affidavit of the respondents there is hardly any need for us to make reference to the rejoinder affidavit of the petitioner excepting fur a very limited purpose. It would be noticed that the petitioner's two daughters are married to very highly placed persons. Neither any incriminating material nor any black money or any sort of jewellery unaccounted as, up to date, was found in possession of the petitioner. In respect of the diary recovered from his premises the petitioner says that this diary was maintained by his wife wherein telephone numbers and residential addresses of her friends are mentioned and that this diary also contains telephone numbers of some of the relations of the petitioner. The petitioner asserts that not a single name has been mentioned in the counter affidavit to show that any of these ladies mentioned in the diary are of ill repute. So much about the facts. We have heard Bawa Gurcharan Singh learned counsel for the petitioner and Sodhi Teja Singh, learned counsel for the respondents, at length. To our mind the main questions that arise for consideration are .
1. Whether the respondents have a right to open a history sheet and under what circumstances ? (In doing so we will have to keep in mind that the opening of history sheet under pani 23.9 (2) of the Rules is a power wide open to abuse.)
2.Whether there was any justification for the respondents to open the impugned history sheet against the petitioner ?
3.Whether there is any justification to allow this history sheet to survive ?
(11) This makes it necessary for us to make a reference to the relevant provisions of the Punjab Police Rules, 1934. Bawa Gurcharan Singh invited our attention to a number of provisions regarding surveillance and opening of history sheet. But for our purpose the relevant provision is para 23.9 (2) which reads as under : "23.9(2): A history sheet may be opened by, or under the written orders of, a police officer not below the rank of inspector for any person not entered in the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such persons."
(12) This to our mind is the relevant rule under which the respondents seem to have opened a history sheet against the petitioner. The contention of Sodhi Teja Smgh, learned counsel for the respondents, is that this is a sort of confidential record which the respondents are entitled to maintain under law for their own guidance. It appears that he is labouring under an impression that the police is entitled to open a history sheet against any person even though on the facts of a particular case it may be difficult to state that the material available could genuinely lead to the reasonable belief of a police officer about a person being habitually addicted to crime. In the present case the history sheet against the petitioner is purportedly opened on the basis of belief of the respondents that the petitioner is habitually addicted to crime. A plain reading of this provision would show that it does not lay down any guidelines for the exercise of this power. In that view of the matter it is difficult to agree with the contention of Sodhi Teja Singh, as in that event there will be enough scope for a police officer to abuse his power. That cannot be the object of law.
(13) The facts of this case we have high-lighted. A solitary incident of 1963 has been made the basis for opening a history sheet against the petitioner. Admittedly, otherwise there is no criminal history attached to the petitioner. The history sheet was opened in hot haste just within a few months of the registration of that case and this was allowed to survive despite the acquittal of the petitioner in that case and, despite the fact that no crime was committed by him thereafter, excepting of course F.I.R. No. 264180 under sections 324/34, 341, 506, Indian Penal Code at Police station Lodhi Colony about which, the petitioner has explained that this case came to be lodged in his capacity as President of Delhi Flying Club on the instigation of opposite camp and that, the moment it went to the court it was compromised. The petitioner is undisputably a respectable man, moving about with high elite and has very high connections. There is a vague suggestion by the respondents that the petitioner is involved in immoral trafficking in women which can only be noticed to be rejected. In our view Bawa Gurcharan Singh, learned counsel for the petitioner, seems to be very correct in suggesting that these scandalous insinuations by the respondents nave only added insult to injury. For our own benefit and guidance we have gone through the confidential record (history sheet) maintained against the petitioner by the respondents. It is replete with instances that the petitioner is being shadowed and all his activities have-been recorded therein from time to time. That goes to show that the assertion of the respondents that he is not under surveillance is totally wrong. Sodhi Teja Singh, learned counsel for the respondents, would like to call it a discreet action of watching the activities of the petitioner without interfering and without invasion petitioner's rights. We do not agree. The police has no right to prey into the privacy or day to day movements of a respectable citizen. The respondents are only concerned with the criminals and, their functions rather are to protect the life and honour of the law-abiding citizens.
(14) Having noticed that the incident that resulted in the opening of history sheet took place more than two decades ago, we would like to point out that woe of the petitioner only started after it was published in press that he is a bad character, which definitely had the effect of impairing his image in the eyes of public. To us it appears that It was deliberately leaked out to press that the petitioner was a history sheeter If it is a confidential document, ought we to know why and with what object it was made public ?
(15) Adverting back to Para 23.9 (2) of the Punjab Police Rules, it would be seen that this particular provision unlike other provisions on the question of surveillance and opening of history sheet lays no guidelines for the exercise of the power. In the absence of any guidelines it is all the more necessary to construe the provision strictly. The only requirement of the provision it seems is the subjective satisfaction of the authority concerned, in the nature of his belief that a person is habitually addicted to crime. How this satisfaction should be arrived at and what is meant by "reasonable belief" is not spelt out by the provision. We are sorry to point out that on the basis of that one single unfortunate incident of 1963 the respondents have treated the petitioner as a person habitually addicted to crime. What is meant by a person habitually addicted to crime has been discussed in Dhanji Ram Sharma V. Suprintendent of Police, North District, Delhi Police and others (AIR I960 Sc 1766) (1). wherein it was observed : "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 Rule 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 . . . . . ".
(16) We are, therefore, of the view that it was most unreasonable on the part of the respondents to hold the petitioner as person habitually addicted to crime on the basis of this single incident.
(17) It would be noticed that Para 23.9 (2) of Punjab Police Rules by the very nature of the expression used therein is very much open to the vice of abuse, In administrative actions where an authority is required to go by its. satisfaction, certain amount of objectivity is a must. All administrative actions are also expected to be informed with reason and that too a reason of a normal, prudent and discreet man. It, therefore, follows that the satisfaction must be based on some cogent material leading to a reasonable belief that the man by inclination is addicted to crime and is not prepared to mend his ways. We are making these general observations with a view to indicate the guidelines for arriving at satisfaction.
(18) Whether the belief that a person is habitually addicted crime is reasonable or not, will depend upon the facts of a particular case. We would, however, like to mention and make it clear that the expression reasonable belief that a person is habitually addicted to crime must be a belief which can be said to be reasonable as is normally understood in law and it must be based on definite and cogent material. The foundation of such a belief can in no case be left to the fancied notions of an authority nor can it be left to its individual whims and caprice.
(19) For a citizen of a democratic country governed by rule of law it is of very vital importance, as otherwise, any. arbitrary or whimsical action on the part of an authority is bound to cause enormous damage to his reputation and dignity, as has evidently happened in the present case. To our mind, the action taken by the respondents in this case certainly is not only illegal but somewhat, if we may say so, abhorrent. One can imagine the amount of injury it could have caused to the petitioner, if the daughters of The petitioner had not been married, could anyone, after knowing that the petitioner is a bad character, propose to marry with his daughters ? That apart, the manner in which his being a bad character came to be publicised has, not only done enormous damage to the petitioner, but has also involved the reputation of a large number of high state functionaries who are supposed to have attended his birth day celebration party. They have been rendered suspect in the eyes of the Government and the public. Their reputation and dignity has been impaired. All this occurred due to this irresponsible act of a police official who without application of mind, way back in 1963. acted in a manner unwarranted by law and the constitution. This action of the respondents clearly was and continues to be violative of the fundamental rights of the petitioner. It is needless for us to say that when the consequences are so enormous and grave, how important it is to make use -of this power with utmost restraint and with due regard to the facts of each case. No administrative power, howsoever wide and sweeping, can be exercised either casually or mechanically. A citizen cannot be left at the mercy of a police official and cannot be allowed to be driven by sheer might of authority. That would be inviting anarchy and chaos and bidding good bye to the rule of law.
(20) Freedom of life carries within is ambit the freedom to live with honour, decency and dignity. Live without this would be meaningless. No innocent person can be allowed to be maligned simply because a false case is registered against him, as in the case of the petitioner way back in 1963. That is not, and could never be the object of law. To our mind the cardinal object of Para 23.9 (2) of the Punjab Police Rules is to enable the police officer to keep a strict watch over the activities of persons who by their nature are addicted to crime. It is absolutely unwarranted and misplaced notion that it confers unbridled and unfettered power of a police officer. The first pre-requisite to proceed under this provision would as such be the basic material indicating a criminal propensity of a person and that alone can be made the basis for the formation of "reasonable belief", as indicated in the said provision. Once that basic material is lacking, any action taken under the provision would stand vitiated. Could in this case it be said that there was any material for the formation of such a belief ? To our mind, the answer to the question is a positive No. 1. We fail to understand how could a normal state functionary have acted in such an abnormal and irresponsible manner. Looking at the magnitude and the enormity of the damage done it makes us sad that such a situation should have been allowed to arise. The damage to our mind is beyond repairs and redemption.
(21) With these observations we find that the respondents have illegally opened a history sheet against the petitioner and there is no justification for the survival of the same. We allow the petition and direct that the respondents should at once destroy the history sheet maintained against the petitioner. Petition accepted.