Telangana High Court
Shahbaz Nawaz Shahbaz vs The State Of Telangana on 7 December, 2020
Author: P.Naveen Rao
Bench: P.Naveen Rao
HON'BLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NO.18288 OF 2020
Date: 07.12.2020
Between:
Shahbaz Nawaz @ Shahbaz s/o. Mohd. Osman Patel,
Aged about 29 years, occu: Business,
r/o. H.No.23-2-177, Near Urdu Ghar,
Moghalpura, Hyderabad.
..... Petitioner
And
The State of Telangana, rep.by its Prl.Secretary,
Home Department, Secretariat, Hyderabad and
ohers.
..... Respondents
This Court made the following:
PNR,J
WP No.18288 of 2020
2
HON'BLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NO.18288 OF 2020
ORDER:
Heard learned counsel for petitioner and learned Assistant Government Pleader for Home.
2. Petitioner is aggrieved by opening of rowdy sheet and rejecting his request for review of further continuation of rowdy sheet by order dated 27.7.2020, impugned in the writ petition. Crime No.22 of 2019 was registered on 13.2.2019 under Sections 302, 120B, 109, 201, 202, 212 of IPC and Section 21 (1) A Indian Arms Act. Petitioner was shown as Accused No.4. On completion of investigation, charge sheet is filed Vide PRC No.485 of 2019 in the Court of VIII Additional Chief Metropolitan Magistrate, Hyderabad and the matter is pending. In substance, allegation is that petitioner along with three others attacked one person by name Syed Hussain with deadly weapons at Banana Market, besides Minar Garden, Nayapool, Hyderabad and deceased succumb to several stab injuries. After involvement of the petitioner in the above crime, rowdy sheet was opened on 27.6.2019 in Mirchowk Police Station and on the point of jurisdiction, the rowdy sheet was transferred to Bhavaninagar Police Station on 22.12.2019. Petitioner was also implicated in Crime No.120 of 2019 in Mirchowk Police Station under Section 107 of Criminal Procedure Code, petitioner was bound over for good conduct by the Special Executive Magistrate, Hyderabad vide his orders dated 22.08.2019 for a period of one year.
PNR,J WP No.18288 of 2020 3
3. The issue for consideration is on account of involvement of petitioner in Crime No.22 of 2019 and order of binding over in Crime No.120 of 2019 whether opening of rowdy sheet and continuing the same is justified.
4. Right to life and liberty are sacrosanct to a person. A person is entitled to lead his life with dignity and self respect. He is entitled to privacy. His rights flow out of Article 21 of the Constitution of India. Surveillance on person certainly infringes on his right to life, privacy and liberty. These rights cannot be infringed except by due process of law. Compelling public interest may require intrusion into privacy of a person but while doing so great care and caution has to be observed. Thus, if police open a rowdy sheet to keep surveillance on a person it must show justification, impelled to ensure peace and order in the society.
5. The scope and width of Article 21 of the Constitution of India, scope of power of police to infringe privacy of a person and scope and ambit of Police Standing Orders (for short, 'PSO') were vividly analyzed and dealt with extensively by two learned Judges of this Court in Mohammed Quadeer and others Vs. Commissioner of Police, Hyderabad and another1 and Sunkara Satyanarayana Vs State of Andhra Pradesh, Home Department and others2. In both these decisions it is held that PSOs are non statutory executive instructions and have no binding force of law.
6. In Mohammed Quadeer and others (supra), it is held:
"31. Opening of a rowdy sheet against a citizen is undoubtedly fraught with serious consequences. Article 21 of the Constitution of India guarantees right to life with dignity and the right to live, as a dignified man, carries with it the right to 1 1999 (3) ALD 60 2 1999 (6) ALT 249 PNR,J WP No.18288 of 2020 4 reputation. Right to reputation is an integral part of right to life guaranteed by Article 21, and such a right cannot be deprived except in accordance with the procedure established by law. Such laws which authorise the Police to open rowdy sheets and exercise surveillance are required to be very strictly construed. Opening of the rowdy sheets and retention thereof except in accordance with law would amount to infringement of fundamental right guaranteed by Article 21 of the Constitution of India. It is true that the State is duty bound at all levels to protect the persons and property from the criminals and criminal activity. Prevention of organised crime is an obligation on the part of the State.
Right to Privacy:
32. Fundamental rights and civil liberties exist and can only flourish in an orderly society. Civil liberties and fundamental rights are intimately connected with the nature and dynamics of the Society. It is the duty of the Police to deal with crime and criminals expeditiously and effectively while at the same time holding to the values and concepts of the fundamental rights and the Constitution. Both the competing interests are to be reconciled. This much is clear so far as our Constitutional system is concerned that intrusion into personal liberty without an authority of law is forbidden. Surveillance and watching of movements of a citizen by the Police is not a matter of course.
Such rights can be exercised by the Police only in accordance with law which permits such surveillance. The action in this regard which is in accordance with law may result in violation of the fundamental rights guaranteed by Article 21 of the Constitution of India. Every citizen has fundamental right and entitled to indulge in harmless activities without observation or interference. It is a right to be left alone. The guarantee in Article 8 of the European Convention of Human Rights that "Everyone has the right to respect for his private and family life, his home and has correspondence" reflects both the individual's psychological need to preserve an intrusion-free zone of personality and family, and the anguish and stress which can be suffered when that zone is violated. The saying that 'an Englishman's home is his castle' would be equally applicable to Indian situation and it can be said that an 'Indian citizen's home is his castle.'
33. Therefore, I have no hesitation whatsoever to reject the plea that mere surveillance and watch by the Police itself would not infringe the fundamental rights of a citizen. Such surveillance and watch which is not authorised by law may be unconstitutional. Such surveillance and watch even if it is authorised by law but if it is not in accordance with that law would equally be unconstitutional."
(emphasis supplied)
7. In paragraph 49 of Sunkara Satyanarayana (supra), learned single Judge culled out principles on police surveillance against history/rowdy sheeters. It reads as under:
"49. Therefore, in the context of police surveillance against history sheeters and rowdy sheeters, the following principles vis-a-vis right to privacy under Article 21 of the Constitution would emerge:
(i) If the surveillance is not obtrusive, the same does not violate the right to privacy under Article 21 of the Constitution of India. The same does not either in material or palpable form affect the right of the suspect to move freely nor can it be held to deprive the history sheeter / rowdy sheeter of his personal liberty.
(ii) In testing whether fundamental right of free movement or personal liberty is infringed or not, it is to be remembered that PNR,J WP No.18288 of 2020 5 infringement should be direct as well as tangible. If surveillance hurts personal sensitivities, the same is not a violation, for the constitution makers never intended to protect mere personal sensitiveness.
(iii) If police surveillance is in accordance with executive/departmental guidelines and not authorised by statute or rules having statutory force, it is for the State to prove that surveillance does not in anyway infringe the fundamental right of the person and that the authorities have followed the guidelines scrupulously in ordering surveillance,
(iv) If the action of the police is found to infringe the freedoms guaranteed to the history sheeter / rowdy sheeter and violates his right to privacy, in that, the surveillance is excessively obtrusive and intrusive, it may seriously encroach on the privacy of a citizen as to infringe the fundamental right to privacy and personal liberty under Article 21 as well as the freedom of movement guaranteed under Article 19(1)(d) of the Constitution of India and the same is impermissible,
(v) Even where there is statutory sanction for surveillance against history sheeter/rowdy sheeter principle (iv) is equally applicable, if the surveillance is obtrusive.
(vi) In either case-whether police regulations are statutory or where they have no statutory force-there should be sufficient material to induce the opinion that the history sheeters/rowdy sheeters show a determination to lead a life of crime which involves public peace or security only. Mere convictions in criminal cases where nothing imperils the safety of the society cannot be regarded as warrange surveillance under the relevant regulations, however broadly and in whatever language the regulation might have been couched,
(vii) In either case-whether the regulation is statutory or non-statutory-domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security, and there can be no routine follow-up at the end of a conviction or release from prison in every case.
(viii) The above principles that emerge from various binding precedents are only general principles. As seen from various decided cases of this Court, opening of history sheet or rowdy sheet can be justified only when it is proved before the Court by the State that based on the relevant material the competent police officer has applied mind with due care and considered all aspects in the light of the law and then ordered opening of history sheet or rowdy sheet or ordered continuation or retention of the history sheet. In the beginning of this Judgment, all the relevant decisions of this Court have been referred to and those principles may also have to be kept in mind."
(emphasis supplied)
8. The Andhra Pradesh Police Manual deals with various aspects of functioning of police personnel which include registration of crimes, investigation, conducting of trial and opening of rowdy sheets etc. PSO-6013 deals with opening of rowdy sheet. According to Clause-A4 thereof, if a person habitually commits, attempts to commit or abet the commission of offences 3 "Order 601. The following persons may be classified as rowdies and Rowdy Sheets (Form 80) may be opened for them under the orders of theSP/DCP and ACP/SDPO. 4
'Clause-A. Persons who habitually commit, attempt to commit or abet the commission of, offences involving a breach of the peace, disturbance to public order and security."
PNR,J WP No.18288 of 2020 6 involving breach of peace, disturbance to public order and security, a rowdy sheet can be opened to closely observe his movements and activities. According to Clause-B5 thereof, the persons who are bound over should be classified as rowdies and rowdy sheets can be opened and continued.
9. Reading of extracted provision of PSO-601-A, makes it clear that to open rowdy sheet emphasis is on habitually committing offence involving breach of peace, disturbance to public order and security.
10. The justification shown to continue rowdy sheet against petitioner is he is young and energetic and if rowdy sheet is closed, he may cause breach of public peace and tranquility.
11. 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 or dissimilar acts are necessary to justify an inference of habit [Paragraph-31, Vijay Narain Singh vs. State of Bihar - (1983) 4 SCC 14]. The two crimes registered against petitioner are not on similar offences. Further, mere involvement in two crimes it cannot be inferred that petitioner is 'habitually' committing offences involving breach of peace, disturbance to public order and security.
12. It is not the case of Police that petitioner is involving in several crimes and is in the habit of disturbing peace and tranquility. It is also not the case of Police that after opening of rowdy sheet he indulged in activities detrimental to peace in the 5 'Clause-B. Persons bound over under Sections 106, 107, 108(1)(i) and 110(e) (g) of Cr.P.C.
PNR,J WP No.18288 of 2020 7 locality. Thus, the ingredients of PSO 601-A are not attracted in the case.
13. In W.P.No.19194 of 2012, learned single Judge of this Court in the judgment rendered on 24.08.2015 reviewed the entire case law on the subject. The learned single Judge held that the requirement to open a rowdy sheet would arise if a person is involved in more than two crimes and, therefore, held that opening rowdy sheet for involving in two crimes as tainted in law from the inception. In the case on hand also, petitioner is involved in only two crimes.
14. As held in precedent decisions, PSO is non-statutory instrument to guide police in discharge of their duties. It can not give license to police to open rowdy sheet in a casual and mechanical manner. Opening of rowdy sheet is not as a matter of course whenever crimes are reported. Opening rowdy sheet against petitioner and continuing, in the facts of this case, cannot be termed as in public interest. Petitioner's right to life and liberty is infringed by police without reasonable cause. It is made in abuse of power and authority, is illegal and infraction of fundamental rights guaranteed to petitioner.
15. The decision impugned in the Writ Petition to continue rowdy sheet is set aside. Writ Petition is accordingly allowed. Respondents 4 and 5 are directed to forthwith close the rowdy sheet and inform the petitioner accordingly. Pending miscellaneous petitions if any shall stand closed.
__________________________ JUSTICE P.NAVEEN RAO Date: 07.12.2020 Tvk/kkm PNR,J WP No.18288 of 2020 8 HON'BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NO.18288 OF 2020 Date: 07.12.2020 Tvk/kkm