Telangana High Court
Miraj Ahmed Miraz Nawab vs The State Of Telangana And 4 Others on 3 November, 2020
Author: P.Naveen Rao
Bench: P.Naveen Rao
HONOURABLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.15050 of 2020
Date: 03.11.2020
Between:
Miraj Ahmed @ Miraz Nawab,
s/o. late Gulam Raheem Uddin,
Aged about 49 years,
Occu: Business, r/o. H.No.21-4-208/210,
Gulab Singh Bowli, Petla Burj,
Hyderabad.
.....Petitioner
And
The State of Telangana, rep.by its
Prl.Secretary, Department of Home,
Secretariat at BRKR Bhavan,
Hyderabad and others.
.....Respondents
The Court made the following:
PNR,J
W.P.No.15050 of 2020
2
HONOURABLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.15050 of 2020
ORDER:
Heard learned counsel for petitioner and learned Assistant Government Pleader for Home for respondents.
2. Facts on record would disclose that on 26.01.2016 Md.Imran s/o. Abdul Khaleel lodged complaint in Hussaini Alam Police Station against the petitioner alleging that petitioner threatened him about one month back to give him Rs.2,00,000/- with warning that he is a rowdy sheeter, and if money is not given to him he would face dire consequences. It is further alleged that early morning hours of 26.01.2016 while he was standing opposite to Omer Hotel near Baragally, petitioner came from back side, attacked him with knife on his neck and on back and attempted to murder him. Friends of the complainant shifted him to Esra hospital, where the Duty Director advised them to shift the petitioner to Osmania General Hospital for further treatment. He therefore sought the Police intervention to take action against the petitioner. Based on the said complaint, Crime No.15/2016 was registered under Sections 307 and 506 IPC by Hussaini Alam Police. While investigation was pending in the said crime, on 18.03.2016, the Station House Officer of P.S. Hussaini Alam sought permission of the Assistant Commissioner of Police, Charminar, South Zone, to open a rowdy-sheet against the petitioner. By proceedings No.957/ACP-CMBNR/2016, dated 18.03.2016, the Assistant Commissioner of Police accorded permission to open rowdy-sheet. Accordingly, rowdy-sheet was opened on the same day.
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3. Based on the complaint, on 26.01.2016 petitioner was arrested and sent him to judicial custody. On completing the investigation, Police filed charge-sheet. The competent Court took cognizance of the crime. Petitioner was subjected to trial in S.C.No.249 of 2017 in the Court of the Metropolitan Sessions Judge, Hyderabad. By judgment dated 11.09.2019, petitioner was acquitted. However, the rowdy-sheet opened on 18.03.2016 is not revoked. In this writ petition, petitioner seeks declaration against continuation of rowdy-sheet as illegal and seeks consequential direction to close the rowdy-sheet.
4. Facts as noted above disclose that rowdy-sheet was opened consequent to the registration of Crime No.15/2016 and ultimately resulted in acquittal by the competent Court. Though counter- affidavit says that petitioner was a known rowdy sheeter, no details are furnished about his previous involvement in crimes and causing breach of peace, disturbance to public order and security. The material on record would only disclose that rowdy-sheet was opened only consequent to the registration of Crime No.15/2016. It is not the case of respondents that petitioner continues to indulge in criminal activities involving the breach of peace, disturbance to public order and security. It is thus apparent that on the solitary instance of reporting a crime against petitioner on 26.01.2016, the rowdy- sheet was opened and even though petitioner was acquitted in the said crime, the rowdy-sheet is not withdrawn.
5. According to the learned counsel for petitioner, based on the solitary instance of reporting of crime, rowdy-sheet cannot be PNR,J W.P.No.15050 of 2020 4 opened. A person can be held to be committing an offence involving breach of peace, disturbance to public order and security, if he indulges in grave offences, but in the instant case, said clause is not attracted. He contended that at any rate continuation of rowdy-sheet even after acquittal granted by the competent Court is ex facie illegal. In support of his contention, learned counsel for petitioner placed reliance on the decision of learned single Judge, rendered in K.Suresh Babu vs. The Superintendent of Police, Anantapur District and another (W.P.No.18142 of 2012, dated 24.08.2015).
6. In the counter-affidavit, reliance is placed on the Police Standing Order No.601, and the decisions of Hon'ble Supreme Court in Dhanji Ram Sharma vs. Superintendent of Police, North District, Delhi Police1, and Vijay Narain Singh vs. State of Bihar2, to justify opening of rowdy-sheet and continuing the same.
7. The issue for consideration is whether Police are entitled to continue the rowdy-sheet against the petitioner even after acquittal was granted by the Metropolitan Sessions Judge in S.C.No.249 of 2017 flowing out of Crime No.15/2016 on the file of Hussaini Alam Police Station.
8. Before dealing with this aspect, it is necessary to clear the stand of the respondents in the counter-affidavit on two decisions relied by them. In Dhanji Ram Sharma, the Hon'ble Supreme Court observed that before opening of a rowdy-sheet, Police must 1 AIR 1966 SC 1766 2 AIR 1984 SC 1334 PNR,J W.P.No.15050 of 2020 5 have a reasonable belief that the person is 'habitually' addicted to crime or to be an aid or abettor of crime. Such belief of Police Officer must be based on reasonable grounds. In Vijay Narain Singh, the Hon'ble Supreme Court explained what is meant by word 'habitually'. The Hon'ble Supreme Court said that 'habitually' would mean "repeatedly' or 'persistently'. In other words, according to the Hon'ble Supreme Court, there must be a repetitive acts to castigate a person as 'habitually' indulging in criminal activities and a single act or omission would not characterize an act as 'habitual'. Thus, two decisions relied by the respondents do not come to their aid in justifying the action of opening a rowdy- sheet on registration of a single crime and at any rate, continuing the said rowdy-sheet even after acquittal was granted by the competent Court.
9. In the counter-affidavit, though heavy reliance is placed on paragraphs- (B) and (G) of the Police Standing Order 601, these two clauses are not attracted to the case on hand. Having realized the same, learned Assistant Government Pleader sought to place reliance on paragraph-(F) of the Police Standing Order 601.
10. Right to life and liberty are sacrosanct to a person. A person is entitled to lead his life with dignity and self respect. Right to privacy flows 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 PNR,J W.P.No.15050 of 2020 6 surveillance on a person it must show justification, impelled to ensure peace and order in the society.
11. 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 were vividly analysed and dealt with extensively by two learned Judges of this Court, one of whom, Hon'ble Sri Justice B.Sudershan Reddy, adorned the office of Judgeship in the Supreme Court of India, in Mohammed Quadeer and others Vs. Commissioner of Police, Hyderabad and another3 and Sunkara Satyanarayana Vs State of Andhra Pradesh, Home Department and others4. In both these decisions it is held that PSOs are non statutory executive instructions and have no binding force of law. However, in the instant case, this aspect need not be elaborated further.
12. In Mohammed Quadeer and others, 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 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 3 1999 (3) ALD 60 4 1999 (6) ALT 249 PNR,J W.P.No.15050 of 2020 7 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."
13.1. In Sunkara Satyanarayana, it is held:
"23. Surveillance by the police makes very serious inroads into the life of a person. It even grossly violates the right of persons to privacy. Obtrusive surveillance does not leave a citizen alone. With the subtle methods of telephone tapping, telescope watching, remote controlled audio and video recording gadgets, a citizen subjected to surveillance can never have mental peace and thus his life and liberty at every movement would be restricted. A person with lot of restrictions cannot be expected to lead a dignified life and exercise his right to liberty and other freedoms. A citizen's life would become miserable. Such a situation is worse than animal existence, For these reasons can it be said that there is a 'right' against surveillance?
..... ....
30............Before examining the case law as decided by this Court, it is apposite to note the intention and objectives behind such provisions dealing with surveillance. There cannot be two opinions that police should vigorously enforce the law. It does not however mean that they should rigorously violate the constitutional values and constitutional rights. In enforcing the law they shall not violate the Supreme law of the Nation. The police are charged with responsibility of controlling crime. Control of crime necessarily involve prevention of crime. To prevent crime it is permissible that police should keep a person known to be habitual offender or known to be 'trouble maker' under a watch. What is most objectionable to civilized mind is the use of extra legal methods by the police for prevention of crimes. Surveillance of a person in an arbitrary and unreasonable manner and contrary to the provisions of law, is one such extra legal method which cannot be countenanced by the Constitutional Court.
31. Illegal surveillance makes arbitrary and obtrusive intrusions into one's right to privacy and violates Article 21 of Constitution of India. But keeping a person under unobtrusive watch to prevent crime and to maintain law and order, as authorised by law, is reasonable restriction permissible under the Constitution.
.... ....
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53. Therefore the right to privacy under Article 21 of the Constitution is a Human right essential for human dignity without which social justice cannot be achieved."
13.2. In paragraph-49 of Sunkara Satyanarayana, 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 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 followup at the end of a conviction or release from prison in every case.
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(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 8 PNR,J WP 2545 OF 2019 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."
14. The scope of the Police Standing Order - 601, the decisions of the Hon'ble Supreme Court in Dhanji Ram Sharma and Vijay Narain Singh, and several other decisions of the Hon'ble Supreme Court and this Court were considered by the learned single Judge of this Court in W.P.No.18142 of 2012. In the said case also, rowdy-sheet was opened after crime was registered against the petitioner therein. The rowdy-sheet was continued even though petitioner was acquitted by the competent Court. 14.1. The learned single Judge held as under:
"In the light of the afore-stated settled legal position, the opening of a rowdy sheet in the name of the petitioner on the basis of his involvement in a solitary criminal case was not sufficient to term him a 'habitual offender' under clause (A) of Order 601. Further, it is an admitted fact that he stood acquitted in the said case. Despite the same, the police authorities seem to have continued the rowdy sheet in his name. This Court therefore has no hesitation in holding that the opening of the rowdy sheet in the name of the petitioner and continuance of the same thereafter was in utter violation of the law laid down by this Court."
15. Per se, involvement in one crime cannot be treated as habitually addicted to crime or to be an aid or abettor of crime. Be that as it may, reference to crime No.15/2016 on the file of Hussaini Alam Police Station to continue rowdy-sheet is no more valid after the acquittal was granted by the competent Court.
PNR,J W.P.No.15050 of 2020 10 Thus, after 11.09.2019, on which date the Metropolitan Sessions Judge, Hyderabad rendered judgment in S.C.No.249 of 2019 acquitting the petitioner, there is no justification to continue the rowdy-sheet.
16. Accordingly, Writ Petition is allowed. Respondents are directed to close the rowdy sheet opened on 18.03.2016 in Hussaini Alam Police Station and petitioner shall not be called to the Police Station with reference to the earlier crime no.15/2016 and opening of rowdy-sheet on 18.03.2016. However, this order does not come in the way of respondents to take appropriate action as warranted by law, if petitioner is involved in any other crime. Pending miscellaneous petitions, if any, shall stand closed.
__________________________ JUSTICE P.NAVEEN RAO Date: 03.11.2020 kkm /tvk PNR,J W.P.No.15050 of 2020 11 HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.15050 of 2020 Date: 03.11.2020 kkm