Jammu & Kashmir High Court
Rakesh Choudhary vs Union Territory Of J&K Through on 2 March, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 09.02.2024
Pronounced on 02.03.2024
WP(C) No. 371/2022
Rakesh Choudhary, Age 51 years .....Appellant(s)/Petitioner(s)
S/o. Sh. Koula Ram Choudhary
R/o. 51, B/D, Gandhi Nagar, Jammu
Through: Mr. M. K. Bhardwaj, Sr. Adv. with
Mr. Gagan Kohli, Adv.
Q
vs
1. Union Territory of J&K through ..... Respondent(s)
Principal/Secretary to Govt. Home
Home Department, Civil Secretariat,
Jammu
2. Senior Superintendent of Police,
Jammu
3. Superintendent of Police, South,
Jammu
4. SDPO Gandhi Nagar, Jammu
5. SHO Police Station, Gandhi
Nagar,Jammu
Through: Ms. Monika Kohli, Sr. AAG
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioner has sought a direction upon the respondents to delete his name from the History Sheet Register, Surveillance Register with a further direction to remove his photograph form the Police Station, Gandhi Nagar, Jammu.
2. Briefly stated case of the petitioner is that he is a business-man and is one of the highest tax payers of the Union Territory of J&K. According to the petitioner, due to his success in business activities, he has developed rivalry with his competitors, as a result of which, a number of false and frivolous 2 WP(C) No. 371/2022 cases came to be registered against him. It has been submitted in the year 2009, the petitioner was implicated in a case, titled, State vs. Jatinder Singh and others and he was charged for offences under Sections 409 and 120-B RPC. Vide judgment dated 10.08.2020, the learned trial court is stated to have acquitted the petitioner of the aforesaid charges. It has been averred that due to false implication in the aforesaid case, his name was entered in the history sheet. When he was acquitted of the charges, he approached Police Station, Gandhi Nagar, Jammu for removal of his name from the history sheet, but without any success. Hence the present writ petition.
3. The respondents in their reply have stated that the petitioner was a history sheeter of Police Station, Satwari and his history sheet was opened in the said Police Station on 15.12.2009. Due to change of the residence of the petitioner, the aforesaid history sheet was transferred from Police Station, Satwari to Police Station, Gandhi Nagar, Jammu pursuant to letter No. CRB/2021/81818/DPOJ dated 09.12.2021 issued by the District Police Office. According to the respondents, the name of the petitioner is existing in history sheet of Police Station, Gandhi Nagar under Bundal B. It has been submitted that the petitioner is involved in FIR No. 247/2009 for offences under Sections 302/34, 201 and 120-B RPC and 3/25/27 of the Arms Act of Police Station, Gandhi Nagar as also in FIR No. 275/2009 for offences under Sections 161 and 165-A RPC and 5(2) P. C. Act of Police Station, Gandhi Nagar, Jammu. Besides these cases, the petitioner is also stated to be involved in FIRs bearing No. 8/2022, 56,/2022, 100/2022, 144/2022 and 150/2022 registered with different Police Stations of District, Roop Nagar, Punjab. It has been further submitted that the petitioner is also 3 WP(C) No. 371/2022 involved in a complaint bearing No. 76/6-10 dated 18.06.2019 under Sections 107 and 117 Cr.P.C. filed by Police Station, Gangyal before Executive Magistrate 1st Class, Bahu Jammu. On the strength of aforesaid facts, the respondents have submitted that the name of the petitioner cannot be removed from the history sheet of Police Station, Gandhi Nagar, Jammu.
4. I have heard learned counsel for the parties and I have also gone through the record produced by Ms. Monika Kohli, Sr. AAA on behalf of the respondents.
5. Rules 702, 703 and 704 of the J&K Police Rules govern the preparation of history sheet, prescribe the manner in which history sheet is to be opened as also its custody. These Rules are reproduced as under:
"702. Preparation of history sheets: The initial preparation of a history sheet requires great care, and should invariably be done by the officer incharge of the police station himself or by a thoroughly experienced Assistant Sub Inspector under specific orders.
(1) The description of the criminal should be such as will enable the person reading it to form for himself a picture of the individual described, special attention being given to peculiarities of appearance, gait, speech, etc., by means of which the man may be distinguished.
(2) The space for 'relations and connections' should be filled in with a view to affording clues to those persons with whom the criminal is likely to harbour when wanted by the police, including relations or friends living at a distance from his home and his associates in crime, abettors and receivers, The particular nature of each person's connection should be noted against each, and, when persons shown as connections themselves have history sheets, a cross reference with those sheets should be given.
(3) Under property, and mode of earning livelihood, such particulars should be entered as will facilitate a judgment as to whether the criminal is at any time living beyond his means;
whether he is capable of furnishing a personal recognizance of any value; whether he is an owner of property, a tenant or a wage- earner, and so on.
(4) The description of crime to which addicted should be in some detail, showing not merely the class of crime, but the particular type of that crime, methods followed, localities oftenly frequented, weapons or instruments used, etc. 4 WP(C) No. 371/2022 When these particulars have been carefully and concisely entered, the initial entry on the reverse side of the form should be made in the form of a summary of the individual's criminal career up to the date of his history sheet being prepared, and should include the particular reasons and authority for its being prepared. Copies of history sheets prepared and published by the Criminal Investigation Department and published in the Criminal Intelligence Gazette shall be filed with the history sheets of the persons concerned in their home police stations. The police station history sheets in all such cases shall be endorsed with the letters C.I.D. and the Criminal Provincial numbers in red ink. The activities of all such criminals subsequent to the publication of their provincial history sheets must be communicated promptly to the Criminal Investigation Department.
703. History sheets when opened (1) A history sheet, if one does not already exist, shall be opened in Form 183 for every person whose name is entered in the surveillance register, except conditionally released convicts. (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 person.
704. Custody of history sheets:
(1) The history sheets at each police station shall be kept in three separate bundles as follows:-
(a) Bundle containing the history sheets of persons whose names are entered in the surveillance register.
(b) Bundle containing the history sheets of persons whose names are not entered in the surveillance register and which have not been removed to personal files under rule 706. In this bundle should be recorded the history sheets of persons who (1) have been removed from surveillance on probation owing to there being no recent complaints against them, but who cannot be said definitely to be no longer addicted to crime, (2) have been the subject of action under rule 726, but have not yet been placed on security for good behaviour or under surveillance.
(c) Bundle containing the history sheets of Bad characters undergoing sentences of imprisonment sufficiently long to justify the removal of their names from the surveillance register until their release. These history sheets shall be put up by the officer in charge of the police station before a gazetted officer for orders six months before the nominal date of the release of the Bad Character concerned.
(2) In each bundle, the history sheets of each village shall be kept in a separate cover on the inside of which a list of the history sheets 5 WP(C) No. 371/2022 pertaining to the village with their index serial numbers shall be maintained."
6. From a perusal of Rule 702, it is clear that at the time when the history sheet of a person is opened, a great care and caution has to be exercised by the officer incharge of the Police Station or any other competent officer. The said Rule provides the particulars and the manner in which those particulars are to be recorded in the history sheet. A coordinate Bench of this Court had an occasion to interpret Rule 702 of the J&K Police Rules in the case of Bashir-Ud-Din vs Union Territory of J&K and others, WP(Crl) No. 37/2023 decided on 15.09.2023. The Court, while interpreting the aforesaid Rule observed as under:
"10. A perusal of the aforementioned rule shows that the preparation of a history sheet is not expected to be a mechanical exercise. The description of the crime to which person is addicted, should be set out in detail in particular. The Police Rules also do not leave the matters at the sole discretion of any one police officer, as the same is required to be dealt with by the senior officers as well. All materials have to be considered and no relevant material should be excluded from consideration. There has to be a deliberated decision taken, giving reasons which should reflect application of mind to such materials, after all being leveled a history sheeter as grave and adverse consequence for a person and, therefore, such a power should be exercised with caution and responsibility.
11.........
12. So long as surveillance is for the purpose of preventing crime, there cannot be any complaint about inclusion of a name in the surveillance register, however, the entry has to be made on the basis of the material provided by history sheet, whose contents by their very nature have to be confidential. There must be sufficient material to justify inclusion of the name in the surveillance register. Ordinarily, the names of the persons with previous criminal record alone are entered in the surveillance register. They must be proclaimed offenders, previous convicts or persons who have already been placed on security for good behaviour. In addition, the names of the persons, who are reasonably believed to be habitual offenders or receivers of the stolen property whether they are convicted or not, may also be entered in the surveillance register. It is only in the case of this category of persons that there may be 6 WP(C) No. 371/2022 occasion of use of power by the police to make entry in the surveillance register."
7. In the same judgment, the Court in paras 13 and 14 also discussed as to in what manner, subjective satisfaction has to be arrived at by the officer opening a history sheet in respect of a person's history sheet. The same are reproduced as under:
"13. The criteria for opening a history sheet 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 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, the activities of such persons which are informative and useful, based on the facts ascertained by the police from the date of last entry shall be made month-wise for close watch of characters and quarterly for non-close watch of characters. The discretion of the authorities has to be exercised, 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 arbitrarily vague, fanciful, but legal and regular and it must be exercised within the limit to which an honest man competent to discharge of his office or to confine himself.
14. Branding a person as a history sheeted 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. Characterization 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 life, but there is every likelihood of damage being caused to 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 the time of opening a history sheet, the individual is not informed of a 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/she cannot be condemned arbitrarily. It is also to be borne in mind that estrangement of the members of the history sheeted person in social gathering etc., is not uncommon in order in our society. Therefore, opening or retention of history sheets, which interferes with the 7 WP(C) No. 371/2022 right of privacy of a person, should be done strictly, adhering to parameters inbuilt in the police rules, keeping in mind the object sought to be achieved."
8. From the foregoing analysis of law on the subject and having regard to the mandate of law laid down in Rule 702 of the J&K Police Rules, it is clear that before branding a person as a history sheeter and entering his particulars in history sheet, a great care and caution has to be taken by the officer. While surveillance of movement of a person, is permissible in accordance with the provisions contained in the J&K Police Rules but at the same time, as individual's right to respect his private and family life, has to be recognized. There cannot be any interference by the Police with the exercise of right of privacy of a person except in accordance with the law. While for the purposes of public safety and prevention of disorder order and crime, it is necessary that the Police is allowed to keep a surveillance on an individual on the basis of credible material available with the Police, but at the same time, it cannot be an arbitrary exercise of power on the part of the Police and there cannot be any excessive surveillance so as to intrude and offend the dignity of an individual. Thus, the name of a person can be entered into the history sheet only on the basis of the subjective satisfaction of the competent authority and in the manner as provided under the J&K Police Rules.
9. Reverting to the facts of the instant case, the name of the petitioner was included in the history sheet in the year 2009 by SHO Police Station, Satwari. The relevant record produced by the official respondents reveals that the same has not been maintained in accordance with the provisions contained in Rule 702 of the J&K Police Rules. A perusal of the record 8 WP(C) No. 371/2022 would reveal that even the age and height of the petitioner is not mentioned in the relevant entry. Sub Rule (1) of Rule 702 of the J&K Police Rules clearly provides that description of the criminal has to be given in the history sheet so as to enable the person reading it to form a picture of the individual described. It further provides that peculiarities of appearance, gait, speech etc by means of which a man can be distinguished have to be recorded in the history sheet.
10. As already indicated not even the age and height of the petitioner is indicated in the history sheet opened by the Police Station Satwari. On top of it, the history sheet is not even signed by the SHO or any other authority of the Police, at the time it was opened in the year, 2009. So there has been total non application of mind reflecting mechanical functioning of the Police Authorities who have opened the history sheet of the petitioner in the Police Station, Satwari. The provisions of Rule 702 of the J&K Police Rules have been thrown to wind while opening the history sheet at the initial stage. The said Rule, as already stated, mandates that a great care and caution has to be taken at the time of initial preparation of the history sheet but in the instant case, the care on the part of the officer, who has opened the history sheet of the petitioner, is clearly lacking.
11. Upon transfer of the history sheet to Police Station, Gandhi Nagar in the year 2021, it does appear that necessary particulars of the petitioner have been recorded in the history sheet and the same is signed by the SHO Police Station, Gandhi Nagar. The history sheet as is revealed from the record has been opened against the petitioner on the basis of registration of FIR bearing No. 247/2009 and FIR No. 275/2009, both registered with Police 9 WP(C) No. 371/2022 Station, Gandhi Nagar, Jammu. So far as the case arising out of FIR 247/2009 is concerned, the same has been decided by learned 2nd Additional Sessions Judge, Jammu vide judgment dated 10.08.2020 and the petitioner has been acquitted of the charges. The case arising out of FIR bearing No. 275/2009 has been closed after investigation as no offence was established against the petitioner although it has been stated that the said case is under further investigation.
12. The aforesaid facts are not in dispute. Therefore, what comes to the fore is that the cases on the basis of which, the history sheet of the petitioner was opened in Police Station, Satwari, have either resulted in his acquittal or he could not even be challaned on account of lack of supporting material. So far as complaint filed by Police Station, Gangyal against the petitioner before the Executive Magistrate 1st Class, Bahu Jammu under Sections 107 and 117 Cr.P.C. is concerned, the same stands dismissed in terms of order dated 17.04.2021 passed by the Executive Magistrate 1st Class, Bahu Jammu.
13. Thus from the year, 2009, when the history sheet was opened against the petitioner until 2022, no criminal or any other suspicious activities have been reported in the history sheet of the petitioner. The continuance of the petitioner's name in the history sheet, in such circumstances, when the cases on the basis of which history sheet was opened against him, have either resulted in his acquittal or no offence has been made out against him, cannot be justified. In fact a coordinate Bench of this Court in the case of Jagar Singh vs U. T of J&K and others, WP(C) No. 612/2023 decided on 15.11.2023, has directed the respondents to discontinue the entry of the 10 WP(C) No. 371/2022 name of the petitioner therein in the Surveillance Register. It is pertinent to mention here that the petitioner therein was a co-accused in both the FIRs i.e. FIR Nos. 247/2009 and 275/2009 and the Court after noticing the fact that none of these FIRs had resulted in implication of the petitioner therein, allowed his petition for removal of his name from the history sheet. The petitioner, therefore, deserves the same relief on the grounds of parity.
14. It has been contended by the learned counsel for the respondents that recently in the year, 2022, the petitioner has been found involved in as many as five FIRs registered in the State of Punjab, therefore, his continuance in history sheet is necessary. If we have a look at the FIRs of the year, 2022, which are mentioned in the reply filed by the respondents, all these cases are relating to offences under Mines and Minerals Development Act. The petitioner has placed on record copies of orders passed by the High Court of Punjab and Haryana, whereby the cognizance of the offences in respect of these FIRs has been stayed. Apart from this, it is an admitted case of the parties that the petitioner is a business man. It is also recorded in the history sheet that the petitioner is associated with the business of Mining at Chandigarh and Punjab. In these circumstances, registration of cases under Mines and Minerals Development Act, which are not serious in nature, is not such a supervening circumstance, as would offer a ground to the respondents to continue the name of the petitioner in the history sheet.
15. Once there is a long interval between involvement of a person in different cases, such a person cannot be termed as a habitual offender so as to warrant his entry in the history sheet. In the instant case, there has been no 11 WP(C) No. 371/2022 history of involvement of the petitioner in any criminal activity right after the year 2009 to the year, 2022. As already indicated, the cases in which the petitioner has been found to be involved in the year, 2022 are petty in nature and are related to his business activity of mining. Therefore, it cannot be stated that the petitioner is a habitual offender.
16. In view of what has been discussed hereinbefore, it is clear that initial entry of the petitioner in the history sheet by the Police Station, Satwari has been made in a mechanical manner without due care as the said entry has not been even signed by the officer, who has recorded the same. Thus, the history sheet of the petitioner has been opened in total violation of Rule 702 of the J&K Police Rules. Besides this, the cases on the basis of which entry of the petitioner in the history sheet has been made, stand closed, upon his exoneration. Thirdly, there has been long interval between the activities on the basis of which, history sheet was opened against the petitioner and the registration of fresh cases in the year, 2022, which are petty in nature.
17. For all the aforesaid reasons, continuance of the petitioner's name in register of history sheet is not warranted in law. Accordingly, the instant writ petition is allowed and the respondents are directed to remove the name of the petitioner from the History Sheet/Surveillance Register.
(SANJAY DHAR) JUDGE Jammu 02.03.2024 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No