Madras High Court
J. Boopalan vs Inspector Of Police, Pallavaram, ... on 19 April, 1991
Equivalent citations: 1992CRILJ1235
ORDER
1. One J. Boopalan, the petitioner herein, is residing at No. 15, Pillaiyar Koil Street, Pallavaram Cantonment, Madras-43, falling within the territorial jurisdiction of Pallavaram Police Station, to which the respondent herein is attached as Inspector of Police. He claims to have to his credit the following appellations, namely (1) Trade Union Leader; (2) Social Worker; and (3) Councillor of St. Thomas Mount-cum-Pallavaram Cantonment Board.
2. To his shock and dismay, he would say, he found his named displayed in the notice board of the respondent Police Station on 9-11-1990 in Serial No. 2 in the list of rowdies. The petitioner, invoking in inherent jurisdiction of this Court under section 482, Cr.P.C. came forward with the present action seeking for a direction for the removal of his name from the list of rowdies contending that such a display offends his fundamental right guaranteed under Articles 19 and 21 of the Constitution of India and that such inclusion, without his having been given any opportunity, offends principles of natural justice.
3. Learned Public Prosecutor would submit that the opening and maintaining of a list of rowdies containing the name of the petitioner in the respondent Police Station is an executive fiat and act of the police personnel, which cannot be called in question, invoking the inherent jurisdiction of this Court and if at all, he would know at the writ jurisdiction on the basis of existence of materials pointing out the violation of principles of natural justice or offending his fundamental right under Article 19 and 21 of the Constitution of India, and if there are no foundational of jurisdictional facts for the police personnel to derive subjective satisfaction for his inclusion in the list of rowdies.
4. Anxious consideration may now be made to the rival submissions.
5. A board spectrum of procedure for opening, maintaining, discontinuing or retaining of list of rowdies in Police Stations had been indicated in the sanguine provisions of Orders 779 and 778 as adumbrated in the Madras Police Standing Orders, Volume I (1960 Edition), which are as under :-
"779(1). The following persons shall be classed as suspects and history sheets shall be opened for them under orders of the Superintendent or Sub-Divisional Officer, if so empowered by the Superintendent :-
(a) Persons once convicted under any section of the Indian Penal Code who are considered to be likely to commit crime;
(b) Persons, not convicted, but believed to be addicted to crime.
(2) The following persons may be classified as rowdies and Rowdy Sheets (Form No. 125) may be opened for them under the orders of the Superintendent of Sub-Divisional Officer :-
(a) Persons who habitually commit, attempt to commit or abet the commission of offences involving a breach of peace.
(b) Persons bound over under sections 106 and 107, Criminal Procedure Code.
(c) Persons who have been convicted under section 75 of the Madras City Police Act or twice in two consecutive years under section 3, Clause 12 of the Towns Nuisance Act.
(d) Persons who are illicit distillers and known purveyors of liquor.
(e) Persons either convicted under section 49-A of the Madras City Police Act, 1886 (Madras Act III of 1888), or under section (4) of the Madras Gaming Act, 1930 (Madras Act III of 1930), or reasonably suspected to be habitually committing or abetting the commission of such offences.
"(3) The fact that a history sheet has been opened for a suspect, other than an ordinary criminal, shall be kept confidential.
(4) All registered rowdies should be kept under the same type of watch as is envisaged for registered suspects. The names of history-sheeted rowdies should be entered in the Station Check Register of K.Ds. and the rowdies should be checked regularly by beat Police Constables in rural Police Stations and by rowdy patrols in large towns as also by the Sub-Inspector (Law and Order) and Reserve Sub-Inspector. The checking however should be discreetly done by the method of enquiries and not in the manner of domiciliary checks.
(5) Inspectors and Sub-Divisional Officers, when they visit the area, should make their own independent enquiries and note their findings in the history-sheets and in Inspection Reports if any.
(6) All reports against notorious rowdies entered in the General Diary of the Station or matters brought to light on enquiries into petitions should be entered against them in the personal sheets and should be dated.
(7) Rowdies are often employed for committing breaches of peace and for intimidating opponents in times of political or communal tension. Inspectors of Police should take effective and timely action to control their activities. The active ones among these should be dealt with appropriately under section 110(e) and (f) of the Criminal Procedure Code or under section 160, I.P.C. or under section 75 of the Madras City Police Act and Section 106 of the Criminal Procedure Code.
In respect of persons coming under sub-clause (b) above, column 8 of the register should specify the category.
1. The names of all persons listed above shall be entered in the register in the chronological serial order of their conviction or coming to adverse notice, and as in the general conviction register, the previous serial number of persons who have come to notice before should be indicated below the current serial number in red ink.
2. Two indices, one alphabetical and the other village-wise or streetwise or Wardwise in the case of towns, of all persons entered in the register giving reference to the page number and serial number shall be maintained in the beginning of the register.
3. All entries in the register must be checked and verified once a year before the close of the second quarter. Names of persons dead or persons who have not come to adverse notice in the proceeding five years should be struck off by the Inspector of Police.
4. Names and other details of persons, who have moved to the limits of another station will be intimated to the station concerned by using a memorandum form and the page number of the register in which the conviction has been entered in the new stations should be ascertained and noted in the relevant page of the register of the station from which the rowdy moved to the new station limits.
5. This register should be used to open rowdy sheets for notorious rowdies who came to repeated notice. In the case of persons who have come to notice three times in the last three years a report for opening rowdy sheet should automatically be sent and orders of a Gazetted Officer obtained. The Gazetted Officer may use his discretion in assessing the potentiality of the rowdy and the need for a sheet. The rowdy sheets shall be in the same form No. 125 as in Order No. 779(2)."
6. A cursory perusal, if made of the provisions, as extracted above, makes it abundantly clear that if there are foundational or jurisdictional facts for the inclusion of the name of a person in the list of rowdies, it is very well open to the police personnel to exercise such a power. A rowdy list so prepared is capable of being discontinued or retained for further years only after obtaining the orders of appropriate authority. There is also a possibility for stricking of the name of any person from the list before the period specified by the authority concerned, if he is satisfied that there are sufficient grounds to do so. An order so passed cannot be any one other than that of an executive or administrative action. Whether the inherent jurisdiction of this Court can be invoked for interfering with that sort of an executive action or order would depend upon the interpretation of various clauses of Section 482, Cr.P.C. which runs as under :-
"432. Saving of inherent powers of High Court :-
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
7. On a cursory glance and first look of the provisions of the section, as extracted above, it may appear as if the section consists of three parts viz., :-
"(i) to make such orders as may be necessary to give effect to any order under this Code.
(ii) to prevent abuse of process of any Court; or
(iii) otherwise to secure the ends of justice."
But in reality, such a thinking is not warranted and this is made fluidly clear by the syntax of various clauses therein by the express incorporation and omission of a comma, after the phraseologies, 'under this Code' and 'process of any Court', respectively in the Section.
8. Viewed in the above light, the inherent power is there for the High Court only for two specified purposes viz., :-
"(i) to make such orders as may be necessary to give effect to any order under this Code; and
(ii) to prevent abuse of process of any Court or otherwise to secure the ends of justice."
9. Then comes for interpretation the relative scope and ambit of the aforesaid two clauses. The construction of the first clause by the usage of the language incorporated therein is so simple as to make one understand the meaning conveyed by the clause with ease and grace and without any difficulty whatever. This clause connotes that the inherent power of the High Court can come into free play for giving effect to any order under this Code. To put it otherwise, the inherent power cannot be exercised as against the express bar of law engrafted in any other provision of this Code.
10. The language used in the second clause, though appears to be as simple as the first clause, yet an insurmountable difficulty is posed in understanding the scope of the clause by extracting its meaning to the surface, hidden under the various words couched in the formation of the clause. This clause signifies that the inherent power of the High Court can only be extended to make suitable orders to prevent the abuse of process of the Court but it does not empower this Court to interfere with the orders passed by the Executive Authorities and the order under the section to secure the ends of justice must be in relation to a proceeding in this Court or any subordinate Criminal Court and that proceeding too must have a judicial character and not of an executive or administrative one.
11. Worthwhile it is to note at this juncture, the decisions of other High Courts on the subject. In Ahmad Din v. Rijha Singh, , a learned Judge of the Allahabad High Court observed that Section 561A empowers the High Court to interfere if necessary when something contrary to law has been done by a subordinate Court. It thus presupposes that there is an order of a Court. But where an order is passed by a Magistrate in his executive capacity, his order cannot be interfered under section 561-A (Section 482 of new Cr.P.C.) as that section has no application in such a case.
12. In re. Devaiah, another learned Judge of the Andhra Pradesh High Court observed that Section 561-A, Cr.P.C. (Section 482 of new Cr.P.C.) preserves the inherent power of the High Court to make suitable orders :-
(1) to give effect to any order under this Code;
(3) to prevent abuse of process of the Court;
(3) it does not empower the High Court to interfere with executive authorities; and (4) the order under the section to secure the ends of justice must be in relation to a proceeding in the High Court or any subordinate criminal Court and that proceeding too must have judicial character and not of an executive or administrative one.
13. In Kula Chandra Dutt v. Emperor, AIR 1946 Patna 191 : (47 Cri LJ 339), a learned Judge of the Patna High Court observed that S. 561-A (Section 482 of new Cri PC) comes into operation only when the impugned order is passed by a 'Court' and that if the order moved against in the High Court is one passed by Executive Officer of the Court in this administrative capacity, S. 561-A is not attracted.
14. In K. Sudesthamma v. State of A.P., 1985 Cri LJ 1890, a learned Judge of the Andhra Pradesh High Court had occasion to consider whether the order of the Government granting or refusing parole in contravention of the rules framed under section 432(5), Cr.P.C. could be challenged by invoking the inherent jurisdiction under section 482, Cr.P.C. and it was laid down as follows :-
"Herein the case before us, the parole is an administrative order and not even a quasi-judicial order and therefore, S. 482 of the Code of Criminal Procedure is not applicable to the facts of this case. Thus, even though the order passed by the Government, in granting parole to the respondents is bad in law, in view of the fact that the application before me is filed under S. 482 of the Code of Criminal Procedure, the same is liable to be dismissed, and the same is dismissed accordingly."
15. In an unreported decision rendered in Cr.M.P.C. No. 6482 of 1990 and batch of cases dated 3-1-1991, a Division Bench of this Court observed as follows :-
"The question whether this Court's power under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), extends over in any order of an appropriate Government passed under Section 432 of the Code, or, in other words, whether this Court can issue a direction to the appropriate Government exercising its inherent power under section 482 of the Code to release a convict on parole, has been brought before us on a reference by Janarthanam, J who has said :
"The phraseology 'to secure the ends of justice', if properly interpreted, as advanced as earlier, would mean in the context that it is in relation to a proceeding in the High Court or any subordinate Court and that proceeding too must have a judicial character and not of an executive or administrative one.' ..............
"The law abovesaid thus leave no manner of doubt that the provisions in Chapter XXXII of the Code of Criminal Procedure, 1973, which includes Section 432 are like powers under Articles 72 and 161 of the Constitution exclusively for the Executive and operate in a field which does not either affect or embrace the judicial functions of the Court. Howsoever extended meaning the Court may intend to give to the words in Section 482 of the Code, one must always remember that any order to secure the ends of justice or to give effect to the order under the Code does not and cannot mean a supervisory power to the Court over the executive functions of the State Government or the Governor of the State or the Union Government or the President of India. Although included as a provision in the Code of Criminal Procedure, the executive power of the State to suspend or remit sentence and the power of the Governor and the President to the said extent to accord pardon etc., are executive powers which are beyond the reach of a regular Court of law. Section 483 of the Code of Criminal Procedure and Art. 227 of the Constitution of India together recognise the High Court's supervisory power over the Courts and Tribunals including the executive actions which affect any right or interest, but they do not cover such powers of the State Government or of the Governor which he exercises with the aid and advice of the Council of Ministers of the State or of the President which he exercises with the aid and advice of the Council of Ministers of the Union Government. Section 482 of the Code of Criminal Procedure thus is not available to any person or to the Court to interfere with the order passed by the executive Government after the conviction and sentence recorded by the Court. Such orders however are not completely free from any judicial control. The Supreme Court has in several judgments said that so long as the question arises whether an authority under the Constitution has acted within the limits of his power or exceeded it, it can certainly be decided by the Court. Indeed, it would be its constitutional obligation to do so (See State of Rajasthan v. Union of India, and Minerva Mills Ltd. v. Union of India, . In Kehar Singh v. Union of India (supra) , the Supreme Court has pointed out that the question as to the area of the President's Power under Art. 72 fails squarely within the judicial domain and can be examined by the Court by way of judicial review, but cautioned that the function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or Legislative conferment of Power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the Court but not the merits of the case upon which the executive decision is taken. In our considered view therefore, while a judicial review to the limited extent indicated above will be permissible in exercise of the powers of this Court under Art. 226 of the Constitution of India, it will not be so permissible in exercise of its inherent criminal jurisdiction saved under Section 482 or the Code of Criminal Procedure, 1973. The reference is answered accordingly".
16. In the light of the settled position of law, an indicated above, the Petitioner's remedy cannot lie under section 482, Cr.P.C.
17. As such, the Petition deserves to be dismissed and is accordingly dismissed.
18. Petition dismissed.