Telangana High Court
Abbu Misri vs The State Of Telangana on 21 June, 2021
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.4838 OF 2021
ORDER:
The present Writ Petition is filed by the petitioners under Article - 226 of the Constitution of India seeking to issue a writ of mandamus declaring the action of respondents in opening and maintaining rowdy sheet against them as illegal, arbitrary and violation of Articles - 14, 19 (1) (e) and 21 of the Constitution of India and for a consequential direction to the respondents to close the rowdy sheet maintained against the petitioners by considering their representation dated 21.01.2021.
2. Heard Mr. Mohd. Muzafferullah Khan, learned counsel for the petitioners and Mr. S. Rama Mohan Rao, learned Assistant Government Pleader for Home & Law appearing on behalf of the respondents.
3. The contentions of the petitioners are as under:
(i) respondent No.4 - Kalapather Police Station has falsely implicated them as accused Nos.5 and 6 in Crime No.105 of 2019 against them and others for the offences punishable under Sections - 147, 148, 120B, 302 and 506 read with 109 and 149 of IPC;
(ii) the police without conducting the investigation properly arrested the petitioners;
(iii) later, respondent No.4 has filed charge sheet against the petitioners and others in the said crime and the same was 2 KL,J W.P.No.4838 of 2021 numbered as P.R.C. No.9 of 2020 on the file of Special Judicial Magistrate of First Class for Excise Cases at Hyderabad;
(iv) respondent No.4 has opened a rowdy sheet against them basing on the aforesaid single crime;
(v) under the guise of opening and maintaining the said rowdy sheet, the police are harassing the petitioners by calling them to the police station which is causing serious hardship to their livelihood as petitioner No.1 is a travel agent and he is the only bread earner in his family, while petitioner No.2 is aged 70 years and suffering from old age ailments;
(vi) basing on pendnecy of a single crime, police officials cannot open and maintain a rowdy sheet against the petitioners;
(vii) a person should be a habitual offender for the purpose of opening and maintaining of rowdy sheet; and
(viii) placed reliance on the principle laid down by the Apex Court and this Court in Dhanji Ram Sharma v.
Superintendent of Police, North District, Delhi Police1 and reiterated in Vijay Narain Singh v. State of Bihar2 and the judgment of High Court of Andhra Pradesh in Umesh Singhaniya v. The Commissioner of Police, Hyderabad3. With the said submissions, learned counsel for the petitioners sought to declare the action of the respondents in not closing the rowdy sheet as 1 . AIR 1966 SC 1766 2 . AIR 1984 SC 1334 3 . 2013 (3) ALT 146 3 KL,J W.P.No.4838 of 2021 illegal and for a consequential direction to close the above said rowdy sheet opened against the petitioners.
4. The contentions of the respondents are as under:
(i) the petitioners are having unlawful character locally, indulging continuously in the commission of lawless acts involving breach of public peace and tranquility;
(ii) the petitioners were involved in the following cases:
S.No. Crime No. Offences Remarks
Charge sheet was filed
Sections - 147, 148, and the same was taken
120B, 302 and 506 on file vide P.R.C. No.9
01. 105/2019 read with 109 and 149 of 2020 by the Special
of IPC against both Judicial Magistrate of
petitioners First Class for Excise
Cases at Hyd.
Charge sheet was filed
vide SR No.3795 of
Sections - 341 and 2014 dated 25.06.2014
02. 19/2014 506 of IPC against on the file of the Chief
petitioner No.2 Metropolitan Magistrate,
Nampally, Hyd. and the
same is pending trial.
The Executive
Section - 107 of Magistrate bound over
03. 160/2019 Cr.P.C. against both the petitioners for good
petitioners behavior on 24.10.2019.
-do- against petitioner
04. 250/2020 No.1 -do- on 17.11.2020
(iii) as per the A.P. Police Manual, Order No.601, certain
persons may be classified as rowdies and rowdy sheets may be opened against them, and the case of petitioners would squarely fit for opening the rowdy sheet; and 4 KL,J W.P.No.4838 of 2021
(iv) in view of involvement of the petitioners in the aforesaid criminal cases, to curb and curtail is unlawful activities, the respondents have opened rowdy sheet by the Kalapather Police Station.
With the said submissions, the learned Assistant Government Pleader sought to dismiss the writ petition.
5. In view of the said rival submissions, it is opt to refer to the relevant clauses of the A.P. Police Manual. Maintenance of rowdy sheets is governed by Standing Order 601 of the A.P. Police Manual, Part-I, Volume II, which reads as under:-
"601. The following persons may be classified as rowdies and Rowdy Sheets (Form 80) may be opened for them under the orders of the SP/DCP and ACP/SDPO.
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.
B. Persons bound over under Sections 106, 107, 108(1) (i) and 110(e) and (g) of Cr.P.C. C. Persons who have been convicted more than once in two consecutive years under sections 59 and 70 of the Hyderabad City Police Act or under section 3, clause 12, of the AP Towns Nuisances Act. D. Persons who habitually tease women and girls and pass indecent remarks.
E. Persons who intimidate by threats or use of physical violence or other unlawful means to part with movable or immovable properties or in the 5 KL,J W.P.No.4838 of 2021 habit of collecting money by extortion from shopkeepers, traders and other residents. F. Persons who incite and instigate communal/caste or political riots.
G. Persons detained under the "AP Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986" for a period of 6 months or more.
H. Persons who are convicted for offences under the Representatives of the Peoples' Act for rigging and carrying away ballot paper, Boxes and other polling material."
6. Likewise, the period of retention of history sheets of suspects / rowdies is governed by Standing Order 602, which reads as follows:-
"602- 1. History Sheets of suspects shall be maintained from the date of registration up to the end of December, after which the orders of a gazetted officer as to their discontinuance or retention for a further period shall be obtained.
2. Merely because a suspect/rowdy, having a history sheet, is not figuring as accused in the previous 5 years after the last case in which he was involved, it should not preclude the SP/DCP/CP to continue his history sheet if SP/DCP/CP is of the considered view that his activities are prejudicial to the maintenance of public order or one affecting peace and tranquillity in the area or the victims are not coming forward to give complaint against him on account of threat from him."6
KL,J W.P.No.4838 of 2021
7. Standing Order 742 of A.P. Police Standing Orders deals with the situation as to classification of rowdies and opening of rowdy sheets, which is extracted below:-
"742. Rowdies:- (1) The following persons may be classified as rowdies and Rowdy Sheets (Form 88) may be opened for them under the order of the Superintendent of Police or Sub-divisional Officer:
a) persons who habitually commit, attempt to commit or abet the commission of, offences involving a breach of the peace;
b) persons bound over under Sections 106, 107, 108(c) and 110(1) of the Code of Criminal Procedure, 1973 (Act No.2 of 1974);
c) persons who have been convicted more than once in two consecutive years under Section 75 of the Madras City Police Act or under Section 3, clause 12, of the Towns Nuisances Act;
d) persons who habitually tease women and girls by passing indecent remarks or otherwise; and
e) in the case of rowdies residing in an area under one Police Station but are found to be frequently visiting the area under one or more other Police Stations their rowdy sheets can be maintained at all such Police Stations;
(G.O. Ms. No. 656, Home (Police-D) Dept. Dt. 8-4-1971) (2) Instructions in Order 735 regarding discontinuance of History Sheets shall also apply to Rowdy Sheets."
8. According to the respondents, the petitioners were involved in the above said four crimes.
7
KL,J W.P.No.4838 of 2021
9. As per Standing Order 601 of the A.P. Police Manual, rowdy sheet can be maintained against persons who habitually commit, attempt to commit or abet the commission of offences involving a breach of peace, disturbance to public order and security.
10. Refuting the same, the learned counsel for the petitioners would submit that out of the said four crimes, Crime Nos.105 2019 and 160 of 2019 and 250 of 2020 were registered against petitioner No.1, out of which, Crime No.105 of 2019 was registered under the provisions of IPC, while Crime Nos.160 of 2019 and 250 of 2020 were registered under the provisions of Cr.P.C. More over, one year period has already expired in Crime No.160 of 2019 and thus, only two crimes are pending against petitioner No.1 of which one is under the provisions of IPC and another is under the provisions of Cr.P.C. The crime registered under the provisions of Cr.P.C. cannot be equated with the offences under the provisions of IPC. Therefore, only one crime is pending against petitioner No.1 for the offence under the provisions of IPC.
i) As far as petitioner No.2 is concerned, the learned counsel for the petitioners would further submit that Crime Nos.105 of 2019, 19 of 2014 and 160 of 2019 were registered against petitioner No.2. Out of the said three crimes, Crime Nos.105 of 2019 and 19 of 2014 were registered under the provisions of IPC while Crime No.160 of 2019 was registered under the provisions of Cr.P.C. One year period has already expired in Crime No.160 of 2019 and, therefore, only two crimes are pending against him.
8
KL,J W.P.No.4838 of 2021
11. The Apex Court had an occasion to deal with the opening of history sheets, continuation of the same and also right to privacy in Kharak Singh v. The State of U. P.4. In the said case, rowdy sheet was opened against the petitioner therein and the same was continued. Under the guise of surveillance, the police started visiting the house of the petitioner therein against whom rowdy sheet was opened and pending during night hours and they used to torture him. The Apex Court declared the domiciliary visits at night hours as unconstitutional.
12. In Vijay Narain Singh2, a three Judge Bench of the Apex Court had an occasion to deal with the expression 'habitually' and held that the expression 'habitually' would mean 'repeatedly' or 'persistently' implying a thread of continuity, stringing together similar repetitive acts, and a single act or omission would not characterize an act as 'habitual'. The Apex Court was of the opinion that to qualify as a 'habit', a person must have grown accustomed to leading a life of crime, whereby it would be a force of habit, inherent or latent, in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to society in general.
13. In Dhanji Ram Sharma1, a three Judge Bench of the Apex Court held that the condition precedent for opening of a history sheet is that such person should be reasonably believed to be habitually addicted to crime or to be an aider or abettor of crime. In order to justify the 4 . AIR 1963 SC 1295 9 KL,J W.P.No.4838 of 2021 opening of a history sheet, the Hon'ble Supreme Court opined that the police officer must have a reasonable belief based on reasonable grounds.
14. In Sunkara Satyanarayana v. State of Andhra Pradesh5 a learned Single Judge was concerned with the maintenance of history sheets/rowdy sheets for considerably long periods of time and held that the same would not only violate the right of privacy but also other fundamental rights of such persons under Articles 14 and 19 of the Constitution of India. Orders for opening or retention of history sheets/rowdy sheets should be passed under administrative instructions and guidelines and if such orders are challenged, the competent authority has to place the reasons before the Court justifying the opening/retention of such history sheets/rowdy sheets. It would be better for the police officer concerned to record his own reasons for opening/retention of history sheets/rowdy sheets.
15. In B. Satyanarayana Reddy v. State of Andhra Pradesh6, a Division Bench held that the expressions 'habitually commit', 'attempt to commit' and 'abet the commission' of offences indicate the requirement that at least 'two or more cases' have bee been registered against the person concerned to characterize him as a person who habitually commits, attempts to or abets the commission of offences. It was further held that involvement of a person in a solitary case would not be enough to classify such person as 'habitually' committing offences. With the said finding, the Division Bench held that solitary instance in 5 . 2000(1) ALD (Crl.) 117 (AP) 6 . 2004(1) ALD (Crl.) 387 (AP) 10 KL,J W.P.No.4838 of 2021 which the appellant therein was alleged to be involved in could not constitute the basis to classify him as a 'rowdy.'
16. In Majid Babu v. Government of A.P.7, it was held that two instances of involvement in criminal cases would not make a person a 'habitual offender' and that at least more than two instances should be present before a person can be described as a habitual offender.
17. In Kamma Bapuji v. Station House Officer, Brahmasamudram8, wherein the persons in whose names rowdy sheets were opened were involved in two cases but they were acquitted in both, it was sought to be contended on behalf of the police authorities that the rowdy sheets were opened during the pendency of the cases and that acquittal therein would be of no consequence thereafter. While dealing with the said facts of the said case, the learned Judge rejected the said contention and held that rowdy sheets could not be opened in a casual and mechanical manner and a person could not be dubbed a 'habitual offender' merely because he was involved in two criminal cases.
18. In Puttagunta Pasi v. Commissioner of Police, Vijayawada9, a Division Bench confirmed the said principle holding that a rowdy sheet could not be opened against an individual in a casual and mechanical manner and due care and caution should be taken by the police before characterizing a person as a rowdy. The Division Bench expressed agreement with the view taken by the learned Single Judge in 7 . 1987(2) ALT 904 8 . 1997 (6) ALD 583 9 . 1998(3) ALT 55 (DB) 11 KL,J W.P.No.4838 of 2021 Kamma Bapuji8 that figuring as an accused in two crimes would not be sufficient to categorize a person as a 'habitual offender'.
19. In Mohammed Quadeer v. Commissioner of Police, Hyderabad10 it was held that A.P. Police Standing Orders were not statutory in nature and were only a compilation of government orders issued from time to time and they therefore did not invest the police officers with any powers of arrest, detention, investigation of crimes etc. not specifically conferred under the Code of Criminal Procedure, 1973, or other enactments. As regards retention of a rowdy sheet, it was held that opening of a rowdy sheet against a citizen was undoubtedly fraught with serious consequences and the right to reputation under Article 21 of the Constitution could not be deprived except in accordance with the procedure established by law. The law which authorizes the police to open rowdy sheets and exercise surveillance would have to be very strictly construed.
20. In Yerramsetti Venugopal Rao v. State of Andhra Pradesh11, a learned Single Judge of the High Court of Andhra Pradesh at Amaravathi referring to the above said provisions of the A.P. Police Manual and the principles laid down in the above said judgments held that history sheet of a rowdy can be continued (i) if his activities are prejudicial to the maintenance of public order or affecting peace and tranquility in the area; and (ii) the victims are not coming forward to give complaint against him on account of threat from him. 10 . 1999(3) ALD 60 11 . 2020 (2) ALD (Crl.) 1048 (AP) 12 KL,J W.P.No.4838 of 2021
21. In W.P.No.19194 of 2012 dated 24.08.2015, by referring to the above said provisions of the A.P. Police Manual and also the principles laid down in the aforesaid judgments, it was held that the requirement of involvement in at least more than two cases for inferring that he was a habitual offender was not established. The opening of the rowdy sheet in the name of the petitioner therein was therefore tainted in law in its very inception. Therefore, continuation of the said rowdy sheet by the police authorities ignoring the law laid down by this Court as well as the Supreme Court cannot be sustained. Accordingly, with the said finding, the respondents therein were directed to close the rowdy sheet being maintained in the name of the petitioner therein.
22. In another judgment in W.P.No.18364 of 2020 dated 03.12.2020, a learned Judge of this Court, after referring to the principle laid down by the Apex Court in Vijay Narain Singh2 and also referring to the Police Standing Orders supra, it was held that it is impermissible to the police to open a rowdy sheet if police are of the view that the petitioner is habitually committing offences/abetting commission of offence involving breach of peace, disturbance to the public order and security. In the said case, the petitioner was involved in five cases and he has been facing trial in the said cases. Referring to the facts of the said case, it was held that it cannot be said that the action of the police in opening rowdy sheet amounts to abuse or misuse of power and authority, and cannot be said as one made in illegal exercise of power and without application of mind.
13
KL,J W.P.No.4838 of 2021
23. In W.P.No.12845 of 2014 dated 27.09.2019, wherein the petitioner was involved in only one case for the offence under Section 302 read with Section 34 IPC and by relying on the principles laid down by the Apex Court and this Court in catenae of decisions, it was held that opening of rowdy sheet and continuation of the same thereafter was in violation of the life and liberty as guaranteed to the petitioner therein under the provisions of the Constitution of India as well as contrary to the law laid down by this Court and the Apex Court.
24. Following the above said principle, this Court also ordered for closure of rowdy sheet vide order dated 01.06.2020 in W.P. No.22980 of 2020,
25. Learned Assistant Government Pleader for Home placed reliance on the principle laid down by the Madras High Court in G. Raman Alias Ramachandran v. The Superintendent of Police, Karur District12. In the said case, it was held that in public interest, the Police have got a right to disseminate information, concerning law and order, and crime. Display or publication of a photograph of a History Sheeted Rowdy may be continued to infringe upon a person's right, in so far as it affects his identity, reputation in the minds of others, but at the same time, public interest would prevail over private interest. Referring to the same, the learned Assistant Government Pleader would submit that respondent No.4 has rightly opened the rowdy sheets against the 12 . 2013 Crl.LJ 2746 14 KL,J W.P.No.4838 of 2021 petitioners and is continuing the same in the interest of public. According to him, there is no illegality.
26. In view of the law laid down by this Court and the Apex Court in the above said judgments, coming to the facts on hand, as discussed supra, admittedly, petitioner No.1 was involved in three crimes viz., Crime Nos.105 of 2019, 160 of 2019 and 250 of 2020. Out of the said three crimes, Crime No.160 of 2019 was registered under the provisions of Cr.P.C. wherein the period of one year for good behaviour has already expired. Thus, only two crimes are pending against petitioner No.1 of which one is under the provisions of IPC and another is under the provisions of Cr.P.C. The crime No.250 of 2020 registered under the provisions of Cr.P.C. cannot be equated with the offences under the provisions of IPC. Thus, as on today, only one crime is pending against petitioner No.1 viz., Crime No.105 of 2019 for the offences under the provisions of IPC. As far as petitioner No.2 is concerned, Crime Nos.105 of 2019, 19 of 2014 and 160 of 2019 were registered against him. Out of the said three crimes, Crime Nos.105 of 2019 and 19 of 2014 were registered under the provisions of IPC while Crime No.160 of 2019 was registered under the provisions of Cr.P.C. wherein the period of one year for his good behaviour has already expired. Thus, as on today, only two crimes are pending against petitioner No.2. According to the respondents, to curb and curtail the unlawful activities of the petitioners herein, after obtaining permission from the Assistant Commissioner of Police, Charminar Division, 15 KL,J W.P.No.4838 of 2021 Hyderabad, the above said rowdy sheets were opened against the petitioners herein and the same are being continued in view of public interest.
27. As stated above, as per Standing Order 601 of the A.P. Police Manual, for opening and maintenance of rowdy sheet, a person against whom the same was issued should habitually commit, attempt to commit or abet the commission of offences involving a breach of peace, disturbance to public order and security. Further, as held by the Apex Court in Vijay Narain Singh2, the expression 'habitually' would mean 'repeatedly' or 'persistently' implying a thread of continuity, stringing together similar repetitive acts, and a single act or omission would not characterize as a 'habitual'. The Apex Court was of the opinion that to qualify as a 'habit', a person must have grown accustomed to leading a life of crime, whereby it would be a force of habit, inherent or latent, in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to society in general. In Majid Babu7 by referring to Standing Order No.742, it was held that two instances of involvement in criminal cases would not make a person a 'habitual offender' and that at least more than two instances should be present before a person can be described as a habitual offender. Rowdy sheet could not be opened against an individual in a casual and mechanical manner and due care and caution should be taken by the police before characterizing a person as a rowdy. Figuring as an accused in two cases would not be sufficient to characterize a person as a habitual offender. 16
KL,J W.P.No.4838 of 2021
28. In view of the above said law laid down by this Court and the Apex Court, coming to the facts of the case on hand, as discussed supra, only a single crime is pending against petitioner No.1 under the provisions of IPC, while two crimes are pending against petitioner No.2 under the provisions of IPC. Thus, the requirement of involvement in at least more than two cases for inferring that the petitioners are 'habitual offenders' was not established. Therefore, opening of rowdy sheets in the names of the petitioners is, therefore, contrary to the procedure prescribed under A.P. Police Manual and the principle laid down in the aforesaid Judgments.
29. As held in Yerramsetti Venugopal Rao11, rowdy sheet can be continued (i) if his activities are prejudicial to the maintenance of public order or affecting peace and tranquility in the area; and (ii) the victims are not coming forward to give complaint against him on account of threat from him. The said grounds are lacking in the present case. Therefore, continuation of the said rowdy sheets by the police authorities ignoring the law laid down by this Court as well as the Apex Court in the judgments cited supra cannot be sustained.
30. For the foregoing discussion, the present Writ Petition is allowed and the respondents are directed to close the rowdy sheets being issued and maintained in the names of the petitioners vide No.76/ACB- CMR/2020 dated 09.01.2020 and 86/ACP-CMR/2020, dated 17.01.2020 on the file of Kalapather Police Station, Hyderabad. However, there shall be no order as to costs.
17
KL,J W.P.No.4838 of 2021 As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
__________________ K. LAKSHMAN, J 21st JUNE, 2021 Mgr