Andhra HC (Pre-Telangana)
Kamma Bapuji And Ors. vs Station House Officer, ... on 14 November, 1997
Equivalent citations: 1997(6)ALD583, 1998(2)ANWR55, 1998(1)APLJ20, 1998CRILJ1888
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The petitioners in the instant writ petition pray for issuance of an appropriate, particularly one in the nature of Writ of Mandamus declaring the action of the respondents in opening rowdy sheet against the petitioners as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India and ultra vires the Police Standing Orders.
2. The petitioners herein were involved in Cr. No. 33/94 of Brahamasamudram Police Station registered under sections 147, 148, 324, 355, 452 r/w 149 I.P.C. They were also accused in another Crime No. 22/94 of the same Police Station under sections 302 read with 34, I.P.C. Both the cases were subsequently registered as C.C. No. 28/95 and S.C. No. 173/95 and after trial all the petitioners were acquitted by judgments dated 5-8-1996 and 10-6-1996, respectively.
3. Admittedly, there are no other cases either registered or pending against the petitioners. The said crimes were registered against the petitioners on 6-10-1994 and 16-12-1994. Even during the trial of these cases, there were no other cases in which the petitioners were involved.
4. The petitioners are aggrieved by the action of the respondents in insisting them to get their photographs for the purpose of display in the Police Station. It is at that stage, the petitioners have learnt that a rowdy sheet was opened against them under the Police Standing Order No. 742. The said action of the respondents in opening the rowdy sheet, as well as insistence to supply the photographs for the purpose of display in the police-station is assailed in this writ petition.
5. In the counter-affidavit, it is stated that the rowdy sheet was opened on the direction of the Sub-Divisional Police Officer, Anantapur in the year 1995 itself, as the petitioner were involved in two cases referred to herein above. It is clear from the allegations in the counter-affidavit that the rowdy sheet was opened against the petitioners during the pendency of the said two criminal cases. According to the respondents, acquittal of the petitioners in the said two criminal cases is of no consequence and the rowdy sheet opened against them need not be closed. Photographs were taken to have an identity of the petitioners to cheek their movements and to maintain peace in the locality.
6. Standing Order 742 of A.P. Police Standing Orders authorises opening of rowdy sheets under the order of the Superintendent of Police or Sub-Divisional Officer, against the persons who habitually commit, attempt to commit or abet the commission of, offences involving breach of the peace. S.O. 742 reads as under :
"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 the 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 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.
7. A bare reading of the Standing Order would reveal that no person could be characterised and classified as a rowdy and no rowdy sheet as such can be opened unless the case of such person falls in any one or more of the categories mentioned in the Standing Order. In the instant case, rowdy sheet is obviously opened against the petitioners under Clause (a) of S.O. 742 treating them as persons who habitually commit, attempt to commit offences involving the breach of peace and other clauses have no application whatsoever.
8. It is required to notice that characterising and classifying a person as rowdy and opening a rowdy sheet is fraught with serious consequences. The personal liberty, including the privacy of the concerned person would be definitely curtailed to some extent as such person comes under surelliance where his movements are watched by the police. In practice, it is brought to the notice of the Court that in many cases, the concerned police officers insist the presence of all rowdy sheeters in the police stations. In such view of the matter, the Court in exercise of its jurisdiction under Article 226 of the Constitution of India is required to strictly scrutinize the action of the police officers in opening the rowdy sheets, who were required to act reasonably and fairly and in an objective manner. Rowdy sheets cannot be opened against any individual in a casual and mechanical manner. It would not be enough to dub a personal as habitual offender and open rowdy sheet. Due care and caution is required to be taken by the police officers before characterising a person as a rowdy. The Apex Court in Dhanji Ram Sharma v. Superintendent of Police, Delhi, observed that (Para 7) :
"A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by the repetition or crimes. Reasonable belief of the police officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under Rr. 23.4(3)(b) and 23.9(2). Mere belief is not sufficient. The belief must be reasonable, it must be based on reasonable grounds. The suspect may or may not have been convicted of any crime. Even apart from any conviction, there may be reasonable grounds for believing that he is a habitual offender."
In Vijay Narain Singh v. State of Bihar, the Supreme Court while construing Sections 2(d) and 12 of the Bihar Control of Crimes Act (Act 7 of 1981), which provides for definition of anti-social element has observed (Para 12) :
"A person is a habitual criminal who by force or habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime. It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to the society in general. Shorn of verbiage the word 'habitually' means 'by force of habit'. The Act appears to be based on Prevention of Crime Act, 1908 (c. 59). By Prevention of Crime Act, 1908, as amended by the Indictments Act, 1915, a person after three previous convictions, after attaining sixteen years of age could, with the consent of the Director of Public Prosecutions in certain cases, be charged with being a habitual criminal and, if the charge was established, he could, in addition to a punishment of penal servitude, in respect of crime for which he has been so converted, receive a further sentence of not less than five years or more than 10 years, called a sentence of preventive detention. Upon this question of a man's leading persistently a dishonest or criminal life, where there has been a considerable lapse of time between a man's last conviction and the commission of the offence which forms the subject of the primary indictment at the trial, notice containing particulars must have been given and proved of the facts upon which the prosecution relied for saying that the offender is leading such a life. If, on the other hand, the time between a man's discharge from prison and the commission of the next offence is a very short one, it may be open to the jury to find that he is leading persistently a dishonest or criminal life by reason of the mere fact that he has again committed an offence so soon after his discharge from a previous one, provided the notice has stated this as a ground. This essentially is a question of fact. The scheme under the English Act, is entirely different where a person has to be charged at the trial of being a habitual criminal. Therefore, the considerations which govern the matter do not arise in case of preventive detention under Section 12(2) of the Act."
In the same judgment, the Apex Court observed that "the Act containing such provisions is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law."
9. In the instant case, the petitioners are said to be habitual offenders within the meaning of S.O. 742 of the A.P. Police Standing Orders. The petitioners, admittedly, were involved in two criminal cases. Under those circumstances can they be characterised and classified as rowdies ?
In Black's Law Dictionary, the meaning assigned to 'Habitually' is "Customarily; by frequent practice or use. It does not mean entirely or exclusively", and habitual criminal in the same Dictionary is defined as "A recidivist (q.v.). A legal category created by statute in many states by which severe penalties ranging up to life imprisonment can be imposed on criminals convicted of any crime the third or fourth time. In general, habitual offender statutes imposes greater sentences on offender for repeated crimes, with life imprisonment being imposed upon commission of several felonies."
This Court in Majid Babu v. Government of A.P., (1987) 2 Andh LT 904 observed that :
"Two instances would not make a person a habitual offender. At least more than two instances should be present before a person can be described as habitual offender. Merely because the two persons are figuring as accused in respect of two crimes registered by the Police, no inference can be drawn that they are habitual offenders."
In Shaik Mahboob v. Commissioner of Police, (1990) 1 APLJ 363 : (1991 Cri LJ 1) this Court held that (at p. 5 of Cri LJ) :
"Admittedly the two cases registered against the petitioner have ended in acquittal. The third reference that a report was received from Special Branch Police that the petitioner threatened the Managing Editor of Siasat daily 'for not publishing in that paper about his organisation' and also threatened to burn the newspaper, cannot be taken as 'copiously substantiated'. Something more is required so as to hold that threat was real which require preventive measure as either the complainant himself would have registered a complaint or the police ought to have taken some initiative on this threat. In the absence of this it is not in accord with law to treat the said situation as a cogent evidence so as to bring within the ambit of 'the person being habitual offender' taking that case as a third incident. True whether commission of an offence or attempt to commit an offence could be taken as the relevant factor for the purpose of entering the name of a person in the rowdy sheet within the meaning of S.O. 742 but mere assertion does dot lead to the situation that a person attempted to commit an offence. In the circumstances, adequate material has not been made out so as to enter the name of the petitioner in the 'rowdy-sheet' and continue the same unless substantial cogent material is available. In this case it is not possible to hold that enough material within the meaning of the judicial pronouncement laid down is available. Hence, mandamus is issued directing the respondents to delete the name of the petitioner from the rowdy sheet. This will not however precluded the respondents if fresh circumstances in future arise, warranting opening of rowdy sheet."
10. I had an occasion to consider a similar question as to under what circumstances a person could be characterised and classified as a rowdy in Ezaz v. Government of A.P., W.P. No. 13324/96 dt. 10-9-1996 and observed as follows :
"However, there cannot be any doubt that the Police Officer who is entrusted with the responsibility of classifying the person as a rowdy and opening of rowdy sheets are under the duly and obligation to consider the applicability of Standing Order strictly and confine the entry in the rowdy sheet only to such class of persons mentioned in the Standing Order and it is not as if the Police have the power and opportunity to enter the names of whoever they like in the said register. The "Expression like 'by habit', 'Habitual', 'desperate', 'dangerous', 'hazardous' cannot be flung in the face of a manwith laxity of semantics. The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit, which is second nature."
11. Learned counsel for the petitioners, Sri O. Manohar Reddy submits that pendency of even more than two criminal would not attract Clause (1) of S.O. 742, unless this offence relates to and involve breach of the peace. A plain reading of Clause (a) of S.O. 742 leads to inescapable conclusion that the submission made by the learned counsel for the petitioners is absolutely right. A Rowdy sheet can be opened against a person classified as a rowdy, if such person habitually commit, attempt to commit or abet the commission of offence involving a breach of the peace. In plain language a person who habitually commit, attempt to commit or abet the commission of offences alone can be classified as a rowdy and rowdy sheet can be opened, provided such offence relates to involving breach of the peace. If the offence even habitally committed, or attempted to be committed or abet commission of the offence, but not involving a breach of the peace, would not enable and authorise the police officer concerned to open rowdy sheet and classify a person as rowdy. It is in this area, a Police officer has to consider the material available on record and satisfy himself that commission of offence habitually by a person has resulted or is likely to result in breach of peace. The satisfaction is required to be arrived at in an objective manner and on the basis of the material available on record.
12. In the instant case, the petitioners are involved only in two cases and these cases have nothing to do with breach of the peace. It is not the case of the respondent that commission of these offences has resulted in breach of the peace in the village or town, as the case may be. Involvement in two cases itself would not attract Clause (a) of S.O. 742 and the person/persons cannot be treated as rowdy and no rowdy sheet can be opened against such person(s). Be that as it may, even the said two cases registered against the petitioners, admittedly, had not resulted in any breach of peace. Viewed from any angle, the rowdy sheets open against the petitioners are ultra vires the Police Standing Orders. The action of the respondents in opening rowdy sheets against the petitioners is illegal and unconstitutional.
13. Thus, the action of the respondents is accordingly set aside and the respondents are directed not to interfere in any manner whatsoever with the life and liberty of the petitioners. Since it is now declared that opening of rowdy sheets by the respondents against the petitioners is illegal, there shall be a consequential direction to the respondents not to insist upon the petitioners to supply their photographs for the purpose of display in the police-station. If the respondents have already obtained the photographs of the petitioners, they shall not be displayed in the police-station. There shall be an order accordingly.
14. The writ petition is accordingly allowed to the extent indicated above. No costs.
15. Petition allowed.