Telangana High Court
Makkapati Srinivasa Rao vs The State Of Telangana on 18 November, 2020
Author: P.Naveen Rao
Bench: P.Naveen Rao
HONOURABLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.16083 of 2020
Date: 18.11.2020
Between:
Makkapati Srinivasa Rao S/o.M.Arjuna Rao,
Aged about 38 years, occ: Agriculture,
R/o.Konatipuram Village, Onguru Mandal,
Nagarkurnool District.
.....Petitioner
And
The State of Telangana,
Rep.by its Principal Secretary,
Home Department, Secretariat,
Hyderabad and others.
.....Respondents
The Court made the following:
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HONOURABLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.16083 of 2020
ORDER :
Heard learned counsel for petitioner and learned Assistant Government Pleader for Home.
2. Petitioner is aggrieved by opening of rowdy sheet and continuation of rowdy sheet.
3. According to Sri V.Raghunath, learned counsel for petitioner only on the ground that petitioner was involved in crime of drunken driving and not stopping the vehicle, when police asked him to stop the vehicle, crime was registered and resulted in opening of rowdy sheet. He further submits that in Crime No. 89 of 2018 order of Tahsildar binding over petitioner for good conduct was on the allegation of involvement in crime No.113 of 2017. He, therefore, submits that these two instances cannot lead to opening of rowdy sheet. He submits that opening of rowdy sheet would amount to interfering in life, liberty and privacy of the petitioner and offends right guaranteed by Article 21 of Constitution. He further submits that provisions of Police Standing Order 601 are not attracted. Petitioner is not in the habit of involving in crime. As contended by respondents and as stated above, binding over order was referable to involvement in crime No.113 of 2017 and therefore, opening of rowdy sheet and continuing rowdy sheet merely on the ground of his involvement in one crime is illegal and violates right guaranteed by Article 21 of the Constitution.
4. According to learned Assistant Government Pleader, petitioner was involved in crime No.79 of 2015. Further, events leading to registration of crime No.113 of 2017 would go to show -3- that petitioner was preventing the police officials in discharging their duties to check the persons driving vehicle in inebriated condition fled away forcing police to chase and detain him. In the process, he assaulted policeman on duty. The conduct of petitioner lead to registration of crime No.113 of 2017 and on completing investigation charge sheet was filed and petitioner is facing trial. Further, in Crime No. 89 of 2018 petitioner was bound over for good conduct. He further submits that as per Police Standing Orders 601, if there is order of binding over for good conduct it is sufficient to open a rowdy sheet and continue the same.
5. Petitioner was involved in crime No.79 of 2015 registered under Sections 353,504 IPC. After investigating into the crime, police filed charge sheet. The learned Magistrate Court took cognizance of offence and he was placed on trial in C.C.No.459 of 2015. Vide judgment rendered on 19.12.2019 he was acquitted in the said crime. He was involved in crime No.113 of 2017 and presently facing trial in C.C.No.89 of 2018. In crime No.83 of 2018, the Executive Magistrate passed orders binding over the petitioner on 14.09.2018 for good conduct. Thus, in fact, as of now petitioner is involved in crime No.113 of 2017. The question for consideration is whether involvement in crime No.113 of 2017 is sufficient to continue the rowdy sheet.
6. There is no statutory provision which deal with opening of rowdy sheet and to keep surveillance on a person. To closely observe the conduct of certain persons who are in the habit of involving in crimes and to ensure that they do not indulge in breach of peace and tranquillity in the locality, police resort to -4- opening of rowdy sheet. Police Standing Orders deal with various aspects of performance of duties by the police personnel. Police Standing Order 601 deals with opening of rowdy sheet. It provides against whom a rowdy sheet can be opened. For the purpose of this case, Clauses A, B are relevant. They read 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, offence 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.
7. From the reading of clause A, it is clear that a person must be habitual in committing crime or attempting to commit or abet the commission of offence involving breach of peace, disturbance to public order and security. Therefore, the primary requirement to attract this clause is involvement of a person habitually in breaching of peace, disturbance to public order and security. It is thus apparent that mere involvement in crimes is not a ground to open a rowdy sheet. The person must be indulging repeatedly in breach of peace, disturbance to public order and security. In the case on hand, petitioner is facing trial in Crime No. 113 of 2017. It is not the stand of the police that petitioner is indulging in repeated offences involving in peace, disturbance to public order and security. Thus, this clause is not attracted.
8. In clause B, discretion is vested on the police officer to open a rowdy sheet, if a person is bound over for good conduct. As noticed above order of binding over the petitioner for good conduct was made by Executive Magistrate on 14.09.2018 with reference to -5- his involvement in crime No.113 of 2017. If person is not involved in crimes after binding over order, mere binding over is not a ground to keep the rowdy sheet even after two years on that ground. Therefore, in the peculiar facts of this case, this clause is not attracted.
9. Thus after the acquittal granted in crime No.79 of 2015, as petitioner is facing trial only in Crime No. 113 of 2017, he cannot be classified as habitual offender. There is no justification to continue the rowdy sheet against the petitioner.
10. The issue of opening of rowdy sheet was considered in WP.No.4587 of 2019. This Court observed as under:
" 6. Right to life and liberty are sacrosanct to a person. A person is entitled to lead his life with dignity and self respect. He is entitled to privacy. His rights flow 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 surveillance on a person it must show justification, impelled to ensure peace and order in the society.
7. 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 (for short PSO) 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 another1 and Sunkara Satyanarayana Vs State of Andhra Pradesh, Home Department and others2. 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, that issue need not be elaborated further.
7.1. 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 1 1999 (3) ALD 60 2 1999 (6) ALT 249 -6- 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 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."
(emphasis supplied) 7.2. 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 -7- 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?
.....
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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. ....
....
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."
(emphasis supplied) 7.3. 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 -8- 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 follow-up at the end of a conviction or release from prison in every case.
(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 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."
(emphasis supplied)
11. In W.P.No.19194 of 2012 when rowdy sheet was opened against petitioner therein in the year 2009, two cases were pending against him. In one crime he was convicted and appeal against conviction was pending and another case was pending at the stage of conducting trial. Considering earlier decisions of this Court and -9- the decisions of the Hon'ble Supreme Court on word 'habitually', this Court held that continuation of rowdy sheet when only two cases were pending as illegal and allowed the writ petition.
12. Even assuming that binding over order is staring at the petitioner, as of now, there is one binding over order made two years earlier and one crime pending at the stage of trial. Therefore, on that ground he cannot be called as habitually indulging in crimes. Therefore, there is no justification to continue the rowdy sheet.
13. Accordingly, the writ petition is allowed. Pending miscellaneous petitions, if any, shall stand closed.
___________________ P.NAVEEN RAO, J 18th November, 2020 Nvl /tvk
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HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.16083 of 2020 Date: 18.11.2020 Nvl/tvk
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