Jammu & Kashmir High Court
Ashok Mishra vs State Of J&K And Ors on 8 August, 2023
HIGH COURT OF JAMMU AND KASHMIR & LADAKH
AT JAMMU
OWP No. 511/2005 (O&M)
Reserved on: 19.05.2023
Pronounced on: 08.08.2023
Ashok Mishra ...Petitioner(s)
Through :- Mr. Jagjit Rai, Advocate
V/S
State of J&K and Ors. .....Respondent (s)
Through :- Mrs. Monika Kohli, Sr. AAG
Coram: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
1. Petitioner claims to be a politician and a social worker of repute. He joined the ruling National Conference in the year 1985-86 and served as Zonal Secretary of the Youth National Conference. He is stated to have contested Assembly Election from Akhnoor Constituency as an independent candidate supported by Shiv Sena. Later, he joined Indian National Congress in 2002 and served as General Secretary DCCI, Jammu. He is also stated to be a Committee Member of Government Girls High School, Akhnoor and Government Boys High School Akhnoor. He is also stated to have founded a "Youth Action Committee" and led various agitations for the poor and needy. According to the petitioner, his selfless social service earned him commendation certificate along with cash reward issued by the Senior Superintendent of Police (SSP) Jammu followed by an identity card issued in his favour recognizing him as a social worker.
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2. The case of the petitioner is that in the year 1994, he led a strong agitation against illegal manufacturing of country liquor in Akhnoor and exposed the nexus of police and liquor manufacturers. The police got annoyed and manufactured false, frivolous and fabricated record against him whereby he was declared as a history sheeter, however, he has neither been involved in any criminal activity nor punished by any court of law.
3. Allegation of the petitioner is that on 24.07.2005 he was telephonically called by respondent No. 5-Station House Officer (SHO), Police Station, Akhnoor informing him that he was called by respondent No. 4-Superintendent of Police (SP) (Rural) Jammu. On 25.07.2005, he was carried by respondent No.6-Havaldar Durga Dass, deputed by respondent No. 5, to the office of respondent No.4, where he was surprised to see himself amongst hardcore criminals and history-sheeters of the State. He produced relevant record pertaining to his being a social worker and a leader of repute, however, he was not only abused and manhandled, but was subjected to third degree treatment. According to the petitioner, he was summoned by respondent No. 4 as a history- sheeter on the basis of some eleven years old file, manufactured and manipulated at his back without issuance of prior show cause notice which is repugnant to Article 21 of the Constitution of India.
4. Petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India read with Section 103 of the Constitution of erstwhile State of J&K for quashment/deletion of his name from the history sheet and further directing the respondents to pay damages of Rs. 10.00 lacs. 3 OWP No. 511/2005
5. Countervailing the stand of the petitioner, respondents are affront with the contention that in the year 1989, there were communal riots among the members of Hindu and Sikh community. Petitioner delivered provocative speeches in the gathering in Tehsil Akhnoor, as a result fundamentalists led by him instigated the public at large against the followers of Sant Kabir Ji and Ashrams of the said Sect at fifteen places were set ablaze. It is alleged that petitioner continued his participation in creating communal riots between different groups and races, with the modus operandi to project himself as a leader. Citing another instance, it is contended by the respondents that a piece of land was allotted in the name of Mst. Sakina Bibi in Akhnoor. In 1994, when her husband, namely, Khuda Baksh raised construction of shop on the said land, petitioner along with his associates forcibly installed a statute of Lord Shiva on the said piece of land and made an attempt to give communal tinge to the issue and created communal tension leading to law and order problem. Therefore, Surveillance Register of the petitioner was opened on 20.04.1994 by SHO, P/S, Akhnoor and right from 1989 to 2008, nine cases came to be registered against him, wherefrom it surfaced that petitioner has been instrumental in making provocative speeches which flared the communal tension, instigated the mob to indulge in arson and looting, with respect to which, a history sheet in Form No. 185 came to be opened against the petitioner. It is further contention of the respondents that petitioner is involved in as many as 09 criminal cases w.e.f. 1989 to 2008, out of which, two FIRs No. 1134/1994 and 41/1995 have been challaned against him and FIR No. 171/2008 is under investigation and remaining six FIRs including FIRs No. 4/1989, 16/1994, 214/1993, 170/1998, 171/1988 & 177/2008 have been closed untraced. 4 OWP No. 511/2005
6. According to the respondents, history sheet of an individual, whose antecedents are of criminal nature and who is often found indulging in criminal and anti social activities, is permitted under Police Rules, where an officer of the rank of Inspector or above is competent to open a history sheet. It is duty of the police to keep an eye on such elements and take preventive measures to curb the activities of such persons in time. As per records maintained in the Police Station, history sheet of the petitioner contains the grounds for opening the history sheet and it was approved by Senior Officers of the time. It is further submission of the respondents that it is a confidential and privileged document and action by the police was on the basis of cases registered and reports and inputs received from CID and other sources.
7. It is also contention of the respondents that an alternative remedy is available to the petitioner to approach and make a representation to Senior Police Officers, who are competent to verify the entries made in the history sheet and close the same in case they are satisfied that now petitioner is not indulging in same activities and has mend himself. Respondents have prayed for dismissal of the writ petition.
8. Petitioner in his rejoinder affidavit, at the outset, has questioned jurisdiction of the respondents and the procedure followed to prepare Surveillance Register No. 10 against him. It is submission of the petitioner that in view of Sub Rule 3(a) of Rule 43 of J&K Police Manual, it is only the Superintendent of Police, who is vested with the power to enter the name of a person in the Surveillance Register No. 10 and SHO has no jurisdiction to do so. 5 OWP No. 511/2005
9. It is further contention of the petitioner that history sheet against him was opened on 20.04.1994 whereby his name was entered in the Surveillance Register and therefore, any FIR registered after the said date, could not be taken into consideration. Denying his involvement in the instance of 1989 pertaining to Sant Kabir Ji Ashram, Baba Amarnath Ji agitation of 2008 and regarding installation of statute of Lord Shiva on the land of Khuda Baksh, petitioner has submitted that no FIR was lodged against him pertaining to the said instances and, therefore, allegations of the respondents are absurd and vague. He further submits that Baba Amarnath Ji agitation took place in the year 2008 after he was declared habitual offender in 1994. He further submits that FIR No. 4/1989 was not challaned in any court of law, he has been acquitted in FIRs No. 14/1994 & 42/1995 and his name does not figure in FIRs No. 214/1993, 170/1998 and 177/2008.
10. Heard arguments and perused the record.
11. While learned counsels on the rival sides have reiterated their respective pleadings in arguments, learned counsel for the petitioner has relied upon Malak Singh v. State of Punjab and Haryana reported as AIR 1981 SC 760 and Badri Nath V. State and ors. reported as 2009 SLJ 683.
12. Chapter XXII of Police Rules deals with prevention of offences. Rule 698 provides for maintenance of surveillance register No. 10 in every police station, which reads thus:
"698. Surveillance Register No. 10
(1) In every police station, a Surveillance Register shall be maintained in Form 180.6 OWP No. 511/2005
(2) In Part I of such register shall be entered the names of persons commonly resident within or commonly frequently the local jurisdictions of the Police station concerned, who belong to one or more of the following classes:-
(a) All persons who have proclaimed under Section 87, Code of Criminal Procedure.
(b) all released convicts in regard to whom an order under section 565, Criminal Procedure Code, has been made.
(C) All convicts the execution of whose sentence is suspended in the whole, or any part of whose punishment has been remitted conditionally under Section 401, Criminal Procedure Code.
(d) All persons restricted under the Rules of Government made under Secton 16 of the Habitual Offenders (Control and Reforms) Act, 1956, (XI of 1956).
(3) In part II of such register may be entered at the discretion of the Superintendent:-
(a) persons who have been convicted thrice, or more than three times of offences mentioned in rule 681;
(b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not;
(c) persons under security under Sections 109 and 110, Code of Criminal Procedure.
Note:- This rule must be strictly construed and entries must be confined to the names of persons falling in the three classes named therein."
(Emphasis Supplied)
13. Rule 699 provides for surveillance register to be written up by the officer in charge of a police station personally or by an Assistant Sub-inspector in a clear and neat script and no entry can be made in Part I except by an order of a gazetted officer and sub Rule (2) provides that "ordinarily, before the name of any person is entered in Part II of the surveillance register, a history sheet shall be opened for such person" and it is pertinent to mention that entry in Part II of the Register can be made only at the discretion of the Superintendent of Police. Rule 700 contemplates a notice to Lambardars and the surveilles after the name of a person is entered in the surveillance register in Form No. 182. Rule 701 lays down mode of surveillance by providing an element of surprise as an 7 OWP No. 511/2005 essential ingredient for affecting surveillance. Rule 702 lays down a procedure for preparation of history sheets and as per this Rule, initial preparation of a history sheet requires great care and is required to be prepared by the officer in charge of a police station himself or through an experienced Assistant Sub- Inspector under specific orders. Finally, Rule 703 postulates the opening of history sheets and provides that history sheet, if does not already exist, shall be opened in Form No. 183 for every person whose name is entered in the surveillance register, except conditionally released convicts. It is pertinent to mention that Rule 721 of the Police Rules specifically lays down that all records connected with police surveillance are confidential and nothing contained therein may be communicated to any person. It also provides that neither inspection of the surveillance records can be allowed nor copies can be given, save as provided in the rules. However, it protects the rights of district and Illaqa Magistrates to examine such records in accordance with Rules 23 and 24 of the Police Rules regarding their production in the court under Chapter XXI of the rules. It is evident from the perusal of the aforementioned rules that a detailed provision has been made in the Police Rules with respect to preparation, maintenance of the surveillance register as also the history sheets and confidentiality of the surveillance records.
14. Petitioner has questioned the impugned entry in the surveillance register inter alia on the grounds; that he has been declared habitual offender and a history-sheeter without issuance of prior show cause notice, his name was entered in the surveillance register on the basis of some eleven years old file, and any FIR registered after opening of the history sheet against him on 24.04.1994, cannot be taken into consideration. Petitioner has also questioned jurisdiction of 8 OWP No. 511/2005 the respondents as also the procedure followed to prepare the surveillance register against him.
15. In so far as issuance of prior notice is concerned, Rules 721 of the Police Rules, as already stated, specifically provides that all records connected with police surveillance are confidential and nothing contained therein can be communicated to any person. It also provides that neither inspection of the surveillance record can be allowed nor copies can be provided to anybody, save ofcourse, as provided in the Rules. Hon'ble Supreme Court in Malak Singh (Supra) has also held that as surveillance is contemplated to be discreet and confidential, observance of the principles of natural justice may defeat the very object of surveillance. Relevant except of the judgment for the facility of reference reads as below:
"7. As we said, discreet surveillance of suspects, habitual and potential offenders, may be necessary and so the maintenance of history sheet and surveillance register may be necessary too, for the purpose of prevention of crime. History sheets and surveillance registers have to be and are confidential documents. Neither the person whose name is entered in the register nor any other member of the public can have access to the surveillance register. The nature and character of the function involved in the making of an entry in the surveillance register is so utterly administrative and non-judicial, that it is difficult to conceive of the application of the rule of audi alteram partem. Such enquiry as may be made has necessarily to be confidential and it appears to us to necessarily exclude the application of that principle. In fact observance of the principles of natural justice may defeat the very object of the rule providing for surveillance.
16. It is evident from the afore-quoted observation of Hon'ble Supreme Court that issuance of prior notice and principles of natural justice are not attracted in such cases, as it may defeat the very purpose of surveillance.
17. Be that as it may, it is stand of the respondents that surveillance register of the petitioner was opened on 20.04.1994 by SHO Police Station Akhnoor and 9 OWP No. 511/2005 right from 1989 to 2008, nine cases came to be registered against him with respect to which a history sheet in Form No. 185 came to be opened against him. Therefore, the entire stand of the respondents is based on the surveillance register stated to have been opened against the petitioner on 20.04.1994. Be it noted that respondents have failed to produce any surveillance register against the petitioner in the present case. It is only history sheet of the petitioner which has been produced and as a matter of fact, Mrs. Monika Kohli, learned Sr. AAG appearing for the respondents has placed on record a letter bearing No. 925/5-1/PSA dated 15.07.2023 of SHO, Police Station, Akhnoor, to the effect that apart from the history sheet already produced in this Court, there is no surveillance record of the petitioner available in the police station. As already discussed, Rule 699 of the Police Rules provides for surveillance register to be written by the Officer Incharge of a police station personally or by an Assistant Sub Inspector in a clear and neat script. Sub Rule (2) provides that "ordinarily, before the name of any person is entered in Part II of the surveillance register, a history sheet shall be opened for such person." It implies that entry in a surveillance register can be made on the basis of material provided by the history sheet. Ordinarily the names of persons with previous criminal record including proclaimed offenders, previous convicts or persons having already been placed on security for good behavior, are entered in the surveillance register. Aside, the names of persons reasonably believed to be habitual offenders or receivers of stolen property whether convicted or regardless of conviction, may also be entered in the surveillance register, subject to the caveat that such an entry can only be made by an order of Superintendent of Police, who is prohibited from delegating his authority. The scheme of surveillance register No. 10 under Rule 698 of Police Rules is sufficient to indicate that vigil on a history sheeted person cannot be 10 OWP No. 511/2005 made permanent and that too in perfunctory fashion, as it involves the freedom of life and liberty of an individual. There is no quarrel to the settled position of law as held by Hon'ble Supreme Court in Malak Singh (supra) that discrete surveillance of suspects, habitual and potential offenders may be imperative, necessitating maintenance of history sheet and surveillance register for the purpose of prevention of crime. The police is indeed vested with the discretion to maintain a history sheet and surveillance register of the suspects, habitual and potential offenders as the case may be. However, this discretion conferred on the police has both objective and subjective attributes. The object sought to be achieved by maintenance of surveillance register and history sheet is the prevention of crime, however, the subjective satisfaction of a police officer must be informed of valid and cogent reasons.
18. True it is that police is vested with the power and obligation to maintain law and order and keep vigil and surveillance not only on the accused but also on the suspects in the larger interest of public. However, before entering the name of an individual in the history sheet or surveillance register, the action of the police must be supported by sufficient material and cannot be left on the whims and caprice of the police. It is a matter of common knowledge that while history sheet of a person for surveillance and observance is opened, such person is frequently asked to appear before Law Enforcement Agencies for questioning, whenever a crime is committed in a particular area. It certainly restricts the movement of said individual and he is undermined in the estimation of general public and it is an infringement of right of an individual for free movement. It is in this context that concerned Police Officer is obliged to examine the materials and then decide 11 OWP No. 511/2005 objectively and rationally before opening the history sheet or entering the name of the individual in the surveillance register.
19. Reverting to the present case, it appears that history sheet of the petitioner was opened on 24.04.1994 and not the surveillance register, as respondents have failed to produce any surveillance register in the case. The respondents in their counter affidavit have contended that from 1989 to 2008, nine cases came to be registered against the petitioner wherefrom it came to the fore that he was instrumental in making provocative speeches which flared the communal tension, instigated the mob to indulge in arson and looting, therefore, history sheet of the petitioner came to be opened. There is admission on the part of respondents that six FIRs against the petitioner were closed untraced. Petitioner has been challaned in two FIRs and one FIR was under investigation. Learned counsel for the petitioner in the rejoinder affidavit has placed on record copies of judgments to indicate that petitioner has since been acquitted in two FIRs No. 114/1994 and 42/1995 by learned Munsiff (JMIC), Akhnoor.
20. Allegation against the petitioner is that during communal riots between the members of the Hindu and Sikh community, petitioner delivered provocative speeches and fundamentalists led by him instigated the public against the followers of Sant Kabir Ji and the Ashrams of the said Sect at different places were set ablaze. Petitioner is also alleged to have forcibly installed statute of Lord Shiva when one Khuda Baksh attempted to raise construction of a shop on his land. Petitioner is also alleged to have played a role during Baba Amarnath agitation of 2008. However, respondents have failed to produce any FIR against the petitioner with respect to these incidents and apparently Baba Amarnath agitation took place in the year 2008 i.e. after opening of history sheet against the 12 OWP No. 511/2005 petitioner in the year 1994. On basis of record produced by the respondents, petitioner is not found involved in any incident on the basis of which history sheet against him was opened in 1994. Most of the FIRs, made basis for action against the petitioner pertained to the period after history sheet against him was opened.
21. Hon'ble Supreme Court in Malak Singh (supra), while dwelling upon various provisions of Punjab Police Act, 1861 (PPA) and the rules framed thereunder has made various observations with respect to duties of the police officers to collect and communicate intelligence affecting the public peace etc., maintenance of surveillance register, discreet surveillance and the nature and character of the function involved in making of an entry in the surveillance register, but with a caveat, that all this does not mean that Police have license to enter the name of whoever they like (dislike?) in the surveillance register and squeeze the fundamental freedom guaranteed to the citizens. The Provisions of J&K Police Act, 1983 (J&K Police Act, for short) and J & K Police Rules 1960 (Police Rules, for short) are by and large pari materia to the PPA and the rules framed thereunder. Section 24 of the J&K Police Act, like PPA, enjoins upon the police officers "to collect and communicate the intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorized to apprehend and for whose apprehension sufficient ground exists". It is in this connection that Hon'ble Apex Court in Malak Singh (supra) held that it will be necessary to keep discreet surveillance over reputed bad character habitual offenders and other potential offenders but with a caution that intrusive surveillance seriously encroaching on the privacy of a citizen as to infringe his 13 OWP No. 511/2005 fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India and his freedom of movement guaranteed under Article 19(1)(d) of the Constitution cannot be permitted.
22. Back to the case, it is manifest from the contents of the history sheet that FIRs lodged against the petitioner were either closed untraced or he has been acquitted by the competent court of law. Even in the FIRs registered against the petitioner after history sheet against him was opened on 24.04.1994, petitioner is not found involved in any case. The respondent authorities have failed to enter the name of petitioner in surveillance register, despite lapse of about three decades after history sheet was opened against him in the year 1994, probably for the reason that cases against him were either closed untraced, or he was acquitted in couple of cases by the competent Court of Law. Be that as it may, petitioner cannot be put to permanent surveillance or vigil as a history sheeter in absence of surveillance register duly maintained in accordance with law.
23. The facts and circumstances attending the present case, indeed do not reflect the adherence to the exercise of discretion of the respondent authorities in a fair and dispassionate manner in accordance with the principle of law.
24. In the context of what has been discussed and observed hereinabove, what comes to the fore is that since surveillance of an individual is contemplated to be discreet and confidential, observance of the principles of natural justice are not attracted in such cases as same may defeat the very object of surveillance. However, an accused or a suspect cannot be put to permanent surveillance or vigil as a history sheeter in absence of surveillance register duly maintained in accordance with law.
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25. Having regard to what has been discussed above, I am of the considered view that continuous retention of the petitioner in the history sheet in absence of any surveillance register, and that too in a perfunctory manner, without application of mind, is not only illegal, but unconstitutional. Viewed thus, present petition is allowed and respondents are directed to remove name of petitioner from the history sheet within a period of four weeks from the date copy of this judgment is made available to them.
26. Insofar as claim of the petitioner for damages is concerned, same being a disputed and mixed question of law and fact, cannot be addressed by this Court in exercise of writ jurisdiction. The petitioner, however, shall be at liberty to avail appropriate remedy available to him under law.
27. The original history sheet is returned to the learned Sr. AAG.
28. Disposed of on the above terms.
(RAJESH SEKHRI) JUDGE Jammu:
08.08.2023 (Paramjeet)
1. Whether the Judgment is Speaking? Yes
2. Whether the Judgment is Reportable? Yes