Andhra Pradesh High Court - Amravati
Chelli Arland Swaroop vs State Of Andhra Pradesh on 12 November, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.8819 of 2018
ORDER:
1. This writ petition under Article 226 of Constitution of India is filed, questioning the action of 3rd respondent in opening rowdy sheet No.163 (c) against the petitioner and placing the name of the petitioner in the list of rowdy sheeters board in the police station, declare the same as illegal, arbitrary, without jurisdiction and violative of principles of natural justice, consequently set aside the rowdy sheet No.163 (c), directing 3rd respondent to remove the name of the petitioner from the rowdy sheeters board in the police station.
2. The petitioner is working as a software programmer grade-2 in LIC of India at Guntur. Wife of the petitioner died, leaving one daughter by name Jyosthna aged about 27 years and son by name Roop Abilash, aged about 23 years. There is no complaint whatsoever against the petitioner, either from the employer or from the public at any point of time.
3. The petitioner has purchased an extent of 266 2/3 Sq.Yds of house site with RCC building bearing D.No.3-103 registered in Sub- Registrar Officer, Nuziveedu, Krishna District vide document No.5885/2011 dated 02.02.2011, for valuable consideration of Rs.18,00,000/-. The said property is in continuous possession and enjoyment of the petitioner. 4th respondent has made a complaint to 3rd respondent on 21.01.2017, making serious allegations against the 2 MSM, J wp_8819_ 2018 petitioner, as he married 4th respondent and received huge amount as dowry and still harassing for further dowry.
4. Except the two cases filed by 4th respondent i.e. Crime No.32 of 2017 for the offences punishable under Sections 498-A and 506 of Indian Penal Code (for short 'I.P.C') read with Section 10, 9 (n) of Protection Of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') on the file of Judicial First Class Magistrate for Prohibition and Excise, Guntur and O.S No.5 of 2017, pending before the XV Additional District Judge at Nuziveedu, Krishna District, no other cases are pending against the petitioner, but 3rd respondent without any application of mind and in a casual and mechanical manner has opened rowdy sheet against the petitioner.
5. The petitioner never committed any offence much less the offeneces punishable under Sections 498-A and 506 of Indian Penal Code (for short 'I.P.C') read with Section 10, 9 (n) of POCSO Act or any other offence, but 3rd respondent at the instance of other respondents, opened rowdy sheet No.163 (c), kept the name of the petitioner in the rowdy sheet board in the police station. The alleged opening of rowdy sheet is against the police, Standing Orders and he was not a habitual offender, therefore the petitioner's name is to be deleted from the rowdy sheeters board in the police station.
6. During hearing, the learned Counsel for the petitioner has drawn the attention of this Court to Police Standing Orders and judgment in Beerjepally Venkatesh Babu v. State of A.P1. On the 1 LAWS (APH) 2014 3 87 3 MSM, J wp_8819_ 2018 strength of the principle laid down in the above judgment, he would contend that the petitioner would not fall within the definition of rowdy and opening of a rowdy sheet, due to pendency of cases against the petitioner, for various offences stated above is untenable and requested to set aside the same.
7. The respondents file counter, denying the material allegations inter alia contending that a case in Crime No.32 of 2017 for the offences punishable under Sections 498-A and 506 of Indian Penal Code (for short 'I.P.C') read with Section 10, 9 (n) of POCSO Act is registered against the petitioner in Pattabhipuram Police Station and investigation is in progress and that too as per Police Standing Orders 601, various offenders can be classified as rowdies and that rowdy sheets/suspect sheets can be opened against them by the higher authorities and the petitioner would fall within Clause 'd' of Standing Order 601 i.e. persons who habitually tease women and girls and pass indecent remarks, including offences under Sections 354 A, B, C and 354 D of I.P.C is also aminable for opening of rowdy sheet/suspect sheet and as such an opening of rowdy sheet against the petitioner is in accordance with the provisions of Police Manual i.e. Standing Orders and prayed to dismiss the petition.
8. The learned Assistant Government Pleader for Home would contended that a case is registered against the petitioner for the offence punishable under Sections 498-A and 506 of Indian Penal Code (for short 'I.P.C') read with Section 10, 9 (n) and 14 (5) of POCSO Act and he is a habitual offender. Thereby the rowdy 4 MSM, J wp_8819_ 2018 sheet/suspect sheet cannot be set aside, issuing any direction to delete the name of the petitioner from the rowdy sheet board in the police station.
9. The undisputed facts in this case are that a crime was registered against the petitioner in Crime No.32 of 2017 for the offences punishable under Sections 498-A and 506 of Indian Penal Code (for short 'I.P.C') read with Section 10, 9 (n) and 14 (5) of POCSO Act, taking advantage of registration of crime against the petitioner for the above said offences, rowdy sheet is opened against the petitioner as the act allegedly done by the petitioner would fall within the ambit of clause 'd' of Police Standing Orders 601 which is extracted hereunder:
"Persons who habitually tease women and girls and pass indecent remarks, including offences under Sections 354 A, B, C and 354 D of I.P.C"
Clause 'd' deals with opening of rowdy sheet against persons who "habitually" tease women and girls and pass indecent remarks. The word 'habitual' assumes importance, in this case to find out whether there is any justification in opening of rowdy sheet/suspect sheet against the petitioner. Only one crime is registered against the petitioner for the offences punishable under Sections 498-A and 506 of Indian Penal Code (for short 'I.P.C') read with Section 10, 9 (n) and 14 (5) of POCSO Act and the word habitual means, continuously teasing women or passing any indecent remarks etc.
10. In Beerjepally Venkatesh Babu (1st cited supra) the word 'habitual offender' is analyzed in para No.3 of the judgment. The 5 MSM, J wp_8819_ 2018 crucial expressions used in Standing Order 601 indicate that the person must habitually commit or attempt to commit or abets the commission of offences involving breach of peace, disturbance to public order and security. In other words, one must be a habitual offender or keeps abetting commission of offences, which is a plural of the expression 'offence'. Therefore, if the petitioner has involved himself in a single crime, he cannot be described as a 'habitual offender'. For one to become a habitual offender, propensity of repetition of the same conduct should be witnesses. Otherwise, involvement in a single crime cannot be described as habitual involvement in offences. Therefore, in the opinion of the court, the first criteria for the petitioner to be described as a 'rowdy' as per Standing Order 601 is not satisfied. Similarly, even assuming that the person is intimidating by threats or use of physical violence or other unlawful means for parting with movable and immovable properties. Similar issue came up for consideration before the Court. The word habitual offender is analyzed in catena of judgments. In Dhanji Ram Sharma V. Superintendent of Police2, the Apex Court held that:
"A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repletion of crimes. Reasonably 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 Rules 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 other Judgments in Kamma Bapuji v. Station House Officer, Brahmasamudram and Puttagunta Pasi alias Penta Pasi v. 2 AIR 1966 SC 1766 6 MSM, J wp_8819_ 2018 Commissioner of Police, Vijayawada and another3, the Court took similar view and held as follows:
"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 habitually committed, or attempted to be committed or abet commission of the offence, but not involving a breach of the peace, would not enable and authorize 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.
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 9a) 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 opened against the petitioners are ultra vires to the Police Standing Orders. The action of the respondents in opening rowdy sheets against the petitioners is illegal and unconstitutional.
11. In the case of PUTTAGUNTA PASI 's case (3rd cited supra), this Court held as follows:
" From the above, it is clear that rowdy sheets cannot be opened against any individual in a casual and mechanical manner. Dubbing a person as an habitual offender and to open a rowdy sheet is not sufficient. On the other hand, due care and caution shall be taken by the Police before characterizing a person as a rowdy. The important element that has to be seen in the acts of an offender is whether the acts so committed by a person will have a tendency to disturb public peace and tranquility. In Kamma Bapuji's case, the learned single Judge, following the decisions already rendered by the Supreme Court and this Court as cited above, held that opening of a rowdy sheet against the petitioner therein viz., Kamma Bapuji is incorrect.
The question involved in this Writ Appeal is almost similar to the one involved in Kamma Bapuji's case. Apart from this, the appellant himself has filed an affidavit today swearing that in future he will not give room for any action to be taken against him for any offences. If the rowdy sheet opened against him is cancelled, he assures that he would make a decent living without attempting to disturb public peace and tranquility. The said affidavit is taken on record. From the facts narrated, it is very difficult to bring the appellant within the definition of a 'habitual offender'. The 3 (1998) 3 ALT 55 (DB)
7 MSM, J wp_8819_ 2018 mention of his name in the rowdy sheet is of non-application of mind by the authorities to the relevant provisions viz., Standing Orders 741 and 742 of the Police Standing Orders. The learned single Judge would have agreed with the judgment rendered by his Lordship Justice B.Sudershan Reddy in the case of Kamma Bapuji's case and would have quashed the proceedings relating to opening of rowdy sheet if the said judgment was placed before his Lordship. Accordingly, the appeal is allowed and the order of the learned single Judge (B.Sudershan Reddy, L.) rendered in Kamma Bapuji's case.
12. In the case of Shaik Mahaboob v Commissioner of Police, this court held as follows:
"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 organization' 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 requires preventive measures 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 a rowdy sheet within the meaning of S.O.742 but mere assertion does not 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 a 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 preclude the respondents if fresh circumstances in future arise, warranting opening of rowdy sheet".
In view of the law declared the Apex Court and High Court of A.P at Hyderabad, the petitioner cannot be described as a habitual offender, since he did not commit any offence, except alleged offences punishable under Sections 498-A and 506 of Indian Penal Code (for short 'I.P.C') read with Section 10, 9 (n) and 14 (5) of POCSO Act, the petitioner did not repeat commission of such an offence and no material is produced before this Court, to conclude that the petitioner repeated similar offence i.e. teasing women and girls in any manner as 8 MSM, J wp_8819_ 2018 stated in Clause 'd' of Standing Order 601. In the absence of any material to prove that the petitioner repeated such offence against women and girls, opening of a rowdy sheet is without any basis and thereby act of 2nd respondent is irregular, illegal and it is an exercise of power conferred on the police by Standing Order 601 arbitrarily and not only contrary to the Standing Order but also violative of Article 21 of Constitution of India, as it will seriously effect the liberty of the petitioner, due to calling him to the police station in regular intervals. Therefore, the act of 3rd respondent in opening rowdy sheet No.163 (c), against the petitioner is contrary to law and the same is hereby declared as illegal and arbitrary, while directing 3rd respondent to remove the rowdy sheet No.163 (c) against the petitioner and remove the name of the petitioner from rowdy sheet board in the police station henceforth.
13. In the result, the writ petition is allowed, declaring the action of 3rd respondent in opening rowdy sheet No.163 (c) against the petitioner as illegal and arbitrary, while directing the 3rd respondent to remove the rowdy sheet No.163 (c) against the petitioner and remove the name of the petitioner from rowdy sheet board in the police station henceforth.
14. Consequently, miscellaneous petitions, pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 12.11.2019 Rvk