Madhya Pradesh High Court
Sheikh Shahzad vs State Of M.P. And Ors. on 10 December, 2001
Equivalent citations: 2002(5)MPHT202
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. By this writ petition preferred under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of the order directing surveillance against him.
2. The facts as have been uncurtained are that the petitioner belongs to a respectable family and carries on business for his living. It is putforth that he has personal knowledge that Station House Officer, Bhainsdehi, District Betul the respondent No. 4 herein, initiated surveillance proceeding and started preparation of history sheet. As pleaded, the petitioner is quite innocent and has been falsely implicated in three criminal cases. It has been urged that in one case the offence was compounded and he was acquitted and in two other cases registered for offences punishable under Sections 107 and 116 of Cr.PC the proceedings have been terminated. According to the writ petitioner on 24-4-1996 the respondent No. 4 alongwith some others came to the petitioner and compelled him to move along with the respondent No. 4 without any rhyme or reason. Feeling aggrieved the petitioner submitted a written complaint to the various authorities. An enquiry was conducted and the respondent No. 4 was transferred. As has been setforth that the petitioner has been harassed by the authority for no fault of his and kept under surveillance which infringes his right enshrined under Article 21 of the Constitution of India.
3. It has been averred in the writ petition that the preparation of history sheet and surveillance are governed by the Police Regulations framed under the Police Act, 1861 and Regulation 651 deals with the opening of history sheets of various categories of criminals. A reference has also been made to the Regulations 243 and 249. It is urged that a cursory look at the regulations goes a long way to show that the petitioner does not come within the ambit and sweep of the regulations and hence, the order of surveillance is absolutely unwarranted.
4. A return has been filed by the answering respondents contending, inter alia, that eight cases were registered against the petitioner at Police Station, Bhainsdehi. It is further setforth that the petitioner is actively involved in gambling and other criminal activities. It is putforth that there are cases registered under Sections 307, 324 of the Indian Penal Code against him. A number of cases in which the petitioner has been involved has been shown by way of a chart contained in Annexure R-l. It has been submitted that even if the petitioner is not involved in any offence, a proceeding of surveillance can be initiated even on suspicion and as the petitioner is involved in number of criminal cases, a decision has been taken for keeping the petitioner under surveillance.
5. A rejoinder affidavit has been filed by the petitioner highlighting that the chart indicates that four criminal cases under Sections 116 and 117 of Cr.PC have been registered against him. It is putforth that though certain cases were registered against the petitioner, the said proceedings have been terminated after expiry of six months. It has also been putforth that the proceedings which have been initiated under Sections 107 and 116 of Criminal Procedure Code have also spent their force. It has been stated that action taken under Section 151 of Cr.PC has lost its life spark. It is also putforth that certain cases have been mentioned in the chart in which the petitioner has been acquitted. Documents have been brought on record to indicate that Police Officers, Bhainsdehi are inimically disposed towards the petitioner as a result of which steps are being taken against him.
6. I have heard Mr. S.K. Gangrade and Mr. U.K. Shukla, learned Counsel for the petitioner and Mr. Sanjay Yadav, learned Government Advocate for the respondents.
7. It is submitted by Mr. Shukla that the action taken by the respondents is absolutely pregnable inasmuch as the factual matrix does not justify for taking such harsh action against the petitioner. It is urged by him that the chart filed by the respondent No. 4 is of no consequence inasmuch as the petitioner by no stretch of imagination is involved in any serious crime. The learned Counsel for the petitioner has further submitted that the factual background does not warrant such an action and the Regulations do not so permit.
Mr. S.K. Agrawal, learned Panel Lawyer for the State has supported the action of the respondents and submitted that a case has been made out as per the Regulations in vogue.
8. To appreciate the rival submissions raised at the Bar, it is apposite to refer Regulation 651 which reads as under :--
"R. 651. History sheets are maintained under the orders of the District Superintendent of Police for (a) all ex-convicts who are under regular surveillance, (b) Police registered ex-convicts who are not under regular surveillance, (c) all persons bound over under Sections 109 and 110 Criminal Procedure Code, and (d) persons who, there is reason to suspect, are habitual criminals, even though nothing definite can be proved against them. Ordinately, history sheets will be opened and orders issued by the District Superintendent on conviction slips. If a station house officer is of opinion that a history sheet should be opened for a person, who though not convicted, is reasonably suspected of being a habitual thief, a habitual receiver of stolen property or of being concerned in systematic cattle theft or other serious offences against property, he will apply through the Circle Inspector for permission to open a history sheet. History sheets should never be opened for petty or casual criminals, or for any person who has no fixed residence such a member of a wandering tribe."
9. In this context it is also apposite to refer to Regulation 851. It reads as under :--
"R. 851. The objects of Police Registration are :--
(1) To ensure that intimation will be sent by the Jail Authorities to the police a month before the release of police registered convict, whose chances of avading surveillance by disappearing will thereby be minimized and (2) in the case of a convict marked "P.R.T." to secure his release in the district where he resides, so that he may be kept under proper surveillance on his release. The District Superintendent should, therefore, only registered such convicts as are dangerous criminals and likely to need surveillance on release and, since the whole object of registration is to ensure the surveillance of dangerous criminals in their home districts after release, member of wandering gang and other persons with on fixed place of abode should not ordinarily be registered."
10. Mr. Shukla has placed reliance on a Division Bench decision rendered in the case of Gouri Shanker Sahu v. State of M.P. and Ors. (M.P. No. 40/1990) wherein Faizan Uddin, J., (as His Lordship then was) after scanning the anatomy of the Regulations in Paragraph No. 8 came to hold as under:--
"8. A cursory look to the relevant regulations will go to show that ordinarily a history sheet under Regulation 651 may be opened under the orders of the District Superintendents of Police on conviction slips. A history sheet may also be maintained in respect of a person, who is not a convict, if the person is suspected of being a habitual thief, a habitual receiver of stolen property and involved in a systematic cattle theft or other serious offences against the property. At the same time, Regulation 651 itself directs that history sheets should be never opened for petty or casual criminals. Regulations 855 relates to surveillance proper. In common parlance surveillance means a close watch by police of one who is not in custody. In other words, it means the actual visual observations of his a suspected person. But accordingly to Regulation 856 surveillance is defined as consisting of (a) through periodical enquiries by the station house officer as to repute, habits, association, income, expenses and occupation; (b) domiciliery visits; (c) secret picketing of the house; (d) reporting by Patels, and Kotwars etc., of movements and absence from home; (e) verification of such movements and absence; and (f) collection in a history sheet of all information bearing on conduct. According to Regulation 855 a person may be placed under surveillance irrespective of the fact whether or not person was previously convicted provided there is material to show that he is determined to lead a life of crime and the said person is believed to be really a dangerous criminal."
11. From the aforesaid enunciation of law it becomes quite clear that the person who is determined to lead a life of crime can be kept under surveillance and a history sheet can be opened against him. It is well settled in law that freedom is guaranteed under the Constitution of India and the said freedom is not lightly to be trampled with. A surveillance has a different concept and it stands on a different footing and it contravenes the general supervision. In a democratic set up no citizen in general can be kept under surveillance. In this regard, I may quote with profit from the decision rendered in the case of Gobind v. State of Madhya Pradesh and Anr., (1975) 2 SCC 148, wherein the Apex Court ruled thus :--
"33. When there are two interpretations, one wide and unconstitutional, the other narrower but within constitutional bounds, this Court will read down the overflowing expressions to make them valid. So read, the two regulations are more restricted than Counsel for the petitioner sought to impress upon us. Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist to induce the opinion that they show 'a determination, to lead a life of crime'-- crime in this context being confined to such as involve public peace or security only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperilling safety of society cannot be regarded as warranting surveillance under this regulation. Similarly, domiciliery visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine to follow up at the end of a conviction or release from prison or at the whim of a police officer. In truth, legality apart, these regulations ill-accord with the essence of personal freedoms and the State will do well accord with the essence of personal freedoms and the State will do well to revise these old police regulations verging perilously near unconstitutionality."
12. In this context I may profitably refer to the decision rendered in the case of Malak Singh etc. v. State of Punjab and Haryana and Ors., AIR 1981 SC 760, wherein a two Judge Bench while considering the propriety of the order passed under Chapter 23 of the Punjab Police Rules, expressed the view as under :--
"9. But all this does not mean that the police have a licence to enter the names of whoever they like (dislike ?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court's protection which the Court will not hesitate to give. The very rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed. The note following R. 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule. Similarly R. 23.7 demands that there should be no illegal interference in the guise of surveillance. Surveillance, therefore, has to be unobtrusive and within bounds.
10. Accordingly the names of persons with previous criminal record alone are entered in the surveillance register. They must be proclaimed offenders, previous convicts, or persons who have already been placed or security for good behaviour. In addition, names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered. It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register. But, here, the entry can only be made by the order of the Superintendent of Police who is, prohibited from delegating his authority under Rule 23.5. Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property. While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief. In fact, in the present case we sent for the relevant records and we have satisfied ourselves that there were sufficient grounds for the Superintendent of Police to entertain a reasonable belief. In the result we reject both the appeals subject to our observations regarding the mode of surveillance."
13. Learned Counsel has also drawn sustenance from a decision of the learned Single Judge rendered in the case of Dinnu Dinkar Marath v. State of M.P. and Ors. (W.P. No. 3456/1997) wherein the learned Single Judge after referring to the Regulation 855 ruled thus:--
"From the provision made in Regulation 855, it was necessary for the respondents to have produced material to show that the activities of the petitioner imperil public peace and security or were dangerous security risk. Mere conviction for an offence under Section 13(4)(a) of the Gambling Act and registration of similar offence against the petitioner cannot be said to gravely imperils safety of the society. Thus, on material as placed on record by the respondents, case of placing the petitioner under surveillance has not been made out. Nothing has been shown that activities imperilled public peace and security that he was himself a dangerous security risk. Under these circumstances, there was no justification for placing the petitioner under surveillance and the communication Annexure A is, therefore, quashed and the respondents are directed to remove the name of the petitioner from the surveillance register. The petitioner, accordingly, allowed. The parties are left to bear their own costs."
14. At this juncture I may proceed to state that surveillance creates a dent in privacy of an individual. True it is, right to privacy is not absolute or unfettered but authorities can not assume power to corrode the same at their whim or caprice. It has to be totally in accordance with stipulations of the regulations and no deviation would be countenanced. At this juncture I may refer to a speech rendered by William Pitt, Earl of Chatham, wherein he expressed eloquently:
"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter all his forces dares not cross the threshold of the ruined tenement."
15. True it is, the aforesaid principle is not applicable in entirely but where an endeavour is made to affect the privacy it has to be scrutinised in the strictest manner.
16. Present factual matrix is to be tested on the anvil of the aforesaid parameters. Reliance on chart as contained in Annexure R-1 is of no consequence as most of the cases have ended in acquittal and most of the proceedings have spent their force by efflux of time. There is no material on record to show that the petitioner is so dangerous a criminal so as to keep him under surveillance. Not a single crime has been brought to the notice of this Court as a consequence of which it can be said with certitude that the petitioner is involved in a dangerous crime and is disturbing public peace and security. There is no proof that the petitioner has committed such grave acts which imperil the safety of the society and his actions have the potentiality to disturb the tranquility of the social fabric. In absence of anything brought on record indicating the activity that has imperilled the public peace or security, I am of the considered opinion that the action taken by the respondents is absolutely unwarranted, improper and unjustified. The said action infringes the right of the petitioner conferred on him under Article 21 of the Constitution.
17. Ex consequents, the writ petition succeeds and is hereby allowed and the action of the respondent opening history sheet against the petitioner and placing him under surveillance is quashed. Any consequential action taken on the basis of the aforesaid surveillance is also quashed and the respondents are directed to remove the name of the petitioner from the surveillance register. The parties are left to bear their own costs.