Andhra HC (Pre-Telangana)
Ejaz vs Government Of Andhra Pradesh And Ors. on 10 September, 1997
Equivalent citations: 1998(2)ALT469
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
JUDGMENT B. Sudershan Reddy, J.
1. The petitioner who claims to be a businessman hailing from a respectable family with good background was arrested in the year 1990 during the communal riots under Sections 148,153-A, 323 and 307 IPC r/w Section 149 I.P.C. The petitioner was enlarged on bail and thereafter he was acquitted of all the charges levelled against him under those sections after a full trial by the learned Metropolitan Sessions Judge, City Criminal Court, Hyderabad. The petitioner submits that even after the acquittal of the above cases, the Police of Golconda P.S. became more hostile and started harassing him by calling him to the Police Station very frequently disturbing his peace and domestic tranquillity. Later, Security proceedings Under Section 110 Cr.PC on the allegation that the petitioner had committed breach of peace were initiated against the petitioner, but however, he was discharged of the same.
2. The petitioner submits that there are no other cases pending against him and both of them have ended in his favour. The petitioner states that he is not at all habituated to commit or attempt to commit or to abet offences involving breach of peace and in spite of the same, the respondents have opened rowdy-sheet in exercise of their power under Police Standing Order No. 742. The Police very frequently, during odd hours of every day, started visiting his home and harassing him and his family members. The petitioner is put to mental agony, despair and frustration. The petitioner submits that there are absolutely no circumstances warranting to open rowdy-sheet against him. The requirements under Police Standing Order No. 742 are not at all complied with. Therefore, the action of the respondents in opening the rowdy-sheet against the petitioner is illegal and ultra vires. The petitioner complains of regular and continuous harassment by the Police without any justification.
3. In the counter-affidavit filed by the Station House Officer, Golconda Police Station, inter alia, it is stated that the petitioner is very active, communal Rowdy-sheeter since 1990. During communal riots in the year 1990 the petitioner and his friends have assembled unlawfully and attacked the people belonging to other community mercilessly and therefore a case in Cr. No. 116/1990 under Sections 148, 307, 324 r/w 149, 153-A of IPC and Section 3{2) (ii) of TADA Act, 1985 was registered and the petitioner along with other accused was arrested and sent to judicial custody. It is stated that proceedings under Sections 41 and 110 Cr.PC were initiated against the petitioner on 31-5-1996 in Cr. No. 41/96, as the petitioner was moving in suspicious circumstances near the Polling Booth with an intention to create nuisance and (breach of) public peace during Lok Sabha elections. Yet another case was registered against the petitioner, as he was planning to create communal disturbances during Ganesh festival and a case was registered in Cr. No. 94/91 Under Section 151 Cr.P.C. It is thus clear that the petitioner is involved and was arrested in connection with three criminal cases, namely: (1) Cr. No. 116/90. Under Section 148, 307, 324 r/w 149, 153-A IPC and Section 3(2) (ii) of TADA Act, 1985; (2) Cr. No. 84/91 Under Section 151 Cr.P.C and (3) Cr. No. 41/96 Under Section 110-E Cr.P.C. In the counter-affidavit, it is stated that in view of these cases, Police Standing Order No. 742 of A.P. Police Manual gets attracted and the petitioner is liable to be declared as Rowdy sheeter and therefore, a Rowdy sheet was opened against the petitioner. Therefore, he is kept under surveillance and his movements are to be watched. However, the other allegations in the writ petition against the Police complaining of harassment are denied.
4. The question that falls for consideration is as to whether the petitioner could be classified as 'Rowdy' and a 'Rowdy-sheet' can be opened against him.
5. Standing Order 742 of the A.P. Police Standing Orders reads as follows:
"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 two 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 at all such Police Stations.
(G.O.Ms. No. 656, Home (Police-D) Dept., dated 8th April, 1971).
(2) Instructions in Order 735 regarding discontinuance of History Sheets shall also apply to Rowdy Sheets."
It is true that the petitioner got himself involved in three criminal cases, but the fact remains that he is acquitted by the Metropolitan Sessions Judge after a full trial, and the security proceedings initiated against him also ended in his favour, as he was not bound over but he was sent to judicial custody for seven days during trial as stated in the counter-affidavit and in the third case, he was arrested Under Section 151 Cr.P.C. as a preventive measure. In such circumstances can it be said that the petitioner habitually commits, attempts to commit or abets the commission of offences, involving breach of peace. It is submitted by the learned Counsel on behalf of the petitioner that no case registered against the petitioner has ended in conviction and therefore, the petitioner cannot be termed to be a habitual offender. According to the learned Counsel for the petitioner, there should be atleast more than two criminal cases and they should have ended in conviction. A plain reading of Police Standing Order No. 742 would not support the plea advanced by the learned Counsel for the petitioner. The petitioner however, relies upon a judgment of this Court in Majid Babu and Anr. v. Home Secretary, Govt. of A.P. and Ors., 1987 (2) ALT 904, in which it is held 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 a habitual offender. Merely because the two persons are figuring as accused in respect of two crimes registered by Police, no inference can be drawn that they are habitual offenders".
The Court in the said case took note of the fact that though petitioners therein were involved in grave offences, the first one relate to an offence Under Section 307 IPC in respect of which, the crime was registered on 6-4-1987, the second crime was registered against them on 16-5-1987 but in none of those cases there were allegations involving the petitioners therein in any lawless activities. In such view of the matter, the Court held that Police Standing Order No. 742 was not attracted and the petitioners therein should not be said to be rowdies.
6. But in the instant case, the allegations made against the petitioner are very serious, such as rioting, armed with deadly weapons and in another case, the Police have to make preventive arrest with a view to see that the petitioner does not create any disturbance during the polling day in the previous Lok Sabha elections and the third case relate to Security proceedings initiated against the petitioner Under Section 110 Cr.PC on the ground that he habitually commits, or attempts to commit, or abets the commission of offences, involving the breach of peace in which the petitioner was sent to judicial custody for seven days vide M.S.C. No. 288/96 Dt.1-5-1996 on the file of the Special Executive Magistrate, Hyderabad. Obviously such an order was made by the Executive Magistrate in exercise of the power conferred upon him Under Section 116 Cr.PC which authorises the Magistrate to send a person to custody, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety, direct such person in respect of whom the order Under Section 111 has been made to execute a bond for keeping the peace or maintaining good behaviour until the conclusion of the enquiry. The fact that he was sent to judicial custody by an order passed by the Executive Magistrate is not denied by the petitioner in his reply affidavit, therefore, the judgment relied upon by the learned Counsel for the petitioner does not support his case. Here is a case where the petitioner is involved in more than two cases and in all of them, there is an allegation against the petitioner that he is likely to act in the manner of committting breach of peace. However, the submission of the learned Counsel for the petitioner in no case, the petitioner was convicted, therefore, no rowdy sheet could be opened against him is untenable. There is no denial of the fact that the petitioner was arrested Under Section 151 Cr.PC. in Cr. No. 84/91 when he along with other associates were planning to create communal disturbances.
7. It is clear from a plain reading of the Standing Order that no rowdy sheet could be opened against a person who does not fall within the categories mentioned in the Standing Order No. 742 (1) (a) to (e). About category of persons mentioned in categories (b) to (e) and classifying them as rowdies and opening rowdy sheets against them under the orders of the Superintendent of Police or Sub-Divisional Officer may not create any problem as there is not much of discretion left to the authorities concerned. The problem may arise only in cases where clause (a) is applicable, classifying the persons who habitually commit the offences involving the breach of peace. A plain reading of the provision does not suggest that such persons must have been convicted atleast in more than two cases to make such persons as habitual offenders. In fact the very decision relied upon by the learned Counsel for the petitioner in Malak Singh v. State of Punjab and Haryana and Ors., , it is held that:
"Ordinarily 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 on 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 is only to 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 Majid Babu's case (1 supra) also my learned brother Hon'ble Sri Justice M.N. Rao held that two instances would not make a person a habitual offender and at least more than two instances should be present before a person can be described as a habitual offender. The learned Judge did not hold that a conviction in more than two cases was necessary for opening a rowdy sheet under Standing Order No. 742. In Shaik Mahroob Ali v. the Commissioner of Police and Ors., , this Court while considering the scope of very Order No. 742 of the Police Standing Orders held that "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 not lead to the situation that a person attempted to commit an offence."
8. 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 upto life imprisonment can be imposed on criminals convicted of any crime the third or fourth time. In general, habitual offender statutes impose greater sentences on offender for repeated crimes, with life imprisonment being imposed upon commission of several felonies." The Police Standing Order does not refer to any habitual criminal but refers to a person who habitually commits or abets offences involving breach of peace. In such view of the matter, there is no necessity that the person whose name is to be entered into rowdy sheet and classification of such a person as rowdy need not have been convicted. The word habit implies a tendency or capacity resulting from the frequent repetition of the same acts. The words by 'habits' and 'habitually' imply frequent practice or use. The word 'habit' means persistence in doing an act, a fact which is capable of proof by adducing evidence of the commission of a number of similar acts. 'Habitually' must be taken to mean repeatedly or persistently.' {The Law Lexicon)
9. 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-sheet is under the duty 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 whomsoever they like in the said register. The expressions like 'by habit', 'habitual', 'desperate', 'dangerous', 'hazardous' cannot be flung in the face of a man with 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.
10. In the instant case, the petitioner complains that in the name of surveillance and monitoring the movements of the petitioner, the respondents-police have virtually made his life miserable by frequently calling him to the police station and making him to sit for hours together without any justification whatsoever. The fundamental right to personal liberty cannot be allowed to be infringed under the guise of surveillance and monitoring the movements of persons even against whom a rowdy-sheet is opened. Surveillance of such persons whose names are entered in the rowdy-sheets, for reasons unconnected with the prevention of crime and beyond cannot be countenanced. After all the whole purpose of classifying the persons as rowdies and entering their names in the rowdy-sheet is the prevention of crime and no other purpose. Otherwise the order of classification will be bad and void. Surveillance and monitoring of movements of persons whose names are entered in rowdy-sheets should therefore, be proportionate and commensurate to the reasonable apprehension or suspicion entertained by the concerned Police Officer and only with a view to prevent commission of a crime which may result in breach of peace. Any excessive action on the part of the police would not only be ultra vires the Standing Order No. 742 but also would be violative of right to equality and right to freedom guaranteed by Articles 14,19 and 21 of the Constitution of India. Any unauthorised physical restraint or coercion of any sort would be violative of the fundamental right to freedom and personal liberty guaranteed by the Constitution of India. That the right to personal liberty in substance means a person's right not to be subjected to imprisonment, arrest, or other physical coercion.
"The right to the safety of one's life and limbs and to enjoyment of personal liberty, in the sense of freedom from physical restraint and coercion of any sort, are the inherent birth rights of a man. The essence of these rights consists in restraining others from interfering with them." (A.K. Gopalan v. State,
11. In Halsbury's Laws of England the law relating to personal liberty has been stated thus:
"Right to personal liberty: The right to personal liberty and immunity from wrongful detention is enshrined in Magna Carta and is enforceable by the writ of habeas corpus and actions for false imprisonment. A person may be arrested by warrant issued by a justice or, in certain circumstances, without a warrant. If a person is arrested without a warrant, he must be informed of the reason for his arrest and, if retained in custody, he must be brought before a Magistrate's Court as soon as is practicable. Closely connected with the right to personal liberty is the right to be protected against unfair or oppressive police methods in the interrogation of suspects."
Thus the police is under duty to exercise due caution and care in the matter of monitoring the movements and surveillance of every rowdy sheeter and see that the same does not interfere with their day to day normal life.
12. Having held that there is no need for any conviction in more than two criminal cases before entering a person's name in the rowdy sheet, what is the relief that could be granted to the petitioner in the instant case? A person's involvement in more than two cases on the allegation of involving in lawless activities resulting in breach of peace would itself be enough to attract Police Standing Order No. 742 and the Police would be well within its limits to enter such person's name in the rowdy-sheet under clause (a) of the Standing Order 742. It is well settled that there is no need to give any opportunity before a person's name is entered in the rowdy-sheet, but if the same is challenged by an aggrieved person, the entire material in support of such entry in the rowdy-sheet has to be placed before the Court and satisfy the Court that there was enough material and the conclusion arrived was a reasonable one. Mere suspicion and apprehension alone is not enough.
13. However, in the counter-affidavit filed by the Station House Officer, Golconda P.S., it is stated that the petitioner is 'classified as a rowdy sheeter of this police station since 1990'. It is evident that in the year 1990 there was only one crime registered against the petitioner, namely Crime No. 116/90 which has subsequently ended in an acquittal. It is thus clear that there was absolutely no material whatsoever to enter the name of the petitioner as a rowdy sheeter in exercise of the power under the Police Standing Order No. 742(a). The petitioner could not have been classified as a rowdy and his name entered in the rowdy-sheet; as there was only one crime registered against him, he could not be said to be habitual offender in the year 1990 and therefore, there is no basis whatsoever to enter the petitioner's name in the rowdy-sheet. The impugned action therefore, is declared as illegal.
14. For the aforesaid reasons, a writ of mandamus is issued directing the respondents to delete the name of the petitioner from the rowdy-sheet. It is always however, open to the authorities to make fresh assessment about the necessity of taking action under the said Police Standing Order, depending upon the availability of material as on to-day and take decision according to law.
15. The writ petition is allowed. No costs.