Aman Kumar Alias Billa vs U.T Of J&K Through Commissioner on 22 April, 2024

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Jammu & Kashmir High Court

Aman Kumar Alias Billa vs U.T Of J&K Through Commissioner on 22 April, 2024

01. The petitioner seeks issuance of writ of certiorari to quash the proceedings of opening of personal file, opening of history sheet and entering of the name of the petitioner as history sheeter in the Police Station Arnas, Reasi and a direction to respondent Nos. 3 & 4 to delete/remove the name of the petitioner from the surveillance register kept in the Police Station and also to restrain the respondents from displaying his photographs on the notice board kept in the Police Stations Mahore and Arnas, Reasi.

02. The aforesaid relief is being claimed by the petitioner on the ground that the opening of personal file, history sheet and entering his 2 WP(C) No. 1221/2021 name in the Police Register as well as displaying his photographs on the notice board of the Police Station are not in conformity with the Police Rules. According to petitioner, the act of the respondents in opening the personal file of the petitioner, history sheet and displaying his photographs is a serious encroachment on the liberty of the petitioner who has been acquitted in the FIR, on the basis of which, his personal file and history sheet has been opened.

03. Before opening personal file, history sheet or entering the name of the petitioner in the Police Register, notice was required to be given to him. The case of the petitioner is that two false and frivolous FIRs came to be registered against him by respondent No.3 i.e., FIR No. 127/1993 under Sections 382/353/341 RPC in Police Station Mahore and FIR No. 02/2008 of Police Station Mahore and the said respondent on the basis of said two FIRs opened his history sheet on 19.01.1995.

04. The petitioner claims that he has been discharged by the Court of law in both the FIRs vide orders dated 28.01.2010 and 13.12.1996 respectively. The petitioner submits that the SHO Police Station, Mahore and Arnas had no jurisdiction to enter his name in Part-II of surveillance Register without orders of the Superintendent of the Police or to open the personal file of the petitioners and also to affix his photographs on notice board because as per Rule 699(2) of J&K Police Rules, 1960, it is only Superintendent of the Police, who can do it on its own accord or on the report of the officers subordinate to him but the respondents without any such orders have on their own opened the history sheet of the petitioners and also entered 3 WP(C) No. 1221/2021 his name in the register and displayed his photograph on the notice board of the Police Station.

05. The respondents submit that the petitioner is a hardcore criminal and FIR No. 127/1993 under Sections 341, 353, 382 RPC has been registered against him with Police Station Mahore and Challan in respect of the same has been produced in the Court of law. The petitioner in addition was in the year 1986-87 running a Finance Agency in the name of Unique Bank in which the money of the common masses of the areas was deposited but he used the deposited money for his personal gain.

06. Rules 702, 703 & 704 of the J&K Police Rules,1960, govern the preparation of the history sheet, prescribe the manner in which history sheet is to be opened as also its custody. These rules are reproduced as under :-

"702. Preparation of history sheets: The initial preparation of a history sheet requires great care, and should invariably be done by the officer incharge of the police station himself or by a thoroughly experienced Assistant Sub Inspector under specific orders.

(1) The description of the criminal should be such as will enable the person reading it to form for himself a picture of the individual described, special attention being given to peculiarities of appearance, gait, speech, etc., by means of which the man may be distinguished. (2) The space for 'relations and connections' should be filled in with a view to affording clues to those persons with whom the criminal is likely to harbour when wanted by the police, including relations or friends living at a distance from his home and his associates in crime, abettors and receivers, The particular nature of each person's connection should be noted against each, and, when persons shown as connections themselves have history sheets, a cross reference with those sheets should be given.

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(3) Under property, and mode of earning livelihood, such particulars should be entered as will facilitate a judgment as to whether the criminal is at any time living beyond his means; whether he is capable of furnishing a personal recognizance of any value; whether he is an owner of property, a tenant or a wage-earner, and so on.

(4) The description of crime to which addicted should be in some detail, showing not merely the class of crime, but the particular type of that crime, methods followed, localities oftenly frequented, weapons or instruments used, etc. When these particulars have been carefully and concisely entered, the initial entry on the reverse side of the form should be made in the form of a summary of the individual's criminal career up to the date of his history sheet being prepared, and should include the particular reasons and authority for its being prepared. Copies of history sheets prepared and published by the Criminal Investigation Department and published in the Criminal Intelligence Gazette shall be filed with the history sheets of the persons concerned in their home police stations.

The police station history sheets in all such cases shall be endorsed with the letters C.I.D. and the Criminal Provincial numbers in red ink. The activities of all such criminals subsequent to the publication of their provincial history sheets must be communicated promptly to the Criminal Investigation Department.

703. History sheets when opened (1) A history sheet, if one does not already exist, shall be opened in Form 183 for every person whose name is entered in the surveillance register, except conditionally released convicts. (2) A history sheet may be opened by or under the written orders of, a Police Officer not below the rank of Inspector for any person not entered in the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such person.

704. Custody of history sheets:

(1) The history sheets at each police station shall be kept in three separate bundles as follows:-

(a) Bundle containing the history sheets of persons whose names are entered in the surveillance register.

(b) Bundle containing the history sheets of persons whose names are not entered in the surveillance register and which have not been removed to personal files under rule 706. In this bundle should be recorded the history sheets of persons who (1) have been removed 5 WP(C) No. 1221/2021 from surveillance on probation owing to there being no recent complaints against them, but who cannot be said definitely to be no longer addicted to crime, (2) have been the subject of action under rule 726, but have not yet been placed on security for good behaviour or under surveillance.

(c) Bundle containing the history sheets of Bad characters undergoing sentences of imprisonment sufficiently long to justify the removal of their names from the surveillance register until their release. These history sheets shall be put up by the officer in charge of the police station before a gazetted officer for orders six months before the nominal date of the release of the Bad Character concerned.

(2) In each bundle, the history sheets of each village shall be kept in a separate cover on the inside of which a list of the history sheets pertaining to the village with their index serial numbers shall be maintained."

08. It is clear from the provisions as contained under Rule 702 that at the time when the history sheet of a person is opened, a great care and caution has to be exercised by the officer Incharge of the Police Station or any other competent officer. The said Rule provides the particulars and the manner in which those particulars are to be recorded in the history sheet. A Coordinate Bench of this Court had an occasion to interpret Rule 702 of the J&K Police Rules in a case of Bashir-Ud-Din vs Union Territory of J&K and others, {WP(Crl) No. 37/2023} decided on 15.09.2023. The Court, while interpreting the aforesaid Rule observed as under:

"10. A perusal of the aforementioned rule shows that the preparation of a history sheet is not expected to be a mechanical exercise. Thedescription of the crime to which person is addicted, should be set out in detail in particular. The Police Rules also do not leave the matters at the sole discretion of any one police officer, as the same is required to be dealt with by the senior officers as well. All materials have to be considered and 6 WP(C) No. 1221/2021 no relevant material should be excluded from consideration. There has to be a deliberated decision taken, giving reasons which should reflect application of mind to such materials, after all being leveled a history sheeter as grave and adverse consequence for a person and, therefore, such a power should be exercised with caution and responsibility.

11.........

12. So long as surveillance is for the purpose of preventing crime, there cannot be any complaint about inclusion of a name in the surveillance register, however, the entry has to be made on the basis of the material provided by history sheet, whose contents by their very nature have to be confidential. There must be sufficient material to justify inclusion of the name in the surveillance register. Ordinarily, the names of the 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, the names of the persons, who are reasonably believed to be habitual offenders or receivers of the stolen property whether they are convicted or not, may also be entered in the surveillance register. It is only in the case of this category of persons that there may be occasion of use of power by the police to make entry in the surveillance register."

07. In the said judgment, the Court further discussed in which manner subjective satisfaction has to be arrived at by the office to open a history sheet in respect of a person's history sheet. The same are reproduced as under:-

"13. The criteria for opening a history sheet is the subjective satisfaction of the authority and it has to be arrived at, on the reasonable belief or knowledge that the person, for whom the history is opened or retained is habitually addicted or aid or abet, the commission of crime, whether convicted or not etc. While arriving at the subjective satisfaction, the activities of such persons which are informative and useful, based on the facts ascertained by the police from the date of last entry shall be made month-wise for close watch of characters and quarterly for 7 WP(C) No. 1221/2021 non-close watch of characters. The discretion of the authorities has to be exercised, according to the rules of reason and justice and not according to private opinion, according to law and not humour. It is to be not arbitrarily vague, fanciful, but legal and regular and it must be exercised within the limit to which an honest man competent to discharge of his office or to confine himself.

14. Branding a person as a history sheeted has a tainted image in the society as compared to others. Needless to say that his relationship with others and the prospects of personal development may not remain the same. Characterization of a person is stigmatic, if any photographs is displayed in some conspicuous places in the area, where he resides, or in public places, and it affects not only his personal life, but there is every likelihood of damage being caused to his family and it cannot be lost sight of. Innocent children of such persons could be even looked down. If the officer, mechanically under the guise of prevention of crime and to protect others, open or extend history sheets, which has an impact on the right of privacy of not only the individual against whom the order is passed, but also causes harm to other person's rights. Therefore, a fair and reasonable decision should be taken, taking into consideration the constitutional rights under Article 21 of the Constitution of India and the interests of the State. It should be noted that at the time of opening a history sheet, the individual is not informed of a decision taken by the authorities behind his back and that the information collected is discreet. Needless to say that every person wants to live with dignity and he/she cannot be condemned arbitrarily. It is also to be borne in mind that estrangement of the members of the history sheeted person in social gathering etc., is not uncommon in order in our society. Therefore, opening or retention of history sheets, which interferes with the right of privacy of a person, should be done strictly, adhering to parameters inbuilt in the police rules, keeping in mind the object sought to be achieved."

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08. From the foresaid analysis of law on the subject and having regard to the mandate of law laid down in Rule 702 of the J&K Police Rules, a great care and caution is to be exercised and taken by the officer before branding a person as a history-sheeter and entering his name/particulars in history sheet. While surveillance of movement of a person, is permissible in accordance with the provisions as contained in the J&K Police Rules but at the same time right to respect of an individual is to be taken care of. No interference with regard to the personal right and liberty can be interfered with by the Police except in accordance with the provisions of law. The name of the person can be entered into the history sheet only on the basis of subjective satisfaction of the competent authority and in the manner as provided in the J&K Police Rules.

09. The name of the petitioner has been included in the history sheet in the year 1995 by the police of Police Station Mahore. The history sheet primarily has been opened and his name entered and also photographs were displayed because there were two FIRs registered against him and the petitioner in both the cases has been acquitted by the Court.

10. The record would show that while entering the name of the petitioner in the register and displaying his photographs or opening his history sheet, the respondents have not taken due care and caution. The only contention of the respondents regarding opening of the history sheet and entering the petitioner's name in the Register is that he is a hardcore criminal which is being stated by them on the ground that FIR No. 9 WP(C) No. 1221/2021 127/1993 under Sections 382/353/341 RPC was registered in the Police Station Mahore.

11. The claim of the respondents is that because the petitioner is a hardcore criminal and FIR is pending against him, that is why, his name has been opened in the Police Surveillance register and history sheet. In the said FIR, the petitioner has been acquitted and neither there is any fresh FIR registered nor any report has been furnished by the respondents to show that he has been in illegal activities or commission of offence.

12. The contention of the respondents that the petitioner is a hardcore criminal having cases registered against him has to be seen as to whether the FIR which has been made basis have been investigated and the petitioner has been acquitted. In "Dhanji Ram Sharma Vs. Superintendent of Police, North, reported as AIR 1966 (SC) 1766"

considered the matter with regard to habitual offenders. For facility of reference, para-7 of the said judgment reads as under:-

"7. A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. Reasonable 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."

13. Since the petitioner has been acquitted in the cases and there is no case registered nor it is reported that he continues to indulge in commission of offences, as such, it cannot be said that the petitioner is 10 WP(C) No. 1221/2021 addicted to certain patterns of crime. The entering of the petitioner's name in the surveillance register or displaying his photographs on the notice board, amounts to violation of personal right of the petitioner which cannot be without adopting due course of law.

14. Learned counsel for the petitioner has referred to the judgments rendered in WP(Crl) No. 37/2023 decided on 15.09.2023; WP(C) No. 371/2022 decided on 02.03.2024 and OWP No. 1554/2018 decided on 08.12.2023.

15. Perusal of the aforesaid judgments makes it clear that the manner in which the petitioner's name has been entered in the surveillance register or his photographs displayed, is in violation of the personal right and liberty of the petitioner, therefore, the respondents are required to be directed to delete the petitioner's name from the personal file, opening of history sheet and entering his name in surveillance register in the Police Station Arnas. Ordered accordingly.

16. This petition is, accordingly, allowed.

(VINOD CHATTERJI KOUL) Judge JAMMU RAM MURTI/PS 22.04.2024 Ram Murti 2024.04.25 13:42 I attest to the accuracy and integrity of this document

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