Madras High Court
S.J. Simon vs The Deputy Inspector General Of Police, ... on 20 September, 2002
ORDER K.P. Sivasubramaniam, J.
1. The petitioner prays for the issue of Writ of Mandamus directing the respondents to remove the petitioner's photograph from the Police Notice Board in the old Karaikudi bus stand. The writ petition was heard earlier and though order was delivered on 1.8.2002, the said order was not signed as it was found that the factual details have not been correctly represented before this Court viz., as to whether only one criminal case was pending against the petitioner or whether there was another case pending against him on the file of the Magistrate's Court, Saidapet. Hence the writ petition was heard again.
2. Heard both sides.
3. According to the petitioner, he is a post graduate doing real estate business in and around Karaikudi area and his father is an ex-service man and his mother is a retired school teacher. The petitioner claims to be a law abiding citizen and has not involved himself in any unlawful and unwarranted activities. On 6.10.1994, one Subramaniyan and Shanmugam approached the petitioner claiming that they were in need of a house plot at Karaikudi. The petitioner accompanied them in a taxi hired by the said two persons. After covering some distance, few persons posing themselves as friends of the above said two persons, also got into the taxi. After a wordy duel, the petitioner felt that there was something wrong with their behaviour and the petitioner refused to show them any plot and got down from the car. On the same day, he was summoned by the third respondent/Inspector of Police along with the two other individuals. Without any reason, he was kicked and harassed by using filthy language. The petitioner's dress was removed and he was humiliated and also kept in the lock-up from 6.10.1994 to 9.10.1994. The petitioner was threatened and asked to confess a crime which he had not committed and to plead guilty. A case was registered under Section 170 and 382 IPC in Crime No.711 of 1994 and the petitioner was produced before the Judicial Magistrate, Karaikudi. The petitioner was remanded to the Sub-jail for 11 days, later he was released on conditional bail.
4. The petitioner further submits, when he was inside the lock-up, the third respondent demanded a considerable amount as bribe in order to let out the petitioner without any case. The petitioner did not oblige the third respondent. On the other hand, both N. Subramanian and Valayalkara Raman, the other two individuals gave Rs.5,000/- and Rs.6,000/- respectively and they were allowed to go free by the third respondent. Even after the petitioner got conditional bail, the second respondent demanded bribe and hence the petitioner sent a petition to the D.I.G., of Police, Madurai on 15.12.1994 for taking action against the third respondent and his subordinates. Petitioner's father also sent a petition to the Superintendent of Police, Sivaganga on 28.11.1994.
5. After some days, the petitioner was approached by two police Constables attached to the second respondent Police Station and the petitioner was informed that the police have decided to display the petitioner's photograph in a public place like bus stand and they further said that the photo of the petitioner will not be displayed if the petitioner was ready to give a considerable sum of money as bribe. The petitioner refused to oblige them. However, contrary to the Police Standing Orders, the photograph of the petitioner was displayed in Karaikudi old bus stand, Police Notice Board, naming the petitioner as a 'Cheater' in December, 1994. The third respondent even without following the mandatory procedure as contemplated under the Madras Police Standing Orders, had displayed the petitioner's photograph at the bus stand. Thereafter also the petitioner sent a petition on 7.1.1995 to the second respondent, requesting for the removal of the photograph. As there was no response, the petitioner has approached this Court.
6. It is further stated that the action of the respondents are completely opposed to the requirements under the Madras Police Standing Orders as well as the Madras Police Act. The impugned action was purely due to mala fides and personal grievances of the third respondent. The action of the third respondent was intended to malign the petitioner in the society and to spoil his reputation. The petitioner has impleaded the third respondent Sub-inspector of Police by name.
7. In the counter filed by the third respondent, he had denied the allegations and contended that the petitioner was accused in Karaikudi North Police Station in Crime No.711 of 1994 under Sections 382 and 170 IPC and the same is under trial before the Judicial magistrate, Karaikudi in C.C.No.292 of 1995. The petitioner is one of the nine accused persons and he has been arrayed as A-5. They were arrested on 8.10.1994 and produced before the Judicial Magistrate. The petitioner was not doing any real estate business in Karaikudi. The third respondent would further state that the petitioner himself had stated in paragraph-8 of the affidavit that he was facing another criminal case before the Judicial Magistrate, Saidapet under Sections 341, 323, 324 and 506(2) IPC and therefore the petitioner was of criminal nature and involved in unlawful activities. The incidents narrated in the affidavit, having taken place on 6.10.1994 was not related to the case in Karaikudi North Police Station in Crime No.711 of 1994. The third respondent has further stated that the accused/petitioner was not ill-treated and he was not kicked by any police personnel. An identification parade was also conducted on 13.10.1994 and the complainant had identified the petitioner as one of the gang who had posed themselves as Police Personnel and had extracted a sum of Rs.26,000/-. The allegation of the petitioner that the third respondent demanded money from the petitioner and that Boominathan and Kannadasan, police Constables had also approached the petitioner for avoiding the display of the petitioner's photograph are false and denied. Under the orders of the Assistant Superintendent of Police, Karaikudi and in accordance with the provisions in Police Standing Order No.776 and 779(1), "suspect" history sheets were opened on 20.3.1995 against the petitioner and other eight accused and the same are being maintained at Karaikudi North Police Station. The "suspect" history sheet was opened in terms of the provisions of the Police Standing Order, and there was nothing to prevent the opening of the history sheet. During the investigation, the petitioner has given a clear and voluntary confession. The petitioner himself has stated that there was another case before the Judicial Magistrate, Saidapet and that the same was under trial. Therefore the involvement of the petitioner in the above two crimes would require watching him closely with history sheet. As such, there was nothing illegal in the action of the respondent and nothing has been done by the respondents against or injuring the personal liberty or fundamental rights of the petitioner. It was only as a means for educating the public against the crimes and to alert them from being victimised, the photographs were displayed in the bus stand.
8. Learned counsel for the petitioner states that the entire action was vitiated by mala fides and the petitioner was not involved in any crime and the very complaint against the petitioner in Crime No.711 of 1994 was foisted against him. There was absolutely no basis for the facts alleged in the complaint in the said Crime No.711 of 1994. He would further state that the petitioner was falsely implicated in that complaint and the trial is pending and he has not yet been convicted. The contention that the petitioner was involved in another case before the Judicial Magistrate, Saidapet was totally false and in fact a perusal of the affidavit would show that the reference to the said case as having been mentioned in the affidavit of the petitioner is not at all correct. Learned counsel also took me through the various complaints and telegrams given by the petitioner and his father, to the D.I.G of Police and the Superintendent of Police in the said context complaining about the conduct of the petitioner. Learned counsel states that it was only due to the fact that the petitioner had given a complaint to the higher authorities including the District Collector and the refusal of the petitioner to oblige the third respondent for his demand of bribe, the third respondent had resorted to a very impulsive and high handed action of exhibiting the petitioner's photograph in the bus stand, as though he was a criminal.
9. Learned Additional Government Pleader appearing for the respondents after referring to the facts stated in the counter affidavit, states that as the petitioner was involved in two cases and also the fact that an identification parade was conducted in the case pending before the Karaikudi Court, the requirements under the Police Standing Orders were satisfied and hence the writ petition is liable to be dismissed.
10. The following provisions are relevant in the said context:-
Automatic opening of History Sheets.
777.(1) History sheets shall be opened automatically at the time of conviction for persons convicted as under, and shall be retained for two years after release from jail.
Persons or how convicted Number of times convicted Persons released from transportations for life under Chapters XII and XVII, Indian Penal Code. Professional prisoners Indian Penal Code, Sections 395 to 402 Once Indian Penal Code, Sections 392 to 394, if convicted or liable to conviction under Section 75, Indian Penal Code. Twice House-breaking Twice Theft Thrice Conviction under section 109,Criminal Procedure Code. Twice Conviction under section 110, Criminal Procedure Code. Once
NOTE:-(1)History sheets should be maintained for persons registered under the Madras Restriction of Habitual Offenders Act to whom Order No.739 applies. Their closure should be governed by Order No.740.
(2)Order No.741 need not be strictly applied to such persons, but history sheets should be opened under that Order in respect of individuals for whom the Superintendent or Subdivisional Officer thinks it advisable on account of their active criminality.
(3)The History sheet of a Known Depredator, against whom an order has been passed under section 565, Criminal Procedure Code, shall not be closed until the period during which he is required to report changes of residence has elapsed.
(2) Persons convicted as above will be styled Known Depredators.
NOTE:-Inmates or ex-inmates of a Borstal Institution should not be styled as "Known Depredators".
Suspects:-
779.(1) The following persons shall be classed as suspects and history sheets shall be opened for them under orders of the Superintendent or Subdivisional Officer, if so empowered by the Superintendent:-
(a) Persons once convicted under any section of the Indian Penal Code who are considered to be likely to commit crime;
(b) Persons, not convicted, but believed to be addicted to crime.
(2) The following persons may be classified as rowdies and Rowdy Sheets (Form No.125) may be opened for them under the orders of the Superintendent or Subdivisional Officer:-
(a) Persons who habitually commit, attempt to commit or abet the commission of offences involving a breach of peace.
(b) Persons bound over under sections 106 and 107, Criminal Procedure Code.
c. Persons who have been convicted under section 75 of the Madras City Police Act or twice in two consecutive years under section 3, clause 12 of the Towns Nuisances Act.
(3) The fact that a history sheet has been opened for G.O.480, a suspect, other than an ordinary criminal, shall be kept confidential.
11. A perusal of the above provisions will show that history sheet shall be opened only against persons thus convicted, under the relevant provisions as mentioned in P.S. Rules 777 and 779. The police is entitled to classify the categorised persons as suspects namely under Clause (a) persons once convicted under any section of IPC and Clause(b) persons not convicted but believed to be addicted to crime.
12. In the present case, it cannot be disputed that there is no conviction against the petitioner and as such, neither Clause No.777 nor 779(1)(a) can be invoked. But Clause No.779(1)(b) can be invoked even without conviction. However, the essential requirement is that the concerned person should "be addicted to crime". As admitted by the petitioner himself, there are two cases pending against him, one at Karaikudi under Sections 170 and 382 IPC and the other at Saidapet under Sections 341, 323, 324 and 506 IPC. The issue which requires decision is as to whether the pendency of the two complaints would be sufficient to invoke Clause No.779(1)(b). I am inclined to feel that the mere pendency of two criminal complaints against a person alone is not sufficient to hold that he is addicted to crime. Though no sufficient number can be stated as a pre-condition, there should be satisfactory evidence exposing the individual as a habitual offender and as being involved in a number of cases. In the present case, it is also noteworthy that the respondent when he resorted to the impugned action does not appear to have been aware of the complaint at Saidapet Court. Even now he does not know anything about the details of the said complaint. Therefore the background in which the impugned action has been taken against the petitioner discloses not only non-application of mind but only a motive to harass the petitioner without satisfactory basis to invoke Clause No.779(1)(b). The pendency of the second case, as disclosed by the petitioner himself in his affidavit, cannot sanctify or justify action which was not properly invoked. The impugned action having been taken without any basis is liable to be set aside. Further as stated earlier, the mere pendency of two complaints alone cannot result in classifying the accused as addicted to crime.
13. Reference was made to the judgment of Janarthanam, J in J. Boopalan vs. Inspector of Police (1991 (2) MWN (Crimes) Page 105). The learned Judge dealt with the inherent power of the High Court and held that the inherent power of the High Court can be extended only to make suitable orders to prevent the abuse of process of the Court and that the Court was not empowered to interfere with the orders passed by the Executive Authorities.
14. That was a case under Section 482 of the Criminal Procedure Code. It is not necessary for me to consider as to whether the views expressed by the learned Judge is correct or not in the context of Section 482 of Cr.P.C, considering that this writ petition has been filed under Article 226 of the Constitution. The impugned action of the respondent if proved to be incorrect, would certainly make out a case of infringement of the fundamental rights of the petitioner.
15. Consequently, I am inclined to hold that the action of the respondent which has resulted in placing the petitioner in a humiliated position and such action having been taken as a result of improper motives, is liable to be set aside. However, this order will not stand in the way of the respondent taking any further action in terms of the aforementioned Police Standing Orders and in accordance with law and on the basis of any future events of conviction or the petitioner getting involved in any more cases.
16. Subject to the above observation, the writ petition is allowed. No costs. Consequently WPMP No.10667 of 1995 is closed.