Andhra Pradesh High Court - Amravati
P. Ravindra vs The State Of Andhra Pradesh on 31 October, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.19036 OF 2018
ORDER:-
This Petition is filed under Article 226 of the Constitution of India, to issue a writ of mandamus, to declare the action of 4th respondent in opening Rowdy Sheet No.288 against the petitioner is illegal, arbitrary and violative of Article 21 of Constitution of India and issue consequential direction to close the Rowdy Sheet No.288 opened against the petitioner by 4th respondent.
2. The contention of the petitioner is that he is a resident of Allagadda, Kurnool District and carrying on steel business at Allagadda and leading respectable life in the society without any complaint from any quarter much less from the Public. His wife is working as District Educational Officer and presently working at Kadapa.
3. While so, his wife was working at Kurnool, a false case was foisted against the petitioner in Crime No.130 of 2015 registered by the 4th respondent on a false complaint against the petitioner. However, after investigation, a charge sheet was filed. Thereafter, his wife was transferred to Kadapa. The 4th respondent appears to have opened a Rowdy Sheet against the petitioner bearing No.288 basing on the instructions of the 1st respondent to the effect that wherever a case is registered under POCSO Act, Rowdy Sheets are to be opened against the petitioner inspite of the fact that a false case is registered way back in the year 2015 and thereafter, no crime has been registered against the petitioner for the last 3 years.
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4. On enquiries, the petitioner came to know that the 4th respondent is forced to open the rowdy sheet against him basing on the general instructions and that the petitioner is not habitual offender, would not fall within any of the conditions prescribed for opening of a rowdy sheet as per standing order 601 of Andhra Pradesh Police Manual. But the 4th respondent at the instance of 1st respondent, opened said rowdy sheet against the petitioner illegally, without any basis and thereby requested to issue writ of mandamus, stated above.
5. Respondents filed counter, denying the material allegations inter-alia contending that a case in Crime No.130 of 2015 was registered against the petitioner for the offences punishable under Section 354(A) and Sections 7 & 9 of POCSO Act, 2012 by the 4th respondent police station and after completion of investigation, a charge sheet was filed initially on 30.10.2015 and finally after complying with the objections, on 26.05.2018 and the same is pending on the file of I Additional District Judge, Kurnool. In view of the petitioner's involvement in the above heinous offence and also in view of his continued unlawful activities in the area particularly against women, the Sub-Divisional Police Officer, Kurnool ordered to open the rowdy sheet against the petitioner vide C.No.160/SDPO-K/2018, dated 04.05.2018. Accordingly, a rowdy sheet bearing N.288 is opened against the petitioner on the file of 4th respondent police station and it is now pending. Even according to the Andhra Pradesh Police Manual, Order No.601 in the following circumstances, rowdy sheet may be opened. They are---
3A. Persons who habitually commit, attempt or abet the commission of offences involving a breach of the peace, disturbance to public order and security.
B. Persons bound over under Sections 106, 107, 108(1) (i) and 110(e)(g) of Cr.P.C.
C. Persons who have been convicted more than once in two consecutive years under Sections 59 and 70 of the Hyderbad City Police Act or under Section 3, clause 12 of the A.P Towns Nuisances Act.
D. Persons who habitually tease women and girl and pass indecent remarks.
E. Rowdy Sheets for the rowdies residing in one Police Station area but found frequenting the other police stations area, can be maintained at all such police stations. F. Persons who intimidate by threats or use of physical violence or other unlawful means to part with movable or immovable properties or with habit of collecting money by extortion from shop keepers and other residents.
G. Persons who incite and instigate communal/caste or political riots.
H. Persons detained under the "A.P.Prevention of Dangerous activities of Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986". I. Persons who are convicted for offences under the Representatives of the peoples' Act for rigging and carrying away ballot papers, Boxes and other polling material.
6. It is further contended that the alleged opening of rowdy sheet will not infringe any fundamental right granted under the Constitution, therefore, the Court cannot exercise the power under Article 226 of Constitution of India.
7. During hearing, learned counsel for the petitioner Sri CH.Dhanamjaya contended that the petitioner is not habitual offender and case registered against the petitioner for the offences punishable under Sections 354-A I.P.C and Sections 7 and 9 of POCSO Act, is now pending before the I Additional District Judge, Kurnool, for trial, merely because Sessions Case is pending, a 4 rowdy sheet cannot be opened unless there is a material to conclude that the petitioner is habitual offender, involving in commission of such offence and, therefore, opening of rowdy sheet without recording such conclusion based on a stray incident of alleged commission of offence punishable under Sections 354-A I.P.C and Section 7 & 9 of POCSO Act is not sufficient and placed reliance of Judgment of this Court in Writ Petition Nos.7733 and 10421 of 2015 and other Judgments of this Court in Puttagunta Pasi alias Penta Pasi v. Commissioner of Police, Vijayawada and another1, Ejaz v. Government of Andhra Pradesh and others2 and Dhanji Ram Sharma V. Superintendent of Police3.
8. Assistant Government Pleader for Home supported the act of 4th respondent opening of charge sheet based on clause 'D" of Standing order 601 of Police Manual.
9. It is an undisputed fact that a crime was registered against the petitioner for the offence punishable under Section 354-A I.P.C and Section 7 & 9 of POCSO Act., and after completion of investigation, a charge sheet is filed and now the Sessions Case is pending before the Court of learned I Additional District Judge, Kurnool by the date of filing of this petition.
10. The main contention of the petitioner is that the petitioner having allegedly committed an offence punishable under Section 354-A I.P.C., facing trial and such person cannot be said to be habitually teasing women and girl and passing indecent crimes covered by clause (d) or Order 601 of A.P Police Manual. 1 (1998) 3 ALT 55 (DB) 2 (1998) 2 ALT 469 3 AIR 1966 SC 1766 5
11. The Learned Government Pleader also highlighted the reason for opening of rowdy sheet based on clause (D) of Order 601 of Police Manual only. But Sri CH.Dhanamjaya, learned counsel for petitioner contended that he is not a habitual offender and no other crime is registered against the petitioner to fall within the clause (D) of Order 601 of A.P Police Manual or for any other offence punishable under law. Therefore, the petitioner cannot be described as habitual offender, teasing women and girl and placed reliance on Judgment of Apex Court in Dhanji Ram Sharma's case (supra 3) wherein this 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."
12. In other Judgments in Kamma Bapuji v. Station House Officer, Brahmasamudram and Puttagunta Pasi v Commissioner of Police, Vijayawada (supra 1), 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.6
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.
13. In the case of PUTTAGUNTA PASI 's case (supra1), 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 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.
14. 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 7 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".
15. In view of the law declared by apex Court and High Court of Andhra Pradesh at Hyderabad in various Judgments to describe the person as habitual offender, there must be repeated commission of crime by the same person against women or girl and in the absence of any material to come to a reasonable belief that the petitioner is a habitual offender, is sufficient to describe such person as a habitual offender to attract clause (D) of Order 601 of A.P Police Manual. In the present petition, except alleged commission of crime which is subject matter of Sessions Case pending before learned I Additional District Judge, Kurnool, for trial of offences under POCSO Act and trial is now pending. Therefore, in the absence of any material that he is repeatedly committed such offences, it is difficult to conclude that this petitioner is habitual offender to fall within clause (D) of Police Order 601 of A.P Police Manual.
16. Though the Government Pleader for Home contended that this petitioner is habitual offender, there is absolutely no material 8 to arrive at such conclusion and in the absence of any reasonable belief based on reasonable ground, the petitioner cannot be described as habitual offender to attract clause (D) of Order 601 of A.P Police Manual. Hence, opening of rowdy sheet against the petitioner is arbitrary, exercise of power by the 4th respondent at the instance of 1st respondent, who issued rowdy sheet No.228. Hence, rowdy sheet opened against the petitioner bearing No.228 by 4th respondent police station is declared as arbitrary and illegal. Consequently, it is liable to be set aside.
17. In the result, the writ petition is allowed, declaring the action of 4th respondent in opening the rowdy sheet No.288 against the petitioner is illegal and arbitrary while directing the 4th respondent to close the Rowdy Sheet No.228 opened against the petitioner within a week from the date of this order. No costs.
Consequently, miscellaneous applications pending, if any, shall stand dismissed.
_________________________________________ JUSTICE M.SATYANARAYANA MURTHY Date : 31.10.2019 RJS 9 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION No.19036 OF 2018 Date : 31.10.2019 RJS