Madras High Court
K.M.Sheriff vs The Superintendent Of Police on 4 July, 2006
Author: K.Mohan Ram
Bench: K.Mohan Ram
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED: 04/07/2006 CORAM: THE HONOURABLE MR.JUSTICE K.MOHAN RAM W.P.No.3011 of 2006 and W.P.M.P.No.3282 of 2006 K.M.Sheriff ... Petitioner Vs. 1.The Superintendent of Police, Pudukottai District. 2.The Indpector of Police L & O, Ganesh Nagar Police Station, Pudukottai ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus directing the respondent to remove the petitioner name from the history sheet displayed in the Notice Board by the second respondent police station viz., Inspector of Police (Law and Order) Ganesh Nagar Police Station, Pudukottai. !For Petitioner ... Mr.Jegadeeswaran for Mr.K.Balasundaram ^For Respondents ... Mrs.Jessi Jeeva Priya Special Government Pleader :ORDER
It is the case of the petitioner that the first respondent herein passed an order to include the petitioner's name in the rowdy list, maintained by the second respondent during the first week of February 1997. Aggrieved against that, the petitioner has sent a representation to the first respondent on 01.02.2005 and the same has been duly acknowledged by the first respondent. The respondents have not cared to send any reply or to comply with his request made in the said representation. Hence the above writ petition has been filed seeking a writ of Mandamus.
2. In paragraph 3 of the affidavit it is stated as follows:
" I never had any bad antecedent and never indulged in any prejudicial activities at any material point of time or earlier. I further submit in the month of January 1997 due to illicit distillation of poisonous arrack a local bootlegger the life of 34 innocent peoples were lost. As a result of which, I exposed the cause to the Government and created public awareness by attending several public meetings. The steps taken by me irked the police official and they are inimically disposed off towards me. I further submit that I have also launched several public awareness campaign to create public awareness among the poor particularly in the matter of Free Legal Aid. I have also conducted a number of public awareness camps to know the constitutional rights of people particularly fight against the violation of fundamental rights custodial violence and custodial deaths. I have also conducted several public meeting against the prevalent misuse of TADA Act."
3. It is the contention of the petitioner that as per Clauses 778 and 779 of Police Standing Orders, certain basic conditions should be satisfied before including the name of a person in the rowdy list. But in this case, such basic conditions as enumerated in Clauses 778 and 779 of the Police Standing Orders, are not available to include the petitioner's name in the history sheet. It is the further case of the petitioner that the mandatory provisions contained in Clauses 778 and 779 of the Police Standing Orders have not been followed, but the same have been violated. According to the petitioner, none of the provisions of the Police Standing Order is applicable to the case of the petitioner warranting inclusion of his name in the rowdy list.
4. A detailed counter affidavit has been filed by the first respondent herein on his behalf and also on behalf of the second respondent herein. The counter affidavit has been sworn to by one Mr.K.N.Sathiyamoorthy, Superintendent of Police, Pudukottai District/first respondent in the writ petition. In the counter affidavit, the averments contained in paragraph 3 of the affidavit have not at all been denied.
5. Paragraphs 4 and 5 of the counter affidavit read as follows:
" 4. I came to know that the following cases has been registered against the petitioner for his unlawful activities with his gang as follows:
(i) Ganeshnagar PS Cr.No.139/91 u/s 147,148, 336, 427,506(ii) & 294 (b) IPC.
(ii) Ganeshnagar PS Cr.No.230/92 u/s 153(A)(i) & 506(ii) IPC.
(iii) Ganeshnagar PS Cr.No.905/93 u/s 143,147,188,124(A) IPC.
(iv) Pudukkottai PS Cr.No.696/96 u/s 124(A) & 153(A)(1)(a)IPC.
(v) Gandarvakottai PS Cr.No.572/96 u/s 124(A),153(A)(1)(a) IPC.
5. It is submitted that the case in Ganeshnagar PS Cr.No.139/91 ended in acquittal, the cases in Cr.Nos.230/92 and 905/93 were withdrawn as per GO.Ms.No.854/96, dated 01.08.1996 and the items (iv) and (v) were action dropped as per LR.No.12568/L2E/94-16 Public (L2 E) Department, dated 15.12.1997."
6. It is claimed in the counter affidavit that as per Clause 779 (1)(b) of the Police Standing Order, persons not convicted, but believed to be addicted to crime can be brought under the category of rowdy and history sheets may be opened in this regard on surveillance over the activities of the petitioner and history sheet was opened against the petitioner as contemplated in Clause 779(1)(b) of the Police Standing Order. In paragraph 8 of the counter affidavit, it is stated that no representation was received by the first respondent at any point of time. It is stated in paragraph 13 that on an earlier occasion, the petitioner has filed a writ petition in W.P.No.295 of 1998 and WPMP.No.395 of 1998, before the High Court, Madras for the same reason and the same was dismissed, as there was no representation on behalf of the petitioner on 22.06.2001. In paragraph 14, it is stated that the writ petitioner did not approach nor file any petition before the Superintendent of Police for removal of his name from the rowdy list. It is further contented that without availing any alternate remedy, the petitioner has straight away approached this Court and the writ petition is liable to be dismissed.
7. Heard both.
8. The learned counsel for the petitioner submits that the specific allegations made against the respondents in paragraph 3 of the affidavit have not been denied by the respondents in the counter filed by them and as such, the same should be taken as not denied and as true. The said submission of the learned counsel for the petitioner has to be accepted for the reason that though the petitioner has in paragraph 3 of the affidavit stated that the petitioner never had any bad antecedent and never indulged in any prejudicial activities at any material point of time or earlier; in the month of January 1977 due to illicit distillation of poisonous arrack by a local bootlegger the life of 34 innocent people were lost and the petitioner exposed the cause to the Government and created public meetings and the steps taken by the petitioner irked the police official and they are inimically disposed of towards him. The petitioner, in paragraph 5 of the affidavit, has stated that the first respondent herein has passed an order to include the petitioner's name in the rowdy list maintained by the second respondent during the first week of February 1997. These serious allegations have neither been traversed nor denied in the counter affidavit. Therefore, the allegation of the petitioner that only due to the above said reasons and also as he was conducting a number of public awareness camps to know the constitutional rights of people particularly against the violation of fundamental rights, custodial violence and custodial deaths has irked the police officials and they are inimically disposed of towards him has to accepted. In paragraph 8-G of the affidavit, the petitioner has stated that the act of the respondents is nothing but of political malice, vendata, bias and prejudice and this allegation has also not been specifically denied by the respondents in the counter affidavit. The Special Government Pleader is unable to counter the said submission made by the learned counsel for the petitioner. Therefore, the allegation made by the petitioner in the affidavit has to be accepted as true.
9. As could be seen from the averments contained in paragraphs 4 and 5 of the counter affidavit, though 5 cases were registered against the petitioner, Crime No.139 of 1991 ended in acquittal; in Crime No.230 of 1992 and Crime No.905 of 1993, action was dropped on 01.08.1996; and at this stage, on 24.08.1996 history sheet was opened in HS.No.150 of 1995 against the petitioner as per order dated 15.08.1996 of the Director General of Police as per the averments contained in the affidavit. But the said order of the Director General of Police is not produced before this Court. Thereafter, in Crime Nos.572 and 696 of 1996, action was dropped on 15.12.1997. The above said facts clearly establish that none of the cases registered against the petitioner ended in conviction. In fact, in four cases, action was dropped and one case ended in acquittal. The above said facts clearly show that allegations made in paragraph 3 of the affidavit are true.
10. In the counter affidavit, the respondents justified the opening of the history sheet against the petitioner on the basis of the provisions contained in Police Standing Order 778 & 779 (1)(b) of the Police Standing Orders.
11. Police Standing Orders 778 and 779, as found in Tamil Nadu Police Standing Orders, Volume - I (Corrected and brought upto 25th September 1999) reads as follows:-
"778. Notification by the Collector -
(1) Persons mentioned in Police Standing Order No.781 should be notified under the Act by the issue of a notification by the Collector. (2) The cases of all persons registered under Section 16(1) of the Tamil Nadu Restriction of Habitual Offenders Act, 1948 should be reviewed with reference to each such person whether he would come within the definition of a "Habitual Offender" in clause (4) of Section 2 of the Act. If, on examination of the facts, it is found that he had committed offences in recent years so as to bring him within Section 2(4) then a notice has to be issued to him to show cause why the restriction against him should not be continued. In such a case, the order would really be in the nature of a fresh Order under Section 3. If the person affected would not fall within the definition of "Habitual Offender" so that a further order could not be made in his case, his registration should be cancelled formally".
G.O.No.S918, Home of December 1949.
779. Restriction on all notified offenders -
The following are the restrictions on a notified offender under the Act:-
(i) Intimation of residence, change or absence from residence (Section 5);
(ii) Restriction of movement to specified area (Section 6); and
(iii) Placing him in Settlement (Section 8)."
At the relevant point of time, namely on 15.08.1996, there is no Police Standing Order No.779(1)(b) containing the provisions as stated in paragraph 6 of the counter affidavit. But there are two other relevant provisions, which read as follows:-
"748. Discontinuance of History Sheets -
(1) History sheets shall be closed by the definite orders of an officer of and above the rank of Assistant Superintendent of Police / Deputy Superintendent of Police and shall be filed in the Station. The History Sheets of persons who have died shall be / destroyed under orders of an officer of and above the rank of Assistant Superintendent of Police / Deputy Superintendent of Police. The Superintendent of Police may order the closure of a History Sheet at any time but a Divisional Officer may only do so on the expiry of the period named above. (2) Where retention of a History Sheet is considered necessary after two years of registration, orders of an officer of and above the rank of Assistant Superintendent of Police / Deputy Superintendent of Police must be taken for the extension in the first instance upto the end of the next December and further annual extensions from January to December.
(3) The above orders shall apply to Rowdy Sheets also.
749. Suspects -
(1) The following persons shall be classed as suspects and History Sheets shall be opened for them under orders of the Superintendent or Divisional Officer, if so empowered by the Superintendent;-
(a) Persons once convicted under any Section of the Indian Penal Code 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.112) may be opened for them under the orders of the Superintendent or Sub- Divisional 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 Town Nuisance Act.
(d) Persons who are illicit distillers and known purveyors of liquor.
G.O.Ms.No.3461, Home, 10th Dec. 1956.
Persons either convicted under Section 49-A of the Madras City Police Act, 1888 (Madras Act III of 1888) or under Section (4) of The Madras Gaming Act 1930, (Madras Act III of 1930), or reasonably suspected to be habitually committing or abetting the commission of.
(2) Close watch Bad characters should be written, K.Ds first and then suspects, in red ink as contemplated in Police Standing Order No.368 (3) followed by non- close watch Bad Characters in blue or black ink, in the same order. All these entries should be beatwar.
(3) The date of expiry of the History Sheet shall be noted in the remarks column against each Bad Character.
(4) Whenever a History Sheet is opened for a Bad Character for the first time, he shall be under close watch.
(5) The Bad Character returning from jail should be under close watch. If they settle down and are of good character, close watch can be removed."
12. A reading of the above said provisions, especially PSO 749, shows that a person shall be classed as suspects and History Sheets shall be opened for him under orders of the Superintendent or Divisional Officer, if so empowered by the Superintendent, if such person is believed to be addicted to crime. The averments in paragraph 6 of the counter affidavit shows that the respondents have proceeded against the petitioner believing him to be addicted to crime and History Sheet has been opened, if that is so, the respondents should have followed PSO 748. As per PSO 748, the Superintendent of Police may order the closure of a History Sheet at any time but a Divisional Officer may only do so on the expiry of the period named above. As per 748 (2), where retention of a History Sheet is considered necessary after two years of registration, orders of an officer of and above the rank of the Assistant Superintendent of Police / Deputy Superintendent of Police must be taken for extension in the first instance upto the end of the next December and further annual extensions from January to December. As per PSO 748(3), PSO 748(1) and 748(2) apply to rowdy sheets also. Therefore, it is crystal clear that whenever retention of History Sheet is considered necessary after two years of registration, orders of an officer of and above the rank of the Assistant Superintendent of Police / Deputy Superintendent of Police must be taken. In this case, it is not the case of the respondents that such orders of extension was obtained as per PSO 748(2). This is one grave illegality committed by the respondents in this case.
13. PSO 748 as contained in the recent publication is in paremateria with PSO 748 as found in 1999 publication. In the counter affidavit, though first part of PSO No.748 has been extracted in paragraph 7, the respondents have conveniently ommitted to extract/refer to PSO 748(2) and 748(3). When the above said Police Standing Order, No.748(2) mandates the taking of specific orders from superior officers for the retention of a History Sheet beyond two years of registration, the respondents in this case have failed to do so. PSO 748(2) further mandates that for further annual extensions from January to December, separate orders should be taken from the authorities mentioned therein every year. This vital provision which safeguards the rights of a citizen has also not been followed by the respondents as there is no averment to that effect in the counter affidavit. When so many safeguards have been provided for in the PSO, before and after opening of History Sheets / Rowdy Sheets, none of them seem to have been observed by the respondents herein. But to add insult to injury, the first respondent has not cared to pass any orders on the representation dated 01.02.2005 submitted by the petitioner. The failure on the part of the first respondent to pass orders on the representation of the petitioner is unjustified and it amounts to dereliction of duty as the failure on the part of the first respondent has seriously affected the valuable rights of the petitioner. Therefore, it is a fit case where a writ of mandamus should be issued.
14. A feeble attempt was made by the Special Government Pleader that the above writ petition is not maintainable in view of the dismissal of the W.P.No.295 of 1998 earlier filed by the petitioner.
15. In paragraph 13 of the counter affidavit itself, it is stated that the W.P.No.294 of 1998 was dismissed as there was no representation on behalf of the petitioner on 22.06.2001. The earlier writ petition was filed as early as 2001 and the same was not dismissed on merits, but the same was dismissed for default and hence, the same can not stand in the way of filing the present writ petition. Further as held in Rafiq Vs Munsilal AIR 1981 SC 450, the party should not suffer for the inaction on the part of his counsel. It was also contended by the Special Government Pleader that no representation was made to the first respondent to delete the name of the petitioner from the history sheet, which submission is based on the incorrect averment made in the counter affidavit and due to the failure to peruse the typed set filed in the case. In spite of the fact that in the typed set of papers itself, the petitioner has enclosed a copy of the representation dated 01.02.2005 submitted by him to the first respondent, which has been acknowledged by the first respondent and forwarded to the Inspector of Police, Law and Order, Ganesh Nagar Police Station/the second respondent herein for necessary action and report, the first respondent, had the audacity to file a false counter affidavit stating that the writ petitioner did not approach nor file any petition before the Superintendent of Police for removal of the name from the rowdy list. The first respondent, who is holding the post of Superintendent of Police and who is handling law and order problem in his District has without even applying his mind to the averments contained in the affidavit and without looking into the typed set has filed before this Court a false counter affidavit. The act of the first respondent in fling a false counter affidavit is to be condemned. When the right of a citizen is seriously affected by including his name in the history sheet, the first respondent should have taken proper care and taken immediate action on the basis of the representation submitted by the petitioner. The first respondent, instead of discharging his statutory duties, has not only failed to act in accordance with law, but has gone to the extent of filing a false counter affidavit. The future prospects of the petitioner have been seriously affected by the illegal action on the part of the respondents. In the considered view of this Court, the non denial of the serious allegations contained in the affidavit by the respondents herein and the non-denial of the specific averment of the petitioner that the act of the respondents is nothing but vendata, bias and prejudice is a compelling reason for holding that the petitioner's name has been included in the history sheet due to bias and prejudice. Admittedly, the last case viz., Crime No.572 of 1996 on the file of the Gantharvakottai Police Station was registered against the petitioner as early as 1996. The counter affidavit is dated 21.04.2006, in between 1996 to 2006, it is not the case of the respondents that the petitioner indulged in any criminal activities and any case was registered against him, therefore, it is abundantly clear that for the past ten years the petitioner was law abiding and had not indulged in any anti social activities or involved in any law and order problem and that being so, the respondents ought to have reviewed the case of the petitioner as contemplated in PSO 748(2) and deleted the name of the petitioner from the Rowdy sheet. Even otherwise, when the petitioner brought to the notice of the first respondent about the dropping of all cases against him and requested for removal of his name from the Rowdy sheet, the first respondent ought to have removed the name from the Rowdy sheet. The failure on the part of the respondents to do so is unjustified.
16. For the above said reasons, this writ petition stands allowed with costs of Rs.1,000/- (Rupees one thousand only), which should be paid to the petitioner by the respondents within a period of four weeks from today. Necessary orders for removing the name of the petitioner from the History Sheet should be passed within two weeks from the date of receipt of a copy of this order and the same should be communicated to the petitioner. Consequently, the connected WPMP is closed.
04.07.2006 To
1.The Superintendent of Police, Pudukottai District.
2.The Indpector of Police L & O, Ganesh Nagar Police Station, Pudukottai.