Andhra Pradesh High Court - Amravati
Mutyala Sai Kumar vs The State Of Andhra Pradesh on 28 November, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION No.5615 OF 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue Writ of Mandamus declaring the action of the third respondent in opening rowdy sheet against the petitioner vide C.No.34/Genl/SDPO/2013 dated 26.05.2013 and maintaining the same on the file of the fourth respondent police station as illegal, arbitrary and in violation of principles of natural justice, violative of Articles 14, 19, 21 & 300-A of the Constitution of India and also in violation of Standing Order No.601 of the Andhra Pradesh Police Manual Standing Orders and consequently direct the third respondent to close the rowdy sheet opened against the petitioner.
The petitioner herein along with some other persons were arrayed as accused in Crime No.94 of 2012 for the offences punishable under Sections 141, 341, 323, 307, 120-B r/w 149 I.P.C on the file of Jaggampet Police Station. After investigation, the police filed charge sheet, which is registered as S.C.No.279 of 2014 on the file of the Additional District and Sessions Court, Peddapuram, East Godavari District. The allegation made against this petitioner who is Accused No.2 in the said sessions case is that, there were disputes regarding agricultural land of an extent of Ac.4-58 cents in Revenue Survey No.67, 68,84/1,83/1 situated in Surampalem Village, Gandepalli Mandal and the defacto complainant is only a leaseholder of the land for which Accused No.1 and his family members are lawful owners and a civil dispute is pending between Accused No.1 and the defacto complainant. The defacto complainant has also filed O.S.No.38 of 2011 on the file of the Senior Civil Judge's Court, 2 MSM,J W.P.No.5615 of 2019 Peddapuram against Accused No.1 and others, in which the petitioner is a party respondent. Earlier, the defacto complainant foisted a false case against the petitioner and others only due to the pending civil disputes, though the allegations do not satisfy the ingredients to constitute an attract offence punishable under Section 307 I.P.C and the said case is pending before the Court having jurisdiction and a petition under Section 482 Cr.P.C vide Crl.P.No.15436 of 2014 was filed and obtained an interim stay of all further proceedings.
While the matter stood thus, as S.C.No.279 of 2014 is pending before the Additional District Sessions Court, Peddapuram, East Godavari District, Respondent Nos.4 & 5 proposed to open rowdy sheet against the petitioner basing on the sole F.I.R against the petitioner. The third respondent issued proceedings dated 26.05.2013 granting permission to open rowdy sheet against this petitioner. The same was challenged in W.P.No.32995 of 2013 before the High Court to drop further proceedings and the this Court disposed of writ petition on 08.12.2015 with the following direction:
"The police authorities would therefore have to be mindful fo the law laid down by this Court while considering the issue of continuing the existing rowdy sheets on the files of various police stations. The police authorities would also take into account the relevant Police Standing Orders in this regard and exercise their direction judiciously. This exercise shall be completed expeditiously and in any event, not later than the end of January, 2016. In the event the police authorities decide to extent the rowdy sheets in the name of the petitioners for a further period, the decision in this regard shall be communicated with appropriate reasons to the petitioners."
Later, the petitioner submitted a representation dated 16.12.2015 to the third respondent requesting to consider the decision of opening rowdy sheet against the petitioner to all respondents, in pursuance of the direction issued by this Court. Inspite of the same, the fourth respondent did not consider the 3 MSM,J W.P.No.5615 of 2019 request of this petitioner and opened a rowdy sheet against this petitioner, contrary to the provisions of Standing Order No.601 of the Andhra Pradesh Police Manual and violative of the principles of natural justice.
The third respondent filed counter affidavit, admitting opening of rowdy sheet against this petitioner and the basis for opening of rowdy sheet is case in Crime No.94 of 2012 for various offences referred supra and the same was registered as S.C.No.279 of 2014 on the file of the Additional District and Sessions Court, Peddapuram, East Godavari District, while reiterating about grant of interim stay by this Court in Crl.P.No.15436 of 2014. It is also asserted that the petitioner was also involved in Crime No.115 of 2013 and Crime No.67 of 2014 under Section 110 of Cr.P.C before the Mandal Executive Magistrate, Jaggampet, who bound over the petitioner for keeping good behaviour. Therefore, the petitioner is a habitual offender involved in many cases and based on the pending cases, rowdy sheet is opened against him and it is in accordance with the law, requested to dismiss the petition.
During hearing, Sri P. Kasi Nageswara Rao, learned counsel for the petitioner contended that only one case i.e. Crime No.94 of 2012 which is the subject matter of S.C.No.279 of 2014 is pending on the file of the Additional District and Sessions Court, Peddapuram, East Godavari District and no other case is pending before any other court or before Executive Magistrate, but opened rowdy sheet against this petitioner, which is impermissible under Standing Order No.601 of the Andhra Pradesh Police Manual. Therefore, opening of rowdy sheet against this petitioner is nothing but an arbitrary exercise of power by the third respondent and requested to direct the third respondent to close the rowdy sheet against the petitioner.
4 MSM,J W.P.No.5615 of 2019 Whereas, learned Assistant Government Pleader for Home contended that, when Crime No.115 of 2013 and Crime No.67 of 2014 under Section 110 of Cr.P.C are pending before the Mandal Executive Magistrate, Jaggampet, against this petitioner under Section 110 of Cr.P.C, for keeping good behaviour, opening of rowdy sheet against the petitioner cannot be faulted and requested to dismiss the writ petition.
It is an undisputed fact that the petitioner was arrayed as Accused No.2 in Crime No.94 of 2012, which is renumbered as S.C.No.279 of 2014 on the file of the Additional District and Sessions Court, Peddapuram, East Godavari District and trail of the same is stayed by this Court in Crl.P.No.15436 of 2014 and it is pending by the date of opening of rowdy sheet vide C.No.34/Genl/SDPO/2013 dated 26.05.2013.
A rowdy sheet may be opened in accordance with Standing Order No.601 of the Andhra Pradesh Police Manual Standing Orders and Standing Order No.601 reads as follows:
"The following persons may be classified as rowdies and Rowdy Sheets (from 80) may be opened for them under the orders of the SP/DCP and ACP/SDPO.
A. Persons who habitually commit, attempt to commit or abet the commission of, offence 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) and (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 Hyderabad City Police Act or under Section 3, Clause 12, of the A.P. Towns Nuisances Act.
D. Persons who habitually tease woman and girls and pass indecent remarks.
E. Rowdy Sheets for the rowdies residing in one Police Station area but found frequenting the other PSs 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 5 MSM,J W.P.No.5615 of 2019 properties or in the habit of collecting money by extortion from shopkeepers, traders and other residents.
G. Persons who incite and instigate communal/caste or political riots.
H. Persons detained under the AP Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1966 for a period of 6 months or more.
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." The contention of the learned counsel for the petitioner is that, the case of this petitioner would fall under Clause (B) of Standing Order No.601 a rowdy sheet can be opened against persons bound over under Sections 106, 107, 108 (1) (i) and 110 (e) and (g) of Cr.P.C.
In fact, as on the date of opening of rowdy sheet, no crime was registered under Section 110(e) and (g) of Cr.P.C, but the third respondent recommended the fourth respondent to open a rowdy sheet. The crimes referred in the counter affidavit filed against this petitioner in Crime No.115 of 2013 under Section 110 of Cr.P.C before the Mandal Executive Magistrate, Jaggampet were registered on 16.07.2013 i.e almost after 40 days from the date of rowdy sheet and Crime No.67 of 2014 under Section 110(e) Cr.P.C is admittedly registered in 2014 itself i.e. on 27.03.2014 i.e. almost after one year from the date of opening of rowdy sheet. But, these two crimes cannot be the basis for opening a rowdy sheet to bring the case of this petitioner within Clause (B) of Standing Order No.601. Therefore, opening of rowdy sheet on the basis of subsequent crimes is a serious illegality and Crime No.115 of 2013 and Crime No.67 of 2014 are irrelevant as on the date of opening of charge sheet, since no such crimes were registered.
6 MSM,J W.P.No.5615 of 2019 Learned counsel for the petitioner contended that, opening of such rowdy sheet is illegal and it will seriously affect the liberty of this petitioner, drawn the attention of this Court to Police Standing Orders and judgment in Beerjepally Venkatesh Babu v. State of A.P1. On the strength of the principle laid down in the above judgment, he would contend that the petitioner would not fall within the definition of rowdy and opening of a rowdy sheet, due to pendency of cases against the petitioner, for various offences stated above is untenable and requested to set aside the same.
In Beerjepally Venkatesh Babu (1st cited supra) the word 'habitual offender' is analyzed in para No.3 of the judgment. The crucial expressions used in Standing Order 601 indicate that the person must habitually commit or attempt to commit or abets the commission of offences involving breach of peace, disturbance to public order and security. In other words, one must be a habitual offender or keeps abetting commission of offences, which is a plural of the expression 'offence'. Therefore, if the petitioner has involved himself in a single crime, he cannot be described as a 'habitual offender'. For one to become a habitual offender, propensity of repetition of the same conduct should be witnesses. Otherwise, involvement in a single crime cannot be described as habitual involvement in offences. Therefore, in the opinion of the court, the first criteria for the petitioner to be described as a 'rowdy' as per Standing Order 601 is not satisfied. Similarly, even assuming that the person is intimidating by threats or use of physical violence or other unlawful means for parting with movable and immovable properties. Similar issue came up for 1 LAWS (APH) 2014 3 87 7 MSM,J W.P.No.5615 of 2019 consideration before the Court. The word habitual offender is analyzed in catena of judgments.
In Dhanji Ram Sharma V. Superintendent of Police2, the 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."
In other Judgments in Kamma Bapuji v. Station House Officer, Brahmasamudram and Puttagunta Pasi alias Penta Pasi v. Commissioner of Police, Vijayawada and another3, 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.
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 2 AIR 1966 SC 1766 3 (1998) 3 ALT 55 (DB)
8 MSM,J W.P.No.5615 of 2019 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. In the case of Puttagunta Pasi 's case (3rd cited supra), 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.
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
9 MSM,J W.P.No.5615 of 2019 paper 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".
In view of the law declared the Apex Court and High Court of A.P at Hyderabad, the petitioner cannot be described as a habitual offender, since he did not commit any offence, except alleged offences punishable under Sections 141, 341, 323, 307, 120-B r/w 149 I.P.C, the petitioner did not repeat commission of such an offence and no material is produced before this Court, to conclude that the petitioner repeated similar offence as required in Standing Order No.601. In the absence of any material to prove that the petitioner repeated such offence, opening of a rowdy sheet is without any basis and thereby act of third respondent is irregular, illegal and it is an arbitrary exercise of power conferred on the police by Standing Order 601 arbitrarily and not only contrary to the Standing Order but also violative of Article 21 of Constitution of India, as it will seriously effect the liberty of the petitioner, due to calling him to the police station in regular intervals. Therefore, the act of 3rd respondent in 10 MSM,J W.P.No.5615 of 2019 opening rowdy sheet vide C.No.34/Genl/SDPO/2013 dated 26.05.2013, against the petitioner is contrary to law and the same is hereby declared as illegal and arbitrary, while directing 3rd respondent to remove the rowdy sheet vide C.No.34/Genl/SDPO/2013 dated 26.05.2013 against the petitioner and remove the name of the petitioner from rowdy sheet board in the police station henceforth.
In the result, writ petition is allowed, declaring the action of third respondent in opening rowdy sheet vide C.No.34/Genl/SDPO/2013 dated 26.05.2013 against the petitioner as illegal and arbitrary, while directing the third respondent to remove the rowdy sheet vide C.No.34/Genl/SDPO/2013 dated 26.05.2013 against the petitioner and remove the name of the petitioner from rowdy sheet board in the police station henceforth.
Consequently, miscellaneous applications pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:28.11.2019 SP