Nafis Ahmad @ Achchhey Babu vs State Of U.P. & Others
2015 Latest Caselaw 3224 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on 29.9.2015
 
Judgment Delivered on 15.10.2015
 
A.F.R.
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 15011 of 2012
 
Petitioner :- Nafis Ahmad @ Achchhey Babu
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Jamal Ali,Adil Jamal,Kartikey Saran
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

This writ petition, under Article 226 of the Constitution of India, has been filed by the petitioner with the prayer to issue a writ in the nature of mandamus directing the respondent nos. 2 and 3 to close down/ discontinue the history sheet no. 35-A dated 17.8.2001 opened against the petitioner, copy whereof has been filed as Annexure no. 2. The second prayer made by the petitioner is for quashing the order dated 24.6.2012 passed by the respondent no. 2 (Annexure no. 5), whereby the respondent no. 2 has dismissed the representation filed by the petitioner for closing his history-sheet.

Earlier, the petitioner had filed Writ Petition No. 9651 of 2004, which was disposed of vide order dated 11.4.2012 of this court directing the respondent no. 2 to decide the petitioner's representation with regard to closing of history sheet in accordance with law. The respondent no. 2 vide impugned order dated 24.6.2012 dismissed the representation of the petitioner.

We have heard Sri Kartikey Saran, learned counsel for the petitioner and learned AGA representing all the respondents.

The learned counsel for the petitioner has challenged the legality and correctness of the order impugned by submitting that although the petitioner is a law abiding citizen yet due to political reasons, the S.H.O., P.S. Moolganj, District Kanpur Nagar, sent a report on 29.7.2001 seeking permission to open his history sheet and surveillance. Consequently the history sheet no. 35-A was opened at P.S. Moolganj, District Kanpur Nagar, which was approved by the respondent no. 2 on 17.8.2001 and the surveillance of the petitioner got started.

Learned counsel for the petitioner has further submitted that the history sheet should be opened against a professional criminal and there must be some basis or material before the police authorities for opening the history sheet. Moreover, Regulation 231 of the Police Regulations provides that history sheet of Class "A" shall continue for two consecutive years only and thereafter surveillance will be discontinued unless some special reason is recorded by the Superintendent of Police.

Learned counsel for the petitioner has next argued that in the petitioner's case the respondent no. 2 has not recorded any special reason for keeping surveillance of the petitioner continued. The respondent no. 2 vide order dated 24.6.2012 has illegally rejected the petitioner's representation by holding that in the ends of justice and public interest it is necessary to continue the history sheet of the petitioner. The petitioner thereafter moved a review application on 5.7.2012, the review application was not decided by the respondent no. 2. However, the respondent no. 2 sent a letter on 17.7.2012 to the respondent no. 3 whereby he directed the respondent no. 3/ S.H.O., P.S. Moolganj, Kanpur Nagar, to stop surveillance of the petitioner. No order was passed with regard to the closing of history sheet no. 35-A of the petitioner.

Advancing his arguments further, the learned counsel for the petitioner has submitted that all the criminal cases shown in the history sheet against the petitioner are very old pertaining to the years 1980, 1982, 1983, 1985, 1986 and 1987. More so all these cases have been ended in acquittal and no criminal case has been lodged against the petitioner since last several years. Therefore, continuance of the history sheet against the petitioner is a direct infringement on his fundamental rights guaranteed under Article 21 of the Constitution of India because the police is illegally harassing the petitioner due to continuance of the history sheet against him.

Per contra the submissions made by learned AGA are that there is no illegality or arbitrariness in the order impugned and keeping in view the gravity and serious nature of the criminal cases against the petitioner and also the likelihood of petitioner repeating criminal antecedents, the history-sheet cannot be discontinued or closed. The surveillance against the petitioner has already been closed down and as such the present writ petition has become infructuous and is liable to be dismissed.

We have very carefully considered the submissions made by the learned counsel for the parties and perused the pleadings exchanged between them.

The brief facts giving rise to this writ petition are that the petitioner is a family member of Hazi Mainuddin Quraishi @ Dhunnu Pahalwan. There was another group headed by Babu Pahalwan. Deadly hostility developed between these two groups and Dhunnu Pahalwan was murdered in 1974. Thereafter the hostility between the two groups continued for several years resulting in murder of several persons from both the sides. A number of cases were registered involving the entire family members including the minors by both the groups against each other. As a result the following cases were lodged against the petitioner also:-

1. Case Crime No. 190 of 1980, u/s 302 I.P.C., P.S. Kotwali, Kanpur Nagar.

2. Case Crime No. 80 of 1982, u/s 147, 148, 149, 302 I.P.C., P.S. Beconganj, Kanpur Nagar.

3. Crime No. 71 of 1983, u/s 147, 148, 201, 109, 302, 149 I.P.C., P.S. Moolganj, Kanpur Nagar.

4. Case Crime No. 232 of 1983, u/s 147, 148, 149, 302 I.P.C. P.S. Beconganj, Kanpur.

5. Case Crime No. 220 of 1985, u/s 3/5 of the Goonda Act.

6. Case Crime No. 102 of 1986, u/s 392 I.P.C. P.S. Moolganj, Kanpur.

7. Crime No. 186 of 1987, u/s 147, 148, 149, 307 I.P.C., P.S. Beconganj, Kanpur.

Due to intervention of some religious leaders the two groups finally settled their dispute through a compromise on 29.1.1988 and since then no occurrence took place between the two groups. As a result of the compromise all the pending cases ended either in acquittal after trial or by filing of final report by police after investigation.

The petitioner has alleged that despite the compromise between the two groups, the police continued to harass him by falsely initiating proceedings under the U.P. Control of Goonda Act and U.P. Gangster and Anti Social Activities Act and as a result the following cases were registered against the petitioner:-

1. Case Crime No. 271 of 1988, u/.s 3(1) of the Gangster Act.

2. Case Crime No. 450 of 1988, u/s 3/5 of Goonda Act, P.S. Beconganj.

3. Case Crime No. 871 of 1988, under the Gangster Act, P.S. Moolganj, Kanpur Nagar.

4. Case Crime No. 86 of 2000, u/s 110 Cr.P.C.

5. Case Crime No. 126 of 2003, u/s 110 Cr.P.C.

The petitioner in paragraph no. 10 of the writ petition has stated that he was never prosecuted in any of these proceedings and the police itself dropped the proceedings even without taking any bond from the petitioner. The petitioner has attributed the reasons for his false implication to the fact that he being an active member of Samajwadi Party and B.J.P. being the ruling party in the State of U.P., at that time due to political reasons history sheet no. 35-A dated 17.8.2001 was opened against him, without taking into consideration that after the compromise between the two hostile groups, no criminal case was registered against him and the petitioner was not convicted in any of those pending criminal trials.

To arrive at a just and proper conclusion, it is necessary to consider what are the parameters that should be followed by the police before opening history-sheet of a person.

There is a whole chapter in the Police Regulation, namely, Chapter XX with a Heading called "REGISTRATION AND SURVEILLANCE OF BAD CHARACTERS". The entire Chapter consists of Regulation 223 to Regulation 276. Relevant Regulations for our purpose would be Regulations 223 to 252. A perusal of these regulations shows that the entire tone and tenor of these regulations reflect the then colonial state of mind as it speaks of "Criminal Tribe Act", (an Act, which has already been repealed in the year 1956) and further provisions are also reflective of a bygone colonial era where a group or individuals or castes were recorded as "criminal tribes" and put under surveillance. It speaks of "habitual criminals" and not only this it goes on to say that there are certain types of criminals, who are "incapable of reform".

Be that as it may, the challenge here is limited and we are not to see the legality of the various provisions of the "Police Regulations", but we have to examine on a limited aspect, as already referred above. A fleeting reference to the seemingly repulsive provisions of the Police Regulations is only to give an idea of the time and era when such Regulations were framed under the Police Act, 1861.

Regulation 228 of the Police Regulations speaks about two classes of history-sheets ''Class-A' and ''Class-B'. Class A is a history-sheet for dacoits, burglars, cattle-thieves railway-goods wagon thieves, and abettors thereof and Class B is history-sheet for confirmed and professional criminals who commit crimes other than dacoity, burglary, cattle-theft, and theft from railway goods wagons, e.g., professional cheats and other experts for whom criminal personal files are maintained by the Criminal Investigation Department, poisoners, cattle poisoners, railway passenger thieves, bicycle thieves, expert pick-pocket, forgers, coiners, cocaine and opium smugglers, hired ruffians and goondas, telegraph wire-cutters, habitual illicit distillers and abettors thereof.

For the authors of this Police Regulations, the two set of crimes (i.e. Class ''A' and Class ''B') are of entirely different nature. Regulation 228 of the U.P. Police Regulations further states that though the manner in which the records of surveillance and manner in which the history-sheet is to be opened in Class ''A' or in Class ''B' is the same, yet where a Class ''B' history-sheet is opened it has to be opened with a red bar mark at the top of the first page and never can Class ''B' history-sheeter be converted into a Class ''A' history-sheeter, though in case, a person, who is under Class ''B' is also seen of indulging in crime relating to history Class ''A' then surveillance of both types of criminals have to be opened against him. However, it is possible that the history-sheeter of Class ''A' is converted into a history-sheeter of Class ''B'.

Normally one has to assume that since history-sheet of Class ''A' carries with it crimes of greater magnitude such as dacoity, burglary etc. the history-sheet opened in such cases is of a more serious nature. But this is not true, in fact reverse is the truth. As per Regulation 229 of the U.P. Police Regulations the classification of history-sheet as "Class A" and "Class B" are based on the principle that whereas there is always hope of a dacoit, burglars, or cattle thieves or railway-goods wagons thief mending his ways, the expert miscellaneous criminal (of Class ''B' history-sheet) is as a general rule "incapable of reform". The classification, therefore, is solely on the kind of crime to which suspects are addicted to and it is designed to regulate. Regulation 229 of the Police Regulations reads as under:-

"229. This classification of history-sheets as A and B is based on the principle that, whereas there is always hope of a dacoit, burglar, or cattle thief or railway goods wagons thief mending his ways, the expert miscellaneous criminal is as a general rule incapable of reform. The classification, therefore, solely on the kind of crime to which suspects are addicted and is designed to regulate only- (1) the length of time for which a suspect should ordinarily remain, under surveillance in the absence of complaints against him. (2) the kind of surveillance which his activities require. The degree of surveillance of the appropriate kind to be exercised over a suspect will depend not on his classification, but on the extent to which he is believed to be active at any particular time."

There is a further classification of history-sheeter of Class ''A'. The more serious nature of the persons under surveillance is the ''starred' category. Their surveillance is more vigorous and have a greater length of time whereas since a history-sheeter of Class ''B' is "incapable of reform", as per the authors of the Police Regulations. The Regulations 232 of the Police Regulations says that it is not necessary to star suspects of Class ''B'. Regulation 232 of the Police Regulations reads as under:-

"232. History-sheet of B class will be continuously open records and the subjects of these sheets will, except for every special reasons remain under surveillance until death. This being so it is unnecessary to star suspects of this class."

Regulation 231 relates to "A" class history-sheet, which is reproduced below:-

"231. The subjects of history sheet of class A will unless they are starred remain under surveillance for at least two consecutive years of which they have spent no part in Jail. When the subject of a history sheet of class A whose name has not been starred who has never been convicted of cognizable offence and has not been in Jail or suspected of any offence or absented himself in suspicious circumstances for two consecutive years his surveillance will be discontinued, unless for special reasons to be recorded in the inspection book of the police station the Superintendent decides that it should continue."

In a present case, history-sheet of Class ''A' has been opened against the petitioner. But was there any relevant material before the Police Authorities to have done so? That is the precise question.

The record shows that after the compromise between the two inimical groups took place, no case was registered against the petitioner except some minor cases under Goonda Act or Gangster Act. In the short counter affidavit filed by the respondent no. 3 it has been admitted that the Deputy Inspector General of Police/ S.S.P., Kanpur Nagar, vide order dated 17.7.2012 had directed the S.H.O., P.S. Moolganj, Kanpur Nagar, to stop the surveillance of the petitioner because no complaint was received in any police station of district Kanpur Nagar against the petitioner and as such, the respondent no. 3 vide G.D. entry no. 21 has stopped the surveillance against the petitioner. In the counter affidavit there is no mention of any case registered against the petitioner since last 12-13 years. In the rejoinder affidavit, the petitioner has alleged that although the police has stopped the surveillance of the petitioner but he has to face embarrassment in the eyes of the public due to the stigma attached to him of a history-sheeter.

Learned AGA has contended that as there is likelihood of petitioner indulging in the same activities in future, hence his history-sheet has not been closed even though his surveillance has been stopped.

There is no doubt that history-sheet of Class "A" can be opened not only against a person indulging in the activities mentioned in Regulation 228 of the Police Regulations pertaining to Class "A" history-sheet but it can also be opened against a person, who is likely to indulge in that activity. However, Regulation 240 (1) shows that history-sheet can be opened on suspicion in two cases. The first situation is in a case where as a result of investigation into a case of dacoity, burglary, cattle theft, theft from railway goods wagons or into a case of miscellaneous crime of a professional type, the officer-in-charge of a police station applies for the name of any person to be entered in the crime register on reasonable suspect, he must at the same time report whether the suspect is under surveillance, and if not, whether a history-sheet should in his opinion be opened for him. Should the gazetted officer-in-charge of a subdivision on receiving such a report and after such further inquiry as he may think necessary consider that a history-sheet is required he will then forward the report to the Superintendent of Police who if he accepts such proposal will define the class of history-sheet to be opened and pass orders as to whether the suspect should be ''starred'.

Second situation is where an officer-in-charge of a police station finds reason to believe, otherwise than in the course of an investigation, that any resident of his circle is addicted to crime, or whenever a gazetted officer or circle inspector for any reason believes that a history-sheet for a person is necessary a report must be submitted to the Superintendent of Police, who will pass orders on it, as laid down above.

The common factor in both the situations as mentioned above is that, some inquiry is necessary to ascertain whether the report submitted by the station officer requires continuation of history-sheet or not.

In the instant case admittedly no criminal case has been filed against the petitioner since past thirteen-fourteen years. It is also evident from a perusal of paragraph no. 14 of the writ petition that the petitioner has been granted arm's license in the year 1999 and again in the year 2003 after due verification of his character by the police and no complaint has been filed against the petitioner regarding misuse of any of the arms. Admittedly the petitioner does not come under the category 'starred' history sheeter, hence his history-sheet no. 35-A ought to have been closed specially in wake of the circumstance that the police had closed down his surveillance.

Considering all these facts and circumstances, we are of the firm view that there is no justification in continuing the history-sheet of the petitioner, and it is liable to be closed.

Accordingly the writ petition succeeds and is allowed. The impugned order dated 24.6.2012 (Annexure no. 5) and the history-sheet no. 35-A dated 17.8.2001 (Annexure no. 2) are hereby quashed.

There shall, however, be no order as to costs.

Order Date :- 15.10.2015

Pcl