Baleshwar Prashad vs Commissioner Of Police And Others
1987 Latest Caselaw 221 Del

ORDER

1. The present petition under Art. 226 of the Constitution of India is directed against the order of the respondent 1, SHO, Police Station, Delhi Cantt. for opening of the history sheet of the petitioner and entering his name in the Surveillance Register and confirmed by respondent 2, the Deputy Commissioner of Police, South District. He also seeks the issuance of a writ, order or direction in the nature of mandamus commanding the respondents to remove the entry from the Police Surveillance Register and to close the history sheet opened for him.

2. The circumstances as disclosed in the petition and relevant for the consideration of the points raised, in brief, are that the petitioner is a law abiding agriculturist. It is his case that the Police Officers of the Police Station Delhi Cantt. used to make unreasonable demands of money from him and for that purpose they started making calls at his house at odd hours. After sometime, the petitioner refused to comply these demands and on that score, he incurred the wrath of the Police Officers. Narrating an incident, he alleged that on 21-2-1985, at about 10 p.m. while the petitioner and his other male family members were attending the marriage of the daughter of their close relation in the nearby locality, two constables namely Dharam Pal and Rajinder Singh duly armed with rifles and under the influence of liquor came to his house and started knocking at the door violently. The ladies in the house informed the constables that the petitioner and his male family members were away to the marriage and that they should come later. On this the two constables started manhandling the ladies who in turn raised hue and cry which attracted the attention of the persons in the neighborhood. On being informed that the two constables are camping in the house, the petitioner, his father Shri Ram Lal, brother Dilbagh Singh and his cousin brother Padam Singh rushed to the house. On finding that the two constables under the influence of liquor have trespassed in the house, the petitioner immediately rang up the Police Control Room to seek police help. In the meantime Constable Rajinder Singh managed to escape from the spot. Constable Dharma Pal was not allowed to leave the house till the arrival of the control room police. Before that, few of the Police Officers from Police Station, Delhi Cantt. came to the spot and started dragging the petitioner and his other family members. In the melee the father of the petitioner was deprived of a sum of Rs. 5000/- which he was carrying for giving to the bride, at the marriage of the daughter of their relation. The Police Officers then started searching the almirahs and boxes lying in the house and succeeded in taking out a cash of Rs. 2000/-. They also took into possession the licensed revolver belonging to the brother of the petitioner. When their attempt to forcibly kidnap the petitioner and his brother Dilbagh Singh failed, Head Constable Amar Pal Singh fired two shots from the revolver and warned the petitioner and his relations that in case they do not surrender, they will be shown killed in an encounter with the Police. In this way all of them were removed to the Police Station and later on involved in a false case u/s. 186/353/332/342/307/34, I.P.C.

3. On the next day, the petitioner and his other family members were released on bail. Subsequently, the petitioner's brother Dilbagh Singh filed a complaint in the Court of Shri M. K. Gupta, Metropolitan Magistrate, against the Police Officers for their highhanded actions on the night of 21-2-1985. The said complaint is still pending.

4. The petitioner has further alleged that his thumb impression and foot impressions were taken by the Police on 22-2-1985 with a view to open the history sheet. Against this illegal action, the petitioner through his counsel served a registered notice on the respondent 1, SHO asking him to furnish the material on the basis of which he has ordered the opening of the history sheet of the petitioner, to which no reply has been received till the filing of the petition. Thereafter, the police officers started pressurising the petitioner and his family members to withdraw the complaint. In order to achieve the object, they started causing harassment by midnight calls at his house and making illegal demands of money without any rhyme or reason. In order to avoid his future false implication, the petitioner stopped living in his house. The action of the Police Officers in opening the history sheet of the petitioner is not only against law, but their action is also violative of the fundamental rights of the petitioner under Arts. 14, 19, 20 and 21 of the Constitution. Hence the petition.

5. In the counter-affidavit, the stand of the respondent is that the petitioner is a bad character of the area, an anti-social element, and his activities are a danger to the life and property of the people at large. He is a desperate character and is involved in as many as seven criminal cases. He in fact is a terror in the vicinity which has necessitated the opening of his history sheet and the maintenance of surveillance over his activities. A proposal to this effect was submitted by the SHO and the same was duly approved by the Deputy Commissioner of Police, South District on 10-5-85. The respondents denied the averments of harassment 'or' his involvement in false cases, on account of non-payment of money.

6. About the incident of 21-2-1985, the case of the respondents is that the above said two constables were deputed to summon the petitioner, his brother Dilbagh Singh and his father Ram Lal, to the Police post for some investigation. Instead of complying with the directions the petitioner and his family members attacked the Police Party and Padam Singh, in order to scare them away fired two shots in the air. The petitioner and his other family members gave severe beating to the constables and Dharam Pal was kept confined in the house. The reinforced Police party was later on able to rescue Dharam Pal. On his report a case was registered against the petitioner and three others. They denied having snatched any money from the father of the petitioner or removed a sum of Rs. 2000/- in cash from the almirah. The licensed revolver of Dilbagh Singh was seized from Padam Singh and a separate case under the Arms Act was registered against him.

7. In view of these circumstances, it is alleged that the action of the respondents to open the history sheet and to keep surveillance on him is just, proper and in accordance with law. No interference at this stage is called for.

8. The contention of the learned counsel for the petitioner is that the order of the Deputy Commissioner of Police, opening the history sheet and keeping of surveillance on the activities of the petitioner is not in consonance with the provisions of the Delhi Police Rules, inasmuch as the condition precedent, which envisage the recording of definite reasons, that he is a person, "reasonably believed to be a habitual offender" has not been satisfied. His further submission is that the respondents could not and should not have taken cognizance of the pending cases and the cases in which he has already earned acquittal, in arriving at a subjective satisfaction of his being a desperate character or a terror in the locality. Learned counsel also challenged the correctness of the registration of a case against him and three others on the report of Constable Dharam Pal under Ss. 186/353/332/342/307/34, I.P.C. at the Police Station, as there was no occasion for the Police to be present at the spot. None of these submissions are to the liking of the respondents who contend that keeping in view his desperate character and involvement and numerous criminal cases, it was considered expedient to open the history sheet so that surveillance could be maintained on his activities.

9. Before dealing with the rival contentions of the parties, it is relevant to keep in mind the Punjab Police Rules applicable for opening of history sheet and placing the name of a person in the surveillance register. R. 23.5(1) inter alia, lays down that no entry shall be made in Part II except by the order of the Superintendent of Police who is strictly prohibited from delegating this authority. Rule 23.5(2) provides for opening of history sheet prior to a person's name being put on the surveillance register. It reads as under :-

"Ordinarily, before the name of any person is entered in Part II of the Surveillance Register, a history sheet shall be opened for such person.

If, from the entries in the history sheet the Superintendent is of opinion that such person should be subjected to surveillance, he shall enter his name in Part II of the Surveillance Register; provided that the names of the persons who have never been convicted or placed on the security for good behavior shall not be entered until the Superintendent has recorded definite reasons for doing so."

10. Rule 23.9(1) prescribes the form in which the history sheet is to be opened for a person whose name has been entered in the Surveillance register unless one already exists. Under sub-r. (2) thereof, a history sheet may be opened by or under the written orders of the Police Officers not below the rank of Inspector for any person not entered in the surveillance register, who is reasonably believed to be habitually addicted to crime, 'or' to be an aider or a better of such person.

11. Under sub-rule (3) of R. 23.4, the name of the person may be entered in Part II of the Surveillance Register at the discretion of the Superintendent of Police :

"a) if he has been convicted twice or more than twice of offences mentioned in R. 27.29;

b) if he is reasonably believed to be habitual offender or receiver of stolen property whether he has been convicted or not;

c) person under security under S. 109 or 110, Cr.P.C.

d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without the imposition of any conditions."

12. On the combined reading of the aforesaid Rules, it is manifestly clear that the history sheet should ordinarily precede an order of Deputy Commissioner of Police to enter the name of the suspect in the Surveillance Register. It is just possible for the Police authorities to open the history sheet of a suspect even though his name is not brought on the surveillance Register provided the conditions laid down in sub-rule (2) of R. 23.9 are satisfied. For that purpose, the Superintendent has to record reasons for doing so.

13. It is well established rule of precedence that if the action of the Police Officers to open the history sheet of a particular person or to bring his name on the Surveillance Register is challenged, they must justify their actions and must show that the condition precedent had been satisfied.

14. The question, therefore, which arises in this case is whether the Police Officers who had taken action had reasonable ground for believing that the petitioner was a desperate character, a terror in the locality and a habitual offender or a person habitually addicted to crime.

15. The High Court under Art. 226 of the Constitution undoubtedly can examine the impugned record to satisfy itself that a reasonable belief of the Police Officer was based on some material which was germane and relevant to the question although the court would not be concerned with the sufficiency of the material. Cri Writ No. 66 of 1977, Dev Raj Diwan v. Chander Badan Singh, decided on 14-4-1980 (Delhi).

16. I have carefully perused the official records maintained by the Police authorities in respect of the petitioner herein. On 23-2-85 for the first time, the SHO of Police Station, Delhi Cantt. traced the life history of the petitioner, referred to the cases in which he was involved and keeping in view his desperate character proposed that the history sheet of the petitioner be opened and his name be entered in the Surveillance Register. Addl. D.C.P. of the area agreed with the proposal on 26-2-85 and recommended the case to the Deputy Commissioner of Police for suitable action/orders. This file was then referred to the Deputy Commissioner of Police, South District, Delhi who as a routine manner approved the note and signed it on 10-5-85. This act of the Deputy Commissioner, according to the learned counsel, cannot be equated with his "reasonable belief" as envisaged by Rr. 23.4(3)(b) and 23.5(2).

17. There is substance in the submission. This very aspect was under consideration in a Judgment reported as Inder Singh Malik v. State (Delhi Administration), (1986) 3 Crimes 191 (Delhi). Charanjit Talwar, J. held that the mere approving of the recommendations of the Station House Officer can in no case be said to mean that the Superintendent of Police has given definite reasons for permitting either the opening of the history sheet or of putting the name of the petitioner on the Surveillance Register. Support was sought on a Division Bench Judgment of this Court in Peter Samual Wallace v. Inspector General of Police, 1981 Cri LJ 1195 wherein it was held that non-giving of reasons is an infirmity which can lead to a conclusion that name of a person was entered on a Surveillance Register without any justification.

18. As observed earlier, in the present case, the Deputy Commissioner of Police has not given reasons for his belief. He has merely approved the recommendations of the Subordinate Officer. This is not the compliance of the mandatory requirement of relevant rules framed under the Punjab Police Rules. Agreeing with the observations in the case Inder Singh Malik (1986) 3 Crimes 191) (Delhi) (supra), I have no hesitation to allow the writ petition on this short ground.

19. On the second aspect, even though according to the petitioner he was falsely implicated in one case but as per the counter-affidavit, he was involved in as may as 7 cases out of which he stands convicted in two cases, earned acquittal in two cases while the remaining three are still pending trial. In one of the conviction orders, the sentence was till the rising of the Court. These convictions relate to the year 1971-73.

20. According to the learned counsel long time back convictions as well as the pending trial cases should not have been taken into consideration or weighed with the respondents to form an opinion about the activities of the petitioner. His further submission is that the Court should also go into the correctness of the registration of the case FIR No. 89 dt. 21-2-85 under Ss. 186/353/332/342/307/34, I.P.C. On the other hand, the submission of the respondents is that besides the seriousness of the cases in which the petitioner stands involved, his conduct, his life style, working, the reputation which he enjoys amongst the respectable of the locality have also to be considered and in fact were take note of at the time of initiating the proposal of bringing his name in bundle 'A' and an entry in Surveillance Register. Learned counsel also disputes the power of this Court in the writ jurisdiction to go into the correctness or otherwise of the registration of the last case at Police Station, Delhi Catt.

21. As at presently advised, I do not propose to enter into the controversy of the disputed questions of facts as to whether or not there was sufficient material before the respondents to form an opinion, whether the petitioner was a desperate character or a habitual offender. Similarly the correctness or otherwise of the registration of the case against the petitioner cannot be looked into. No other point arises nor requires going into.

22. As a result of the above discussion, I hereby accept the petition and quash the orders of the SHO dt. 23-12-85 and approved by the S.P. on 10-5-85. The respondents are directed to close the history sheet of the petitioner and remove his entry from the Police Surveillance Register forthwith.

23. Petition allowed.