Amrik Singh vs Commissioner Of Police
1987 Latest Caselaw 226 Del

JUDGMENT

M.K. Chawla, J.

(1) The petitioner has challenged the correctness of the proposal of the S.H.O. Police Station Rajinder Nagar and confirmed by the Deputy Commissioner of Police, South District, to open the history sheet and to enter his name in the Police Surveillance Register. He also seeks the issuance of a writ, order or direction requiring the respondents, to remove the entries from the said registers and closure of the history sheet.

(2) The respondents in their counter have justified the action by alleging that the petitioner is a desperate character of the area. After migration from Pakistan in 1947 he started his criminal activities in the year 1962. Since then, he has been involved in 15 criminal cases. The S.H.O. of Police Station Parliament Street suggested the opening of the history sheet and sent a copy of the same to the Police Station Rajinder Nagar where the petitioner was residing. Keeping in view his long standing record the S.H.O. Police Station Rajinder Nagar made a proposal for bringing his name in bundle 'A' and to keep him under surveillance on 14-2-1976. The then Deputy Commissioner of Police South District approved the proposal vide order dated 20-5-1976. Since then discreet watch is being kept on his activities.

(3) The contention of the learned counsel for the petitioner is that the impugned orders of the respondents are not only in violation of the Punjab Police Rules but are in flagrant disregard of title dictum laid down by this court as also by the Supreme Court of India. The relevant rules are :

(4) Under Sub-rule (3) of Rule 23.4, the name of a 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 Rule 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 Section 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.

(5) Admittedly, the case of the petitioner does not fall under Clauses (a), (c) or (d). The only provision which would be applicable to the instant case would be Clause (b). The condition precedent to the entry of the names of the suspect under this clause being that he is a person who is reasonably believed to be habitual offender of receiver of stolen property whether he has been convicted or not.

(6) The other rules which also need consideration in this context are, Rule 23.5(1) which, inter aha, says down that no entry shall be made in part Ii except by the order of the Superintendent who is strictly prohibited from delegating his authority. Rule 23.5(2) provides for opening of history sheets prior to a person's name being put on the surveillance register. This rule reads as under: "ORDINARILY,before the name of any person is entered in part Ii of the Surveillance Register, the history sheet shall be opened for such person. If from the entries in the history sheet, the Superintendent is of opinion that such person shall 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."

(7) Rule 23.9(1) prescribes the form in which the history sheet is to be opened for a person whose name is entered in the Surveillance Register, unless one does not already exist. Under Sub-rule (2) thereof, the history sheet may be opened by or under the written orders of the Police Officer who is 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.

(8) The combined reading of the aforesaid rules makes it abundantly clear that a history sheet should ordinarily precede an order by the Deputy Commissioner of Police to enter the name of a suspect in surveillance register. No doubt it is within the competence of the Police Authorities to open the history sheet of a suspect even though his name is not brought on surveillance register pursuance to a direction under Rule 23.5(2), provided the conditions laid down in Sub-rule (2) of Rule 23.9 are satisfied. Furthermore, Sub-rule (2) of Rule 23.5 mandates that the names of the persons who have never been convicted or placed on security for good behavior shall not be entered unless the Superintendent has recorded definite reasons for doing so.

(9) The question which requires consideration is whether the police authorities who have initiated action had reasonable ground for believing that the petitioner is a desperate character, a habitual offender or a person habitually addicted to crime. To arrive at a correct conclusion, it becomes necessary to examine the record file of the suspect, to find out if the reasonable belief of the Police Officers 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 Dev Raj Dewan v. Chader Badan Singh & Ors. (Cri. Writ no. 66/77 decided on 14-4-1980).

(10) On perusal of the file, I find that the Deputy Commissioner of Police has not given any reasons for his belief. He has merely approved the recommendations of the subordinate officer and signed it. This is not the compliance of the mandatory requirements of the relevant Punjab Police Rules or the law laid down by this Court and the Supreme Court.

(11) Learned counsel for the petitioner has rightly placed reliance on the observations of a Bench decision of this Court in Peter Samual Wallace v. Inspector General of Police, New Delhi, 1981 Cr. LJ. 1195, wherein the non-giving of reasons was considered as an infirmity which can lead to a conclusion that the name of a person was entered on a Surveillance Register without any justification. The relevant observation reads as under : "THE Superintendent of Police was required to record definite reasons for his "reasonable belief" that the petitioner was a habitual offender, while directing that his name be entered in Part Ii of the Register as envisaged by Rule 23.4(3) (b) and 23.5(2). The above noted directions by the Superintendent of Police Central District merely approve the recommendations of his subordinate officers. No reasons much less definite reasons have been recorded by him. This infirmity itself is a good ground for accepting the contention of the petitioner that his name was entered in Part Ii of the Register illegally and without any justification."

(12) This very conclusion was followed and affirmed in the case of Inder Singh Malik v. Stale, 1950 Crimes 191. CharanjitTalwar, 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. This Court had also the occasion to deal with and consider this point in Baleshwar v. S.H.O. Police Station Delhi Cantt., Cri. Writ no. 109/85 and Rajinder Singh v. Commissioner of Police, Cri. W. 197/85. The view taken by the Division Bench of this Court was confirmed.

(13) Learned counsel for the respondents has not been able to either distinguish or cite any contra authority. Agreeing with the law laid down by the above said Judgments. I have no hesitation to allow the writ petition on this short ground.

(14) On the second aspect also, the petitioner is on a fumer ground. The Supreme Court has gone to the extent of laying down that when action of Police Officers under Rules 23.9(2) and 23.4(3) (b) of the Punjab Police is challenged, it is for the Police Officers to justify their action and to show that the condition precedent to the opening of the history sheet that the suspect is a person reasonably believed to be habitually addicted to crime or to be an aider or abetter of such a person has been satisfied. The condition precedent for entry of the name of the suspect in Part Ii of the Surveillance Register is that he should be reasonably believed to be a habitual offender or receiver of stolen property irrespective of the fact whether he has been convicted or not.

(15) A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. Reasonable 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 these rules. However, mere belief is not sufficient. The belief must be reasonable and based on reasonable grounds (Dhanji Ram Sharma v. Superintendent of Police, North District, Delhi Police and ors. , 1766).

(16) Applying the said principles to the facts of the present case it can safely be said that the respondents acted in haste and slipped badly in bringing the name of the petitioner on bundle 'A' and in the Surveillance Register. Along with the counter affidavit, the respondent has filed the list of 15 cases in which the petitioner was involved. These cases relate to the period from 2-4-1962 to 19-8-1985. In the first 12 cases, the petitioner has either been discharged or acquitted after trial. Except in one case of 1977 where on his confession he was directed to pay a fine of Rs. 100 under Section 114 Ir Act, the remaining four cases are pending trial. At this stage, it will be relevant to note that in between the first two cases there is a gap of more than 5 years and in succeeding three cases, there is another gap of 3 years preceding every case. Till March, 1975, he faced charges in 8 cases which resulted in his discharge in six cases and acquittal in the remaining two.

(17) The recommendations of the Sho Police Station Rajinder Nagar lo bring the name of the petitioner on bundle 'A' is dated 14-2-1976. The approval of the S.P. came on 20-7-1976. By that time, he was absolved of all the pending cases. There was no complaint from any quarter what to talk of the neighbours or persons in the vicinity that the petitioner is a desperate character or is a terror in the vicinity. In fact there was no material before respondents to arrive at the conclusion that the petitioner is a person "reasonably believed" to be habitually addicted to crime or to be an aider or abetter of such person. This by itself is a ground for the quashing of the impugned orders.

(18) Learned counsel for the respondent tried to get out of this difficulty by taking the stand that by the time his name was approved for bundle 'A', he had already faced the trial in at least 8 cases. This, by itself, according to the learned counsel was a circumstance to justify the action for keeping surveillance on his criminal activities. I am afraid this argument has no legs to stand. The respondent Police Officers were not justified in taking note of the cases in which the petitioner had been discharged or acquitted. Even the pending trial cases could not be considered to justify the inclusion of his name in the Surveillance Register. In case reported as Krishna Govind Patil v. State of Maharashtra, the court has gone to the extent of holding that "when accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same ; it would mean that they did not take part in the offence". The above observation to my mind applies aptly and squarely to the instant case and the learned counsel has no answer to meet it.

(19) Even if it be assumed for the sake of arguments that one or two cases against the petitioner were pending trial even then, the same could not have been made the basis of holding the petitioner a habitual offender or a person addicted to crime. In case Kailash Chand v. State, Cr. W. No. 148/85, decided by R.N. Aggarwal and Malik Sharief-ud-din, JJ. on 13-8-1985, the Bench had the occasion to express their opinion on this aspect also. In the above said case, when the history sheet of the petitioner was approved, he was involved in three different cases under Sections 325, 324, Indian Penal Code and under Section 24/54/59 Arms Act. On this aspect, the Division Bench opined as follows: "AFTER giving our anxious consideration to the facts, we are of the view that it is not possible for any person with normal thinking to say that this can lead to a reasonable belief that the petitioner is a habitual offender or is habitually addicted to crime which in fact is the basic requirement before the name of a person is put in Surveillance Register. These provisions of the Punjab Police Rules are to be strictly construed as they do have the effect of maligning the person and lowering him down in the estimation of his friends, relatives and neighbours and also in the estimation of the people in general. The least that can be said is that putting a person on surveillance would definitely impair his reputation and restrict his freedom and this would also interfere with the dignity of the person."

(20) On this score also, the impugned orders are to be set aside.

(21) Yet there is another short but forceful ground calling for interference in the impugned orders of the Police Officers. The identification of Prisoners Act, 1920 entitles the Police Officer for taking of the measurements, finger impressions, foot prints and photographs of prisoners convicted of or arrested in connection with certain offences. Section 4 of the said Act lays down that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upward shall, if so required by a Police Officer, allow his measurements to be taken in the prescribed manner, (emphasis italicized in print supplied)

(22) The case of the petitioner is that on 5-12-1985 when he was forced to give his foot and finger prints and his photograph in the police station he was not under arrest in any of the offence punishable with R.I. for a term of one year or more. The Police officers had no jurisdiction to summon him and get his finger impressions etc. There is much substance in his submission. From the perusal of the details of the involvement of the petitioner as shown in Annexure R.I., I find that in the year 1985 he was undergoing the trial in two cases. The first relates to the month of May and the second was registered in August, 1985. He was on bail in both these cases. After this date no case is either shown registered or pending against the petitioner. Admittedly in December, 1985 he was neither shown arrested in any case nor he was required to be present at the police station. Then what was the occasion for the respondents to summon the petitioner at the police station and force him to give his foot and finger prints. The object of promulgation of this Act is to provide legal authority for taking the measurements, foot prints and photographs of persons convicted of or arrested in connection with certain offences. But under no circumstances the measurements etc. could be taken unless that person has been arrested. This was not the position in December, 1985 and the Police officers under the circumstances had no authority to take recourse to Section 4 of the Act.

(23) Even if it be assumed for the sake arguments that in December, 1985, the petitioner was at least undergoing investigation or facing trial in two cases but once having been acquitted of these offences, the police authorities have no justification to retain his finger prints and photographs. Section 7 of the said Act is relevant provision in this behalf. It lays down : "DESTRUCTION of photographs and records of measurements, etc. on acquittal: Where any person who, not having been previously convicted of an offence punishable with rigorous imprisonment for a term of one year or upwards, has had his measurements taken or has been photographs in accordance with the provisions of this Act is released without trial or discharged or acquitted by any Court, all measurements and all photographs (both negatives and copies) so taken shall, unless the Court or (in a case where such person is released without trial) the District Magistrate or Sub-Division Officer for reasons to be recorded in writing otherwise directs, be destroyed or made over to him."

(24) It is not disputed by the respondents that except in case listed at item no. 9, wherein the petitioner confessed his guilt of the offence under Section 120/114 of the Railway Act and was sentenced to pay a fine of Rs. 100 or in default to undergo 15 days R.I., the petitioner has either been acquitted or discharged in the remaining cases, as shown in the respondents Annexure R-1. At least after December, 1985 he has not been condemned by any court of law. In this state of affairs, the Police authorities had no justification to keep with them his measurements and photographs for the purpose of identification or for any other purpose. By virtue of Section 7, they are required either to destory the finger prints, foot prints and photograph of the petitioner or to return the same to the petitioner. This has not been done. There is no valid explanation for its retention. This act of the respondents is quite contrary to the provisions of Section 7, and they cannot be allowed to bypass this statutory requirement.

(25) The sum and substance of the discussion leave no doubt in my mind that the respondents have miserably failed to bring their action within the four corners of the Punjab Police Rules or the law laid down by the various High Courts referred to above. In fact there was no material before the respondents for the belief that the petitioner is a habitual offender or a person who can reasonably be believed to be habitually addicted to crime.

(26) In the result, I accept the petition and quash the impugned order of the S.H.O. dated 14th February, 1976 and affirmed by the Superintendent of Police on 20th May, 1976. The respondents are directed to strike off the name of the petitioner from the history sheet and remove the entry from the surveillance register forthwith. They are also called upon to destroy the finger prints, foot prints and photographs of the petitioner or return the same with the negatives to the petitioner without any delay.