Sarjeet Singh vs Commissioner Of Police And Ors.
2002 Latest Caselaw 493 Del

JUDGMENT

V.S. Aggarwal, J.

1. Sarjeet Singh, petitioner by virtue of the present petition seeks quashing of the history sheet opened with respect to the petitioner and for a direction to the respondent to destroy the history sheet and from restraining the respondent from taking finger prints, photograph etc. which have to be kept in the police record.

2. The facts which prompt the petitioner to file the present petition are that there were certain cases registered against the petitioner at Police Station Trilok Puri, Shakarpur, Lodhi Colony, Mayur Vihar etc. He has never been convicted by the court and some cases out of the cases that have been registered are pending. According to the petitioner he has been implicated falsely in those cases because of certain rivalry and that as a result of those cases that are pending the petitioner's name has been entered in the register of history sheets that is being maintained. It is on these broad facts that it is claimed that the said order referred to above deserves to be quashed.

3. Notice had been issued to the respondent and in the affidavit submitted the respondent justifies the order that has been so passed. The Deputy Commissioner of Police (Hqrs.) in his affidavit asserts that petitioner is involved in 9 criminal cases. In 1992 petitioner was found involved in three cases and thereafter in 1998 he was again found involved in a case punishable under Section 448/506/34 Indian Penal Code. The petitioner is stated to be a desperate character and he along with associates attacked the police officials of Police Station Lodhi Colony when they went to his house to arrest him. Keeping in view the activities of the petitioner when the officer in charge of Police Station Trilok Puri put forward a proposal for opening of history sheet of the petitioner so that a watch is kept on his criminal activities. It was opened on 4th July, 1994. Despite opening of history sheet and surveillance, he committed further crimes. It is denied that petitioner has been involved in false cases. It is further denied that local police is visiting the house of the petitioner is his absence or is threatening the petitioner and members of his family. So far as case No. 157/2000 Police Station Lodhi Colony is concerned, it is claimed that the case was registered against the petitioner on the complaint of the Principal of Dayal Singh College because petitioner got admission on basis of the forged certificates.

4. On the strength of these facts, learned counsel for the petitioner had urged that in most of the cases the petitioner has either been discharged or has been acquitted. There are a few cases that are pending trial. According to the petitioner's learned counsel this does not satisfy the necessary ingredients of the Punjab Police Rules to enter the name of the petitioner as a history sheeter. While with equal vehemence the learned counsel for the State contends that it is unnecessary that petitioner must be convicted of certain cases. If the concerned officer is satisfied on basis of the material on the record then in terms of Punjab Police Rules Chapter 23, the name of the petitioner should be entered in the register maintained for history sheeters and that in the facts keeping in view the track record of the petitioner the order in question is justified.

5. In order to appreciate the question in controversy reference can well be made to the relevant provisions of the Punjab Police Rules as applicable to the Union Territory of Delhi. Chapter 23 of the said rules has been framed for prevention of offences. under Rule 23.1 the officer in charge of the police station have to pay special attention to villages and have to move in any case in the area where crime has occurred or registered bad characters and suspects whose history sheets are on the record and are alive. The information regarding mode of livelihood of bad characters shall be obtained by personal visits and enquiries. Rule 23.2 further prescribes that where possible a constable in plain clothes shall be deputed from police station to each railway station to meet all trains which halt there. Rule 23.3. further prescribes the patrolling by the villagers.

6. Under Rule 23.4 a surveillance register can be maintained and names of persons commonly residing within the area of certain categories can to be entered therein. This can includes all convicts the execution of whose sentence in suspended and also persons who have been convicted twice or more than twice or who are reasonably believed to be habitually offenders. The names have to be entered in Part I and II as the case may be. Rule 23.4 reads:-

"23.4 Surveillance Register No. X -(1) In every Police Station, other than those of the railway police, a Surveillance Register shall be maintained in Form 23.4(1).

(2) In Part I of such register shall be entered the names of persons commonly resident within or commonly frequenting the local jurisdiction of the police station concerned, who belongs to one or more of the following classes:-

(a) All persons who have been proclaimed under Section 87, Code of Criminal Procedure.

(b) All released convicts in regard to whom an order under Section 565 of Criminal Procedure Code, has been made.

(c) All convicts the execution of whose sentence is suspended in the whole, or any part of whose punishment has been remitted conditionally under Section 401 Criminal Procedure Code.

(d) All persons restricted under Rules of Government made under Section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918.

(3) In Part II of such register may be entered at the discretion of the Superintendent.

(a) persons who have been convicted twice, or more than twice, or offences mentioned in rule 27.29;

(b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not;

(c) persons under security under Section 109 or 110, Code of Criminal Procedure

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

7. Similarly Rule 23.5 refers to entries and cancellation in Surveillance Registers and the relevant provision of the said rules reads as under:-

"23.5 Entries in and cancellations from surveillance register. - (1) The surveillance register shall be written up by the officer in charge of the police station Personally or by an assistant sub-inspector in a clear and neat script. no entry shall be made in Part II except by the orders of the Superintendent, who is strictly prohibited from delegating this authority. No entry shall be made in Part I except by the order of a gazetted officer. Entries shall be made either under the personal direction of, or on receipt of a written order from, an officer authorised by this rule to make them. In the later case, original orders shall be attached to the register until the entry has been attested an dated by a gazetted officer.

(2) 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 persons who have never been convicted or placed on security for good behavior shall not be entered until the Superintendent has recorded definite reasons for doing so.

The record of such reasons shall be treated shall be treated as confidential and the person concerned shall not be entitled to a copy thereof.

8. It is patent from the aforesaid that surveillance register has to be written by the officer in charge of the police station and entry in Part I can only be made by the order of the Gazetted Officer. The Superintendent has further to record reasons for doing so before entering the name of a person in Part II of the register.

9. Under Rule 23.8 history sheets can be prepared and it prescribes clearly that it requires great care in doing so. The manner and method of doing so has been prescribed. The aforesaid rules have been enacted as referred to above the ensure that bad character or suspects thereto are kept under surveillance and a check.

10. Learned counsel for the petitioner contended that before entering the name of the petitioner in the relevant register no show cause notice had been issued and well known principle of audi alteram partem had been violated. Indeed this particular controversy need not be dilated further because of the decision of the Supreme Court which clinches the issue in favor of the State. The Supreme Court in the case of Malak Singh v. State of Punjab had gone into this controversy and answered the question holding that the said principle that a person must be given an opportunity of being heard will not be applicable in case of history sheeters and surveillance register. The enquiry was held to be confidential and the said principle of natural justice is clearly excluded. The Supreme Court held:

".....Such enquiry as may be made has necessary to be confidential and it appears to us to necessarily exclude the application of that principle. In fact observance of the principles of natural justice may defeat the very object of the rule providing for surveillance. There is every possibility of the ends of justice being defeated instead of being served...."

11. Consequently we are not further going into the said controversy.

12. On 21st January, 2002 while we were considering the matter a number of issues were raised, namely whether the person whose name was entered in the register was required to be informed by a formal order to enable him to mend his ways and save himself from the consequences and whether a definite period of review ought to be prescribed.

13. We have already referred to the brief scheme of Chapter 23 of the Punjab Police Rules as applicable to to Union Territory of Delhi. We know from the decision in the case of Dhanji Ram Sharma v. Superintendent of Police, North District, Delhi Police and Ors. that the provisions have been enacted to prevent commission of offences and collect intelligence effecting the public peace. For the efficient discharge of their duties the police officers have been empowered by the Punjab Police Rules to open the history sheets of the suspects. The powers have to be exercised with caution and in strict conformity of the rules and that a police officer must satisfy that the condition precedent has been satisfied.

14. This question was again considered by the Supreme Court in the case of Malak Singh (supra) and it was reiterated that these provisions relate to maintenance of history sheets and surveillance register for purposes of prevention of crimes. However, it was further added that the person whose name is entered in the register nor any member of public have access to the surveillance register, it is purely an administrative and non-judicial act. The enquiry in this regard has to be confidential.

15. The question before us however was that whether the fact should be communicated to it. Indeed as held by the Apex Court the entry is on an inquiry of facts nor the reasons can be made available to him. But as has been noted which was not disputed that when with respect to a matter the petitioner was seeking that he should be admitted to bail, on behalf of the State the Additional Public Prosecutor had pointed that petitioner was a bad character of the area and this was a fact which weighed with the Additional Sessions Judge to reject the application. Copy of the order is Annexure B. In other words such an order has an adverse affect Therefore without disclosing reasons or making available the entry in the register it is deemed appropriate that the person whose name is entered in the surveillance register or is described as a history sheeter as the case may be he must be informed of this fact.

16. Co-related with the same was the controversy as to if ones the entry has been it should be reviewed or not. Our attention was drawn to the circular of the Deputy Commissioner of Police (Hqrs.) dated 21st September, 2000 in this regard about periodical review. The circular reads:-

"While hearing a Crl. Writ Petition No. 627/2000 - Ram Kishan v. State of Hon'ble Court had directed that the History Sheet of suspects whose names are in Bundle "A" or "B" should be reviewed periodically, and if, they are no more active criminal their names be kept in Bundle "B" or only their personal file should be maintained. A close what on the movement/activities of B.Sc be made as may be practical without any illegal interference/obstruction in his persona, family life. It may be ensured that surveillance does not cause any hindrance in the enjoyment of the Fundamental Rights guaranteed to a citizen under the constitution. Further there must be authentic record of the person to establish that he is habitually indulging in the criminal activities which demand a supervision over his activities wit a view to have a check on the crime. The DCP must record reasons to keep a person's name in the surveillance register."

17. As one goes through the said circular it is clear that instructions have already been issued that Deputy Commissioner of Police must record reasons to keep the persons name in the surveillance register and further that history sheet of suspects whose names are in Bundle "A" or "B" should be reviewed periodically. The period of such review has not been mentioned. Indeed once such a review has been done it would be by necessary corollary following that the person concerned has a right to approach the concerned Deputy Commissioner of Police for deletion of his name in the register as maintained on such facts as may be deemed appropriate. It is further directed that it is in the fitness of things that the periodical review should be preferably made after every six months and the overall conduct of the concerned persons can be looked into in an appropriate case the name of the person can be deleted from the register when necessary facts are brought to the notice of the concerned officer.

18. Yet another argument advanced at the bar was that since the name of the person concerned is entered in the register which is confidential the petitioner indeed cannot challenge the said entries and in any case this court should not exercise its extraordinary jurisdiction in quashing such an order.

19. Considering the said contention one hardly need to repeat that one of the principle of judicial review is one of the basis structures of our constitution. If the order is violative of the Rules and the Act, is without application of mind or is mala fide, the court would not hesitate to set aside such an order. Of course, if it is merely subjective satisfaction of the concerned authority the High Court will not sit as a court of appeal to incorporate its own opinion to that of the concerned officer.

20. Even in the case of Malak Singh (supra) the Supreme Court had gone into the said controversy and held that the police does not have the license to enter the name of whosoever they like in the surveillance register and if names of the persons are entered in the register in violation of Rule 23.4 of the Punjab Police Rules indeed that would be mala fide. In other words, the High Court would be well within its powers to quash such an order. Paragraph 9 of the decision rendered in the case of Malak Singh (supra) reads:-

"9. But all this does not mean that the police have a license to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the court's protection which the court will not hesitate to give. The very rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed. The note following R. 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule. Similarly Rule 23.7 demands that there should be no illegal interference in the guise of surveillance. Surveillance, therefore, has to be unobtrusive and within bounds."

21. Consequently on its broad principles the argument so advanced at the bar necessarily must be rejected.

22. Faced with this situation learned counsel for the State had drawn our attention to the fact that merely because the petitioner as yet has not been convicted in any case will not be enough to set aside the such an order. This argument necessarily had been floated because learned counsel for the petitioner contended that petitioner as yet has not been convicted of any offence and that though he has been imp leaded in a number of cases.

23. We have already referred to the relevant provisions of the Punjab Police Rules. Under Rule 23.5 the Superintendent of Police (Deputy Commissioner of Police in Delhi) is not bound to open the history sheet of an offender. It uses the expression "Ordinarily". Therefore, every persons name need not be entered whomsoever may or may not have been convicted of the offence. The word 'ordinarily' leaves a discretion with the concerned officer to apply his mind and look at the conduct of the accused in this regard (See Sahdu Ram v. Superintendent of Police, Bhatinda and Ors. AIR 1971 Punjab & Haryana

252). Similar findings had also been recorded in the case of Dhanji Ram Sharma (supra) . Here too the Supreme Court held that the reasonable belief of the police officer about a person being habitual addicted to crime is enough. It is unnecessary that he must be convicted. In paragraph 7 the Supreme Court in this regard held:

"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 Rule 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 ben convicted. of any crime. Even apart from any conviction, there may be reasonable grounds for believing that he is a habitual offender."

24. Consequently it is not necessary therefore for the court to consider whether the person as such has been convicted or not but there necessarily has to be a proper satisfaction of the concerned officer before the name of a person is entered in the history sheet. This is for the reason that under Rule 23.5 (2) if from the entries in the history the Superintendent of the Police is of the opinion that such person should be subjected to surveillance he shall enter his name in Part II of the register provided that name of the person who has never been convicted or placed on security for goods behaviors shall not be entered until the Superintendent has recorded the definite reasons for doing so. In this process before making a departure in cases where there is no conviction recorded special reasons has to be recorded.

25. Some of the precedents in this regard would be in the fitness of things, in the case of Jarnail Singh v. State of Haryana and Anr. 1997 (2) All India Criminal Law Reporter 834. The name of the person has been entered in the surveillance register. He was seeking quashing of the same, the record revealed that there was a charge of criminal conspiracy in a case against the petitioner in which he was acquitted. He was not a habitual offender. It was held that there was no warrant for showing along with him history sheeters and the order as such consequently had been quashed. In the case of Kanwarjit Singh v. State of Haryana and Ors. 1997 (3) All India Criminal Reporter 494 the Superintendent of Police had not recorded any reason nor the petitioner in that case was shown to be a previous convict for offences contemplated under Rule 23.9 of the Punjab Police Rules. The Punjab and Haryana High Court had set aside the said order holding:

"...There is no reason recorded by the Superintendent of Police nor the petitioner is shown to be convicted twice for offences contemplated under Rule 27.29 of the Punjab Police Rules. Therefore, there is no justification in the said order."

26. Identical was the view point expressed by that court in the case of Baljit Singh v. State of Haryana and Ors. 1998(1) All India Criminal Law Reporter 275 and it was recorded:

"It is, thus, clear that there was absolutely no justification for the opening of the history-sheet of the petitioner or the entry of his name in the Surveillance Register No. X kept at Police Stations Civil Lines Rohtak and City Bahadurgarh and keeping his photograph hung on the walls of these Police Stations when he was acquitted in every case. Assuming he was a habitual offender why did SHOs of the concerned Police Stations not request the Executive Magistrate having jurisdiction over the area concerned to take action against him under Section 110 Cr. P.C."

27. Same view was expressed in the case of Sashi Kumar & Mana v. State of Punjab and Ors. 1999 (4) All India Criminal Law Reporter 534 where no such reasons had been recorded by the Superintendent of Police, the order was quashed holding:

"The Superintendent of Police, Patiala has not recorded any reason as required under the proviso referred to above for entering the name of the petitioner in the Surveillance Register. Further the City Inspector, Police Kotwali, Patiala in Annexure R-1 used the words 'that the petitioner managed to get acquitted." This language of the City Inspector is highly intemperate and deserves to be condemned. The said words cast aspersion on the court. Nobody can manage to get an acquittal. It can neither be denied nor doubted that it is for the prosecution to prove the guilt of the accused beyond all reasonable doubts. It the Police fail to prove the guilt of the accused, necessarily the court has no other option, but to acquit the accused. In such cases, there is no question of the accused to have managed to get an acquittal. For the failure of the Police to prove the guilt of the accused, the court cannot be found fault with and no aspersion can be cast on the court. Since the Superintendent of Police has not recorded any reason as required under Rule 23.5 of the Police Rules, the entry of the petitioner in Surveillance Register is liable to be quashed."

28. A Division Bench of this court in the case of Mohd. Anis v. Commissioner of Police and Ors. 1993(1) Chandigarh Criminal Case 545 also concluded that order of opening of a history sheet and surveillance is precautionary measure and has to be based on the past conduct in the light of the surrounding circumstances. The past conduct must be of such a nature that inference can be drawn that person concerned is habitually addicted to crime. The expression 'habitual' was held to be meaning repeatedly or persistently creating any of such ingredients were not satisfied. The order as such was quashed and this court observed:-

"...We fail to see how one solitary case registered almost six years before the passing of the impugned order could possible persuade any reasonable person to reach the satisfaction that the petitioner was habitually addicted to crime. There being no material to show that the petitioner was persistently engaged in a series of criminal acts and the cases in which he was involved being too remote in matter of time and having ended in acquittal or discharge, no inference of habit can be justifiably raised."

29. From the aforesaid the conclusions can conveniently be drawn to be (a) before the name of a person is entered in the register of history sheets and surveillance register, it is not necessary to give him an opportunity of being heard (b) it is not necessary that person concerned must be convicted of certain offences but in that event reason must be recorded specifically to bring the name of such a person on he registers referred to above (c) it is the satisfaction of he concerned officer and unless the order so passed in mala fide is without application of mind or his contrary to the strict provisions of Rules and the Act, the High Court would not interfere. (d) however the High Court in cases where ingredient of (c) above is not satisfied would be within its powers to quash such orders (e) if the name of a person is entered in any of the said registers and the entry is to be used against him he must be informed of it (f) the concerned person will have the right to represent and even show that he has since improved his conduct and that his name be deleted from the concerned register (g) in any case there should be a period review of the entries every six months from the date the entry is made.

30. Reverting back to the facts of the present case we can conveniently refer to the list of criminal cases that have been stated to be opening against the petitioner. It reads:-

List of Criminal Cases Against Sarjeet s/o Dhanpal

Sl. No. Case No. & U/S PS Present date Status

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1. 379/92 379/411 IPC Trilokpuri Acquitted dated 14-7-92

2. 257/92 379/411 IPC Shakarpur Acquitted dt. 1-8-92

3. 493/92 379/411 IPC Trilokpuri Acquitted Dt. 10-9-92

4. DD No. 31 107/151 Cr.P.C. Trilokpuri Discharged Dt. 29-9-93 P.P. Mayur Vihar-I

5. 290/98 448/506/34 IPC Preet Vihar Pending Trial

6. 28/2000 308/34 IPC Lodhi Colony Pending dt. 28-1-00 Trial

7. 22/2000 147/148/149/ Mayur Vihar Pending dt. 29-1-2000 341/323/186/ investigation 353/332/447 IPC

8. 157/2000 420/468/471 IPC Lodhi Colony Pending investigation

9. Above 15A 100 DP Act Mayur Vihar Discharge dt. 19.11.2000

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31. The above list clearly reveals that out of 9 cases that were pending the petitioner has been discharged in all cases and acquitted in three. Two matters are pending investigation and two are pending trial in different courts pertaining to certain offences. As on this date therefore there is no conviction recorded against the petitioner.

32. Though the petitioner has not been convicted of any of such offence still the concerned officer could on proper appreciation of fact enter the name of the petitioner but specific reasons in this regard must be recorded. Our attention has not been drawn to any such specific order in writing passed by the concerned officer as to why despite the aforesaid it is deem appropriate to enter the name of the petitioner in the register referred to above. No special reasons seemingly have been recorded. Therefore the order in question consequently will not stand scrutiny.

33. Subject to aforesaid in face of the reasoning recorded above the impugned order is quashed.