Preetha Jayachandran vs District Police Chief
2021 Latest Caselaw 5169 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

     FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942

                      W.P.(C) No.26529 OF 2020(M)


PETITIONERS:

      1        PREETHA JAYACHANDRAN,
               AGED 41 YEARS, W/O.JAYACHANDRAN,
               KUNNEL HOUSE,
               PAIPPADU, CHANGANACHERRY TALUK,
               NALUKODY P.O., KOTTAYAM DISTRICT,
               PIN-686 537.

      2        JAYACHANDRAN,
               AGED 51 YEARS, S/O.K.P.THANKAPPAN,
               KUNNEL HOUSE,
               PAIPPADU, CHANGANACHERRY TALUK,
               NALUKODY P.O., KOTTAYAM DISTRICT,
               PIN-686 537.

               BY ADVS.SRI.M.P.MADHAVANKUTTY
                       SRI. SHIJOY JOHN MATHEW

RESPONDENTS:

      1        DISTRICT POLICE CHIEF,
               COLLECTORATE P.O.,
               KOTTAYAM DISTRICT,
               PIN-686 002.

      2        DEPUTY SUPERINTENDENT OF POLICE,
               CHANGANACHERRY,
               KOTTAYAM, PIN-686 101.

      3        CIRCLE INSPECTOR OF POLICE,
               THRICKODITHANAM POLICE STATION,
               KOTTAYAM, PIN-686 105.

      R1-R3    SRI.SUNIL NATH N.B., GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.26529 OF 2020(M)
                                  -2-


                              JUDGMENT

The petitioners are husband and wife. They have filed this

writ petition under Article 226 of the Constitution of India seeking

a writ of mandamus commanding the 3 rd respondent Circle

Inspector of Police, Thrickodithanam Police Station to put an end

to the harassment exerted on the petitioners and their family. The

petitioners have also sought for a writ of mandamus commanding

the 1st respondent District Police Chief to take appropriate action to

prevent the harassment exerted on the petitioners and their family

by the 3rd respondent and the police personals under them; and a

writ of mandamus commanding the 1st respondent District Police

Chief to pass appropriate orders on Ext.P2 representation dated

27.10.2020, within a time frame to be fixed by this Court.

2. On 01.12.2020, when this writ petition came up for

admission, the learned Government Pleader was directed to get

instructions.

3. A statement has been filed on behalf of the 3 rd

respondent. Paragraphs 2 and 3 of that statement read thus;

"2. It is submitted that the petitioner is the wife of the 2 nd petitioner, Sri. Jayan @ Kunnel Jayan, Nalukody P.O., Paippad. The gist of the petition is that police harassment to W.P.(C) No.26529 OF 2020(M)

the petitioner's husband by checking on him routinely. Shri.Jayan @ Kunnel Jayan is accused in various criminal cases in Kottayam and Alappuzha districts which includes grave crimes such as murder, attempt to murder, theft, cheating, hurt cases and also for obstructing the lawful duty of police officers. Shri.Jayan is now residing at the house of Shri.Salim on rent basis along with his father, wife and children at his residence place is Machipally, Paippad which falls within the jurisdiction limits of Thrickodithanam Police Station. A Rowdy History Sheet was opened against the husband of the petitioner on 28.08.2009 at Thrickodithanam Police Station and accordingly he is been under observation of police. Husband of the petitioner Shri.Jayan is accused in the murder case of Paul Muthoot who was a prominent businessman. The Crime No.197/09 under Section 143, 147, 148, 149, 341, 324 & 302 IPC of Nedumudy Police Station.

Sri. Jayan @ Kunnel Jayan is accused in many cheating, rioting and hurt cases in Changanacherry Police Station limits. The cases are (1) Cr.No.236/95 under Section 143, 147, 148, 149, 324, 307 IPC (2) Cr.No.233/95 under Section 143, 147, 148, 149, 324, 307 IPC (3) Cr.No.231/95 under Section 143, 147, 148, 149, 324, 307 IPC (4) Cr.No.232/19 under Section 143, 147, 148, 458, 324, 307 IPC (5) Cr.No.129/95 under Section 143, 147, 148, 149, 323, 324 IPC (6) Cr.No.99/95 under Section 143, 147, 148, 149, 341, 324 IPC (7) Cr.No.795/96 under Section 143, 147, 148, 149, 323, 427, 453, 307 IPC (8) Cr.No.158/98 under Section 143, 147, 148, 149, 324, 451, 427 IPC (9) Cr.No.796/2003 under Section 420, 34 IPC (10) Cr.No.863/2004 under Section 420 W.P.(C) No.26529 OF 2020(M)

IPC.

3. There are 3 cases registered against Shri.Jayan @ Kunnel Jayan at Thrickodithanam Police Station as Crime No.(1) Cr.198/08 under Section 341, 509, 506(ii) IPC (2) Cr.703/11 under Section 341, 294(b), 323, 34 IPC (3) Cr.750/2013 under Section 294(b), 353 IPC and 118(A) of KP Act. There is also 2 cases registered against the husband of the petitioner at Keezhvaipoor Police Station, Pathanamthitta as (1) Crime No.240/04 under Section 143, 147, 148, 149, 452, 307, 392 IPC and (2) Crime No.145/04 under Section 420, 34 IPC. The District Police Chief had instructed as to keep on eye on all inter district criminals and persons with such history of criminals activities and the list of them are prepared and their activities are being watched. Shri.Jayan @ Kunnel Jayan is been residing at the present residence at Machipally for the past 5 years and doing business of used vehicles. It is the routine duty of police to watch the activities of ex-convicts and persons with such grave criminal history as it is inevitable to control criminal activities in police station limits, especially those who involved in heinous crimes as murder, attempt to murder, cheating and theft, obstructing the duty of police officers are to be kept under constant watch, hence it is part of keeping law and order and maintaining peace in station limits. The enquiry revealed that Shri.Jayan, husband of the petitioner is still actively keeping his criminal connection and is in good terms with many anti-social elements and goondas of Kottayam and Alappuzha districts and he is suspected to have supply vehicles for criminal activities. It is also submitted that it is inevitable to keep W.P.(C) No.26529 OF 2020(M)

watch over the activities of the husband of the petitioner as he is included in the anti-social list of Thrickodithanam police station, as he may get involved in criminal activities and provide assistant to others for such activities."

4. The 2nd petitioner has filed a reply affidavit, producing

therewith Ext.P4 FIR in Crime No.232 of 2019 of Changanassery

Police Station in order to point out that the accused in the above

crime is one Dinu. The document marked as Ext.P5 is the case

status in C.C.No.2252 of 2016 on the file of the Judicial First Class

Magistrate Court-1, Changanassery arising out of Crime No.863 of

2004 of Chanaganassery Police Station, which is a crime registered

against one John Disoosa, based on a complaint preferred by the

2nd petitioner on the allegation that John Disoosa had cheated him.

In the reply affidavit the 2nd petitioner has pointed out that he has

already been acquitted in all other 8 cases registered at

Changanassery Police Station, which are the crimes referred to in

paragraph 2 of the statement filed on behalf of the 3 rd respondent

Circle Inspector of Police. During the pendency of this writ petition

the 2nd petitioner submitted Ext.P6 representation dated

10.02.2021 before the 1st respondent District Police Chief seeking

removal of his name from the Rowdy History Sheet maintained at

Thrikkodithanam Police Station.

W.P.(C) No.26529 OF 2020(M)

5. Heard the learned counsel for the petitioners and also

the learned Government Pleader appearing for the respondents.

6. Clause 259 of the Kerala Police Manual, 1970 deals with

Station Crime History Part VI (Rowdy History Sheet). As per sub-

clause (1) of Clause 259, Rowdy History Sheet is a record

maintained individually in KPF 174(D) to keep a progressive record

and watch the activities of persons found to be indulged in

rowdyism. These sheets will be opened on the orders of the Sub

Divisional Police Officer or any higher authority on the basis of the

reports from the local police officer or from other sources. Sub-

clause (2) of Clause 259, which deals with the main forms of

rowdyism, reads thus;

"(2) The main forms of rowdyism are: -

(1) Indecent behaviour towards women and girls at educational centres, bus stands, parks, Railway Stations, running trains etc. by passing obscene remarks etc. This is popularly known as "eve- teasing".

(2) Habitually committing affray and rioting. (3) Habitually committing offences involving stabbing (Section 324 IPC).

(4) Threatening and beating up prosecution witnesses in court premises and forcing them to turn hostile, by hirelings employed by political W.P.(C) No.26529 OF 2020(M)

parties, moneyed people etc. (5) Intimidation of peace loving people by acts of violence or by show of force or by abusive language.

(6) Rowdyism in cinema halls, theatres, sports stadiums, milk booths, bus stands, toddy shops, running trains etc. (7) Habitual gambling, smuggling of foodgrains and illicit distillation.

(8) Forcible collection of subscriptions. (9) Drunken and disorderly behaviour.

(10) Decoying persons to houses of ill-repute by pimps.

(11) Snatching of gold chains, etc. (12) Any other anti-social activity associated with violence."

7. As per sub-clause (3) of Clause 259 of the Kerala Police

Manual, the History Sheets will be maintained, separately for each

individual, as shown in the said sub-clause. As per sub-clause (4)

of Clause 259, Rowdy History Sheets in a Station shall be

numbered serially in the manner specified in the said sub-clause.

As per sub-clause (5) of Clause 259, the Sub Inspector of Police in

charge of the Station should maintain the Rowdy History Sheets

personally or under his direct supervision. Whenever any entry is

made in the G.D. Non-cognizable Case Register or Petty Case W.P.(C) No.26529 OF 2020(M)

Register about an individual for whom a History Sheet is

maintained, relevant notes from the above registers should be

made in the History Sheets also.

8. As per sub-clause (6) of Clause 259 of the Kerala Police

Manual, the Circle Inspector of Police should check the Rowdy

History Sheets of a Station during the visits and inspections and

make a record of it with instructions, if any, in Section IV of the

Sheet. As per sub-clause (7) of Clause 259, activities of non-

resident rowdies should be promptly communicated to the

concerned Police Station in B.C. Rolls after making entries in Item

12, Section II of Station History Sheet. As per sub-clause (8) of

Clause 259, a Rowdy History Sheet may be closed on the orders of

the Superintendent of Police, based on the recommendations of

the Circle Inspector of Police routed through the Deputy

Superintendent of Police/Assistant Superintendent of Police. As

per sub-clause (9) of Clause 259, list of Rowdies of a Circle will be

maintained in the Office of the Circle Inspector of Police. The Circle

Inspector of Police will check the list with the Rowdy History

Sheets in the respective Police Station every half year.

9. As per sub-clause (10) of Clause 259 of the Kerala W.P.(C) No.26529 OF 2020(M)

Police Manual, rowdies may be dealt with under the provisions of

Law enumerated in sub-clauses (1) to (9), namely, (1) Section 106

Cr.P.C. (security for keeping the peace, on conviction); (2) Section

107 Cr.P.C. (security for keeping the peace etc.); (3) Section 109

Cr.P.C. (security from vagrants etc.); (4) Section 110(g) Cr.P.C.

(security for good behaviour from a person so desperate and

dangerous, etc.); (5) Sections 48, 51 and 51A of the Kerala Police

Act (for being found armed between sunset and sunrise intending

to commit an offence, drunken and disorderly conduct, riotous or

indecent behaviour in street etc. respectively); (6) Prosecution in

appropriate cases for obscene acts and songs - Section 294 IPC;

and (7) Prosecution for any other specific offence that may be

committed.

10. In Rajesh. R. v. State Police Chief and others

[2019 (1) KLD 306 : 2018 KHC 888] a Division Bench of this

Court was dealing with a writ petition that has been preferred by

the petitioner therein seeking a direction against respondents 1 to

3 not to harass him. The petitioner has further sought for a

direction to take immediate action in Ext.P1 representation and to

remove his name from the 'goonda' list. The Division Bench W.P.(C) No.26529 OF 2020(M)

noticed that there is no case for the respondents that the

petitioner has been indulging in or about to indulge in or abet any

anti-social activity within their area warranting an action under the

Kerala Anti Social Activities (Prevention) Act, 2007. As per sub-

clause (8) of Clause 259 of the Kerala Police Manual, Rowdy

History Sheet may be closed on the orders of the Superintendent

of Police, based on the recommendations of the Circle Inspector of

Police routed through the Deputy Superintendent of

Police/Assistant Superintendent of Police. When that is the

position, certainly, the petitioner has been facing the brunt of the

insult of including his name in the rowdy list for the last ten years

without any reason whatsoever. If the assertion made by the

petitioner in Ext.P1 representation is correct, the respondents are

obliged to ensure the fundamental right to life guaranteed to the

petitioner under the Constitution, including his right to live with

dignity. Hence, the Division Bench directed the 2 nd respondent to

consider Ext.P1 representation, hear the petitioner and pass

appropriate orders thereon, in terms of sub-clause (8) of Clause

259 of the Kerala Police Manual, within a period of two months

from the date of receipt of a copy of the judgment. The Division W.P.(C) No.26529 OF 2020(M)

Bench had made it clear that, if at all the petitioner involves

himself in any criminal activities in future and if a considered

opinion is formed by the respondents based on materials and solid

evidence, appropriate action in accordance with law can still be

taken against him. Paragraphs 7 to 10 of the said decision read

thus;

"7. Basically, it is the responsibility of the Station House Officers to find out whether there are 'known rowdies' indulging in or about to indulge in or abet any anti-social activity within their area and furnish the necessary inputs to the respective Superintendent of Police, who is the sponsoring authority. On the information received from such a sponsoring authority, it is for the Government or authorised officer (District Magistrate) to pass an order of detention, in exercise of their powers under Section 3(1) of the Kerala Anti Social Activities (Prevention) Act, 2007. Preventive detention under the English Common law, is discernible from The King (at the Prosecution of Arthur Zadig) v. Halliday [1917 AC 260]. It was held that preventive detention is not punitive but a precautionary measure to prevent apprehended objectionable activities.

Lord Macmillan in Liversidge v. Sir John Anderson and another [1942 AC 206] held that, the object of preventive detention is not to punish a person for having done something but to intercept him before he does it and prevent him from doing it. Both the above decisions were W.P.(C) No.26529 OF 2020(M)

approved by the Supreme Court in A. K.Gopalan v. State of Madras [AIR 1950 SC 27].

8. There is no case for the respondents that the petitioner has been indulging in or about to indulge in or abet any anti-social activity within their area warranting an action under the KAA(P)A. The jurisdiction of such an action is suspicion or reasonable probability and not the criminal conviction which can be warranted by legal evidence after the accused is found guilty in a trial in which the accused has the fullest opportunity to defend himself from the charges. Though four crimes were registered against the petitioner by the Station House Officer, Kottiyam Police Station, the petitioner has already been acquitted in the said cases after recording the evidence. In fact, the petitioner has not committed any offence or breach of peace for the last ten years. The petitioner cannot therefore be termed as a habitual offender.

9. Paragraph 259(8) of the Kerala Police Manual provides that Rowdy History Sheet may be closed on the orders of the Superintendent of Police, based on the recommendations of the Circle Inspector of Police routed through the Deputy Superintendent of Police/Assistant Superintendent of Police. When that is the position, certainly, the petitioner in the present case has been facing the brunt of the insult of including his name in the rowdy list for the last ten years without any reason whatsoever.

10. The fundamental right guaranteed under Article 21 of the Constitution of India assures every one "right to life and personal liberty", which includes the right to lead W.P.(C) No.26529 OF 2020(M)

meaningful, complete and dignified life. As far as personal liberty is concerned, it means freedom from physical restraint of a person by personal incarceration or otherwise, and it includes all the varieties of rights other than those provided under Article 19 of the Constitution. If the assertion made by the petitioner in Ext.P1 representation is correct, the respondents are obliged to ensure the fundamental right to life guaranteed to the petitioner under the Constitution including his right to live with dignity. Hence, there will be a direction to the second respondent to consider Ext.P1 representation, hear the petitioner and pass appropriate orders thereon in terms of paragraph 259(8) of the Kerala Police Manual, at any rate within a period of two months from the date of receipt of a copy of this judgment. Needless to say, if at all the petitioner involves himself in any criminal activities in future and if a considered opinion is formed by the respondents based on materials and solid evidence, appropriate action in accordance with law can still be taken against the petitioner."

11. Clause 265 of the Kerala Police Manual deals with

general instructions regarding surveillance. As per sub-clause (1)

of Clause 265, persons for whom History Sheets have been opened

shall be informally watched by the Police. When a History Sheet

shows that the individual is leading a criminal existence, the

Superintendent of Police or the Sub Divisional Officer, if so

empowered by the Superintendent of Police, shall decide whether W.P.(C) No.26529 OF 2020(M)

the individual should be 'closely watched' or not. As per sub-clause

(2) of Clause 265, whenever a History Sheet is opened for a bad

character for the first time, he shall be under 'close watch' for a

specified period. As per sub-clause (3) of Clause 265, the bad

characters returning from jail should be under 'close watch'. If

they settle down and are of good character 'close watch' can be

removed. As per sub-clause (4) of Clause 265, there should be

free transfer of bad characters from 'close watch' to 'non-close

watch' and vice versa. Orders for such transfers should be

obtained from the Sub Divisional Officer or the Superintendent of

Police as the case may be. A bad character who continues to be

under 'close watch' for a considerable period, is a fit person for

action under Section 110 of the Criminal Procedure Code. As per

sub-clause (5) of Clause 265, the surveillance of a suspect or

rowdy other than an ordinary criminal shall be conducted in a

confidential manner. As per sub-clause (6) of Clause 265, under

the History Sheet heading 'current doings', entries which are

informative and useful based on the facts ascertained both by the

Sub Inspector and his men since the date of the last entry shall be

made month-war for 'close watch bad characters' and quarterly for W.P.(C) No.26529 OF 2020(M)

'non-close watch bad characters'. Anything of interest coming to

notice in respect of a bad character during a month should be

entered then and there, without waiting for the end of the month

or the quarter. As per sub-clause (7) of Clause 265, when any

information favourable to an individual for whom a History Sheet is

being kept is received, it shall be entered therein. As per sub-

clause (8) of Clause 265, the entries in the various columns in the

History Sheet should be checked by the Sub Inspector personally

and brought upto-date once a year. The fact of such verification

should be certified to by him in the column under 'current doings'.

12. In the instant case, the name of the 2 nd petitioner is

included in the Rowdy History Sheet maintained in

Thrickodithanam Police Station under Clause 259 of the Kerala

Police Manual. It is in such circumstances that, the Police Officers

attached to Thrickodithanam Police Station undertook surveillance

in terms of the general instructions contained in Clause 265. Such

surveillance by the Police Officers cannot be said to be police

harassment, in order to seek interference of this Court under

Article 226 of the Constitution of India.

13. The 2nd petitioner has made Ext.P6 representation dated W.P.(C) No.26529 OF 2020(M)

10.02.2021 before the 1st respondent District Police Chief. In such

circumstances, this writ petition is disposed of by directing the 1 st

respondent District Police Chief to call for a report from the 3 rd

respondent Circle Inspector of Police through the concerned

Deputy Superintendent of Police, and thereafter take an

appropriate decision on Ext.P6 representation, taking note of the

provisions under the Kerala Police Manual referred to hereinbefore

and also the law laid down by the Division Bench of this Court in

Rajesh R. [2019 (1) KLD 306], as expeditiously as possible, at

any rate, within a further period of two months.

14. In State of U.P. v. Harish Chandra [(1996) 9 SCC

309] the Apex Court held that no mandamus can be issued to

direct the Government to refrain from enforcing the provisions of

law or to do something which is contrary to law. In Bhaskara Rao

A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated

that, generally, no Court has competence to issue a direction

contrary to law nor can the Court direct an authority to act in

contravention of the statutory provisions. The courts are meant to

enforce the rule of law and not to pass the orders or directions

which are contrary to what has been injected by law. W.P.(C) No.26529 OF 2020(M)

15. Therefore, in terms of the direction contained in this

judgment, the 1st respondent shall take an appropriate decision in

the matter, strictly in accordance with law, taking note of the

relevant statutory provisions and also the law on the point.

No order as to costs.

Sd/-

ANIL K. NARENDRAN JUDGE bpr W.P.(C) No.26529 OF 2020(M)

APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1                TRUE COPY OF THE JUDGMENT DATED
                          05.09.2019 IN CRL.A. NO.967/2015 OF
                          THIS HON'BLE COURT.

EXHIBIT P2                TRUE COPY OF THE REPRESENTATION DATED
                          27.10.2020 SUBMITTED BEFORE THE 1ST
                          RESPONDENT.

EXHIBIT P3                TRUE COPY OF THE RECEIPT FROM THE OFFICE
                          OF THE DISTRICT POLICE CHIEF, KOTTAYAM
                          DATED 28.10.2020.

EXHIBIT P4                TRUE COPY OF THE FIRST INFORMATION
                          REPORT IN CRIME NO.232/2019 BEFORE THE
                          CHANGANACHERRY POLICE STATION.

EXHIBIT P5                TRUE COPY OF THE CASE STATUS IN
                          C.C.NO.2252/2016 (CRIME NO.863/2004)
                          BEFORE THE JUDICIAL FIRST CLASS
                          MAGISTRATE COURT-1, CHANGANACHERRY.

EXHIBIT P6                TRUE COPY OF THE REPRESENTATION BEFORE
                          THE 1ST RESPONDENT DISTRICT POLICE
                          CHIEF, KOTTAYAM.

RESPONDENTS' EXHIBITS: NIL