Kerala High Court

Kais C.M vs The Superintendent Of Police ... on 25 February, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

   THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942

                      W.P.(C) No.3340 OF 2021(N)


PETITIONER:

               KAIS C.M.,
               AGED 37 YEARS, S/O MUHAMMED,
               CHERUVALLYKUDY HOUSE,
               EDAVOOR, ERNAKULAM DISTRICT,
               KERALA-673 544.

               BY ADVS.
               SRI.P.A.MOHAMMED ASLAM
               SHRI.MOHAMMED MUBARAK A.I.
               SHRI.IRSHAD V.P.

RESPONDENTS:

      1        THE SUPERINTENDENT OF POLICE (RURAL),
               POWER HOUSE JUNCTION, SUB JAIL ROAD,
               PERIYAR NAGAR, ALUVA, KERALA-683 101.

      2        STATION HOUSE OFFICER,
               KODANADU POLICE STATION,
               VALLOM PANAMKUZHI ROAD, KURICHILAKODU,
               KERALA-683 544.

      R1&R2    SRI.SUNIL NATH N.B., GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.3340 OF 2021(N)
                                  -2-


                             JUDGMENT

The petitioner has filed this writ petition under Article 226 of

the Constitution of India seeking a writ of mandamus commanding

the 2nd respondent Station House Officer of Kodanadu Police

Station not to harass the petitioner. The petitioner has also sought

for a writ of mandamus commanding the 2 nd respondent not to

summon petitioner, except in writing and unless otherwise required

for any crime duly registered.

2. On 10.02.2021, when this writ petition came up for

admission, the learned Government Pleader was directed to get

instructions.

3. Along with the memo filed by the learned Government

Pleader dated 18.02.2021, a statement of the 2 nd respondent

Station House Officer is placed on record. Paragraphs 2 to 4 of that

statement read thus;

"2. It is submitted that a petition was submitted by the petitioner before the District Police Chief on 22.12.2020 stating that three criminal cases were registered against him in 2008 and the court had acquitted him later. Kodanad police is enquiring his whereabouts to his neighbours frequently and taking his photograph in the mobile phone in public place. He has not been indulging in any case recently W.P.(C) No.3340 OF 2021(N)

and lives a peaceful life as of now. And hence he wants to have relief from this. It is submitted that the petition was forwarded to Kodanad Police Station as per Endt No.G3- 1604/2021/E dated 28.01.2021. The petition is registered as No.21/SOPTN/2021 and enquiry was conducted.

3. It is submitted that the petitioner is involved in

1) Cr.138/05 u/s 324, 506(ii), 34 IPC, 2) Cr.38/08 u/s 143, 144, 147, 148, 452, 323, 326 r/w 149 IPC, 3) Cr.127/08 u/s 326, 307, 34 IPC. The petitioner was acquitted of these cases u/s 320(8) Cr.PC on 27.06.2008, u/s 248(i) Cr.P.C. on 04.12.2012 and u/s 255(i) Cr.P.C. on 03.08.2011 respectively.

4. It is submitted that the petitioner had been involving in frequent criminal activities and was associated with notorious goonda activities disturbing the peace and tranquility of the society and he was a threat to life of common man in an d around Edavoor, Onambilly and Koovappady and hence his name was included in the list of habitual offenders maintained by Kodanad Police opening a Rowdy History Sheet against him."

4. Heard the learned counsel for the petitioner and also

the learned Government Pleader appearing for the respondents.

5. As can be seen from the statement filed by the 2 nd

respondent, the name of the petitioner is included in the Rowdy

History Sheet of Kodanadu Police Station, maintained in terms of

sub-clause (8) of Clause 259 of the Kerala Police Manual. W.P.(C) No.3340 OF 2021(N)

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 parties, moneyed people etc. (5) Intimidation of peace loving people by acts of W.P.(C) No.3340 OF 2021(N)

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

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

Police Manual, rowdies may be dealt with under the provisions of W.P.(C) No.3340 OF 2021(N)

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

noticed that there is no case for the respondents that the W.P.(C) No.3340 OF 2021(N)

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

Bench had made it clear that, if at all the petitioner involves W.P.(C) No.3340 OF 2021(N)

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

W.P.(C) No.3340 OF 2021(N)

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 meaningful, complete and dignified life. As far as personal liberty is concerned, it means freedom from physical W.P.(C) No.3340 OF 2021(N)

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

the individual should be 'closely watched' or not. As per sub-clause W.P.(C) No.3340 OF 2021(N)

(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

'non-close watch bad characters'. Anything of interest coming to W.P.(C) No.3340 OF 2021(N)

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 petitioner is

included in the Rowdy History Sheet maintained in Kodanadu

Police Station, under Clause 259 of the Kerala Police Manual. It is

in such circumstances that, the Police Officers attached to

Kodanadu 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 learned counsel for the petitioner would submit that

the petitioner shall make an application before the 1st respondent W.P.(C) No.3340 OF 2021(N)

Superintendent of Police, invoking the provisions under clause (8)

of Section 259 of the Kerala Police Manual, within a period of ten

days.

14. Having considered the submissions made by the learned

counsel on both sides, this writ petition is disposed of with the

following directions;

i) In case the petitioner is entitled for closure of Rowdy History Sheet, under sub-clause (8) of Clause 259 of the Kerala Police Manual, he shall file an application before the 1st respondent Superintendent of Police, for that purpose, within a period of three weeks from the date of receipt of a certified copy of this judgment.

ii) If any such application is received by the 1st respondent within the aforesaid time limit, the said respondent shall call for a report from the 2nd respondent Circle Inspector of Police, through the concerned Deputy Superintendent of Police, and thereafter take an appropriate decision on that application, 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.

15. 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 W.P.(C) No.3340 OF 2021(N)

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.

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

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