Bijukumar.P vs Circle Inspector Of Police
2021 Latest Caselaw 2713 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

      MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                      W.P.(C) No.26939 OF 2020(N)


PETITIONER/S:

                BIJUKUMAR.P, AGED 43 YEARS
                S/O PRABHAKARAN,
                SARASWATHI VILASOM,
                VADAMON P O, KOMALAM,
                KOLLAM -691306.

                BY ADV. SRI.R.KRISHNAKUMAR (CHERTHALA)

RESPONDENT/S:

      1         CIRCLE INSPECTOR OF POLICE
                ANCHAL POLICE STATION, ANCHAL, KOLLAM-691306.

      2         THE SUPERINTENDENT OF POLICE(RURAL)
                KOTTARAKKARA,
                KOLLAM DISTRICT-691508.

                R1-R2 BY GOVERNMENT PLEADER

OTHER PRESENT:

                SR.GP - SMT. AMMINIKUTTY

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.26939 OF 2020(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 2 nd

respondent and his subordinates not to harass him and his mother,

demanding photograph and other details for exhibiting the same in the

rowdy list maintained in the Police Station. The further relief sought

for is a writ of mandamus commanding the 2 nd respondent

Superintendent of Police (Rural), Kottarakkara, to see that the 1 st

respondent Circle Inspector of Police, Anchal Police Station or any

other police officers under him are harassing and intimidating the

petitioner and his mother; and a writ of mandamus commanding the

2nd respondent to inquire into Ext.P2 and take a decision on the same

without any further delay. The petitioner was an accused in a criminal

case registered by Anchal Police, which ended in acquittal. According

to the petitioner, for the last 15 years no crime has been registered

against the petitioner in Anchal Police Station.

2. On 07.12.2020, 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 1 st respondent.

Paragraph 4 of that statement reads thus:

W.P.(C) No.26939 OF 2020(N)

"4. It is submitted that Anchal Police is checked 63 Rowdies, Anti-social, known Depradator (KDs) and Docier Criminals (DCs) in station limit in the season of festivals and election times. On behalf of it he is also checked by the police as per the existing rules. It is most humbly submitted that no one from Anchal Police Station has harassed or demanded his photograph. Since he is included in the rowdy list it is essential to check him at least in festival and election seasons. However it is also submitted that the petitioner is well aware about inclusion of his name in the Rowdy History Sheet of Anchal Police Station. If he is not involved in any crimes or offences he may not face any procedure from Anchal Police Station."

4. Heard the learned counsel for the petitioner and also the

learned Senior Government Pleader appearing for the respondents.

5. 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 W.P.(C) No.26939 OF 2020(N)

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 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."

6. 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- W.P.(C) No.26939 OF 2020(N)

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 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.

7. 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. W.P.(C) No.26939 OF 2020(N)

8. As per sub-clause (10) of Clause 259 of the Kerala 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.

9. 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 petitioner has been indulging in or about W.P.(C) No.26939 OF 2020(N)

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 2nd 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 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 W.P.(C) No.26939 OF 2020(N)

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].

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 W.P.(C) No.26939 OF 2020(N)

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 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 W.P.(C) No.26939 OF 2020(N)

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."

10. 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 (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 W.P.(C) No.26939 OF 2020(N)

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 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'.

11. In the instant case, the name of the petitioner is included in

the Rowdy History Sheet maintained in Anchal Police Station, under

Clause 259 of the Kerala Police Manual. It is in such circumstances

that, the Police Officers attached to Anchal Police Station undertook W.P.(C) No.26939 OF 2020(N)

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.

12. 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 2 nd respondent

Superintendent of Police, for that purpose. If any such application is

received by the 2nd respondent, within three weeks from the date of

receipt of a certified copy of this judgment, the said respondent shall

call for a report from the 1 st 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.

The writ petition is disposed of as above.

Sd/-

ANIL K. NARENDRAN JUDGE

MIN W.P.(C) No.26939 OF 2020(N)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1                    A TRUE COPY OF THE JUDGMENT DATED
                              21.01.2011 IN WPC NO.38008/2010 OF THIS
                              HON'BLE COURT.

EXHIBIT P2                    A TRUE COPY OF THE COMPLAINT SUBMITTED BY
                              THE PETITIONER BEFORE THE 2ND RESPONDENT
                              DATED 29.11.2020.