Kerala High Court
Prasath C vs State Of Kerala on 19 June, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.M.C.No.3751/25
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2025:KER:44716
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.MC NO. 3751 OF 2025
CRIME NO.267/2025 OF Thoppumpady Police Station, Ernakulam
PETITIONER:
PRASATH C,
AGED 47 YEARS
S/O CHELLAPPAN, 17/855 A-1, SREEKOVIL (ANU'S
VILLA), MUNDAMVELI P.O, KOCHI, PIN - 682507
BY ADVS.
SHRI.ASHIK K.MOHAMED ALI
SHRI.MUHAMMED RIFA P.M.
SMT.EHLAS HALEEMA C.K.
SHRI.SALMAN FARIS
SMT.GAYATHRI ASHISH NAIR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE STATION HOUSE OFFICER,
THOPPUMPADY POLICE STATION, THOPPUMPADY,
ERNAKULAM,(REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM)., PIN - 682005
Crl.M.C.No.3751/25
2
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2 THE SUB INSPECTOR OF POLICE,
THOPPUMPADY POLICE STATION, THOPPUMPADY,
ERNAKULAM, PIN - 682005
OTHER PRESENT:
SRI. M.C. ASHI, SR.PP.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.06.2025, THE COURT ON 19.06.2025 PASSED THE FOLLOWING:
Crl.M.C.No.3751/25
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'CR'
V.G.ARUN, J
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Crl.M.C.No.3751 of 2025
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Dated this the 19th day of June, 2025
ORDER
The petitioner is the accused in Crime No.267 of 2025
registered at the Thoppumpady Police Station for the offence
under Section 117(e) of the Kerala Police Act, 2011.
The crime is registered on the basis of Annexure A2
report of the Sub Inspector of Police, Thoppumpady stating
that, on 03.04.2025, as part of night check duty on Rowdy
History Sheeters, he along with police party had gone to the
house of the petitioner, at about 01:30 am, to ascertain whether
the petitioner is available at his house. After reaching the
house, the police party asked the petitioner to open the door,
but the petitioner not only refused to abide by their direction,
but abused and intimidated the police personnel, thereby
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preventing the officers from discharging their duty.
2. The petitioner's version of the incident and the reasons
behind registration of the crime are as under;
The Thoppumpady Police had framed the petitioner in a false
POCSO case, of which the petitioner got acquitted after a full
fledged trial. Alleging foul play in registering that case, the
petitioner approached the State Police Chief. This led to
animosity towards the petitioner and the police started
registering false cases against him, alleging violation of traffic
rules and dangerous driving. While so, the petitioner started
receiving frequent phone calls from the police enquiring about
his whereabouts. On 03.04.2025 also, by about 12:58 am, the
petitioner received a call from the police, asking him to stand
outside his house. In obedience of the direction, the petitioner
stood outside his house for some time, but did not find anyone
there. Later in the morning, the petitioner got another call,
asking him to report at the Thoppumpady Police Station. As
directed, petitioner went to the Police Station and without any
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reason, was subjected to torture by the Sub Inspector of Police.
Immediately thereafter, the petitioner filed W.P.(C) No. 15550
of 2025, alleging police harassment and the writ petition was
disposed of by directing the Principal Secretary, Home
Department, to enquire into the complaint. According to the
petitioner, he is implicated as accused in the present crime to
divert that enquiry.
3. Learned counsel for the petitioner contended that the
police have no right to intrude into a citizen's privacy at
midnight. It is submitted that the general instructions
regarding surveillance contained in Paragraph 265 of the
Kerala Police Manual permits only 'informal watch' over the
activities of history sheeters and 'close watch', if the individual
is leading a criminal existence. According to the counsel, the
petitioner is not a history sheeter and even if so, the police have
no authority to make domicile visits at night. Reference is made
to the decision in Kharak Singh v. State of U.P. and Others
[1962 SCC OnLine SC 10], to point out that the Apex Court had
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set aside the provision in the U.P. Police Regulations
authorising domicile visits, finding the provision to be violative
of the freedom and liberty guaranteed under Articles 19 and 21
of the Constitution of lndia. As the visit by the police personnel
to the petitioner's residence at midnight and the direction
requiring him to come out of the house are not part of their
official duties, the offence under Section 117(e) of the Kerala
Police Act is not attracted.
4. Learned Public Prosecutor contended that the
petitioner's name figures in the Rowdy History Sheet
maintained at the Thoppumpady Police Station and on
03.04.2025, the 2nd respondent had telephoned the petitioner
to know about his whereabouts. Thereupon, the petitioner told
the 2nd respondent that he is in his house. The police had later
gone to the petitioner's house to ascertain whether he is
actually in the house. As the 2nd respondent and others were
thus discharging their official duties, the petitioner's refusal to
abide by the direction to step out of the house and intimidation
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of the policemen, attracts the alleged offence. The learned
Public Prosecutor further contended that the State is
empowered to impose reasonable restrictions on the freedom
and liberty guaranteed by the constitution and surveillance of
history sheeters is also part of such restriction.
5. From the rival contentions, the question arising for
consideration is whether the police has got the authority to visit
the residences of history sheeters as part of surveillance. While
answering this question it has to be borne in mind that the right
to freedom of movement and decent living, guaranteed by
Articles 19 and 21 of the Constitution cannot be impinged,
without the support of law. Indisputably, the Kerala Police
Manual is only a set of guidelines, governing the members of
the force and does not fall within the meaning of statute. Even
then, it will be profitable to refer the General instructions
regarding Surveillance, contained in Paragraph 265 of the
Police Manual;
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"General instructions regarding Surveillance
265. (1) 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.
(2) Whenever a History Sheet is opened for a bad character
for the first time, he shall be under 'close watch' for a specified
period.
(3) 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.
(4) 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,
Criminal Procedure Code.
(5) The surveillance of a suspect or rowdy other than an
ordinary criminal shall be conducted in a confidential manner.
(6) 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
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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.
(7) When any information favourable to an individual for
whom a History Sheet is being kept is received, it shall be entered
therein.
(8) The entries in the various columns in the History Sheet
should be checked by the Sub Inspector personally and brought
up-to-date once a year. The fact of such verification should be
certified to by him in the column under 'Current doings'."
(underline supplied)
Thus, what is permitted by the provision is only, 'informal
watching' of history sheeters and 'close watch' over those
leading criminal existence. Undoubtedly, neither of those
expressions permit domicile visits at night. While on the issue,
it will be apposite to note that a specific provision in the U.P.
Police Regulations permitting domiciliary visits at night was set
aside by the Supreme Court in Kharak Singh (supra). The
contextually relevant portion of the judgment reads as under;
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"7. The sole question for determination therefore is whether
"surveillance" under the impugned Chapter 22 of the U.P. Police
Regulations constitutes an infringement of any of a citizen's
fundamental rights guaranteed by Part III of the Constitution. The
particular Regulation which for all practical purposes defines
"surveillance" is Regulation 236 which reads:
"without prejudice to the right of Superintendents of Police to put
into practice any legal measures, such as shadowing in cities, by
which they find they can keep in touch with suspects in particular
localities or special circumstances, surveillance may for most
practical purposes be defined as consisting of one or more of the
following measures:
(a) Secret picketing of the house or approaches to the houses of
suspects;
(b) domiciliary visits at night;
(c) through periodical inquiries by officers not below the rank of
sub-inspector into repute, habits, associations, income, expenses
and occupation;
(d) the reporting by constables and chaukidars of movements
and absences from home;
(c) the verification of movements and absences by means of
inquiry slips;
(f) the collection and record on a history-sheet of all information
bearing on conduct."
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xxx xxx xxx
13. We shall now proceed with the examination of the width,
scope and content of the expression "personal liberty" in Article 21.
Having regard to the terms of Article 19(1)( d), we must take it that
the expression is used as not to include the right to move about or
rather of locomotion. The right to move about being excluded its
narrowest interpretation would be that it comprehends nothing more
than freedom from physical restraint or freedom from confinement
within the bounds of a prison; in other words, freedom from arrest
and detention, from false imprisonment or wrongful confinement.
We feel unable to hold that the term was intended to bear only this
narrow interpretation but on the other hand consider that "personal
liberty" is used in the Article as a compendious term to include
within itself all the varieties of rights which go to make up the
"personal liberties" of man other than those dealt with in the several
clauses of Article 19(1). In other words, while Article 19(1) deals
with particular species or attributes of that freedom, "personal
liberty" in Article 21 takes in and comprises the residue. We have
already extracted a passage from the judgment of Field, J. in Munn
v. Illinois [94 US 113 at p. 142] where the learned Judge pointed out
that "life" in the 5th and 14th Amendments of the U.S. Constitution
corresponding to Article 21, means not merely the right to the
continuance of a person's animal existence, but a right to the
possession of each of his organs his arms and legs etc. We do not
entertain any doubt that the word "life" in Article 21 bears the same
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signification. Is then the word "personal liberty" to be construed as
excluding from its purview an invasion on the part of the police of
the sanctity of a man's home and an intrusion into his personal
security and his right to sleep which is the normal comfort and a dire
necessity for human existence even as an animal? It might not be
inappropriate to refer here to the words of the preamble to the
Constitution that it is designed to "assure the dignity of the
individual" and therefore of those cherished human values as the
means of ensuring his full development and evolution. We are
referring to these objectives of the framers merely to draw attention
to the concepts underlying the constitution which would point to
such vital words as "personal liberty" having to the construed in a
reasonable manner and to be attributed that sense which would
promote and achieve those objectives and by no means to stretch
the meaning of the phrase to square with any pro-conceived notions
or doctrinaire constitutional theories. Frankfurter, J. observed in
Wolf v. Colorado [338 US 25] .
"The security of one's privacy against arbitrary intrusion by the
police ... is basic to a free society. It is therefore implicit in 'the
concept of ordered liberty' and as such enforceable against the
States through the Due Process Clause. The knock at the door,
whether by day or by night, as a prelude to a search, without
authority of law but solely on the authority of the police, did not
need the commentary of recent history to be condemned as
inconsistent with the conception of human rights enshrined in the
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history and the basic constitutional documents of English-speaking
peoples ... We have no hesitation in saying that were a State
affirmatively to sanction such police incursion into privacy it would
run counter to the guarantee of the Fourteenth Amendment."
Having found the provision empowering domicile visits to
be unconstitutional, the Supreme Court went on to hold that
privacy is not a constitutional right.
6. Much later, by the celebrated judgment in K.S.
Puttaswamy and Another v. Union of India and Others
[(2017) 10 SCC 1], the Apex Court reversed the finding that
privacy is not a constitutional right. The following erudite
exposition on that aspect by the Apex Court is very insightful;
"317. Kharak Singh [Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] has correctly held
that the content of the expression "life" under Article 21 means not
merely the right to a person's "animal existence" and that the
expression "personal liberty" is a guarantee against invasion into the
sanctity of a person's home or an intrusion into personal security.
Kharak Singh [Kharak Singh v. State of U.P., AIR 1963 SC 1295 :
(1963) 2 Cri LJ 329 : (1964) 1 SCR 332] also correctly laid down that
the dignity of the individual must lend content to the meaning of
"personal liberty". The first part of the decision in Kharak Singh
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[Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ
329 : (1964) 1 SCR 332] which invalidated domiciliary visits at night
on the ground that they violated ordered liberty is an implicit
recognition of the right to privacy. The second part of the decision,
however, which holds that the right to privacy is not a guaranteed
right under our Constitution, is not reflective of the correct position.
Similarly, Kharak Singh [Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] reliance upon the
decision of the majority in Gopalan [A.K. Gopalan v. State of Madras,
1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88] is not reflective of
the correct position in view of the decisions in Cooper [Rustom
Cavasjee Cooper v. Union of India, (1970) 1 SCC 248] and in
Maneka [Maneka Gandhi v. Union of India, (1978) 1 SCC 248].
Kharak Singh [Kharak Singh v. State of U.P., AIR 1963 SC 1295 :
(1963) 2 Cri LJ 329 : (1964) 1 SCR 332] to the extent that it holds
that the right to privacy is not protected under the Indian
Constitution is overruled."
7. In K.S. Puttaswamy (supra), the Apex Court also
encapsulated the concept of privacy in the Indian Constitution
eruditely in the following words;
"323. Privacy includes at its core the preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the
home and sexual orientation. Privacy also connotes a right to be left
alone. Privacy safeguards individual autonomy and recognises the
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ability of the individual to control vital aspects of his or her life.
Personal choices governing a way of life are intrinsic to privacy.
Privacy protects heterogeneity and recognises the plurality and
diversity of our culture. While the legitimate expectation of privacy
may vary from the intimate zone to the private zone and from the
private to the public arenas, it is important to underscore that
privacy is not lost or surrendered merely because the individual is in
a public place. Privacy attaches to the person since it is an essential
facet of the dignity of the human being.
xxx xxx xxx xxx
325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life and
personal liberty under Article 21, privacy is not an absolute right. A
law which encroaches upon privacy will have to withstand the
touchstone of permissible restrictions on fundamental rights. In the
context of Article 21 an invasion of privacy must be justified on the
basis of a law which stipulates a procedure which is fair, just and
reasonable. The law must also be valid with reference to the
encroachment on life and personal liberty under Article 21. An
invasion of life or personal liberty must meet the threefold
requirement of (i) legality, which postulates the existence of law; ( ii)
need, defined in terms of a legitimate State aim; and ( iii)
proportionality which ensures a rational nexus between the objects
and the means adopted to achieve them."
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8. It is thus beyond cavil that the police have no right to
knock at the doors of suspected persons or history sheeters
under the guise of surveillance. The officers should understand
that the concept of home transcends its physical manifestation
as a dwelling and encompasses a rich tapestry of existential,
emotional and social dimensions. In other words, every man's
house is his castle or temple, the sanctity of which cannot be
vilified by knocking on the door at odd hours. A person's right
to life encompasses the right to live with dignity and dignity is
non-negotiable. The above discussion leads to the definite
conclusion that, under the guise of surveillance, the police
cannot knock on the doors or barge into the houses of history
sheeters.
9. While on the subject, it will be worthwhile to note that
as per Section 39 of the Kerala Police Act, all persons are
bound to comply with the 'lawful directions' given by a police
officer for the discharge of his functions under the Act.
Knocking on the doors of a history sheeter at midnight and
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demanding him to come out of the house cannot by any stretch
of imagination be termed as a lawful direction. Consequently,
the petitioner cannot be prosecuted for the offence under
Section 117(e) of the Kerala Police Act, for refusing to abide by
that direction. If, as alleged, the petitioner had used derogatory
language or threatened the police during the course of such
refusal, his action may invite some other offence, but definitely
not the offence he is presently charged with.
For the aforementioned reasons, the Crl.M.C. is allowed.
Annexure A1 FIR and all further proceedings in Crime No. 267
of 2025 of Thoppumpady Police Station are quashed.
sd/-
V.G.ARUN, JUDGE
sj
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PETITIONER ANNEXURES
Annexure A1 CERTIFIED COPY OF THE FIR IN CRIME NO.
267 OF 2025 OF THE THOPPUMPADY POLICE
STATION.
Annexure A2 TRUE COPY OF THE REPORT DATED 03-04-
2025 OF THE SUB INSPECTOR OF POLICE,
THOPPUMPADY POLICE STATION, TO THE
STATION HOUSE OFFICER.
Annexure A3 TRUE COPY OF THE SCENE MAHAZAR DATED
03-04-2025, PREPARED BY THE SUB
INSPECTOR OF POLICE.
Annexure A4 TRUE COPY OF THE SEIZURE MAHAZAR
PREPARED BY THE SUB INSPECTOR OF
POLICE.
Annexure A5 TRUE COPY OF THE SCREENSHOT OF THE E-
COURT WEBSITE REGARDING ST NO. 1650 OF
2024.
Annexure A6 TRUE COPY OF THE PETITION DATED 10-03-
2025 SENT BY THE PETITIONER TO THE
PRINCIPAL SECRETARY, HOME DEPARTMENT,
GOVERNMENT OF KERALA.
Annexure A7 TRUE COPY OF THE EMAIL DATED 10-03-2025
SHOWING THE COMMUNICATION TO THE HOME
SECRETARY, GOVERNMENT OF KERALA.
Annexure A8 TRUE COPY OF THE CASUALTY OP NO. 18475
DATED 07-04-2025 ISSUED BY THE
GOVERNMENT MAHARAJA'S TALUK HOSPITAL,
KARUVELIPADY.
Annexure A9 TRUE COPY OF CIRCULAR NO. 9 OF 2011
DATED 23-03-2011 ISSUED BY THE STATE
POLICE CHIEF.
