Diwan Singh vs State And Ors
2022 Latest Caselaw 11595 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 1305/2016

Diwan Singh

----Petitioner Versus State And Ors.

----Respondents

For Petitioner : Mr. Dhirendra Singh, Sr. Adv.

                               assisted by Ms. Priyanka Borana
For Respondents            :   Mr. Vikram Sharma, P.P.



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                Judgment

Reserved on 15/09/2022
Pronounced on 19/09/2022

1. This Criminal Misc. Petition under Section 482 Cr.P.C. has

been preferred with the following prayer:-

"A. It is, therefore, most humble and respectfully prayed that Misc petition of the petitioner may kindly be allowed and respondents no.2, 3, 4, & 5 be directed to strike out the name of petitioner from the history-sheet maintained at the police station and order dated 27.03.2006 passed by Superintendent of Police, Bikaner and al consequence proceeding may kindly be quashed.

B. by an appropriate order or direction, the respondents no. 3, 4 & 5 directed to not filed complaint on the basis wrong history sheet.

C. by an appropriate order or direction, the respondents no.2 directed to correct the case history of the petitioner.

D. The cost of the MISC petition may kindly be awarded to the petitioner.

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E. Any other , order or direction which this Hon'ble Court deem just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner."

2. Brief facts of the case as placed before this Court by learned

Senior Counsel appearing for the petitioner, Mr. Dhirendra Singh,

assisted by Ms. Priyanka Borana, are that the petitioner is a

businessman, with business dealings in relation to properties. And

that, on 18.03.2006, the S.H.O., Jamsar requested the

Superintendent of Police, Bikaner to open a history sheet against

the petitioner and vide communication dated 27.03.2006, the

Superintendent of Police, Bikaner permitted the same. And that

the petitioner was declared a history-sheeter under the provision

of law contained in Rule 4.9 (2) of the Rajasthan Police Rules,

1965.

3. Learned Senior Counsel submitted that certain false cases

were foisted upon the petitioner, and that on the basis of the

same, the name of the petitioner was unfairly entered in a history

sheet, which is being maintained till date.

4. Learned Senior Counsel further submitted that the

petitioner does not come within the definition of 'habitual

offender', as provided under Section 2 sub-section (1) (a) of the

Rajasthan Habitual Offenders Act, 1953.

5. Learned Senior Counsel also submitted that looking into

the overall facts and circumstances, it is clear that the petitioner

does not fall under the purview of the Rule 4.9 of the Rajasthan

Police Rules, 1965. Reference was also made to Rules 4.4 and

8.22 of the said Rules.

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For the sake of brevity, the relevant provisions of law, referred to

hereinabove, are reproduced hereinunder:-

Rajasthan Police Rules, 1965

4.4 Surveillance Register No.,8. -

(1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in form 4.4(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 belong 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, Criminal Procedure Code, has been made.

(c) All convicts the execution of whose sentence as 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 mode under section 8 of the Rajasthan Habitual Offenders Act, 1953.

(3) In part II of such register may be entered at the discretion of the Superintendent: -

(4) Persons who have been convicted twice, or more than twice, of offences mentioned in rule 8.22;

(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 sections 109 or 110, code of Criminal Procedure;

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

Note:- This rule must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein.

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4.9 History sheets when opened. -

(1) A history sheet, if one does not already exist, shall be opened in Form 4.9 for every person whose name is entered in the surveillance register, except conditionally released convicts.

(2) A history sheet may be opened by, or under the written orders of, a police officer not below the rank of Inspector for any person not entered in the surveillance registered who is reasonably believed to be habitually addicted to crime or to be an aider or abettor such persons.

(3) the Government Railway Police will maintain the history sheets of criminals known or suspected to operate on the railway in accordance with Police Rule 4.8. They will open history sheets themselves for criminals living in railway premises. who have been absent from their original homes so long that the railway premises may be regarded as their permanent residence. They may also open history sheets for wandering strangers reasonably believed to be habitually addicted to crime on the railway, whose original homes cannot be traced.

8.22 Record of conviction

Conviction and orders to execute bonds in all cognizable police cases shall be entered in (a) the Crime Register which is maintained in the office of the Circle Officer, and (b) in the First Information Report Register which is maintained at the police station reporting the offence. Convictions and orders in the cases detailed below shall also be entered in (c) the Conviction Register which, for the purpose of section 75, Indian Penal Code, is maintained in each police station as prescribed in Chapter IV.

Habitual Offenders Act, 1953

Section 2. Interpretation -

(1) In this Act, unless the subject or context requires otherwise,-

[(a) 'habitual offender' means a person who, during any continuous period of five years, whether before or after the 15th day of September, 1952 or partly before and partly after the said day, has been sentenced on conviction on not less than three occasion since he attained the age of eighteen years to a substantive term of imprisonment for any one or more of the scheduled offences

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committed on different occasions and not so connected together as to form parts of the same transaction, such sentence not having been reversed in appeal or revision;

Provided that in computing the continuous period of five years referred to above any period spent in jail either under a sentence of imprisonment or under detention shall not be taken into account;']

(b) 'prescribed' shall mean prescribed by or under this Act.

(c) 'corrective settlement' means any place established, approved or certified as a corrective settlement under section 7;

(d) 'registered offender' means a habitual offender registered or re- registered under this Act;

(e) 'scheduled offence' means an offence specified in the schedule or an offence analogous thereto.

6. Learned Senior Counsel, in support of his submissions,

placed reliance on the judgments rendered by this Hon'ble Court

in the cases of Ramgopal Jain v. The State of Rajasthan and

Ors. (S.B. Criminal Misc. (Pet.) No. 3916/2012, decided by a

Coordinate Bench of this Hon'ble Court at Jaipur Bench on

04.04.2013) and Gaji Khan v. State of Rajasthan and Anr.

(S.B. Criminal Misc. (Pet.) No.4602/2017, decided by this

Court on 01.11.2018). Special emphasis was placed on the

judgment rendered in the case of Ramgopal Jain (supra) and it

was submitted that the definition of 'habitual offender', has been

discussed and analyzed in the said judgment, and that the present

petitioner does not fall within the ambit of its definition.

7. Learned Senior Counsel further submitted that, as is

reflected in the additional affidavit placed on the record by the

State, the petitioner has been acquitted in 7 cases, a negative

final report was submitted in 10 cases, compromise was arrived at

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in 2 cases, and he was granted the benefit of doubt in 1 case, and

that he was convicted in 3 cases.

8. Learned Senior Counsel also submitted, that upon a perusal

of the said 3 cases of conviction against the petitioner it is

reflected thus:

8.1 In Case No. 83 of 1993, dated 07.09.1993, wherein the

petitioner was convicted for the offences under Sections 447, 382,

147, 148, 149 I.P.C. and granted the benefit under the Probation

of Offenders Act, 1958 on 25.07.1998, the petitioner was not

named in the F.I.R. impugned therein nor in the chargesheet

impugned therein, copies of the same being at Annexure-3, and

that the said case has incorrectly been included in the list of cases

registered against the petitioner.

8.2 In Case No. 85 of 2003, dated 21.07.2003, the petitioner

was convicted for the offences under Sections 447, 323, 147, 148,

and 504 I.P.C. and Section 3 of the S.C./S.T. (Prevention of

Atrocities) Act, 1989 and sentenced on 17.02.2007. However, that

the same would not fall under the category as under Rule 8.22 of

the Rajasthan Police Rules, 1965.

8.3 In Case No. 112 of 1994, dated 29.09.1994, the petitioner

was convicted for the offences under Sections 307, 452, 147, 148

and 149 I.P.C. and Section 27 Arms Act, 1959 and sentenced on

30.04.2016. And that, the said case is the only case of conviction

against the accused which falls within the purview of Rule 8.22 of

the Rajasthan Police Rules, 1965.

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9. Learned Senior Counsel further submitted that the petitioner

is a senior citizen and looking into the fact that no case has been

registered against the petitioner since a considerable amount of

time, and looking to the fact that only one case of conviction

against the petitioner falls under Rule 8.22 of the Police Rules,

1965, the petition deserves to be allowed and the history-sheet of

the petitioner be quashed and set aside, and his name be deleted

from the surveillance register, and the history sheet be quashed

and set aside.

10. On the other hand, learned Public Prosecutor opposed the

aforesaid submissions made on behalf of the petitioner and

submitted that the present petition ought to be dismissed, and

placed reliance on the judgments rendered by the Hon'ble Apex

Court in the cases of Dhanji Ram Sharma v. Superintendent

of Police, North Dist., Delhi Police and Ors. AIR 1966 SC

1766 and Malak Singh & Ors. v. State of Punjab and

Haryana AIR 1981 SC 760 : (1981) SCC (Cri) 169, and the

judgment rendered by a Coordinate Bench of this Hon'ble Court in

the case of Laxmi Narayan Meena v. State of Rajasthan &

Anr. (S.B. Civil Writ Petition No. 13591/2014, decided by a

Coordinate Bench of this Hon'ble Court at Jaipur Bench on

05.01.2017).

11. Learned Public Prosecutor further submitted that each of the

cases registered against the petitioner, were registered by

different persons, at different places and from different

communities. And that, while he was convicted in three of the

total cases registered against him, he was not honorably

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acquitted, but acquitted on the basis of compromise and benefit of

doubt in three other cases. And that, it was therefore pertinent

that a vigil be kept on the criminal activities of the petitioner, as

the said criminal antecedents of the petitioner are an issue and

impediment in the maintenance of public order.

12. Learned Public Prosecutor also submitted that the definition

of 'habitual offender' as contained in Section 2 of the Rajasthan

Habitual Offenders Act, 1953, ought not to be construed in a

narrow sense, and that one who is repeatedly and persistently

involved in criminal activities, facing criminal trial should be

construed to fall within the purview of the said definition.

13. Learned Public Prosecutor thus submitted that looking into

the previous criminal record of the petitioner, and his engagement

in criminal activities, the respondent no. 3 made requisite

communication through the proper channel to his superior officer,

being the Superintendent of Police, Udaipur, who in turn approved

the same, whereby the petitioner was declared as a habitual

offender, and a his name was entered in the surveillance register,

in accordance with Rule 4.9 of the Rajasthan Police Rules of 1965.

14. Learned Public Prosecutor thus submitted that the entire

process was done in accordance with the law, and prayed for the

dismissal of the petition.

15. Heard learned counsel for both parties and, perused the

record of the case and the judgments cited at the Bar.

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16. This Court, on a perusal of the above cited judgments deems

it appropriate to reproduce relevant portions of the same as

hereinunder:-

16.1 Judgments cited on behalf of the petitioner:-

16.1.1 In Ramgopal Jain (supra):-

"Although, the words have been used "convicted or not", but considering the fact that the definition of "habitual offender" makes it a pre-requisite that the person has to be convicted at least thrice, obviously, the word 'convicted or not' cannot refer to the words "habitual offender". After all, the fact that he has not been convicted thrice, would ipso-facto take him out of the category of being "a habitual offender". Therefore, the words "convicted or not" would necessarily refer to the words 'receiver of stolen property'. For, there could be a case that a person is involved in receiving stolen property, who is facing number of criminal proceedings, but does not have a conviction recorded against him. Such a person would, obviously, be included in Rule 4.4 (3) (b) of the Rules.

Reputation is, indeed, part and parcel of word 'life' as repeatedly interpreted by the Apex Court. Before the reputation of a person can be stained by the State, the State has to follow the procedure established by law. Since the Rules and the Act are both partly penal provisions, as they adversely affect the standing of a person, they have to be interpreted strictly and narrowly. Thus, before classifying a person as a history-sheeter under Rule 4.4 of the Rules, the requirement of the said Rule had to be fulfilled. Since the petitioner does not fall under the ambit of the said Rule, his declaration as a history-sheeter is beyond the procedure established by law. Such an action on the part of the respondents has violated the petitioner's fundamental right under Article 21 of the Constitution of India."

16.1.2 In Gaji Khan (supra):-

"This Court finds that the present case is covered by the judgment rendered by this Court in Tejender Pal Singh Vs. State of

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Rajasthan & Anr. (S.B.Criminal Misc. Petition No.1929/2014 decided on 19.09.2018), which reads as under:

"1. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. claiming the following reliefs:

"It is therefore most humbly and respectfully prayed under the facts and circumstances of the case, that the present criminal misc. petition of the petitioner may very kindly be allowed and respondent No.2 may very kindly be directed to remove the name of the petitioner from the Surveillance Register No.8, forthwith. The police may also be directed to remove his photograph from their website immediately. Any other relief which is just and proper under the facts and circumstance of the case may also be passed in favour of the petitioner."

2. Learned counsel for the petitioner submits that the petitioner had been a social worker and his work has been appreciated on various occasions, which includes scholarship to girl students, marriage of the poor and orphan girls etc.

3. Learned counsel for the petitioner submits that 13 cases were lodged against the present petitioner, result whereof shows that the petitioner has never been convicted, except for a fine of Rs.200/- and was being given the benefit of Section 3 of Probation of Offenders Act twice.

4. Learned counsel for the petitioner has relied upon the following judgments rendered at Principal Seat as well as Jaipur Bench of this Hon'ble Court:

• Sohan Lal Vs. State of Rajasthan & Ors. [2015 1 CriC(Raj)316].

• Babu Lal Vs. State of Rajasthan [2006 2 CriC(Raj) 1182].

• Shyam Lal Vs. State of Rajasthan [2012 3 CrLR 1325].

• Swaroop Singh Vs. State of Rajasthan & Ors. [S.B. Civil Writ Petition No.10993/2013].

• Ramgopal Jain Vs. The State of Rajasthan & Ors. [2013(3) WLC (Raj.) 466].

• Suraj Prakash Meena Vs. State of Rajasthan & Ors. [2015 4 CrLR 1938]

• Mahesh Kumar Vs. State of Rajasthan & Ors. [2016 2 CriCC 424].

5. Learned Public Prosecutor agrees that the chart issued by SHO, Police Station Kotwali, Sriganganagar reflects the correct position of all the cases lodged against the present petitioner.

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6. Learned counsel for the petitioner in rejoinder has shown the Rajasthan Police Rules, 1965, Rule 4.4 whereof deals with the Surveillance Register No.8 whereby the Historysheet is maintained. The said Rule 4.4 of the Rajasthan Police Rules, 1965, reads as under:

"4.4. Surveillance Register No.,8 - (1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in form 4.4(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 belong 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, Criminal Procedure Code, has been made.

(c) All convicts the execution of whose sentence as 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 mode under section 8 of the Rajasthan Habitual Offenders Act, 1953.

(3) In part II of such register may be entered at the discretion of the Superintendent:-

(4) Persons who have been convicted twice, or more than twice, of offences mentioned in rule 8.22;

(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 sections 109 or 110, code of Criminal Procedure;

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

Note:- This rule must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein."

7. Learned counsel for the petitioner in his rejoinder arguments thus, submits that a bare perusal of the aforequoted Rule, makes it

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amply clear that the petitioner does not fall within the ambit of necessary requirements of Rule 4.4 in the Surveillance Register.

8. After hearing learned counsel for the parties, as well as perusing the record of the case alongwith the precedent law cited at the Bar and Rule 4.4 of the Rajasthan Police Rules, 1965 as quoted above, this Court is of the opinion that it is a consistent position of the precedent law that where a person is not convicted in the cases pending against him, then the entry of the name of the person concerned from the surveillance register was to be removed.

9. This Court has also carefully read the aforequoted Rule 4.4 of the Rules of 1965, and finds that in the present facts and circumstances, the said Rule 4.4 is not applicable for maintaining the name of the petitioner in the Surveillance Register. The fact of the petitioner having 13 cases is not denied, however, the petitioner has been acquitted in 10 cases and in one cases, fine of Rs.200/- has been imposed upon him and in another two cases, the benefit of Section 3 of Probation of Offenders Act has been given to the petitioner.

10. In view of the above, the present petition is allowed, with the direction to the respondents to delete the name of the petitioner from the Surveillance Register No.8, forthwith. The photograph of the petitioner from the website of the Police Department shall also be removed forthwith

11. This Court is of the opinion that it is a consistent position of the precedent law that where a person is not convicted in the cases pending against him, then the entry of the name of the person concerned from the surveillance register was to be removed.

12. In light of the aforequoted judgment and the facts noted by this Court, the present misc. petition is allowed in the same terms and directions, and the impugned order dated 30.07.2013 passed by the Superintendent of Police, Jaisalmer, directing reopening of the history sheet against the petitioner is quashed and set aside."

16.2 Judgments cited on behalf of the State:-

16.2.1      In Dhanji Ram Sharma (supra):-

  "The   question,   therefore,         is    whether      the       respondents    had

reasonable grounds for believing that the appellant was a habitual offender or a person habitually addicted to crime.

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The appellant has not been convicted of any crime. But the second respondent filed an affidavit stating that the police administration has definite information about the unlawful activities of the appellant and on such information the respondents reasonably believed that he was a habitual offender indulging in the nefarious trade of forging railway tickets and receipts. The first respondent filed a supporting affidavit adopting this statement. The grounds of this belief are to be found in the information collected in the history sheet of the appellant. The history sheet was referred to in the affidavits, and the respondents swore that from the information at their disposal they reasonably believed the appellant to be a habitual offender. On the special facts of this case, the High Court accepted this statement and did not think it necessary to call upon the respondents to supply the details of their information or to produce the history sheet. We are unable to say that the High Court erred in the appreciation of evidence, or that its judgment should be reversed.

The appeal is dismissed."

16.2.2 In Malak Singh (supra):-

"The nature and character of the function involved in the making of an entry in the surveillance register is so utterly administrative and non-judicial, that it is difficult to conceive of the application of the rule of audi alteram partem. Such enquiry as may be made has necessarily 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.

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

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required to proceed. The note following Rule 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.

Ordinarily the names of persons with previous criminal record alone are entered in the surveillance register. They must be proclaimed offenders, previous convicts, or persons who have already been placed on security for good behavior. In addition, names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered.

Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property. While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief"

16.2.3 In Laxmi Narayan Meena (supra):-

"The Rules of 1965 does not provide definition of "habitual offender". It does not make reference or give direction to import the definition of "habitual offender" given under the Act of 1953.

In absence of definition of "habitual offender" under the Rules of 1965, it can be taken from dictionary and not from the Act of 1953. If intention of the legislature would have been to apply the definition of "habitual offender", as provided under the Act of 1953 then it could have been referred specifically under the Rules of 1965 itself. It is missing therein and contrary to the intent of legislature, this court cannot apply the definition given under any other Act. It is moreso when word "habitual" has been defined differently in various Acts. For illustration under the the Rajasthan Prevention of Anti-Social Activities Act, 2006 (for short "PASA Act"), the definition of "habitual" has been given differently than provided under the Act of 1953. For ready

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reference, definition of "habitual" given under the PASA Act is quoted for ready reference:

"'habitual', with all its grammatical variations, includes acts or omissions committed repeatedly, persistently and frequently having a thread of continuity stringing together similar repetitive acts or omission but shall not include isolated, individual and dissimilar acts or omissions."

The perusal of definition given therein shows it to be different than under the Act of 1953. In fact, the definition of "habitual" has been given in various legislation and it is not similar to what is provided in any other legislation. In view of above, if definition of "habitual offender" given under the Act of 1953 alone is applied, the question would be about justification as to why definition of "habitual" given under the PASA Act is not applied. In view of above, I am unable to accept argument of learned counsel for petitioner to apply the definition of "habitual offender" given under the Act of 1953.

The definition of "habitual offender" given in the Law Lexicon (Second Edition) by Whytes & Co. seems to have taken into (consideration by the Apex Court in the case of Dhanji Ram Sharma Vs. Superintendent of Police, North Dist., Delhi Police and Ors., reported in AIR 1966 SC 1766. For ready reference, definition of "habitual offender" given under the Law Lexicon is quoted hereunder:

"Habitual offender.-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. Mere belief is not sufficient. The belief must be reasonable. It must be based on reasonable ground."

As per definition quoted above, habitual offender does not require conviction on three or more occasions but a person who is habitually involved to committ the offences or crime. The same definition was given by the Apex Court in the case of Dhanji Ram Sharma (supra). It was also the case of entering name in the surveillance register.

The word "habitual offender" has been considered in Para 7 of the said judgment. The judgment aforesaid was not brought to

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the notice of the court in the case of Ramgopal Jain (supra). The definition of "habitual offender" was given while considering pari materia provisions. It was also held that suspect may or may not have been convicted. The petitioner therein was acquitted in all the cases yet Apex Court did not interfere in the judgment of this court. The conviction was not taken as a condition for habitual offender while considering the pari materia provisions.

The other judgment of the Apex Court in the case of Malak Singh & Ors. Vs. State of P & H and Ors., reported in AIR 1981 SC 760 is also in reference to pari materia provisions to Rules of 1965. In the aforesaid case, without conviction in any case, name was entered in the surveillance register and had been questioned. The Apex Court refused to interfere therein. The requirement of conviction for habitual offender was not accepted.

The only direction given by the Apex Court in the case of Malak Singh (supra) and also in the case of Dhanji Ram Sharma (supra) is to take a cautious decision before entering the name in the surveillance register. The Apex Court found that challenge to the provision was not accepted and the reference of those judgments has also been given. The challenge to the provision was made in reference to Articles 19 and 21 of the Constitution of India. In the light of judgments of the Apex Court, I am unable to take view expressed by this court in the case of Ramgopal Jain (supra) and other cases. The interpretation to the Rule 4.4(3)(b) has been given requiring conviction even for a habitual offender. It is by dividing the said provision in two parts otherwise if entire provision is read then for habitual offender and receiver of stolen property, conviction may or may not be there.

The pari materia provision was considered by the Apex Court in the case of Dhanji Ram Sharma (supra) with a finding that in a case of habitual offender, conviction may or may not be there.

It is also a fact that if the definition of "habitual offender" is taken from the Act of 1953 then it would even affect Rule 4.4(3)

(a). Therein, requirement is only of two convictions. If intention of the legislature would have been to import the definition of "habitual offender" from the Act of 1953 requiring three convictions then provision of Rule 4.4(3)(a) and (b) would have

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been provided differently. If a case of habitual offender requires three convictions then in case of a person convicted twice and even if not a habitual offender, name can be entered in the surveillance register by invoking Rule 4.4(3)(a) of the Rules of 1965 making Rule 4.4(3)(b) to be redundant. The Apex Court has refused to interfere in the judgment of the High Court in the similar cases where name of habitual offender was entered in the surveillance register despite no conviction. The provisions considered therein are pari materia to the Rules of 1965.

This court has come through other judgment of this court in the case of Shyam Lal Vs. State of Rajasthan, reported in 2012(3) Cr.L.R. (Raj.) 1325. Therein, requirement of conviction was emphasised to enter name in the surveillance register.

Therein, counsel did not refer Rule 4.4(3)(b) despite registration of cases thus to be covered by the aforesaid provision. The consideration of the case therein was made only in reference to Rule 4.4(3)(a), whereas, Rule 4.4(3)(b) allows entry of name in the surveillance register if one is habitual offender requiring no conviction. The judgments of the Apex Court in the case of Malak Singh (supra) and in the case of Dhanji Ram Sharma (supra) were not brought to the notice of the court. The word "habitual offender" defined under Law Lexicon is also given by the Apex Court in the case of Dhanji Ram Sharma (supra) and would be applicable to the present case.

In the light of the discussion made above, I am unable to accept the argument raised by learned counsel for petitioner, rather, present case is covered by the judgments of the Apex Court in the case of Malak Singh (supra) and Dhanji Ram Sharma (supra). It is no doubt true that if name is to be recorded in the surveillance register in reference to Rule 4.4(3)(a), conviction on two or more occasions would be pre-condition. In the instant case, impugned order does not make reference of Rule 4.4(1)(a) of the Rules of 1965.

The writ petition is accordingly dismissed."

17. Before dealing with the said judgments, a brief background

of the factual matrix of the present case may be set out as

under:-

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17.1 A reading of the reply of the respondents, would reveal that

the concerned respondent authorities have relied upon Rules 4.9

sub-rule (2) of the Rajasthan Police Rules, 1965 to justify opening

the history sheet against the petitioner. It would thus have to be

tested on the anvil of whether the petitioner is 'reasonably

believed to be habitually addicted to crime or to be an aider or

abettor such persons.'

17.2 The additional affidavit filed on behalf of the State, in

compliance of the order passed by this Court on 25.07.2022

reveals that a total of 23 cases cases were registered against the

petitioner.

17.3 A further perusal of the document placed at Annexure R/1,

reveals that of the 23 cases registered against the petitioner, he

was acquitted in 7 of them, a negative Final Report was presented

in 10 of them, 2 were closed on the basis of compromise, he was

granted the benefit of doubt and acquitted in 1 case, while he was

convicted in 3 cases; in Case No. 83/07.09.1993 he was convicted

for the offences under Sections 447, 382, 147, 148, 149 I.P.C. and

granted the benefit under the Probation of Offenders Act, 1958, in

Case No. 112/29.09.1994 for the offences under Sections 307,

452, 147, 148, 149 I.P.C. and Section 27 of the Arms Act, 1959 he

was let off with a fine for Rs. 700/- and in Case No.

85/21.07.2003 he was convicted for the offences under Sections

447, 323, 147, 148, 149, 504 I.P.C. and Section 3 of the S.C. /

S.T. Act and sentenced to 1 year imprisonment.

17.4 Thus, as per the said document at Anexure R/1, the last

conviction of the petitioner was in the year 2003, and the last case

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registered against him, being Case No. 218/10.07.2007 for the

offences under Sections 447, 147, 143 I.P.C was in the year 2007,

for which he was acquitted. Therefore, the 19 years have passed

since his last conviction, and 15 years have passed since the last

case was registered against him.

17.5 As per the Aadhar Card of the petitioner, as produced before

this Court by the learned Senior Counsel appearing on his behalf,

the age of the petitioner, at present, is about 61 years. The same

is taken on the record.

18. This Court observes that the contention made on behalf of

the State that the two cases against the petitioner were closed on

the basis of compromise and that he was acquitted in another on

the basis of reasonable doubt, by a bare reading of the Rules of

1965, cannot be said to fall under its purview, and therefore

cannot be viewed in an adverse manner to the disadvantage of the

petitioner, as contended by the learned Public Prosecutor.

19. This Court further observes that in Case No. 83/07.09.1993,

as already discussed hereinabove, it is admitted that the petitioner

was granted the benefit under the Probation of Offenders Act,

1958. It was however contended on behalf of the petitioner that

the said case has been incorrectly included in the list of cases

registered against him averring that he was not named in the

F.I.R. impugned therein nor in the chargesheet impugned therein,

copies of the same being at Annexure-3; however, the same was

not ascertainable from the record, and a perusal of Annexure-3

reveals a letter written by the petitioner to the concerned Police

authorities. However, Section 12 of the Act of 1958 would operate

(20 of 22) [CRLMP-1305/2016]

in his favour, and the same shall not be a disqualification attached

to his conviction. Thus, what remains to be seen is whether the

other two convictions of the petitioner would fall within the ambit

of the Rules of 1965.

For the sake of brevity, the Section aforementioned is

reproduced hereinunder:-

12. Removal of disqualification attaching to conviction.--Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence.

20. This Court also observes that, as contended on behalf of

the petitioner that Case No. 85 of 2003, wherein the

petitioner was convicted for the offences under Sections 447,

323, 147, 148, and 504 I.P.C. and Section 3 of the S.C./S.T.

(Prevention of Atrocities) Act, 1989 would not fall under Rule

8.22 of the Rajasthan Police Rules, 1965, is without any

substance.

21. This Court however, observes that the requirements

under Rule 4.4 Sub Rule (4) requires four criteria to be met

for a person's name to be entered into the surveillance

register. The second criterion requires that the person whose

name so sought to be entered into the surveillance register be

reasonably believed to be habitual offenders, is not fulfilled in

the present case.

(21 of 22) [CRLMP-1305/2016]

22. This Court arrives at the said conclusion, while drawing

strength from the judgment rendered in Ramgopal Jain

(supra), as well as the other judgments cited by the learned

Senior Counsel for the petitioner, and the fact that the last

conviction of the petitioner was in the year 2003; while the

last case registered against him was in the year 2007,

wherein he was acquitted. The cases as cited on behalf of the

State, being Dhanji Ram (supra), wherein in the special

factual matrix therein, the Hon'ble Court did not interfere; and

in Malak Singh (supra), the Hon'ble Court observing that

while the act of entering a name in the surveillance register is

purely an administrative function, when the matter comes

before the Court, the concerned police authorities ought to

satisfy the Court regarding the reasonableness of such

function. In the present case, such justification was not placed

before this Court on behalf of the respondent-police

authorities.

23. This Court therefore, observes that there are no

reasonable grounds available to believe that the petitioner,

who is a senior citizen, could be a habitual offender.

24. This Court, in light of the aforesaid observations and the

peculiar factual matrix of the present case, partly allows the

present petition, and accordingly, respondents no.2, 3, 4, & 5

are directed to strike out the name of the petitioner from the

history-sheet maintained at the concerned police station and

the order dated 27.03.2006 passed by Superintendent of

Police, Bikaner alongwith entire consequential proceedings

(22 of 22) [CRLMP-1305/2016]

pursuant thereto is quashed and set aside. All pending

applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

Skant/-

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