Rakesh Alias Rekhraj vs State Of Rasthan
2023 Latest Caselaw 818 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 6584/2022

Rakesh Alias Rekhraj S/o Sh. Laduram, Aged About 44 Years, B/c Mewara (Kalal), R/o Sadari, P.s. Sadari, Teh. Desuri, Dist. Pali (Raj.).

----Petitioner Versus

1. State Of Rasthan, Through The Superintendent Of Police Pali.

2. Sho, P.s. Sadari, Dist. Pali.

                                                                    ----Respondents


For Petitioner(s)           :     Mr. KL Thakur
For Respondent(s)           :     Mr. MA Siddiqui, GA-cum-AAG
                                  assisted by Mr. AR Malkani.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 13/01/2023

Pronounced on 23/01/2023

1. This criminal misc. petition under Section 482 Cr.P.C. has

been preferred claiming the following reliefs:

"It is, therefore, respectfully prayed that your Lordships may graciously be pleased to accept and allow the present criminal misc. petition and impugned order dated 18.12.2002 (Annex.1) passed by the Superintendent of Police, Pali, directing opening the history sheet of the petitioner as well as consequential history-sheet opened against the petitioner, may kindly be quashed and set aside".

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

counsel for the petitioner are that in pursuance of the impugned

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order dated 18.12.2002, the history sheet was opened against the

petitioner, on the ground that 10 cases were registered against

him.

3. The details of cases registered against the petitioner are as

under:

S.No. Case No.    Offence(s)                                     Result
1.      173/97    Sections 452, 336 & 323 IPC                    Compromise

2.      112/99    Sections 341 & 323 IPC                         Compromise
3.      63/2000   Sections 147, 148, 458, 354                    Acquittal
                  IPC

4. 75/2000 Sections 392, 452 & 427/34 IPC Acquittal

5. 118/2000 Sections 147, 148, 149, 452, & Acquittal 365 IPC

6. 143/02 Sections 19/54 Rajasthan Excise Acquittal Act

7. 144/02 Sections 19/54 Rajasthan Excise Acquittal Act

8. 184/02 Sections 341 & 323 IPC and SC/ Acquittal ST Act

9. 41/04 Sections 19/54 Rajasthan Excise Acquittal Act

10. 44/07 Sections 19/54 Rajasthan Excise Acquittal Act

4. Learned counsel for the petitioner submitted that the

petitioner does not fall in any of the categories prescribed in Rule

4.4. of the Rajasthan Police Rules. 1965 as to warrant the entering

of his name in the surveillance register. The condition for entering

the name of a person in the surveillance register is that a person

has to be either a proclaimed offender or who has been convicted

twice or more than twice for the offence mentioned in Rule 8.22 of

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the Rajasthan Police Rule 1965 Therefore, opening of impugned

the history sheet is absolutely unwarranted and illegal.

5. Learned counsel for the petitioner further submitted that

total 10 cases were registered against petitioner; he was acquitted

in 8 cases, while 2 cases were closed on the basis of compromise.

Therefore, the petitioner is not convicted even in a single case.

Thus, it is clear that the order regarding opening of the impugned

history sheet is unsustainable in the eye of law.

6. Learned counsel for petitioner also submitted that the last

case, against the petitioner, was registered in the year 2007 and

thereafter, even a single case was registered against him; the

petitioner is ward member in the Municipal Board, Sadari, Distt.

Pali, and thus, he is a responsible member of society.

7. On the other hand, learned GA-cum- AAG Mr. MA Siddiqui

assisted by Mr. AR Malkani opposed the aforesaid submissions

made on behalf of the petitioner and submitted that the petitioner

was validly declared as a history sheeter, as the concerned

Superintendent of Police came to such conclusion, after duly

looking into the overall facts and circumstances of the case and

the material available before him.

8. Heard learned counsel for both parties as well as perused

the record of the case.

9. This Court finds that the aforementioned brief background of

the case, as reproduced hereinabove, pursuant to the necessary

details having been furnished by the GA-cum-AAG, and the same

reveals that total 10 cases were registered against the petitioner;

he was an acquitted in 8 cases, while 2 cases were closed on the

basis of compromise.

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10. This Court is conscious of the judgment rendered by this

Court in Diwan Singh Vs. State And Ors. (S.B. Criminal Misc.

Petition No. 1305/2016 decided on 19.09.2022), which was

also pertaining to opening of the history-sheet; relevant portion of

which reads as under: -

"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.

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.

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(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.

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

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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 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

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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.

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

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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 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

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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.

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 pursuant thereto is quashed and set aside. All pending applications stand disposed of."

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11. While considering Rules 4.4 and 4.9 of the Rajasthan

Police Rules, 1965 as well as the judgment cited, this Court

observes that for sustaining a history-sheet against a person,

either a person has to have three cases of convictions which would

bring him within the domain of the definition of "Habitual

Offender" so that he could be declared as a history-sheeter, by

entering his name in the surveillance register, or as per Rule 4.9 of

the Rajasthan Police Rules, 1965, it is also stated that anything

reasonable could be the criteria for determination of entering a

person's name in the surveillance register, as per his being

habitual to commit crime.

11.1 For the sake of brevity, this Court arrives at the

following uniform criteria to determine whether an entry of a

person's name in the surveillance register is justified:

(a) A person having three consecutive convictions against him,

and being a habitual offender, shall be liable for continuance of

entry of his name in the surveillance register, while declaring him

as a history-sheeter; however, if the convictions are 15 years or

before, then the history sheet/entry of his name in the

surveillance register will not fall in this criteria of sustenance.

OR

(b) If a person is having more than ten cases against him, in

totality, irrespective of the result, his name, at the discretion of

the concerned authority, entered in the surveillance register, while

declaring him as a history-sheeter, is justified and deserves

continuance; but if a person is having more than ten cases and all

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of them are 10 years old, then the history sheet/entry of his name

in the surveillance register, will not fall in this criteria of

sustenance.

11.2 As an upshot of the above, this Court observes that a

history-sheet shall be amenable to judicial scrutiny as above, and

thus, while keeping into consideration Rule 4.4 and Rule 4.9 of the

Rajasthan Police Rules, 1965 and the precedent law, this Court is

of the opinion that the entry of a person's name in the surveillance

register/history sheet, on count of his being a habitual offender,

shall not be interfered with, if there are three consecutive

convictions against such person, or such an entry in the history

sheet/surveillance register shall not be interfered with, if a person

is having more than 10 cases, in totality, against him, irrespective

of the result. (The condition of 10 cases shall not apply, if there

are no cases in last 10 years; similarly, if the convictions are 15

years or before, then again the exclusion of the person's name

from the history sheet/surveillance register shall be warranted).

11.3 This Court thus observes that if a person suffers from

any of the above disqualifications, then he shall be disentitled

from claiming relief against being declared as a history-sheeter. It

is relevant to note that in Diwan Singh (supra), while granting

relief to the petitioner therein, it was observed that the petitioner

therein was a senior citizen against whom the last conviction was

in the year 2003, and the last case registered against him was in

the year 2007, while his case had come up for final adjudication in

the year 2022.

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12. Thus, this Court, in view of the aforementioned uniform

criteria, allows the instant petition; accordingly, while quashing

and setting aside the impugned order dated 18.12.2002 passed by

the Superintendent of Police, Pali alongwith entire proceedings

pursuant thereto, the respondents are directed to strike out the

name of the petitioner from the history-sheet maintained at the

concerned police station. All pending applications stand disposed

of.

(DR.PUSHPENDRA SINGH BHATI), J.

SKant/-

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