Rajasthan High Court

Nishit @ Bablu vs State Of Rajasthan And Ors on 3 March, 2023

Bench: Vinod Kumar Bharwani

    [2023/RJJP/003339]

            HIGH COURT OF JUDICATURE FOR RAJASTHAN
                        BENCH AT JAIPUR

            S.B. Criminal Miscellaneous (Petition) No. 5992/2016

    Nishit @ Bablu Choudhary S/o Late Shri Nand Lal B/c Jat, R/o
    Keharpura Kala, Police Station, Baggad, Distt. Jhunjhunu
                                                                        ----Petitioner
                                        Versus
    1.       State Of Rajasthan Through Pp
    2.       Superintendent Of Police Jhunjhunu
    3.       Station House Officer, Police Station Kotwali, Jhunjhunu
                                                                     ----Respondents

For Petitioner(s) : Nishit, the petitioner in person For Respondent(s) : Mr. Imran Khan, Public Prosecutor

HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

ORDER RESERVED ON :- 24.02.2023 ORDER PRONOUNCED ON :- 03.03.2023

1. This criminal misc. Petition has been filed by the petitioner

under Section 482 of Cr.P.C. being aggrieved with the existence of

his name in the history-sheet of Police Station Kotwali, District

Jhunjhunu, which was opened by the order of the Deputy

Superintendent of Police, Jhunjhunu vide order dated 12.05.1999.

2. The petitioner who is present in person has submitted that

his name was entered into history-sheet on the ground that

various criminal cases were registered, in which the police filed

charge-sheets against him. He has placed on record a List of

criminal cases registered against him and stated that out of total

25 cases, he has already been acquitted/has not been charge-

sheeted/proceedings have been quashed or fine has been imposed

against him in all the cases except 4, in which he has been

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convicted but benefit of probation has been extended to him. It is

contended by the petitioner that as per the definition of habitual

offender, he has not been sentenced on conviction on three

occasions during any continuous period of five years, therefore,

opening of history-sheet against him is bad in the eyes of law. It

is informed by the petitioner that the name of the petitioner has

already been removed from the Surveillance Register vide Order

dated 04.01.2019 on the ground that he was living normal life. It

has been further contended by the petitioner that after year 2009,

only one criminal case has been registered against him, in which

he has not been charge-sheeted. He has, therefore, prayed that a

direction may be issued to the Superintendent of Police,

Jhunjhunu to remove his name from the history-sheet.

3. The petitioner has placed reliance upon the decision of this

Court rendered in the case of Diwan Singh vs. State of

Rajasthan & ors. [S.B. Criminal Misc. (Pet) No. 1305/2016)

decided on 19.09.2022.

4. A reply to the criminal misc. petition has been filed by the

respondent - State, wherein it is stated that there are 24 criminal

cases, out of which some criminal cases are pending, in some

cases, he was acquitted, in some cases he was discharged and in

one case, he was convicted vide Order dated 03.01.1999. Further,

it has been stated that looking to criminal activities of the

petitioner, history-sheet was opened and a direction was also

issued for keeping the petitioner on surveillance. The petitioner's

activities come in the purview of Rajasthan Habitual Offenders Act.

It has been argued that even during the pendency of the history-

sheet against the petitioner, other criminal cases were registered

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against him between the year 2002 to 2020 and in that cases

also, he was charge-sheeted. Learned Public Prosecutor has

contended that as there is no provision under Rajasthan Police

Rules, 1965 to remove the name of the person from the history-

sheet/surveillance register, relief prayed for by the petitioner

cannot be granted. However, learned Public Prosecutor has fairly

conceded that name of the petitioner has already been removed

from the Surveillance Register vide Order dated 04.01.2019 on

the ground that he was living normal life and that, in all those

criminal cases registered against the petitioner, the trial court has

passed the final judgment except one case. The petitioner was

convicted in four cases but he was not sentenced on conviction

and benefit of probation was extended to him.

5. Heard learned counsel for the parties and perused the

material available on record.

6. Rule 4.9 of the Rajasthan Police Rules, 1965 (hereinafter

referred to as the 'Rules of 1965') provides for opening of the

History sheets, which reads as under:-

"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 the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such person."

(3) The Government Railway Police will maintain the history sheet of criminals known or suspected to operate on the railway in

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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."

7. Rule 4.4 of the Rules of 1965 deals with Surveillance

4.4(1), which reads as under :-

"4.4Surveillance 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 is 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 made 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-

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(a) 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;

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

8. As per Clause (1) of Rule 4.9 of the Rules of 1965, a history-

sheet can be opened against a person, whose name is entered in

the Surveillance Register, except conditionally released convicts.

As per Clause (2) of Rule 4.9 of the Rules of 1965, a history-sheet

can be opened under the written orders of a police officer not

below the rank of Inspector against any person, whose name has

not been entered in the Surveillance Register but who is

reasonably believed to be habitually addicted to commit crime or

to be an aider or abettor of such person.

9. Rule 4.4 of the Rules of 1965 clearly reveals that there are

two categories of persons whose names may be entered in the

Surveillance Register: the first category deals with persons, who

are commonly resident within or commonly frequenting the local

jurisdiction of the police, and who are either proclaimed under

Section 87 of Code of Criminal Procedure, or released convicts in

regard to whom an order under Section 565 Criminal Procedure

[2023/RJJP/003339] (6 of 8) [CRLMP-5992/2016]

Code, has been made, or all convicts the execution of whose

sentence is suspended in the whole, or any part under Section 401

Criminal Procedure Code. The second category of persons are

those who at the discretion of the Superintendent of Police have

been convicted twice, or more than twice, of offences mentioned

in Rule 8.22; Rule 8.22 deals with specific offences in Chapter XI,

XII, XIII, XVI, XVII and XXI of I.P.C. or under Chapter VIII of

Cr.P.C. or under Gambling Ordinance, Indian Arms Act or where

the previous conviction would lead, but enhanced conviction

subsequently. Another category covered under the second

category are those persons who are reasonably believed to be

"habitual offenders" or receivers of stolen property "whether they

have been convicted or not", or persons under security under

Sections 109 or 110, Code of Criminal Procedure, or convicts

released before the expiration of their sentences under the Prisons

Act and Remission Rules without imposition of any conditions.

10. It is already noticed that as per reply filed by the respondent

- State, name of the petitioner was entered into the surveillance

petitioner is a habitual offender.

11. The word "habitual offender" has not been defined in the

Rules of 1965, but has been defined in the Rajasthan Habitual

Offender Act, 1953 (hereinafter referred to as 'the Act of 1953').

Section 2(a) of the Act of 1953 reads as under:-

"(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

[2023/RJJP/003339] (7 of 8) [CRLMP-5992/2016]

conviction on not less than three occasions since he attained the age of eighteen years to a substantive terms of imprisonment for any one or more of the scheduled offences committed on different occasions and 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;"

12. As per the definition of the 'habitual offender' provided under

the Act of 1953, a person can be declared as habitual offender, if

he has three convictions recorded against him during any

continuous period of five years. In the present case, conviction

has been recorded against the petitioner in four cases but he was

extended benefit of probation and has not been sentenced on

conviction on three occasions during any continuous period of five

years, however, in remaining all other cases, he was acquitted/not

charge-sheeted or fine was imposed against him by the competent

criminal court, therefore, he does not fall within the definition of

word "habitual offender". Even, the name of the petitioner has also

been removed from the Surveillance Register vide Order dated