Telangana High Court

Thumkunta Madhava Reddy vs The State Of Telangana And 5 Others on 19 January, 2021

Bench: P Naveen Rao

       HONOURABLE SRI JUSTICE P. NAVEEN RAO

            WRIT PETITION No. 18726 of 2020

                     Date : 19.1.2021

Between:

Thumkunta Madhava Reddy
S/o Late Chitta Reddy Aged About 55 years occ Real
Estate R/o H No 110148 Pedda Thokatta near Arya
Samaj New Bowenpally Secunderabad
                                                 Petitioner

                           And
The State of Telangana AND 5 OTHERS
Represented by its Principal Secretary General
Administration Spl Law and Order Department
Secretariat Hyderabad
                                              Respondents

The Court made the following:
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            HONOURABLE SRI JUSTICE P. NAVEEN RAO

                   WRIT PETITION No.18726 of 2020

ORAL ORDER:

       Heard learned counsel for petitioner Sri Prabhakar Sripada

and learned Assistant Government Pleader for Home.


       2.       In this writ petition, petitioner is aggrieved by the

action of 6th respondent in sending police men to enter the house

of petitioner bearing No.1-10-148, Pedda Thokatta, Near Arya

Samaj, New Bowenpally, Secunderabad in the midnight every day

ringing the door bell/knocking the door, waking up the petitioner

late   night,     thereby   disturbing   his   sleep   as   illegal   and

unconstitutional.


       3.       Learned counsel for petitioner drew the attention to

the averments made in paragraph 16 of the affidavit filed in

support of the writ petition regarding alleged visits of police

constable(s) on various dates at times mentioned in tabulated

form, as noticed from the Closed Circuit Television Camera

recordings. However, he submitted that petitioner is restricting his

claim to direct the respondent police not to visit his house at late

night hours, disturb the petitioner and other tenants in the

premises and that petitioner has no objection if police want to pay

visits to his house during day time.


       4.       According to learned Assistant Government Pleader,

having regard to the criminal record of the petitioner, a rowdy
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sheet was opened and police are keeping a watch on the moments

of the petitioner to prevent committing of further crimes and except

maintaining the rowdy sheet and keeping a watch on the moments

of the petitioner, police are not interfering with the life and liberty

of the petitioner.


        5.        Petitioner was shown as accused in Crime No.387 of

2005 for the offences punishable under Sections 447 and 506 of

IPC. After investigation police filed charge sheet and XI Additional

Chief Metropolitan Magistrate, Secunderabad took cognizance of

the offence and petitioner was placed on trial in C.C.No.352 of

2007.        Vide judgment dated 5.7.2012 petitioner was acquitted.

Petitioner was shown as accused in Crime No.471 of 2019 for the

offences punishable under Sections 448, 427, 323, 354(B), 506,

509 read with section 34 IPC; after investigation police filed charge

sheet and petitioner is facing trial in C.C.No.770 of 2020 in the

Court        of    XI    Additional   Chief   Metropolitan    Magistrate,

Secunderabad.           Petitioner was also shown as accused in Crime

No.474 of 2019 for the offences punishable under Sections 452,

302, 120(B), 212 read with Section 34 of IPC. After investigation,

police filed charge sheet        and matter is pending at the stage of

taking cognizance of the offence vide PRC No.35 of 2020 in the

Court        of    XI    Additional   Chief   Metropolitan    Magistrate,

Secunderabad. Having regard to the involvement of the petitioner

in the above crimes, Crime No.283 of 2020 for the offence

punishable under Section 107 of Criminal Procedure Code was
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registered and the Special Executive Magistrate, Hyderabad passed

orders on 15.9.2020 binding over the petitioner for good conduct.

Referring to involvement of the petitioner in above crimes, rowdy

sheet was opened against the petitioner.


      6.     According to learned counsel for petitioner, petitioner

was acquitted in Crime No.387 of 2005 and registration of Crime

No.282 of 2020 binding over the petitioner for good conduct stands

set aside in view of the judgment of this Court in Criminal Petition

No.4662 of 2020 dated 5.10.2020, therefore, as on today only two

crimes are pending against the petitioner.


      7.     According to learned Assistant Government Pleader, in

view of involvement of the petitioner in several criminal cases,

surveillance is necessary, whereas, according to learned counsel

for petitioner, even assuming that police are entitled to keep

surveillance, police cannot disturb the petitioner in the late night

hours and cause hardship to him, which amounts to uncalled for

interference in life, liberty and privacy of the petitioner.


      8.     No statutory instrument deal with opening rowdy-

sheet and keeping surveillance on a person. The Andhra Pradesh

Police Manual deals with various aspects of functioning of police

personnel which include registration of crimes, investigation,

conducting of trial and opening of rowdy sheets etc. PSO 601 deals

with opening of rowdy sheet. According to Clause-A thereof, if a

person habitually commits, attempts to commit or abet the
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commission of offences involving breach of peace, disturbance to

public order and security, a rowdy sheet should be opened and his

movements and activities are to be watched. According to Clause-B

thereof, a person bound over for good conduct should be classified

as rowdy and rowdy sheet can be opened and continued.


      9.    On opening the rowdy-sheet, Police keep watch on

movements of the person. According to Police, this is necessary as

part of their duty to ensure law, order and peace in the community

and to prevent a habitual offender from possible indulgence of

crimes affecting the society at large i.e., to prevent commission of

offence. This is nothing but surveillance.


      10.   Right to life, liberty and privacy are sacrosanct to a

person. A person is entitled to lead his life with dignity and self

respect. These rights flow out of Article 21 of the Constitution of

India. Surveillance on person certainly infringes on his right to life,

privacy and liberty. These rights cannot be infringed except by due

process of law. Compelling public interest may require intrusion

into privacy of a person but while doing so great care and caution

has to be observed. Thus, if Police resort to surveillance on the

ground that rowdy-sheet is opened on petitioner, it must show

justification, impelled to ensure peace and order in the society.


      11.   The scope and width of Article 21 of the Constitution

of India, scope of power of police to infringe privacy of a person and

scope and ambit of Police Standing Orders (for short PSO) were
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vividly analysed and dealt with extensively in two decisions of this

Court in Mohammed Quadeer and others Vs. Commissioner of

Police, Hyderabad and another1 and Sunkara Satyanarayana Vs

State of Andhra Pradesh, Home Department and others2. In

both these decisions it is held that PSOs are non statutory

executive instructions and have no binding force of law.


          11.1. In Mohammed Quadeer and others, it is held:

        "31. Opening of a rowdy sheet against a citizen is undoubtedly
        fraught with serious consequences. Article 21 of the Constitution of
        India guarantees right to life with dignity and the right to live, as a
        dignified man, carries with it the right to reputation. Right to
        reputation is an integral part of right to life guaranteed by Article 21,
        and such a right cannot be deprived except in accordance with the
        procedure established by law. Such laws which authorise the Police
        to open rowdy sheets and exercise surveillance are required to be
        very strictly construed. Opening of the rowdy sheets and retention
        thereof except in accordance with law would amount to infringement
        of fundamental right guaranteed by Article 21 of the Constitution of
        India. It is true that the State is duty bound at all levels to protect the
        persons and property from the criminals and criminal activity.
        Prevention of organised crime is an obligation on the part of the
        State.



        Right to Privacy:

        32. Fundamental rights and civil liberties exist and can only flourish
        in an orderly society. Civil liberties and fundamental rights are
        intimately connected with the nature and dynamics of the Society. It
        is the duty of the Police to deal with crime and criminals
        expeditiously and effectively while at the same time holding to the
        values and concepts of the fundamental rights and the Constitution.
        Both the competing interests are to be reconciled. This much is clear
        so far as our Constitutional system is concerned that intrusion into
        personal liberty without an authority of law is forbidden. Surveillance

1
    1999 (3) ALD 60
2
    1999 (6) ALT 249
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and watching of movements of a citizen by the Police is not a matter
of course. Such rights can be exercised by the Police only in
accordance with law which permits such surveillance. The action in
this regard which is in accordance with law may result in violation of
the fundamental rights guaranteed by Article 21 of the Constitution
of India. Every citizen has fundamental right and entitled to indulge
in harmless activities without observation or interference. It is a right
to be left alone. The guarantee in Article 8 of the European
Convention of Human Rights that "Everyone has the right to respect
for his private and family life, his home and has correspondence"
reflects both the individual's psychological need to preserve an
intrusion-free zone of personality and family, and the anguish and
stress which can be suffered when that zone is violated. The saying
that 'an Englishman's home is his castle' would be 6 equally
applicable to Indian situation and it can be said that an 'Indian
citizen's home is his castle.'


33. Therefore, I have no hesitation whatsoever to reject the plea
that mere surveillance and watch by the Police itself would not
infringe the fundamental rights of a citizen. Such surveillance
and     watch    which    is     not   authorised   by    law   may     be
unconstitutional. Such surveillance and watch even if it is
authorised by law but if it is not in accordance with that law
would equally be unconstitutional."
                                                 (emphasis supplied)


11.2.     In Sunkara Satyanarayana, it is held:

"23. Surveillance by the police makes very serious inroads into the
life of a person. It even grossly violates the right of persons to privacy.
Obtrusive surveillance does not leave a citizen alone. With the subtle
methods of telephone tapping, telescope watching, remote controlled
audio and video recording gadgets, a citizen subjected to surveillance
can never have mental peace and thus his life and liberty at every
movement would be restricted. A person with lot of restrictions
cannot be expected to lead a dignified life and exercise his right to
liberty and other freedoms. A citizen's life would become miserable.
Such a situation is worse than animal existence, For these reasons
can it be said that there is a 'right' against surveillance?
.....

....

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30............Before examining the case law as decided by this Court, it is apposite to note the intention and objectives behind such provisions dealing with surveillance. There cannot be two opinions that police should vigorously enforce the law. It does not however mean that they should rigorously violate the constitutional values and constitutional rights. In enforcing the law they shall not violate the Supreme law of the Nation. The police are charged with responsibility of controlling crime. Control of crime necessarily involve prevention of crime. To prevent crime it is permissible that police should keep a person known to be habitual offender or 7 known to be 'trouble maker' under a watch. What is most objectionable to civilized mind is the use of extra legal methods by the police for prevention of crimes. Surveillance of a person in an arbitrary and unreasonable manner and contrary to the provisions of law, is one such extra legal method which cannot be countenanced by the Constitutional Court.

31. Illegal surveillance makes arbitrary and obtrusive intrusions into one's right to privacy and violates Article 21 of Constitution of India. But keeping a person under unobtrusive watch to prevent crime and to maintain law and order, as authorised by law, is reasonable restriction permissible under the Constitution."

(emphasis supplied)

11.3. In paragraph-49 of Sunkara Satyanarayana,

learned single Judge culled out principles on police

surveillance against history/rowdy sheeters. To the extent

relevant, it reads as under:

"49. Therefore, in the context of police surveillance against history sheeters and rowdy sheeters, the following principles vis-a-vis right to privacy under Article 21 of the Constitution would emerge:

(i) If the surveillance is not obtrusive, the same does not violate the right to privacy under Article 21 of the Constitution of India. The same does not either in material or palpable form affect the right of the suspect to move freely nor can it be held to deprive the history sheeter / rowdy sheeter of his personal liberty.

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(ii) In testing whether fundamental right of free movement or personal liberty is infringed or not, it is to be remembered that infringement should be direct as well as tangible. If surveillance hurts personal sensitivities, the same is not a violation, for the constitution makers never intended to protect mere personal sensitiveness.

...

(iv) If the action of the police is found to infringe the freedoms guaranteed to the history sheeter / rowdy sheeter and violates his right to privacy, in that, the surveillance is excessively obtrusive and intrusive, it may seriously encroach on the privacy of a citizen as to infringe the fundamental right to privacy and personal liberty under Article 21 as well as the freedom of movement guaranteed under Article 19(1)(d) of the Constitution of India and the same is impermissible.

(vii) In either case-whether the regulation is statutory or non- statutory-domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security, and there can be no routine follow-up at the end of a conviction or release from prison in every case."

12. In the case on hand, a rowdy-sheet was opened

against the petitioner and the same is not under challenge.

Learned counsel for petitioner also fairly submits that he has no

objection if Police keep a watch on his movements, during the day,

but cannot disturb his privacy and cannot disturb him in late

night hours. There is merit in the submission of the learned

counsel for petitioner that only on the ground that rowdy-sheet is

opened, Police cannot visit the residence of the petitioner in the

late night hours and disturb him. It does amount to intruding into

privacy offending the right of the person. It is not the case of the

respondent-Police that petitioner continues to involve in criminal PNR,J WP No.18726/2020

activities, which can be assumed to be resulting in possible law