Meshsan Bin Mamad Masri Maison vs The State Of Telangana, And 4 ...
2021 Latest Caselaw 1680 Tel

               HON'BLE SRI JUSTICE K. LAKSHMAN

                  WRIT PETITION No.11185 OF 2021

ORDER:

The present Writ Petition is filed by the petitioner under Article -

226 of the Constitution of India to issue a writ of mandamus declaring

the action of respondent No.4 in maintaining rowdy sheet against him as

illegal, arbitrary and violation of Articles - 14, 19 (1) (e) and 21 of the

Constitution of India and for a consequential direction to respondent

No.4 to close the rowdy sheet maintained against the petitioner.

2. Heard Mr. Mohd. Muzafferullah Khan, learned counsel for the

petitioner and Mr. S. Rama Mohan Rao, learned Assistant Government

Pleader for Home & Law appearing on behalf of the respondents.

3. The contentions of the petitioner are as under:

(i) the Police, Shah Ali Banda have registered a case in Crime

No.35 of 2021 against the petitioner and another for the

offence under Section - 436 read with 34 of IPC;

(ii) the police have falsely implicated him in the said case;

(iii) the Police of Shah Ali Banda Police Station, Hyderabad, has

opened a rowdy sheet against him basing on the aforesaid

single crime, and later on the point of jurisdiction, the said

rowdy sheet was transferred to Kalapather Police Station;

(iv) under the guise of opening and maintaining the said rowdy

sheet, the police are harassing the petitioner by calling him

KL,J W.P.No.11185 of 2021

to the police station which is causing serious hardship to his

livelihood as he is doing a petty business;

       (v)     he is sole bread earner in his family;

       (vi)    basing on pendnecy of single crime, police officials cannot

open and maintain rowdy sheet against the petitioner;

(vii) a person should be a habitual offender for the purpose of

opening and maintaining of rowdy sheet; and

(viii) placed reliance on the principle laid down by the Apex

Court and this Court in Dhanji Ram Sharma v.

Superintendent of Police, North District, Delhi Police1

and reiterated in Vijay Narain Singh v. State of Bihar2 and

the judgment of High Court of Andhra Pradesh in Umesh

Singhaniya v. The Commissioner of Police, Hyderabad3.

With the said submissions, learned counsel for the petitioner sought to

declare the action of the respondents in not closing the rowdy sheet as

illegal and for a consequential direction to close the above said rowdy

sheet opened against the petitioner.

4. The contentions of the respondents are as under:

(i) the petitioner is having unlawful character locally,

indulging continuously in the commission of lawless

acts involving breach of public peace and tranquility;

. AIR 1966 SC 1766

. AIR 1984 SC 1334

. 2013 (3) ALT 146

KL,J W.P.No.11185 of 2021

(ii) the petitioner was involved in the following two

cases:

a) Crime No.35 of 2021 of Shah Ali Banda Police Station, for the offence under Section 436 read with 34 of IPC; and

b) Crime No.56 of 2021 of Shah Ali Banda for the offence under Section - 107/41A of Cr.P.C.

(iii) as per the A.P. Police Manual, Order No.601, certain

persons may be classified as rowdies and rowdy

sheets may be opened against them, and the case of

petitioner would squarely fit for opening the rowdy

sheet; and

(iv) in view of involvement of the petitioner in the

aforesaid criminal cases, to curb and curtail is

unlawful activities, the respondents have opened

rowdy sheet on 31.03.2021 on the file of Shah Ali

Banda Police and later on the point of jurisdiction it

was transferred to Kalapather Police Station.

With the said submissions, the learned Assistant Government Pleader

sought to dismiss the writ petition.

5. In view of the said rival submissions, it is opt to refer to the

relevant clauses of the A.P. Police Manual. Maintenance of rowdy sheets

is governed by Standing Order 601 of the A.P. Police Manual, Part-I,

Volume II, which reads as under:-

KL,J W.P.No.11185 of 2021

"601. The following persons may be classified as rowdies and Rowdy Sheets (Form 80) may be opened for them under the orders of the SP/DCP and ACP/SDPO.

A. Persons who habitually commit, attempt to commit or abet the commission of offences involving a breach of the peace, disturbance to public order and security.

B. Persons bound over under Sections 106, 107, 108(1) (i) and 110(e) and (g) of Cr.P.C.

C. Persons who have been convicted more than once in two consecutive years under sections 59 and 70 of the Hyderabad City Police Act or under section 3, clause 12, of the AP Towns Nuisances Act.

D. Persons who habitually tease women and girls and pass indecent remarks.

E. Persons who intimidate by threats or use of physical violence or other unlawful means to part with movable or immovable properties or in the habit of collecting money by extortion from shopkeepers, traders and other residents. F. Persons who incite and instigate communal/caste or political riots.

G. Persons detained under the "AP Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986" for a period of 6 months or more.

H. Persons who are convicted for offences under the Representatives of the Peoples' Act for rigging and carrying away ballot paper, Boxes and other polling material."

6. Likewise, the period of retention of history sheets of suspects /

rowdies is governed by Standing Order 602, which reads as follows:-

KL,J W.P.No.11185 of 2021

"602-1. History Sheets of suspects shall be maintained from the date of registration up to the end of December, after which the orders of a gazetted officer as to their discontinuance or retention for a further period shall be obtained.

2. Merely because a suspect/rowdy, having a history sheet, is not figuring as accused in the previous 5 years after the last case in which he was involved, it should not preclude the SP/DCP/CP to continue his history sheet if SP/DCP/CP is of the considered view that his activities are prejudicial to the maintenance of public order or one affecting peace and tranquillity in the area or the victims are not coming forward to give complaint against him on account of threat from him."

7. Standing Order 742 of A.P. Police Standing Orders deals with

the situation as to classification of rowdies and opening of rowdy sheets,

which is extracted below:-

"742. Rowdies:- (1) The following persons may be classified as rowdies and Rowdy Sheets (Form 88) may be opened for them under the order of the Superintendent of Police or Sub-divisional Officer:

a) persons who habitually commit, attempt to commit or abet the commission of, offences involving a breach of the peace;

b) persons bound over under Sections 106, 107, 108(c) and 110(1) of the Code of Criminal Procedure, 1973 (Act No.2 of 1974);

c) persons who have been convicted more than once in two consecutive years under Section 75 of the Madras City Police Act or under Section 3, clause 12, of the Towns Nuisances Act;

KL,J W.P.No.11185 of 2021

d) persons who habitually tease women and girls by passing indecent remarks or otherwise; and

e) in the case of rowdies residing in an area under one Police Station but are found to be frequently visiting the area under one or more other Police Stations their rowdy sheets can be maintained at all such Police Stations;

(G.O. Ms. No. 656, Home (Police-D) Dept. Dt. 8-4-1971) (2) Instructions in Order 735 regarding discontinuance of History Sheets shall also apply to Rowdy Sheets."

8. According to the respondents, the petitioner was involved in

the above said two crimes viz., Crime No.35 of 2021 under Section - 436

read with 34 of IPC and Crime No.56 of 2021 under Section - 107 of

Cr.P.C.

9. As per Standing Order 601 of the A.P. Police Manual, rowdy

sheet can be maintained against persons who habitually commit, attempt

to commit or abet the commission of offences involving a breach of

peace, disturbance to public order and security.

10. Refuting the same, the learned counsel for the petitioner would

submit that out of the said two crimes, Crime No.35 2021 is registered

against the petitioner under the provisions of IPC and Crime No.56 of

2021 was registered under the provisions of Cr.P.C. and, therefore, the

said crime cannot be equated with the offences under the provisions of

IPC. Thus, there is only a single crime pending against the petitioner.

KL,J W.P.No.11185 of 2021

As per the Police Manual, if a single crime is pending, opening of a

rowdy sheet against any person is illegal.

11. The Apex Court had an occasion to deal with the opening of

history sheets, continuation of the same and also right to privacy in

Kharak Singh v. The State of U.P.4. In the said case, rowdy sheet was

opened against the petitioner therein and the same was continued. Under

the guise of surveillance, the police started visiting the house of the

petitioner therein against whom rowdy sheet was opened and pending

during night hours and they used to torture him. The Apex Court

declared the domiciliary visits at night hours as unconstitutional.

12. In Vijay Narain Singh2, a three Judge Bench of the Apex

Court had an occasion to deal with the expression 'habitually' and held

that the expression 'habitually' would mean 'repeatedly' or 'persistently'

implying a thread of continuity, stringing together similar repetitive acts,

and a single act or omission would not characterize an act as 'habitual'.

The Apex Court was of the opinion that to qualify as a 'habit', a person

must have grown accustomed to leading a life of crime, whereby it would

be a force of habit, inherent or latent, in an individual with a criminal

instinct, with a criminal disposition of mind, that makes him dangerous to

society in general.

13. In Dhanji Ram Sharma1, a three Judge Bench of the Apex

Court held that the condition precedent for opening of a history sheet is

. AIR 1963 SC 1295

KL,J W.P.No.11185 of 2021

that such person should be reasonably believed to be habitually addicted

to crime or to be an aider or abettor of crime. In order to justify the

opening of a history sheet, the Hon'ble Supreme Court opined that the

police officer must have a reasonable belief based on reasonable grounds.

14. In Sunkara Satyanarayana v. State of Andhra Pradesh5

a learned Single Judge was concerned with the maintenance of history

sheets/rowdy sheets for considerably long periods of time and held that

the same would not only violate the right of privacy but also other

fundamental rights of such persons under Articles 14 and 19 of the

Constitution of India. Orders for opening or retention of history

sheets/rowdy sheets should be passed under administrative instructions

and guidelines and if such orders are challenged, the competent authority

has to place the reasons before the Court justifying the opening/retention

of such history sheets/rowdy sheets. It would be better for the police

officer concerned to record his own reasons for opening/retention of

history sheets/rowdy sheets.

15. In B. Satyanarayana Reddy v. State of Andhra Pradesh6,

a Division Bench held that the expressions 'habitually commit', 'attempt

to commit' and 'abet the commission' of offences indicate the

requirement that at least 'two or more cases' have bee been registered

against the person concerned to characterize him as a person who

habitually commits, attempts to or abets the commission of offences. It

was further held that involvement of a person in a solitary case would not

. 2000(1) ALD (Crl.) 117 (AP)

. 2004(1) ALD (Crl.) 387 (AP)

KL,J W.P.No.11185 of 2021

be enough to classify such person as 'habitually' committing offences.

With the said finding, the Division Bench held that solitary instance in

which the appellant therein was alleged to be involved in could not

constitute the basis to classify him as a 'rowdy.'

16. In Majid Babu v. Government of A.P.7, it was held that

two instances of involvement in criminal cases would not make a person

a 'habitual offender' and that at least more than two instances should be

present before a person can be described as a habitual offender.

17. In Kamma Bapuji v. Station House Officer,

Brahmasamudram8, wherein the persons in whose names rowdy sheets

were opened were involved in two cases but they were acquitted in both,

it was sought to be contended on behalf of the police authorities that the

rowdy sheets were opened during the pendency of the cases and that

acquittal therein would be of no consequence thereafter. While dealing

with the said facts of the said case, the learned Judge rejected the said

contention and held that rowdy sheets could not be opened in a casual

and mechanical manner and a person could not be dubbed a 'habitual

offender' merely because he was involved in two criminal cases.

18. In Puttagunta Pasi v. Commissioner of Police,

Vijayawada9, a Division Bench confirmed the said principle holding that

a rowdy sheet could not be opened against an individual in a casual and

mechanical manner and due care and caution should be taken by the

. 1987(2) ALT 904

. 1997 (6) ALD 583

. 1998(3) ALT 55 (DB)

KL,J W.P.No.11185 of 2021

police before characterizing a person as a rowdy. The Division Bench

expressed agreement with the view taken by the learned Single Judge in

Kamma Bapuji8 that figuring as an accused in two crimes would not be

sufficient to categorize a person as a 'habitual offender'.

19. In Mohammed Quadeer v. Commissioner of Police,

Hyderabad10 it was held that A.P. Police Standing Orders were not

statutory in nature and were only a compilation of government orders

issued from time to time and they therefore did not invest the police

officers with any powers of arrest, detention, investigation of crimes etc.

not specifically conferred under the Code of Criminal Procedure, 1973,

or other enactments. As regards retention of a rowdy sheet, it was held

that opening of a rowdy sheet against a citizen was undoubtedly fraught

with serious consequences and the right to reputation under Article 21 of

the Constitution could not be deprived except in accordance with the

procedure established by law. The law which authorizes the police to

open rowdy sheets and exercise surveillance would have to be very

strictly construed.

20. In Yerramsetti Venugopal Rao v. State of Andhra

Pradesh11, a learned Single Judge of the High Court of Andhra Pradesh

at Amaravathi referring to the above said provisions of the A.P. Police

Manual and the principles laid down in the above said judgments held

that history sheet of a rowdy can be continued (i) if his activities are

prejudicial to the maintenance of public order or affecting peace and

. 1999(3) ALD 60

. 2020 (2) ALD (Crl.) 1048 (AP)

KL,J W.P.No.11185 of 2021

tranquility in the area; and (ii) the victims are not coming forward to give

complaint against him on account of threat from him.

21. In W.P.No.19194 of 2012 dated 24.08.2015, by referring to

the above said provisions of the A.P. Police Manual and also the

principle laid down in the aforesaid judgments, it was held that the

requirement of involvement in at least more than two cases for inferring

that he was a habitual offender was not established. The opening of the

rowdy sheet in the name of the petitioner therein was therefore tainted in

law in its very inception. Therefore, continuation of the said rowdy sheet

by the police authorities ignoring the law laid down by this Court as well

as the Supreme Court cannot be sustained. Accordingly, with the said

finding, the respondents therein were directed to close the rowdy sheet

being maintained in the name of the petitioner therein.

22. In another judgment in W.P.No.18364 of 2020 dated

03.12.2020, a learned Judge of this Court, after referring to the principle

laid down by the Apex Court in Vijay Narain Singh2 and also referring

to the Police Standing Orders supra, it was held that it is impermissible to

the police to open a rowdy sheet if police are of the view that the

petitioner is habitually committing offences/abetting commission of

offence involving breach of peace, disturbance to the public order and

security. In the said case, the petitioner was involved in five cases and he

has been facing trial in the said cases. Referring to the facts of the said

case, it was held that it cannot be said that the action of the police in

opening rowdy sheet amounts to abuse or misuse of power and authority,

KL,J W.P.No.11185 of 2021

and cannot be said as one made in illegal exercise of power and without

application of mind.

23. In W.P.No.12845 of 2014 dated 27.09.2019, wherein the

petitioner was involved in only one case for the offence under Section

302 read with Section 34 IPC and by relying on the principles laid down

by the Apex Court and this Court in catenae of decisions, it was held that

opening of rowdy sheet and continuation of the same thereafter was in

violation of the life and liberty as guaranteed to the petitioner therein

under the provisions of the Constitution of India as well as contrary to the

law laid down by this Court and the Apex Court.

24. Following the above said principle, this Court also ordered for

closure of rowdy sheet vide order dated 01.06.2020 in W.P. No.22980 of

2020.

25. Learned Assistant Government Pleader for Home placed

reliance on the principle laid down by the Madras High Court in

G. Raman Alias Ramachandran v. The Superintendent of Police,

Karur District12. In the said case, it was held that that in public interest,

the Police have got a right to disseminate information, concerning law

and order, and crime. Display or publication of a photograph of a

History Sheeted Rowdy may be continued to infringe upon a person's

right, in so far as it affects his identity, reputation in the minds of others,

but at the same time, public interest would prevail over private interest.

Referring to the same, the learned Assistant Government Pleader would

. 2013 Crl.LJ 2746

KL,J W.P.No.11185 of 2021

submit that respondent No.5 has rightly opened the rowdy sheet against

the petitioners and is continuing the same in the interest of public.

According to him, there is no illegality.

26. In view of the law laid down by this Court and the Apex

Court in the above said judgments, coming to the facts on hand, as

discussed supra, admittedly, petitioner was involved in only one crime

viz., Crime No.35 of 2021 and the same is under investigation. The other

crime viz., Crime No.56 of 2021 was registered under the provisions of

Cr.P.C., but not under the provisions of IPC. It is a bind over case.

Thus, as on today, only a single case is pending against the petitioner.

According to the respondents, to curb and curtail the unlawful activities

of the petitioner herein after obtaining permission from the Assistant

Commissioner of Police, Falaknuma Division, Hyderabad, the above said

rowdy sheet was opened against the petitioner herein and the same is

being continued in view of public interest.

27. As stated above, as per Standing Order 601 of the A.P.

Police Manual, for opening and maintenance of rowdy sheet, a person

against whom the same was issued should habitually commit, attempt to

commit or abet the commission of offences involving a breach of peace,

disturbance to public order and security. Further, as held by the Apex

Court in Vijay Narain Singh2, the expression 'habitually' would mean

'repeatedly' or 'persistently' implying a thread of continuity, stringing

together similar repetitive acts, and a single act or omission would not

characterize as a 'habitual'. The Apex Court was of the opinion that to

KL,J W.P.No.11185 of 2021

qualify as a 'habit', a person must have grown accustomed to leading a

life of crime, whereby it would be a force of habit, inherent or latent, in

an individual with a criminal instinct, with a criminal disposition of

mind, that makes him dangerous to society in general. In Majid Babu7

by referring to Standing Order No.742, it was held that two instances of

involvement in criminal cases would not make a person a 'habitual

offender' and that at least more than two instances should be present

before a person can be described as a habitual offender. Rowdy sheet

could not be opened against an individual in a casual and mechanical

manner and due care and caution should be taken by the police before

characterizing a person as a rowdy. Figuring as an accused in two cases

would not be sufficient to characterize a person as a habitual offender.

28. In view of the above said law laid down by this Court and

the Apex Court, coming to the facts of the case on hand, as discussed

supra, only a single crime is pending against the petitioner under the

provisions of IPC. Thus, the requirement of involvement in at least more

than two cases for inferring that the petitioner is 'habitual offender' was

not established. Therefore, opening of rowdy sheet in the name of the

petitioner is, therefore, contrary to the procedure prescribed under A.P.

Police Manual and the principle laid down in the aforesaid judgments.

29. As held in Yerramsetti Venugopal Rao11, rowdy sheet can

be continued (i) if his activities are prejudicial to the maintenance of

public order or affecting peace and tranquility in the area; and (ii) the

victims are not coming forward to give complaint against him on account

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of threat from him. The said grounds are lacking in the present case.

Therefore, continuation of the said rowdy sheet by the police authorities

ignoring the law laid down by this Court as well as the Apex Court in the

judgments cited supra cannot be sustained.

30. For the foregoing discussion, the present Writ Petition is

allowed and the respondents are directed to close the rowdy sheet being

issued and maintained in the name of the petitioner vide

No.730/OW/ACP/FN-Dinv.HYD/2021, dated 31.03.2021 on the file of

Kalapather Police Station, Hyderabad. However, there shall be no order

as to costs.

As a sequel, the miscellaneous petitions, if any, pending in the writ

petition shall stand closed.

__________________ K. LAKSHMAN, J

21st JUNE, 2021 Mgr