HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 16826 OF 2010. DATED 12th August, 2011 BETWEEN Rajampeta Raju and anr …Petitioners And The Circle Inspector of Police, Chatrinaka Police Station, Hyderabad and ors. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 16826 of 2010 ORDER: This Writ Petition is filed seeking a Writ of Mandamus to declare the action of the respondents in opening and continuing the rowdy sheet against the petitioners without any periodical review as illegal, arbitrary and violative of Articles 21 of the Constitution of India. It is stated that the first petitioner is a resident of Patel Nagar, Gowlipura, Hyderabad and the second petitioner is a resident of Yelkaram village of Suryapet Mandal in Nalgonda District. The first petitioner is carrying on business in Bakery and Readymade garments in the shops taken on lease in Mahathma Gandhi Bus Station, Hyderabad. It is the case of the petitioners that the respondent-police opened rowdy sheets against them in the year 2005 as they were involved in a case in Cr.No. 255 of 2005 on the file of the Police Station, Chatrinaka, Hyderabad, for the offences punishable under Section 302 read with Section 109 IPC. The said case was tried by the learned II Additional Metropolitan Sessions Judge, Hyderabad vide S.C.No. 623 of 2007 who acquitted the petitioners from all the charges levelled against them. It is their further case that the Excise Officials of Prohibition and Excise Station, Charminar registered a case in Cr.No. 223/2003-2004 for the offences punishable under Sections 34 of IPC on the allegation that at the behest of the petitioners, their employee indulged in selling of liquor from their shop on the day of Gandhi Jayanthi. Further, a case in Crime No. 229 of 2004 on the file of the Police Station, Chatrinaka, Falaknuma Division was registered against the petitioners for the offences punishable under Section 188 and Section 34-A of the A.P. Excise Act on the allegation that on the day of Ganesh Immersion, the petitioners had indulged in selling of liquor contrary to the closure order promulgated by the Commissioner of Police. The said case is said to be pending on the file of the learned XIV Metropolitan Magistrate, Hyderabad vide CC.No.437 of 2007. Further, a petty case in crime No.4347 of 2009 was also registered against the petitioners for the offences punishable under Section 70(b) of C.P. Act and under Section 323 of IPC on the file of the Police Station, Afzulgunj Police Station, Hyderabad and the said case ended in conviction, imposing a fine of Rs.400/- to each of the petitioners. It is the grievance of the petitioners that by virtue of opening the rowdy sheets against them, the police are frequently calling and detaining them in police station for hours together and that the respondent police are not allowing them to carry on their business. The first respondent filed a counter affidavit indicating the involvement of the petitioners in the cases as stated supra. It is stated that the petitioners are facing trial in excise cases registered against them under CC.No. 1566 of 2006 and CC No. 437 of 2008. He further stated that number of oral complaints are being received in Chatrinaka Police Station against the petitioners alleging that they are settling the civil disputes by threatening the innocent public. It is further stated that to curb and curtail the unlawful activities of the petitioners, after obtaining necessary permission from the Assistant Commissioner of Police, Falaknuma Division, rowdy sheets were opened against the petitioners on the file of the Chatrinaka Police Station on 25.09.2006 and they are being continued and renewed from time to time and they same were lastly extended up to 31.12.2010. The petitioners filed a reply to the counter affidavit denying the allegation of settling the civil disputes and threatening the innocent public. It is stated that the two cases registered against them under the provisions of the Excise Act, which are pending adjudication, do not relate to breach of peace and tranquility which entitles the respondents to open rowdy sheets against them. It is also stated that all the cases registered against the petitioners are relating prior to 2010 and the rowdy sheets opened against them was renewed up to 31.12.2010 and thereafter there was no renewal of the rowdy sheets. Heard both sides. Perused the case file. The learned Counsel for the petitioners submitted that the case registered against the petitioners in Cr.No. 255 of 2005 for the offence under Section 302 read with Section 109 IPC was ended in acquittal of the petitioners of all charges under judgment dated 10.07.2008 in SC.No. 63 of 2007 on the file of the learned II Additional Metropolitan Sessions Judge, Hyderabad. He further submitted that the offences which are the subject matter of CC.No. 1566 of 2006 and CC.No. 437 of 2008 do not pertain to breach of peace and tranquility so as to open and continue the rowdy sheets against the petitioners without there being any periodical review. He asserted that the petitioners are neither habitual offenders nor involved in the cases relating to breach of peace and tranquility. He also pointed out that the respondent authorities without any justification and without there being any periodical review are continuing the rowdy sheets opened against the petitioners. In support of his contentions, he placed reliance on the judgment of the this Court in Sunkara Satyanarayana Vs. State of AP ( 2000 Crl.L.J. 1297). Per contra, the learned Government Pleader appearing for the respondents, while reiterating the counter averments, submitted that the rowdy sheets opened against the petitioners are being continued in public interest. He further submitted that based on the involvement of the petitioners in the above criminal cases and with a view to curb and curtail their unlawful activities, the rowdy sheets have been opened against the petitioners as per the orders of the Assistant Commissioner of Police, Falaknuma Division and as per Standing Order 601(2) of the A.P. Police Manual and the same is being renewed and extended lastly up to 31.12.2010. It is argued that except opening the rowdy sheets against the petitioners, the respondents never interfered with their life and liberty at any point of time and never harassed them as alleged. It may be noticed that under Standing Order No. 601 of the A. P. Police Manual, 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) (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 A. P. Towns Nuisances Act. D. Persons who habitually tease women and girls and pass indecent remarks. E. Rowdy sheets for the rowdies residing in one Police Station but are found frequenting the other PSs area, can be maintained at all such Police Stations. F. 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. G. Persons who incite and instigate communal/caste or political riots. H. 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. I. 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.” This Court many a occasion had to deal with cases of Police Standing Order 742 which sets out to opening of rowdy sheets. As per Police Standing Order 742, rowdy sheets can be opened and continued against persons who habitually commit, attempt to commit or abet the Commission of, Offences involving a breach of the peace. The expression 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. A single act or omission cannot therefore be characterized as a habitual act or omission. In Malak Singh vs. State of Punjab (AIR 1981 SC 760) the Supreme Court had an occasion to deal with the scope and ambit of Rule 23.4 of the Punjab Police Rules which empowered the Punjab Police to maintain a surveillance register against the persons, who are proclaimed and habitual offenders, previous convicts etc. Dealing with the said provision, the Supreme Court inter alia held: "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 behaviour. 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. It is not in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register. But, here the entry can only be made by the order of Superintendent of Police who is prohibited from delegating his authority under rule 23. 5. 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. " In Puttagunta Pasi @ Penta Pasi vs. Commissioner of Police ( 1998 (3) ALT 55) a Division Bench of this Court, which considered the validity of opening of a rowdy sheet under Police Standing Order 742, inter alia held: ". . . . . . . . . . . it is clear that rowdy sheets cannot be opened against any individual in a casual and mechanical manner. Dubbing a person as an habitual offender and to open a rowdy sheet is not sufficient. On the other hand, due care and caution shall be taken by the police before characterizing a person as a rowdy. The important element that has to be seen in the acts of an offender is whether the acts so committed by a person will have a tendency to disturb public peace and tranquility. " (Emphasis added) In Mohd. Quadeer vs. Commissioner of Police (1999 (2) ALT 733) a learned Single Judge of this Court held that the police authorities have to satisfy that there are grounds to entertain the reasonable belief about the criminal activities of the offender before opening of a rowdy sheet against him. In Sunkara Satyanarayana vs. State of Andhra Pradesh, Home Department, 1999 (6) ALT 249 a learned Single Judge of this Court, after an exhaustive consideration of the case law on the issue, deduced relevant legal principles and held that opening of history sheet/rowdy sheet can be justified only when it is proved before the court by the State that based on the relevant material the competent police officer has applied his mind with due care and caution, and considered all aspects in the light of the law on the point and then ordered opening of history sheet/rowdy sheet or its continuation or retention. If the above settled principle is applied to the facts of the present case, I am of the opinion that the petitioners are not at all habitual offenders so as to open and continue the rowdy sheets against them in as much as after their acquittal from the criminal case registered against them in the year 2005, they were not involved in any other heinous crimes, except in two excise cases registered in 2006 and 2008, which are said to be pending adjudication, and a petty case in the year 2009. Except making a vague statement that number of complaints are being received against the petitioners that they are settling the civil disputes by threatening innocent public, no single reference was made as to the nature of the complaints and particulars of the persons who lodged such complaints. Trite to state, unless there is adequate material as regards commission of offence or attempt to commit an offence opening of rowdy sheet against a person and continuing the same is illegal. Even mere suspicion or apprehension would not be a criterion for opening rowdy sheet against a person. In the absence of any conviction recorded in the crimes registered against the petitioners and in the absence of any fresh cases registered against them after 2009, it cannot be said that the petitioners are habitual offenders so as to justify the continuance of the rowdy sheets opened against them. The aforesaid settled legal principles deduced in the decisions referred to have a complete bearing to the facts and circumstances of the present case and therefore it cannot be said that the petitioners are having the history of habitually committing offences and the action of the respondent police is therefore subversive to Article 21 of the Constitution of India. Further, it is also evident from the record that there is no review of the rowdy sheets opened against the petitioners after 31.12.2010. For the foregoing discussion, the Writ Petition is allowed and the rowdy sheets opened and continued against the petitioners on the file of the first respondent are hereby quashed. Needless to state, this order will not preclude the respondent authorities to keep surveillance on the activities of the petitioners. There shall be no order as to costs. ------------------------------------ -- JUSTICE ASHUTOSH MOHUNTA Dated 12th August, 2011. Msnro