THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 24560 OF 2000 Date: 07.02.2006 Between: Chitta Srinivasa Rao @ Srinivas, S/o Satyanarayana Murty, aged about 27years, Mamidi Thota, Tadepalligudem, West Godavari District. … Petitioner 1. The Superintendent of Police, West Godavari District, Eluru and three others. … Respondents. THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 24560 OF 2000 ORDER: Action of the respondents, in opening a rowdy sheet against him, is impugned by the petitioner in this writ petition as illegal, arbitrary and in violation of Articles 14 and 21 of the Constitution of India and as contrary to Police Standing Orders 742 and 735. Facts, to the extent necessary for this writ petition, are that the petitioner, who claims to be working as an Assistant in a Public Telephone Booth, was accused No.7 in S.C.No. 195 of 1993 on the file of the Court of the Assistant Sessions Judge, Tadepalligudem, charged for offences under Sections 148, 307, 149 read with Section 511 IPC. The said criminal case ended in his acquittal on 10.10.1996. The petitioner was also an accused in S.C.No. 212 of 1993 for offences under Sections 324, 307 read with Section 34 IPC. A rowdy sheet was opened against the petitioner in 1993. S.C.No.195/1993 ended in the petitioner’s acquittal on 10.10.1996. S.C.212/93 also ended in his acquittal on 11.10.1996. C.C.No. 185 of 1994 filed against him also ended in his acquittal on 02.12.1997. It is the petitioner’s case that respondents 3 and 4 were harassing him for the last five years and insisting that he come over to the police station, that they made him wait for hours together without cogent reasons and that opening of a rowdy sheet was wholly illegal, arbitrary, was not bonafide and was politically motivated. While conceding that the respondents had the power to open a rowdy sheet, petitioner would submit that the said power is circumscribed by the instructions issued in the A.P. Police Standing Orders which are required to be strictly complied with. Petitioner would contend that once he was acquitted by a competent criminal Court, he cannot be continued to be treated as a criminal and that the respondents were not empowered to continue the rowdy sheet thereafter. The petitioner filed W.P.No. 26511 of 1996 which was disposed of, by order dated 04.08.1997, directing the respondents to review the matter in the light of the A.P. Police Standing Order No. 735 and to pass appropriate orders thereon. S.C.No. 191 of 1999 and S.T.C.No.154/2000 also ended in the petitioner’s acquittal on 09.08.2000 and 22.09.2000 respectively. In the counter affidavit filed on behalf of respondents 3 and 4, on 22.01.2001, it is stated that the petitioner was a close associate of Sri P. Ravindra Kumar, that on 03.02.1992 the petitioner along with P. Ravindra Kumar and others formed themselves into an unlawful assembly and, armed with deadly weapons, attempted to kidnap Sri T. Pedda Kapu from whom they demanded a sum of Rs.20,000/- for effecting a compromise. S.C.No. 195 of 1993, under Sections 148, 364, 149 read with Section 511 IPC, subsequently ended in the petitioner’s his acquittal. While referring to Cr.No. 195 of 1992, registered at Tadepalligudem police station, it is contended that since the petitioner threatened the witnesses, they all turned hostile resulting in his acquittal in S.C. 212 of 1993 on 11.10.1996. Reference is made to Cr.No. 65 of 1994 of Tadepaligudem police station, resulting in C.C.No. 185 of 1994 being filed against the petitioner, before the Additional Judicial First Class Magistrate’s Court at Tadepalligudem, which also ended in his acquittal on 02.12.1997 allegedly on the witnesses having turned hostile on being threatened by the petitioner and others. Reference is made to S.C.No. 325 of 1996 which arose on a complaint filed by the petitioner in Cr.No. 6 of 1995 wherein the accused was convicted by the Assistant Sessions Judge, Tadepalligudem on 11.06.1998. It is stated that since the petitioner continued his support to Sri P. Ravi and T. Veeranna and was instrumental in creating ill-feelings between them and since he was continuing his rowdy activities in the town, the Sub-Divisional Police Officer, Kovvur Sub-Division had issued orders to open a rowdy sheet against the petitioner and had communicated the same to the Sub-Inspector of Police, Tadepalligudem police station in proceedings No. C.836/SDOK/92 and as a result rowdy sheet bearing Serial No. 391 was opened on 28.09.1993 and has been in existence eversince. It is stated that in the previous Municipal and Parliament elections, the petitioner supported Sri T. Veeranna using criminal force against the voters due to which he was charge sheeted i.e., information was laid under Section 110 Cr.P.C. before the Mandal Executive Magistrate, Tadepalligudem in Cr.No. 62 of 1996 and was bound over for good behaviour. It is stated that the petitioner was arrested while he was in possession of illicit arrack, that Cr.No. 169 of 1995 under Section 8(b) of A.P. Prohibition Act, was registered against him, and that he was convicted by the Lok Adalat Court in C.C.No. 6 of 1996 on 20.09.2000. It is stated that since the petitioner was intimidating the public, he was charge sheeted in Cr.No. 34 to 36 of 1998 before the Mandal Executive Magistrate and bound over for good behaviour. Reference is also made to the fact that on 5th and 6th of November 1998 the petitioner had trespassed into the house of one Smt. K. Jayalakshmi, had outraged her modesty and, on a complaint given by her, Cr.No. 259 of 1998 was registered which also ended in acquittal on 09.08.2000 in S.C.No. 6 of 1999 as the petitioner had compromised with the complainant. The petitioner is said to have been charge sheeted in M.C.No. 9 of 2000 which is said to be pending trial. It is also stated that the petitioner was found guilty under Section 509 IPC in petty case NO. 908 of 1998 and was convicted to pay a fine of Rs.50/- by the Special Judicial II Class Magistrate, Tadepalligudem in S.C.NO. 428 of 1998. Reference is made to the petitioner’s acquittal in S.T.C.No. 154 of 2000 and to the fact that Cr.No. 6 of 2001 is pending against him. Pursuant to the orders of this Court, in W.P.No. 26511 of 1996 dated 04.08.1997, the rowdy sheet of the petitioner was reviewed by the competent authority on 11.01.1998 and it was decided to continue the same in view of his continuing unlawful and rowdy activities causing breach of peace and tranquility. It is stated that only a watch over the unlawful activities of the petitioner would prevent him for causing breach of peace and committing further crimes. It is stated that the petitioner was a notorious criminal and a rowdy element always bent upon creating law and order problems and causing breach of peace in the area, that as many as 12 cases were registered against him, out of which he was convicted and fined in two cases i.e., Cr.No. 6 of 1995 vide S.C.No. 325 dated 11.06.1998 by the Hon’ble Assistant Sessions Judge, Tadepalligudem and in petty case No. 908 of 1998 vide S.T.C.No. 428 of 1998 by the Hon’ble Special Judge II Class Magistrate, Tadepalligudem. It is stated that he was also convicted in Cr.No. 169 of 1995 vide C.C.No. 6 of 1996 dated 20.09.2000 by the Lok- adalat and was recently involved in Cr.No. 6 of 2001, under Sections 341, 307 read with section 34 IPC, which is pending investigation. It is contended that the rowdy sheet of the petitioner was liable to be continued in public interest and that on a detailed review, on 31.12.2000, it was decided to continue the rowdy sheet upto 31.12.2001, taking into account the continuous unlawful and rowdy activities of the petitioner. Since the writ petition has been pending on the file of this Court for the past more than five years and since the counter affidavit was filed as early as on 22.01.2001, this court considered it necessary to call for a report from the Deputy Superintendent of Police, Kovvur. The Sub-Divisional Police Officer, Kovvur, in his report dated 21.01.2006, referred to the petitioner’s involvement in Cr.No. 15 of 1992 and Cr.No. 195 of 1992 which ended in acquittal. The report refers to the petitioner’s involvement in other cases including security for good behaviour under Section 110 of Cr.P.C. for which he was convicted and bound over before the Mandal Executive Magistrate, that the petitioner was convicted under the A.P. Excise Act in the year 1995 in Cr.No. 169 of 1995, and for eve teasing in Petty Case No. 908 of 1995. Reference is also made to the conviction of the petitioner under Section 506 IPC in the year 1998 in S.T.C.NO. 428 of 1998. It is stated that he was convicted and bound over to keep good behavour in the years 2001, 2002 and 2003. It is stated that he was the first accused in Cr.No. 6 of 2001, under Section 341, 307 read with Section 34 IPC, of Bhimadole Police Station of Eluru Sub-Division, West Godavari District having participated with others in their attempt on the life of Sri S. Anjaneyulu and that he was still evading his apprehension. Reference is also made to the fact that in the year 2004 he was convicted and bound over under Section 110 Cr.P.C. in Cr.No. 78 of 2004 of Tadepalligudem Police Station on 10.03.2004 and during the year 2005 he was booked under Section 110 Cr.P.C. in Cr.No. 200 of 2005 and was bound over and convicted on 09.02.2005 before the Mandal Executive Magistrate. The report also states that the petitioner was found to be involved in Cr.No. 51 of 2002 under Sections 342, 506(ii) read with Section 34 of IPC and that he was charged and tried in C.C.No. 248 of 2002 which was compounded before the Court of Lok-Adalat and he was acquitted under Section 320(8) Cr.P.C. It is stated that the petitioner is running a public telephone booth at his residence, was working as a Clerk under the rowdy sheeter and co-accused Sri M. Subbarayudu and that they were all concerned in Cr.No. 6 of 2001. It is stated that none of the victims are giving any complaints against the petition to enable deterrent action being taken to curb his illegal activities. At the instance of this Court, the learned Government Pleader placed copies of the F.I.Rs in Cr.No. 78 of 2004 and 200 of 2005, from which it is seen that in Cr.No. 78 of 2004 the petitioner was bound over for keeping peace and tranquility on the apprehension that he may resort to criminal and violent action in the elections for the A.P. State Legislative Assembly and Parliament. Similarly in Cr.No. 200 of 2005 dated 09.09.2005, taking note of the fact that the petitioner was a rowdy sheeter and there was every likelihood that he may resort to violent and criminal acts during the elections to the Tadepalligudem Municipality, the petitioner was arrested and bound over. In Mohd. Quadeer Vs. Commissioner of Police, this Court held:- “………Sub-clause (2) of S.O-742 makes applicable S.O-735 for discontinuance of the rowdy sheets also as in the case of History sheets As noticed, S.O-735 provides for closure of History sheets under the definite orders of a Gazetted Officer. The Superintendent of Police may order the closure of the History sheet at any time, but the Sub-Divisional Officer may only do so on the expiry of the periods named. Sub-clause (2) of S.O. 735 provides for retention of the history sheets. It provides that a history sheet may be retained when it is considered necessary after two years of registration, under the orders of a Gazetted Officer, for a period in the first instance upto the end of the next December and for further annual extensions from January to December. The expression ‘registration’ used in sub-clause (2) of S.O-735 obviously does not carry any meaning. The history sheet opened under S.O-734 shall be retained for a period of two years after release of the convicted persons from the jail. Obviously, it has nothing to do with the registration of the history sheet. The period of two years runs from the date of release of the convict from the jail. Merits of each case may have to be examined. Upon such examination, the concerned officer has to reach a conclusion that it is inevitable to retain the rowdy sheet. Obviously such consideration of necessity to retain the rowdy sheet is with reference to the material available on record. It is not a matter of course. The record produced in this case would disclose a classic case of non-application of mind. The officer concerned merely affixed his signature against the request made by the Inspector of Police. The whole issue is treated as a matter of no consequence. A reading of the Standing Order would show that the Gazzetted Officer, after consideration must arrive at a reasonable conclusion as to the existence of circumstances warranting retention or renewal of the rowdy sheet. The reasons need not be disclosed to the concerned person. But, if questioned the authority concerned is required to at least prove prima facie as to the necessity of continuing the rowdy sheet. The record shall contain the reasons and the conclusions. The conclusions must relate to the necessity of continuing the rowdy sheet. If the record does not disclose the reasons and ground, the order becomes challengeable on the ground of non-application of mind or perversity on the ground that the opinion was formed on collateral grounds. The Apex Court further held that the entry in the register can only be made by the order of the Superintendent of Police who is prohibited from delegatig his authority. Further it is necessary that the Superintendent of Police must entertain reasonable belief that persons whose names are to be entered in Part-II are habitual offenders or receivers of the 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. The order of the Commissioner evidently is not in conformity with the requirement in law. Opening of the rowdy sheet has nothing to do with the maintenance of law and order. As observed earlier there is no material whatsoever on record since 1996 that the petitioners are indulging in any act resulting in breach of peace. There are no cases registered against them eversince March, 1996. The record, on the other hand, would reveal that there are no complaints whatsoever against any of the petitioners……” In S. Satyanarayana Vs. State of A.P., this Court held:- “……….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 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. 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. In re Point No.IV and Point No.V: Police Standing Order 733 says that history sheet can be opened against a person, who is believed to be addicted to or to aid and abet the commission of crime. If there is a reasonable belief, whether the person is convicted or not is insignificant. PSO 734 authorises police to automatically open a history sheet for persons who are convicted for the offences mentioned therein. However, after a period of two years, the history sheet has to be closed on specific orders of a Gazetted Officer or at any time as ordered by the Superintendent of Police after two years. PSO 735(2) casts an obligation on the Gazetted Officer to ‘consider’ and pass orders giving directions for retention of history sheet for another one year. Therefore, the ‘consideration’ by the Gazetted Officer for opening history sheet or retention of history sheet is for the purpose of arriving at ‘reasonable belief’. ………Therefore, the law is well settled that when a rule or a provision requires the authority to ‘consider’ to arrive at a reasonable belief, there shall be due application of mind which only means recording of reasons for it decision. ………..It is therefore well settled that if an action is taken without reasons, the same is unfair. What is unreasonable and unfair is arbitrary and such arbitrary exercise of power amounts to exercising power mala fide The Police Officer empowered to extend retention of the history sheet or rowdy sheet has to record reasons which are rational by exercising sound discretion and consider the relevant facts mentioned in PSOs 733, 734, 735 and 742. Automatic endorsement to retain the history sheet would be ex facie illegal and unconstitutional. Therefore, when a police authority empowered to pass orders ‘consider’ and comes to a ‘reasonable belief’ that a person is likely to be addicted, is likely to commit or abet the commission of offence, by necessary implication he is under constitutional obligation to record reasons. Recording of reasons should not be equated with communicating reasons…….. Before Point No. VI is taken up for consideration, I may sum up the conclusions on the various issues involved in this case. (1) Nature and scope of opening of history sheet/rowdy sheet: 1. Whether the Police Standing Orders statutory or non-statutory, it is permissible for the police to implement Police Standing Orders only with a view to prevent Crime in th society and for nothing else. 2. A reading of the relevant Police Standing Orders authorizing the police to record and maintain crime history of the station including opening of history sheets and rowdy sheets would show that they are administrative instructions. 3. A police officer may open History Sheet automatically at the time of conviction of a person. But the conviction is not for all offences. When a person is convicted once under Section 395 to 402 IPC, when a person is convicted twice under Section 392 to 394 IPC, when a person is convicted twice for house breaking of theft, when a person is boundover twice under Section 109 of the Code, and bound over once under Section 110 of the Code, the police are empowered to open history sheet Besides these, persons who are convicted for offences relating to coins and Government Stamps and persons convicted twice for the offences like theft and house breaking and professional prisoners are also the persons against whom history sheets can be opened by the police. 4. History sheets can also be opened even if there is no conviction. But in such case, the person should have been known or believed to be addicted to or aid or abet the commission of crime. 5. The History Sheet opened shall be continued and maintained only for a period of two years and shall be closed only on definite orders of Gazetted Officer. The Superintendent of Police may however order closure of History Sheet at any time. (PSO 735). 6. The History Sheet can be continued and maintained for a further period of one year or till the end of December, but such continuance can be on specific orders of a Gazetted Officer who after considering the case comes to the conclusion that it is necessary to continue the History sheet and extend retention of the History Sheet. Annual extensions for continuation of History Sheet can also be given from January to December (PSOs 735 and 737). 7. The police may also open history sheets for suspects. Suspects are those persons who are convicted under any section of the Indian Penal Code and who are considered likely to commit crime again. Persons who are not convicted but are believed to be addicted to crime are also treated as suspects. In case a History sheet is opened on the ground that a person is suspect, care should be taken that History sheets are opened only for persons who are likely to become habitual criminals (PSO 736). 8. The history sheet/rowdy sheet against a person may be opened under specific orders of the Sub-Divisional Police Officer if the person is a habitual offender who involves or likely to involve in offences that would cause breach of peace. 9. The opening of a history sheet/rowdy sheet against a person under the relevant Police Standing Order Permits the Police to keep a watch and resort to surveillance under PSO 853 r/w PSO 749. The scope and extent of surveillance is only limited to watch the movements of history sheeter/rowdy sheeter as can be gathered from PSO 736(2). The history sheeter/rowdy sheeter cannot be asked to be available at the concerned police station nor such a person can be detained. To put it simply, there can only be unobtrusive, and non-invasive surveillance over the movements of the history sheeter/rowdy sheeter. 10. Obtrusive surveillance makes serious inroads into the life and liberty of the history sheeter/rowdy sheeter and would also take away the dignity of the person. Such offending surveillance is liable to be declared as unconstitutional. Scope of Judicial Review of Police Action vis-à-vis History Sheeet/Rowdy Sheet:- 1. A mere conviction or convictions cannot be thumb rule for opening history sheet or rowdy sheet though history sheet can be opened even without conviction for the limited purpose of watching a person discreetly. 2. At the time of opening a history sheet or rowdy sheet a competent officer has to apply mind taking into consideration the social background, the proceedings in the criminal trial if a person is convicted and all other relevant material before passing orders for opening history sheet or rowdy sheet. 3. A history sheet/rowdy sheet is retained for the period of two years only unless it is ordered to be closed by the Superintendent of Police earlier than two years. During the initial period of two years, the history sheeter or rowdy sheeter is entitled to request the concerned police officer to close the history sheet or rowdy sheet which has to be considered by the police officer in an objective manner. 4. While passing orders for retention of history sheet for another year more, the competent Sub-Divisional Police Officer has to take into consideration the various factors, to wit, surveillance reports, the crime history with reference to the breach of peace of society during the preceding year, the social and political background of the person etc. If there is preponderance of opinion among the surveillance officers that the person did not come up for any adverse notice and leading a blemishless family life it is a strong circumstance to order for closure of the history sheet or rowdy sheet. 5. When an order is passed by the competent police officer it shall have to be supported by reasons. The reasons need not be communicated but to be recorded. 6. Any order passed by the Sub-Divisional Police Officer shall have to be supported by reasons. The reasons need not be communicated but to be recorded. 7. The orders for opening or retention of history sheet/rowdy sheet are passed under the administrative instructions/guidelines. If such an order is challenged, the competent authority has to place the reasons before the Court