THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.3641 of 2007 Date:10-12-2007 Between: Ather Alam. …PETITIONER And The Commissioner of Police, Hyderabad & Cyberabad, and others. ...RESPONDENTS THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.3641 of 2007 ORDER: This writ petition has been instituted seeking directions to the respondents to close the ‘rowdy sheet’ against the petitioner at Nallakunta Police Station, Hyderabad. The petitioner, who is a mechanical engineering graduate, hails from a respectable family. The petitioner asserts that because of the antagonism, the Police have needlessly implicated him in a series of crimes registered principally by Nallakunta Police Station and that he had been acquitted in all the cases except in Crime No.222 of 1990 which is still pending. The petitioner also asserts that a ‘rowdy sheet’ has been opened against him by Nallakunta Police Station and it is maintained unjustly for the past twenty years, as a result of which he has been subjected to lot of humiliation amongst the social circles apart from suffering an impact on his own personal life and liberty. Therefore, the petitioner has instituted W.P.No.10669 of 2004 in this Court on the previous occasion. This Court by its judgment rendered on 05.10.2005 has disposed of the said writ petition in the following terms: “Having regard to the facts and circumstances of the case and particularly in the absence of any material to conclusively establish that no cases are pending against the petitioner as on today and no crimes are registered against him after 1990, I am not inclined to record any finding on the said issue. Hence, the Mandamus as prayed for cannot be issued. Instead, I deem it appropriate to direct the respondents to review the case of the petitioner in the light of the principles of law laid down by the Courts from time to time and to pass appropriate orders with regard to the justifiability or otherwise of continuing the rowdy sheet against the petitioner as on today. Such exercise shall be completed and appropriate orders be passed in accordance with law which shall be supported by reasons thereto as expeditiously as possible preferably within a period of eight (8) weeks from the date of receipt of this order and the same shall be communicated to the petitioner. ” Pursuant to these directions, the respondents have not taken any action to close the ‘rowdy sheet’; on the other hand the Police have foisted another case in Crime No.260 of 2005 of Sultan Bazaar Police Station, Hyderabad. The learned senior counsel appearing for the petitioner – Sri T. Bal Reddy would urge that the petitioner had not been convicted twice, for him to suffer the indignity of being classified as a rowdy and a ‘rowdy sheet’ to be opened against him. None of the ingredients of Police Standing Order No.601 are attracted in the case of the petitioner and hence, the petitioner is not liable to be characterized as a rowdy and no ‘rowdy sheet’ should be continued against him. Per contra, the learned Government Pleader for Home contends that the previous Andhra Pradesh Police Manual had been thoroughly revised and the new Andhra Pradesh Police Manual has been brought out in April, 2004, and that departing from the language found in the previous Andhra Pradesh Police Manual Standing Order No.742, the present Andhra Pradesh Police Manual Standing Order No.601 has classified all such persons as rowdies who habitually commit, attempt to commit or abet the commission of offences involving a breach of the peace, disturbance to public order and its security, and therefore, in terms of the present Standing Order No.601, the petitioner has been rightly classified as a rowdy and the ‘rowdy sheet’ has been appropriately maintained against him. The present Standing Order No.601 reads as under: Rowdies 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. Rowdy sheets for the rowdies residing in one Police Station area but 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. It is contended that the case of the petitioner is covered by the sweep of clause A, set out supra. The learned Government Pleader would also place strong reliance on the Standing Order No.602 for purposes of continuing the ‘rowdy sheet’ against the petitioner. According to the learned Government Pleader a habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. Reasonable belief of Police Officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify the action of continuing the ‘rowdy sheet’. The question as to whether a person can be classified as a rowdy and consequently a ‘rowdy sheet’ can be opened against him or not in the context of the previous Police Manual Standing Order No.742 has fallen for consideration before a learned Single Judge of this Court in Ejaz v. Government of Andhra Pradesh and others[1]. It is dealt with therein as under: “5. Standing Order 742 of the A.P. Police Standing Orders reads as follows: “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; (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.P.Ms.No.656, Home (Police-D) Dept., dated 8th April, 1971) (2) Instructions in Order 735 regarding discontinuance of History Sheets shall also apply to Rowdy Sheets.” It is true that the petitioner got himself involved in three criminal cases, but the fact remains that he is acquitted by the Metropolitan Sessions Judge after a full trial, and the security proceedings initiated against him also ended as in his favour, as he was not bound over but he was sent to judicial custody for seven days during trial as stated in the counter-affidavit and in ‘the third case, he was arrested under Section 151 Cr.P.C. as a preventive measure. In such circumstances can it be said that the petitioner habitually commit, attempt to commit or abet the commission of offences, involving breach of peace. It is submitted by the learned Counsel on behalf of the petitioner that no case registered against the petitioner has ended in conviction and therefore, the petitioner cannot be termed to be a habitual offender. According to the learned Counsel for the petitioner, there should be atleast more than two criminal cases and they should have ended in conviction. A plain reading of Police Standing Order No.742 would not support the plea advanced by the learned Counsel for the petitioner. The petitioner, however, relies upon a judgment of this Court in Majid Babu and another Samdani v. Home Secretary, Govt. of A.P. and others, 1987(2) ALT 904, in which it is held that: “Two instances would not make a person a habitual offender. Atleast more than two instances should be present before a person can be described as a habitual offender. Merely because the two persons are figuring as accused in respect of two crimes registered by Police, no inference can be drawn that they are habitual offenders” The Court in the said case took note of the fact that though petitioners therein were involved, in grave offences, the first one relate to an offence under Section 307 IPC in respect and of which the crime was registered on 6-4-1987, the second but crime was registered against them on 16-5-1987 but in none of those cases there were allegations involving the petitioners therein in any lawless activities. In such view of the matter, the Court held that Police Standing Order No.742 was not attracted and the petitioners therein should not be said to be rowdies. It is clear from a plain reading of the Standing Order that no rowdy sheet could be opened against a person who does not fall within the categories mentioned the Standing Order No.742 (1)(a)to(e) about category of persons mentioned in category (b) to (e) and classifying them as rowdies and opening rowdy sheets against them under the orders of the Superintendent of Police or Sub-divisional Officer may not create any problem as there is not much of discretion left to the authorities concerned. The problem may arise only in cases where clause (a) is applicable, classifying the persons who habitually commit the offences involving the breach of peace. A plain reading of the provision does not suggest that such persons must have been convicted atleast in more than two cases to make such persons as habitual offenders. In fact the very decision relied upon by the learned Counsel for the petitioner in Malak Singh v. State of Punjab and Haryana and others, AIR 1981 SC 760, it is held that: “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, (emphasis supplied). It is only 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 the 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 Majid Babu’s case also my learned brother Hon’ble Sri Justice M.N.Rao held that two instances would not make a person a habitual offender and atleast more than two instances should be present before a person can be described as a habitual offender. The learned Judge did not hold that a conviction in more than two cases was necessary for opening a rowdy sheet under Standing Order No.742. I n Shaik Mahboob Ali v. the Commissioner of Police and others, 1992(2) ALT 158, this Court while considering the scope of very Order No.742 of the Police Standing Order held that “true whether commission of an offence or attempt to commit an offence could be taken as the relevant factor for the purpose of entering the name of a person in the rowdy-sheet within the meaning of S.O.742, but mere assertion does not lead to the situation that a person attempted to commit an offence.” In Black’s Law Dictionary the meaning assigned to habitually’ is customarily by frequent practice or use. It does not mean entirely or exclusively’ and habitual criminal in the same dictionary is defined as “A recidivist (q.v). A legal category created by statute in many States by which severe penalties ranging upto life imprisonment can be imposed on criminals convicted of any crime the third of fourth time. In general, habitual offender statutes impose greater sentences on offender for repeated crimes, with life imprisonment being imposed upon commission of several felonies.” The Police Standing Order does not refer to any habitual criminal but refers to a person who habitually commit or abets offences involving breach of peace. In such view of the matter, there is no necessity that the person whose name is to be entered into rowdy sheet and classification of such a person as rowdy need not have been convicted. The word ‘habit’ implies a tendency or capacity resulting from the frequent repletion of the same acts. The words by habits’ and habitually’ imply frequent practice or use. The word ‘habit’ means persistence in doing an act, a fact which is capable of proof by adducing evidence of the commission of a number of similar acts. Habitually’ must be taken to mean repeatedly or persistently.’ (The Law Lexicon) However, there cannot be any doubt that the Police Officer who is entrusted with the responsibility of classifying the person as a rowdy and opening of rowdy-sheet are under the duty and obligation to consider the applicability of Standing Order strictly and confine the entry in the rowdy-sheet only to such class of persons mentioned in the Standing Order and it is not as if the Police have the power and opportunity to enter the names of whoever they like in the said register. The “expression like ‘by habit’, ‘habitual’, ‘desperate’, ‘dangerous’, ‘hazardous’ cannot be flung in the face of a man with laxity of semantics. The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit, which is second nature. ….Surveillance and monitoring of movements of persons whose names are entered in rowdy-sheets should therefore, be proportionate and commensurate to the reasonable apprehension or suspicion entertained by the concerned Police Officer and only with a view to prevent commission of a crime which may result in breach of peace. Any excessive action on the part of the police would not only be ultra vires the Standing Order No.742 but also would be violative of right to equality and right to freedom guaranteed by Articles 14, 19 and 21 of the Constitution of India. Any unauthorised physical restraint or coercion of any sort would be violative of the fundamental right to freedom and personal liberty guaranteed by the Constitution of India. That the right to personal liberty in substance means a person’s right not to be subjected to imprisonment, arrest, or other physical coercion. “The right to the safety of one’s life and limbs and to enjoyment of personal liberty, in the sense of freedom from physical restraint and coercion of any sort, are the inherent birth rights of a man. The essence of these rights consist in restraining others from interfering with them.” (A.K.Gopalan v. State, AIR 1950 SC 27) I n Halsbury’s Laws of England the law relating to personal liberty has been stated thus: “Right to personal liberty: The right to personal liberty and immunity from wrongful detention is enshrined in Magna Carta and is enforceable by the writ of habeas corpus and actions for false imprisonment. A person may be arrested by warrant issued by a justice or, in certain circumstances, without a warrant. If a person is arrested without a warrant, he must be informed of the reason for his arrest and, if retained in custody, he must be brought before a Magistrates’ Court as soon as is practicable. Closely concerned with the right to personal liberty is the right to be protected against unfair or oppressive police methods in the interrogation of suspects.” Thus the police is under duty to exercise due caution and care in the matter of monitoring the movements and surveillance of every rowdy sheeter and see that the same does not interfere with their day to day normal life.” A similar question was again considered by the learned Single Judge in Kamma Bapuji v. Station House Officer, Brahmasamudram[2]. It was held therein as under: “It is required to notice that characterising and classifying a person as rowdy and opening a rowdy sheet is fraught with serious consequences. The personal liberty, including the privacy of the concerned person would be definitely curtailed to some extent as such persons comes under surveillance where his movements are watched by the police. In practice, it is brought to the notice of the Court, that in many cases, the concerned police officers insist the presence of all rowdy sheeters in the police stations. In such view of the matter, the Court in exercise of its jurisdiction under Article 226 of the Constitution of India is required to strictly scrutinise the action of the police officers in opening the rowdy sheets, who are required to act reasonably and fairly and in an objective manner. Rowdy sheets cannot be opened against any individual in a casual and mechanical manner. It would not be enough to dub a person as habitual offender and open rowdy sheet. Due care and caution is required to be taken by the police officers before characterizing a person as a rowdy. The Apex Court in Dhanji Ram Sharma v. Superintendent of Police, Delhi, AIR 1966 SC 1766 observed that: “ A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by the repetition of crimes. Reasonable belief of the police officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under Rr.23.4(3) (b) and 23.9(2). Mere belief is not sufficient. The belief must be reasonable, it must be based on reasonable grounds. The suspect may or may not have been convicted of any crime. Even apart from any conviction, there may be reasonable grounds for believing that he is a habitual offender.” In Vijay Narain Singh v. State of Bihar, AIR 1984 SC 1334 the Supreme Court while construing Section 2(d) and 12 of the Bihar Control of Crimes Act (Act 7 of 1981), which provides for definition of anti-social element has observed: “ A person is a habitual criminal who by force or habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime. It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind that makes him dangerous to the society in general. Shorn of verbiage the word ‘habitually’ means ‘by force of habit’. The Act appears to be based on Prevention of Crime Act, 1908 (c.59). By Prevention of Crime Act, 1908, as amended by the Indictments Act, 1915, a person after three previous convictions, after attaining sixteen years of age could, with the consent of the Director of Public Prosecutions in certain cases, be charged with being a habitual criminal and, if the charge was established, he could, in addition to a punishment of penal servitude, in respect of crime for which he has been so convicted, receive a further sentence of not less than five years or more than 10 years, called a sentence of preventive detention. Upon this question of a man’s leading persistently a dishonest or criminal life, where there has been a considerable lapse of time between a man’s last conviction and the commission of the offence which forms the subject of the primary indictment at the trial, notice containing particulars must have been given and proved of the facts upon which the prosecution relied for saying that the offender is leading such a life. If, on the other hand, the time between a man’s discharge from prison and the commission of the next offence is a very short one, it may be open to the jury to find that he is leading persistently a dishonest or criminal life by reason of the mere fact that he has again committed an offence so soon after his discharge from a previous one, provided the notice has stated this as a ground. This essentially is a question of fact. The scheme under the English Act, is entirely different where a person has to be charged at the trial of being a habitual criminal. Therefore, the consideration which govern the matter do not arise in the case of preventive detention under Section 12(2) of the Act.” In the same Judgment, the Apex Court observed that “the Act containing such provisions is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law. In Black’s Law Dictionary, the meaning assigned to ‘Habitually’ is “Customarily; by frequent practice or use. It does not mean entirely or exclusively”, and habitual criminal in the same Dictionary is defined as “A recidivist (q.v.). A legal category created by statute in many States by which severe penalties ranging upto life imprisonment can be imposed on criminals convicted of any crime the third or fourth time. In general, habitual offender statutes imposes greater sentences on offender for repeated crimes, with life imprisonment being imposed upon commission of several felonies.” ……… A rowdy-sheet can be opened against a person classified as a rowdy, if such person habitually commit, attempt to commit or abet the commission of offence involving breach of the peace. In plain language a person who habitually commit, attempt to commit or abet the commission of offences alone can be classified as a rowdy and rowdy sheet can be opened, provided such offence relates to involving breach of the peace. If the offence even habitually committed, or attempted to be committed or abet commission of the offence, but not involving a breach of the peace, would not enable and authorise the police officer concerned to open rowdy sheet and classify a person as rowdy. It is in this area, a Police Officer has to consider the material available on record and satisfy himself that commission of offence habitually by a person has resulted or is likely to result in breach of peace. The satisfaction is required to be arrived at in an objective manner and on the basis of the material available on record.” A Division Bench of this Court had approvingly quoted the ratio i n Kamma Bapuji’s case in Puttagunta Pasi v. Commissioner of Police[3] and held as under: “From the above, it is clear that rowdy sheets cannot be opened against any individual in a casual and mechanical manner.