HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 16853 OF 2011 . DATED 1st July, 2011 BETWEEN N.N.V.Brahmaji and anr … Petitioners And The Superintendent of Police, WG District, and ors. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 16853 of 2011 ORDER: Heard the learned Counsel for the petitioners and the learned Assistant Government Pleader for Home appearing for the respondents. The petitioners are the brothers and are aggrieved by the action of the third respondent in opening and continuing the rowdy sheets against them. It is the case of the petitioners that they have been falsely implicated in Crime No. 323 of 2004 on the file of the third respondent, which was registered for the offences punishable under Sections 302, 147, 148, 506(2) r/w Section 139 and 120-B of Indian Penal Code and the said case was tried by the learned District and Sessions Judge, Eluru, West Godavari District in S.C.No. 203 of 2007 and they were acquitted of all the charges levelled against them. It is their case that the third respondent is implicating them in false cases and harassing them by summoning to the police and making them to sit in the police station for hours together. It is their grievance that they were not convicted in any case and opening and continuing the rowdy sheets against them is contrary to the Police Standing Orders. The third respondent filed a counter denying the allegations of the petitioners. In the counter affidavit it is stated that the petitioners are caught up in rowdy elements and they are thus involved in the following cases on the file of the third respondent. 1.Cr.No. 96 of 2006 was registered under Sections 341,147, 148, 324, 506 (2) r/w 149 IPC and the said case wherein in petitioners were Accused Nos. 1 and 2 respectively, was referred as false by the lewarned II Additional Judicial First Class Magistrate, Bhimavbaram, WG District, in the order dated 30.06.2000. 2.Cr.No. 32 of 2001 was registered under Sections 324, 506 (2) r/w 34 IPC and the said case was tried by the learned II Additional Judicial First Class Magistrate, Bhimavaram, W.G. District in C.C.No. 407 of 2001 and vide order dated 5.6.2002 the petitioners were acquitted of all charges. 3. Cr.No. 223 of 2004 was registered under Sections 120 (b),147, 148, 302, 506(2) r/w. 149 IPC and the said case, wherein the petitioners were shown as Accused Nos. 1 and 2 respectively, ended in acquittal on 15.4.2010 by the learned District and Sessions Judge, Eluru, E.G. District. 4. Cr.Nos. 60 to 70 of 2009 were registered under Sections 110 (e) Cr.P.C. and the learned Mandal Executive Magistrate, Bhimavaram had bind over the petitioners for their good behaviour on 15.6.2009 in MC.No.11 of 2009. 5. Cr.Nos. 175 to 180 of 2005 were registered under Section 110(e) Cr.P.C., wherein second petitioner was figured as accused and the learned Mandal Executive Magistrate, Bhimavaram had bind over the second petitioner for his good behaviour on 13.9.2005 in MC.No.22 of 2005. 6.Cr.No.326 of 2010 was registered under Section 110(e), wherein the second petitioner was shown as accused and the learned Mandal Executive Magistrate, Bhimavaram had bind over the second petitioner for his good behaviour on 10.10.2010 in MC.No. 58 of 2010. 7. Cr.No. 59 of 2011 under Section 110 (e) Cr.P.C. was registered and the learned Mandal Executive Magistrate, Bhimavaram had bind over the petitioners for their good behaviour on 11.3.2011 in MC.No.23 of 2011. It is also stated in the counter affidavit 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 dated 3.2.2005 of the Sub Divisional Police Officer, Narsapuram, W.G. District and as per Standing Order. 601(2) of the A.P. Police Manual and the same is renewed and extended up to 31.12.2011. It is further stated 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. Perused the case file. 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.” 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 several 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. As could be seen from the counter affidavit, crimes mentioned at Sl.Nos. 3 to 7, wherein proceedings were initiated against the petitioners under Section 110 Cr.P.C. for binding over them for the purpose of good behaviour and Cr. No. 96 of 2006 which was registered against the petitioners was referred as false and the case registered in Cr.No. 32 of 2001 ended in acquittal of the petitioners of all charges. As per the Andhra Pradesh Police Standing Orders, the police authorities are empowered to open rowdy sheets in the cases of habitual criminals and those who attempt to commit or abet commission of offences involving breach of peace, disturbance to public order and security. Opening of rowdy sheet can be justified only when it is so proved before the Court by the State. Applying the aforesaid settled legal principles deduced in the decisions stated supra to the facts and circumstances of the present case, it cannot be said that the petitioners are having the history of habitually committing offences and the action of the third respondent in my opinion is therefore subversive to Article 21 of the Constitution of India. For the foregoing discussion, the Writ Petition is allowed and the rowdy sheets bearing Nos. 404 of 2005 and 405 of 2005 opened and continued against the petitioners on the file of the third respondent are quashed. However, it is made clear that this order will not preclude the respondent authorities to keep surveillance on the activities of the petitioners and opening of rowdy sheet afresh in case the petitioners are involved in any criminal activity or offence in future. There shall be no order as to costs. --------------------------------- ----- JUSTICE ASHUTOSH MOHUNTA Dated 1st July, 2011. Msnro