IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Writ Petition No. 140 of 2011 Ganesh Thakurathi S/o Sri Bahadur Singh Thakurathi … Petitioner Versus State of Uttarakhand and others … Respondents Mr. A.S. Rawat, Senior Advocate assisted by Mr. C.S. Rawat, Advocate for the petitioner. Mr. Amit Bhatt, Addl. G.A. for the respondents Hon’ble Tarun Agarwala, A.C.J. Hon’ble U.C. Dhyani, J. Heard Shri A.S. Rawat, the learned Senior Counsel assisted by Mr. C.S. Rawat, the learned counsel for the petitioner and Shri Amit Bhatt, the learned Addl. G.A. for the respondents. The petitioner has filed the present writ petition praying for the quashing of history sheet No. 22-A dated 23rd October, 2001 opened in Police Station Khatima, District Udham Singh Nagar under Regulation 228 of the U.P. Police Regulations. The petitioner contends that he is a permanent resident of Village Mahatgaon, Chakarpur, Police Station Khatima, District Udham Singh Nagar, doing social work and is also espousing the cause of the weaker section of the society. He is a member of the Bhartiya Janta Party and presently holding the post of the State General Secretary of the Youth Wing of the B.J.P. Between 1998-2001, the petitioner was a student studying in a Degree College at Khatima and, during this period, eight criminal cases were lodged against him, the details of which are specified hereunder:- Sr.No. Case Crime Number 1 Case Crime No. 618/98 u/S 147, 504, 506 I.P.C., P.S. Khatima 2 Case Crime No. 586/00 u/S 147, 506 I.P.C., P.S. Khatima 3 Case Crime No. 622/00 u/S 394, 506 I.P.C., P.S. 2 Khatima 4 Case Crime No. 487/01 u/S 147, 506, 427 I.P.C., P.S. Khatima 5 Case Crime No. 585/01 u/S 386, 147, 504, 506, 323 I.P.C. 6 Case Crime No. 586/01 u/S 395, 511, 353, 504, 506 I.P.C. & S.C./S.T. Act 7 Case Crime No. 593/01 u/S ¾ Gangster Act 8 Case Crime No. 67/01 u/S 147, 452, 506, 294 I.P.C. On the basis of these criminal cases being lodged against the petitioner, a history sheet No.22-A was opened against him under Regulation 228 of the Police Regulations. In paragraph 4 of the writ petition, it has been alleged that in all these eight cases, the petitioner has been acquitted honourably by the trial court. Inspite of being acquitted, the petitioner alleges that the history sheet is still opened and continuous surveillance upon him is being conducted by the police without any cogent reasons. Consequently, the present writ petition has been filed for the quashing of the history sheet. The respondents have filed a counter affidavit contending that the history sheet was opened under Regulation 228 on account of the pendency of eight criminal cases pending against the petitioner and that the history sheet was opened in accordance with the law. The respondents, however, admitted that the petitioner has been acquitted in all the eight cases. In paragraph 13 of the counter affidavit, the respondents have further admitted that after 2001, no criminal case has been registered against the petitioner at the concerned police station. In the light of the aforesaid admission, the question which comes for consideration before the Court is whether the respondents were justified in continuing with the surveillance and keeping the history sheet alive under Regulation 228 of the Police 3 Regulations. For facility, Regulation 228 of the Police Regulations is extracted hereunder:- “228. Part V consists of history sheets. These are the personal records of criminals under surveillance. History- sheets should be opened only for persons who are or likely to become habitual criminal or abettors of such criminals. There will be two classes of history-sheets : (1) Class A history-sheets for dacoits, burglars, cattle-thieves, railway-goods wagon thieves, and abettors thereof. (2) Class B history-sheets for confirmed and professional criminals who commit crimes other than dacoity, burglary, cattle-theft, and theft from railway goods wagons, e.g., professional cheats and other experts for whom criminal personal files are maintained by the Criminal Investigation Department, poisoners, cattle poisoners, railway passenger thieves, bicycle thieves, expert pick-pockets, forgers, coiners, cocaine and opium smugglers, hired ruffians and goondas, telegraph wire- cutters, habitual illicit distillers and abettors thereof. History-sheets of both classes will be maintained in similar form, but those for class B will be distinguished by a red bar marked at the top of the first page. No history-sheet of class B may be converted into a history-sheet of Class A, though should be the subject of a history-sheet of class B be found to be also addicted to dacoity, burglary, cattle-theft or theft from railway goods wagons. A class, as well as B class, surveillance may under paragraph 238 be applied to him. In the event of a class A history-sheet man becoming addicted to miscellaneous crime his history-sheet may be converted into a class B history-sheet with the sanction of the Superintendent.” 4 A perusal of the aforesaid Regulation indicates that a history sheet should be opened only for persons who are or likely to become habitual criminal or abettors of such criminals and that history sheets should only be opened for criminals under surveillance. The history sheets has been divided into two classes and, for class A, the history sheets is for dacoits, burglars, cattle- thieves, railway-goods wagon thieves, and abettors thereof. In the instant case, the history sheet has been opened by the police under class A. The criminal cases that were lodged against the petitioner indicates that the same were for petty offences except the criminal case lodged at serial No.3 and 6 which were under Section 394 and 395 I.P.C. respectively and, consequently, to that extent, the history sheet could have been opened. However, the Court finds that the petitioner has been acquitted in all the cases that were lodged against the petitioner. The Court further finds that since 2001, no further case of any kind has been lodged against the petitioner. Regulation 231 provides the subjects of history-sheets of class A will unless they are “starred” remain under surveillance for at least two consecutive years of which they have spent no part in jail. In the instant case, the petitioner has not “starred” and has not been convicted but the Court finds from a perusal of annexure-1 to the counter affidavit that continuous surveillance is being conducted for irrelevant reasons. The history sheet indicates that surveillance was required because the petitioner is either a member of the Hindu Jagran Manch or is the General Secretary of the Youth Wing of the B.J.P. and that he mixes with persons who are of unsocial elements. The report endorsed in the history sheet for the year 2002, 2003, 2004, 2005, 2006 and 2010 does not indicate any kind of activities which are contemplated under Regulation 228, namely, dacoity, burglary, cattle theft, railway-goods wagon theft for which surveillance was required. 5 In addition to the aforesaid, the Court further finds that under Regulation 240, it is the onerous duty of the public prosecutor to inform the Superintendent where a person has been acquitted as to whether a history sheet was required to be opened or to be continued or not. In the present case, the Court does not find anything from the counter affidavit of the respondents to indicate that the public prosecutor has given any such opinion for continuance of the surveillance nor there is any opinion of the Superintendent of Police to that effect as contemplated under Regulations 233 read with 240 of the Regulation. In paragraph 7 of the writ petition, it has categorically been stated that the history sheet was opened under Regulation 228 without the previous sanction of the Senior Superintendent of Police. Regulation 240 contemplates that no history sheet could be opened without the order of the Superintendent of Police. The respondents have not controverted this averment in paragraph 8 of the counter affidavit nor any sanction given by the S.S.P / S.P. has been annexed with the counter affidavit. In the light of the aforesaid, the Court is of the opinion that the ingredients mentioned under Regulation 228 to open a history sheet against the petitioner is not existing. Whatever cases that were lodged against the petitioner has come to an end and the petitioner has honourably been acquitted. There is no justification for the respondents to continue with the surveillance in the light of the fact that no activity of any sort has been reported against the petitioner since the year 2001 onwards. In the light of the aforesaid, the history sheet opened against the petitioner under Regulation 228 of the U.P. Police Regulations is quashed. The writ petition is allowed. (U.C. Dhyani, J.) (Tarun Agarwala, A.C.J.) Date: 12/10/2011 Shiv 6