IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.03.2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN W.P.No.5677 of 2007 L.Ravindran .. Petitioner -vs- 1. The Commissioner of Police Egmore, Chennai-8 2. The Deputy Commissioner of Police Law and Order Vepery, Chennai-7 3. The Inspector of Police K5, Police Station Peravallore, Chennai-82 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus directing the 1st respondent police to give suitable directions to the 3rd respondent herein to remove the name of the petitioner from the rowdy list record. For Petitioner :: Mr.S.Thiruvengadam For Respondents :: Mrs.Malarvizhi Udayakumar Special Government Pleader ORDER The petitioner has approached this Court seeking for a direction to the first respondent, the Commissioner of Police, Chennai to give suitable directions to the third respondent, the Inspector of Police, K-5 Police Station, Peravallore, Chennai to remove the name of the petitioner from the rowdy list record. 2. The Inspector of Police (L & O), K-5, Peravallur Police Station, Chennai addressed the Assistant Commissioner of Police (L & O), Secretariat Colony, Chennai intimating that the petitioner L.Ravindran, who is otherwise known as Ravi alias Ravichandran alias Ravindranath, S/o Lakshmipathy along with two others were involved in a murder case due to group rivalry. A case was registered by K-1 Sembium Police Station and the charge sheet was filed and the trial was conducted before the Second Additional Sessions Court, Chennai in S.C.No.204 of 1994. However, the case ended in acquittal. He further stated that discreet enquiries about all the accused revealed that they were acting as Goondas and never mind to mend their ways. The https://hcservices.ecourts.gov.in/hcservices/ Assistant Commissioner of Police (L & O), Sembium Range, Madras, by order dated 20.7.98, had ordered as follows:- "The Inspector of Police/K5 PS Open Rowdy Sheets for (1) Ravi @ Ravichandran (2) Ravi @ Reddy Ravi (3) Thanigai Mani and watch him till 31.12.98." 3. The grievance of the petitioner is that he was falsely implicated in the murder case and he was acquitted. Except the said case, no other case was either registered or pending against the petitioner. Even during the pendency of trial and after acquittal, he did not involve himself in any activity warranting the respondents to open History Sheet. One stray case of alleged involvement in an offence cannot be a ground to include the petitioner's name in the rowdy list. 4. I have heard the learned counsel for the petitioner and the learned Special Government Pleader for the respondents. No counter affidavit is filed by the respondents. 5. The following are some of the provisions in the Police Standing Orders relating to opening of History Sheet against a person and they are extracted as follows:- "PSO 746. Part IV – History Sheets. (1) Part V (Form No.111) shall contain the History sheets of the persons resident permanently or temporarily in their Station limits who are known or believed to be addicted to or to aid and abet the commission of crime, whether convicted or not, or who are believed to be habitual receivers. (G.O.Ms.No.364, Home, 15th Feb.1943) Only sheets Nos.1,3, 7 and 8 are to be maintained in the History Sheet forms in use in Station. Sheet No.9 should also be maintained, if a photograph of the criminal is available. Note: This sub-paragraph will not affect the History Sheets maintained in Crime Records Bureau. (2) At the back of Sheet No.1, below item 7, the following descriptive detail should be shown: Age, Height, Complexion, and Particular marks of identification. (3) In sheet 8 under heading the "Current doings" entries which are informative and useful based on the facts ascertained both by the Sub-Inspector and his men since the date of last entry, shall be made month-wise for close watch bad characters and quarterly for non-close watch bad characters. Anything of interest coming to notice, in respect of a bad character during a month should be entered then and there, without waiting for the end of the month or the quarter. https://hcservices.ecourts.gov.in/hcservices/ (4) The entries in the various columns in the History Sheet should be checked by the Sub- Inspector personally and brought upto-date once a year. The fact of such verification should be certified by him in the column under the "Current doings". PSO 747. Automatic opening of History Sheets: (1) History sheets shall be opened automatically at the time of conviction for persons convicted as under and shall be retained for two years after release from jail. Persons are how convicted Numbers of times convicted Persons released from imprisonment for life under Chapters XII and XVII, Indian Penal Code Professional Prisoners Indian Penal Code, Ss.395 to 402 Once Indian Penal Code, Ss.392 to 394 Twice if convicted or liable to conviction under S.75, Indian Penal Code House breaking Twice Theft Thrice Conviction under S.109, Cr.P.C. Twice Conviction under S.110, Cr.P.C. Once (G.O.Ms.532, Judl,20 Feb, 1906 and 497, Law (Genl.) 10th Feb 1923) Note : (1) Order No.747 need not be strictly applied to such persons, but History Sheets should be opened under that order in respect of individuals for whom the Superintendent or Sub Divisional Officer thinks it advisable on account of their active criminality. (G.O.Ms.No.3434, Home, 5th Nov.1964) (2) The History Sheet of a Known Depredator, against whom an order has been passed under Section 356 Criminal Procedure Code, shall not be closed until the period during which he is required to report changes of residence has elapsed. (3) Persons convicted as above will be styled Known Depredators. Note : Inmates or ex-inmates of a Borstal Institution should not be styled as "Known Depredators". https://hcservices.ecourts.gov.in/hcservices/ PSO 748. Discontinuance of History Sheets.-- (1) History sheets shall be closed by the definite orders of an officer of and above the rank of Assistant Superintendent of Police/Deputy Superintendent of Police and shall be filed in the Station. The History Sheets of persons who have died shall be destroyed under orders of an officer of and above the rank of Assistant Superintendent of Police/Deputy Superintendent of Police. The Superintendent of Police may order the closure of a History Sheet at any time but a Divisional Officer may only do so on the expiry of the period named above. (G.O.Ms.No.3929, Home, 5th Sept.1950) (2) Where retention of a History Sheet is considered necessary after two years of registration, orders of an officer of and above the rank of Assistant Superintendent of Police/Deputy Superintendent of Police must be taken for the extension in the first instance upto the end of the next December and further annual extensions from January to December. (3) The above orders shall apply to Rowdy Sheets also. PSO 749. Suspects.-- (1) The following persons shall be classed as suspects and History Sheets shall be opened for them under orders of the Superintendent or Divisional Officer, if so empowered by the Superintendent.-- (a) Persons once convicted under any Section of the Indian Penal Code are considered to be likely to commit crime; (b) Persons, not convicted, but believed to be addicted to crime. (2) The following persons may be classified as rowdies and Rowdy Sheets (Form No.112) may be opened for them under the orders of the Superintendent or Sub Divisional Officer: (a) Persons who habitually commit, attempt to commit or abet the commission of offences involving a breach of peace. (b) Persons bound over under Sections 106 and 107, Criminal Procedure Code. (c) Persons who have been convicted under Section 75 of the Madras City Police Act or twice in two consecutive years under Section 3 Clause 12 of the Town Nuisance Act. (d) Persons who are illicit distillers and known purveyors of liquor. (G.O.Ms.No.3461, Home, 10th Dec. 1956) Persons either convicted under Section 49-A of the Madras City Police Act, 1888 (Madras Act III of https://hcservices.ecourts.gov.in/hcservices/ 1888) or under Section 4 of the Madras Gaming Act, 1930 (Madras Act III of 1930), or reasonably suspected to be habitually committing or abetting the commission of. (3) The fact that a History Sheet has been opened for a suspect other than an ordinary criminal shall be kept confidential. (G.O.Ms.No.480 Judl. 10th Aug.1921) (4) All registered rowdies should be kept under the same type of watch as envisaged for registered suspects. The names of History-Sheeted rowdies should be entered in the Station Check Register of K.Ds and the rowdies should be checked regularly by beat Police Constables in rural Police Stations and by rowdy patrols in large towns as also by the Sub Inspectors (Law and Order). The checking however should be discretely done by the method of enquiries and not in the manner of domiciliary checks. (5) Inspectors and Divisional Officers when they visit the area should make their own independent enquiries and not their findings in the History Sheets and in Inspection Reports, if any. (6) All reports against notorious rowdies entered in the General Diary of the Station or matter brought to light on enquiries in the petitions should be entered against them in the personal sheets and should be dated. (7) Rowdies are often employed for committing breaches of peace and of intimidating opponents in times of political or communal tension. Inspectors of Police should take effective and timely action to control their activities. The active ones among these should be dealt with appropriately under Section 110(a) and (f) of the Criminal Procedure Code or under Section 160 I.P.C., or under Section 75 of the Madras City Police Act and Section 106 of the Criminal Procedure Code. (8) Besides registered rowdies for whom separate sheets are maintained there are a set of anti- social elements in every street and village who intimidate the local people and exploit them for their selfish ends. They are often believed to be keeping brothel houses clandestinely for promoting prohibition or offences under the Gaming Act. Sometimes they have political backing also. The activities of these persons also require vigilant watch and check. For this purpose a register in Form No.112 shall be maintained in all Police Stations. The categories of persons which should be entered into the registers are: (a) All persons for whom rowdy sheets are maintained under Order No.749. (b)(i) Anti-social elements who intimidate people and exploit them for selfish ends, or actively promote communal disharmony. https://hcservices.ecourts.gov.in/hcservices/ (ii) Persons believed to be keeping brothels or opium dens or promoting offences under the Gaming Act. (c) Persons bound over under Section 110(e) and (f) Criminal Procedure Code. (d) Persons convicted under Section 294, I.P.C. (e) Known drunkards. PSO 778. Notification by the Collector.-- (1) Persons mentioned in Police Standing Order No.781 should be notified under the Act by the issue of a notification by the Collector. (2) The cases of all persons registered under Section 16(1) of the Tamil Nadu Restriction of Habitual Offenders Act, 1948 should be reviewed with reference to each such person whether he would come within the definition of a "Habitual Offender" in clause (4) of Section 2 of the Act. If, on examination of the facts, it is found that he had committed offences in recent years so as to bring him within Section 2(4) then a notice has to be issued to him to show cause why the restriction against him should not be continued. In such a case, the order would really be in the nature of a fresh Order under Section 3. If the person affected would not fall within the definition of "Habitual Offender" so that a further order could not be made in his case, his registration should be cancelled formally". (G.O.No.8918, Home of December 1949) PSO 779. Restriction on all notified offenders.-- The following are the restrictions on a notified offender under the Act: (i) Intimation of residence, change or absence from residence (Section 5); (ii) Restriction of movement to specified area (Section 6); and (iii) Placing him in Settlement (Section 8)." 6. By virtue of PSO 746, a form is prescribed for opening History sheets of the persons residing permanently or temporarily in their station limits who are known or believed to be addicted to or to aid and abet the commission of crime, whether convicted or not or who are believed to be habitual receivers. That standing order is very clear that there should be materials to show that a person is known or believed to be addicted to or to aid and abet the commission of a crime. In the given case, the petitioner was acquitted and after four years, the history sheet was opened and in the communication of the Inspector of Police (L & O), K-5, Peravallore Police Station, it was stated that discreet enquiries revealed that the petitioner was acting as Goonda and never mind to mend his ways. No materials were placed before the Assistant Commissioner of Police to pass orders to open a History sheet against the petitioner. There is absolutely no application of mind on the part of the Assistant Commissioner of Police before exercising the power under the PSO. https://hcservices.ecourts.gov.in/hcservices/ 7. In terms of PSO 747, a History sheet can be opened automatically at the time of conviction for persons convicted as provided thereunder and such History sheet shall be retained for two years after release from jail. The said standing order is not applicable to the facts of this case, as admittedly the petitioner was acquitted of criminal charge on 16.2.94 and the history sheet was opened only on 20.7.98. The history sheet should be closed only at the specific orders of the concerned officer empowered under PSO 748. In certain cases, on suspicion also, such history sheets can be opened. The object behind the opening of History sheet can be culled down from PSO 778 and 779. Those standing orders relate to habitual offenders as referred to in PSO 776, which reads as under:- "PSO 776. Habitual Offender: A habitual offender is one who has been sentenced to a substantive term of imprisonment, such sentence not having been set aside in appeal or revision, on not less than three occasions, for one or another of the offences under the Indian Penal Code set forth in the Schedule to the Tamil Nadu Restriction of Habitual Offenders Act, each of the subsequent sentences having been passed in respect of an offence committed after the passing of the sentence on the previous occasion.[Section 2(4)]. Note: (1) The demand of a security for good behaviour under section 110, Criminal Procedure Code will amount to the passing of a sentence of substantive imprisonment, for the purpose of the above definition. (2) The following are the offences under the Indian Penal Code enumerated in the Schedule to the Act: Sections 231, 232, 233, 234, 235, 239, 240, 242 and 243 under Chapter XII, Sections 299, 307, 308, 310, 322, 326, 327, 328, 329, 332, 333 and 369 under Chapter XVI and sections 382, 383, 385, 386, 387, 390, 391, 393, 394, 397, 398, 399, 402, 457, 458, 459 and 460 under Chapter XVII." 8. The showing of name in History sheet is to keep surveillance on a person. Such surveillance cannot be such as to squeeze the fundamental right guaranteed and for that matter, the human right recognised to every citizen. Human rights are basic rights as freedom to which all human beings are entitled. The quality of a nation's civilisation can be largely measured by the methods the police use in the enforcement of law and the police should not use shortcuts and arbitrary methods in their performance of duties. A History sheet normally refers to a person who has long criminal record. 9. The High Court exercises control over the Government functioning and in their obedience of rules and law by enforcing proper, fair and just performance of duty. Where the Governmental authority passes an order which is contrary to the rules or laws, as in this case contrary to the Police Standing Orders, it becomes amenable to correction by the Courts in exercise of writ jurisdiction. https://hcservices.ecourts.gov.in/hcservices/ 10. It is true that the police have the responsibility of protecting law and order, to keep vigil and surveillance not only on the accused but also on suspected persons in the interest of general public. But before showing a person as history sheet rowdy, the action of the police must be supported by materials and it cannot be on the whims and fancies of a particular officer. Such action, if allowed, would definitely infringe the right of an individual for his free movement, as the opening of history sheet against a person would certainly result in restriction of his movement due to the surveillance and he will be undermined in the public opinion. Law enforcement agencies, while opening history sheet against a person for surveillance and observance, frequently used to bring those persons shown in history sheet for questioning whenever there were crimes committed in a given region. 11. In Dhanji Ram Sharma v. Superintendent of Police, North District Delhi Police and others, AIR 1966 SC 1766, the Apex Court, while considering Rule 23.4(3)(b) of the Punjab Police Rules, 1933 relating to the powers of the police officers to make entries in the surveillance register, had observed as follows:- "6. Under S.23 of the Police Act, 1861, the police is under a duty to prevent commission of offences and to collect intelligence affecting the public peace. For the efficient discharge of their duties, the police officers are empowered by the Punjab Police Rules, 1934 to open the history sheets of suspects and to enter their names in police register No.10. These powers must be exercised with caution and in strict conformity with the rules. The condition precedent to the opening of history sheet under R 23.9(2) is that the suspect is a person "reasonably believed to be habitually addicted to crime or to be an aider or abettor of such person". Similarly, the condition precedent to the entry of the names of the suspects in Part II of police register No.10 under R.23.4(3)(b) is that they are "persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not". If the action of the police officers is challenged, they must justify their action and must show that the condition precedent has been satisfied. 7. 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 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 https://hcservices.ecourts.gov.in/hcservices/ reasonable grounds for believing that he is a habitual offender." In Malak Singh and others v. State of Punjab and Haryana and others, (1981) 1 SCC 420, the Apex Court had observed as follows: "But all this does not mean that the police have a licence to enter the names of whoever they like (dislike ?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual." 12. Keeping the above in mind, while dealing with the provisions of PSO 748 and 749, a learned Judge of this Court in the judgment in K.M.Sheriff v. The Superintendent of Police, Pudukkottai District and another, 2006 (2) MWN (Crl.) 421, had ultimately observed as follows:- "12. A reading of the above said provisions, especially PSO 749, shows that a person shall be classed as suspects and History Sheets shall be opened for him under orders of the Superintendent or Divisional Officer, if so empowered by the Superintendent, if such person is believed to be addicted to crime. The averments in paragraph 6 of the counter affidavit shows that the respondents have proceeded against the petitioner believing him to be addicted to crime and History Sheet has been opened. If that is so, the respondents should have followed PSO 748. As per PSO 748, the Superintendent of Police may order the closure of a History Sheet at any time but a Divisional Officer may only do so on the expiry of the period named above. As per 748(2), where retention of a History Sheet is considered necessary after two years of registration, orders of an officer of and above the rank of the Assistant Superintendent of Police/Deputy Superintendent of Police must be taken for extension in the first instance upto the end of the next December and further annual extensions from January to December. As per PSO 748(3), PSO 748(1) and 748(2) apply to rowdy sheets also. Therefore, it is crystal clear that whenever retention of History Sheet is considered necessary after two years of registration, orders of an officer of and above the rank of the Assistant Superintendent of Poiice/Deputy Superintendent of Police must be taken. In this case, it is not the case of the respondents that such orders of extension was obtained as per PSO 748(2). This is one grave illegality committed by the respondents in this case. https://hcservices.ecourts.gov.in/hcservices/ 13. PSO 748 as contained in the recent publication is in pare materia with PSO 748 as found in 1999 publication. In the counter affidavit, though first part of PSO No.748 has been extracted in paragraph 7, the respondents have conveniently omitted to extract/refer to PSOs 748(2) and 748 (3). When the above said Police Standing Order No.748(2) mandates the taking of specific orders from superior officers for the retention of a History Sheet beyond two years of registration, the respondents in this case have failed to do so. PSO 748(2) further mandates that for further annual extensions from January to December, separate orders should be taken from the authorities mentioned therein every year. This vital provision which safeguards the rights of a citizen has also not been followed by the respondents as there is no averment to that effect in the counter affidavit. When so many safeguards have been provided for in the PSO, before and after opening of History Sheets/Rowdy Sheets, none of them seem to have been observed by the respondents herein. But to add insult to injury, the first respondent has not cared to pass any orders on the representation dated 01.02.2005 submitted by the petitioner. The failure on the part of the first respondent to pass orders on the representation of the petitioner is unjustified and it amounts to dereliction of duty as the failure on the part of the first respondent has seriously affected the valuable rights of the petitioner. Therefore, it is a fit case where a writ of mandamus should be issued." 13. The very same view has been taken by another learned Judge in the judgment in G.Raja v. State through the Inspector of Police, Kalayarkovil Police Station, Sivagangai District and another, 2009 (2) MWN (Crl.) 416. In fact, in that case, the petitioner therein was shown in the History Sheet for his alleged involvement in three complaints. Even before the above judgment, this Court in an unreported judgment dated 15.9.2008 made in W.P.No.2286 of 2005, has come down heavily on the respondent-police for their arbitrary act and directed the removal of the names of the petitioner therein from the History Sheet maintained by the police. 14. Though the respondent-police have got every right to place an anti-social element in the History Sheet of rowdies in order to keep a vigil on his activities, the question would be whether his valuable right of freedom of movement could be curtailed for the alleged sole involvement in a murder case, be it a serious offence. Unless the requirement of a person to be shown as History Sheet rowdy on the ground that he habitually indulges