THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.22801 OF 2009 DATED AUGUST, 2010 BETWEEN Salam Bin Yousuf @ Salam Pahelwan … Petitioner And The Station House Officer, Rein Bazar Police Station, Rein Bazar, Hyderabad. And Another. …. Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.22801 OF 2009 ORDER: The petitioner assails the action of the police authorities in opening and continuing a rowdy sheet against him on the ground that it is in violation of his fundamental rights and contrary to the law laid down by this Court, especially in B.SATYANARAYANA REDDY v. STATE OF ANDHRA PRADESH[1]. The averments in the writ affidavit reflect that the petitioner was implicated in various criminal offences. The petitioner however stated that he was acquitted in most of the cases. While so, a rowdy sheet was opened by the Station House Officer, Rein Bazar Police Station, Hyderabad, in his name and consequent thereto, the Police Authorities started interfering with his life and liberty. Hence, this writ petition. In his counter, the Inspector of Police, Rein Bazar Police Station, Hyderabad, detailed the various criminal cases in which the petitioner was involved. Relevant to note, most of the cases ended in acquittal, discharge or compromise and only two cases remain, viz., Crime No.47 of 2009 of Moghalpur Police Station, Hyderabad, pending trial in C.C.No.295 of 2009 on the file of the VIII Additional Chief Metropolitan Magistrate, Hyderabad, and Crime No.95 of 2009 of Rein Bazar Police Station, Hyderabad, pending trial in C.C.No.219 of 2009 on the file of the same Court. It is stated that pursuant to the order of the Assistant Commissioner of Police, Mir Chowk Division, Hyderabad, a rowdy sheet was opened against the petitioner on 10.03.2005 on the file of Rein Bazar Police Station, Hyderabad, and the same is being continued by orders till 31.12.2010. It is further stated that the petitioner was young, energetic and a habitual offender and hence, the rowdy sheet was opened against him as per the Andhra Pradesh Police Manual. The police therefore sought to justify the continuance of the rowdy sheet against the petitioner. Before dealing with the matter on merits, it would be relevant to notice the development of case law on ‘history sheets/ rowdy sheets’. I n GOBIND v. STATE OF M.P.[2], while dealing with Regulations 855 and 856 of the Madhya Pradesh Police Regulations which authorized surveillance of history sheeters, the Supreme Court held that the ‘privacy-dignity’ claims of an individual deserved to be examined with care and should be denied only when an important countervailing interest is shown to be superior. The Court observed that individual autonomy, perhaps the central concern of any system of limited Government, is protected in our society by explicit constitutional guarantees. Upon extensive analysis on this aspect, the Supreme Court opined that drastic inroads would be made directly and indirectly into the fundamental right of a citizen if Regulations 885 and 886 were to be interpreted widely. The Supreme Court therefore proceeded to give direction and restriction to the application of the said Regulations with the caveat that if any action was taken beyond the boundaries so set, the citizen would be entitled to attack such action as unconstitutional and void. I n B.SATYANARAYANA REDDY1, a Division Bench of this Court was considering Standing Order No.742 of the Andhra Pradesh Police Standing Orders which authorizes the opening of a rowdy sheet, if the person concerned is a habitual offender, i.e., he habitually commits or abets the commission of offences involving breach of peace. The learned Judges referred to the earlier Division Bench Judgment in PUTTAGUNTA PASI v. COMMISSIONER OF POLICE[3], wherein it was observed that a rowdy sheet could not be opened against an individual in a casual and mechanical manner and mere dubbing of a person as a habitual offender for opening a rowdy sheet was not sufficient. It was pointed out that due care and caution had to be taken by the Police before characterizing a person as a rowdy and the important element that had to be kept in mind is whether the acts committed by such person would have the tendency to disturb public peace and tranquility. The Division Bench therefore opined that the word ‘habitual’ 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. It was held that unless the acts complained of are more than one it could not be concluded that the involvement of a person even in a solitary case could form the basis for classifying such person as habitually committing offences involving disturbance to public peace and tranquility. I n EJAZ v. GOVERNMENT OF ANDHRA PRADESH[4], a learned Judge of this Court opined that under Standing Order No.742 a person who was involved in more than two criminal cases involving breach of peace could be classified as a rowdy and a rowdy sheet could be opened against him, even if he was not convicted for the said offences. The allegations against the rowdy sheeter in that case were serious and he was involved in more than two cases, in all of which there was an allegation against him that there was likelihood to act in a manner of committing breach of peace. The learned Judge therefore held that it was not necessary that there should be conviction in more than two cases for opening a rowdy sheet under Standing Order No.742. I n KAMMA BAPUJI v. STATION HOUSE OFFICER, BRAHMASAMUDRAM[5], a learned Judge of this Court held that in case of commission of offences which do not result in breach of peace, the Police are not entitled to open a rowdy sheet against such an offender. In SUNKARA SATYANARAYANA v. STATE OF ANDHRA PRADESH[6], a learned Judge of this Court, upon a long and detailed analysis of the law on the subject, summarized the scope of judicial review of Police Action vis-à-vis history sheets/rowdy sheets as under: “(4.1) 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. (4.2) 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. (4.3) 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. (4.4) 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 a 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. (4.5) When an order is passed by the competent police officer for retention of the history sheet by simply endorsing on the report/letter of the S.H.O. a single line order, that by itself cannot be a ground to continue the rowdy sheet. (4.6) 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. (4.7) 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 which justify retention of history sheet/rowdy sheet. Further, it is always better for the Police Officer to record his own reasons for retention/opening of the history sheet/rowdy sheet. (4.8) In the event as mentioned in conclusion 4.7. it is always open to the court of judicial review to direct the Sub-Divisional Police Officer to reconsider his decision and pass appropriate orders. But whatever be the events in the guise of opening/retention of history sheet a person's liberty, right to privacy and other freedoms under Article 19 of the Constitution of India cannot be infringed under any circumstances. (4.9) It is to be remembered that any order of the competent police officer which is not supported by reasons is itself unreasonable and arbitrary and can be termed as mala fide in the sense that it is contrary to the purpose for which the Police Officer is authorised under relevant Police Standing Orders. Hence if the Court comes to the conclusion that the order of the Sub-Divisional police Officer is contrary to the purpose for which surveillance is authorised, the action shall be set at naught forthwith on the principle that what is unreasonable and unfair is arbitrary and such arbitrary exercise of power amounts to exercising, the power mala fide.” It is in the light of this legal environment that the opening and continuation of the petitioner’s rowdy sheet is to be reviewed. Standing Order No.601 of the Andhra Pradesh Police Manual Part-I, Volume-II, replaced Standing Order No.742 of the erstwhile Andhra Pradesh Police Standing Orders in the year 2001. It 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 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 or 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.” Under Standing Order No.602, the period of continuation of history sheets of suspects/rowdies is dealt with and reads as under: “Period of retention of History Sheets of suspects/Rowdies 602. 1. History Sheets of suspects shall be maintained from the date of registration up to the end of December, after which the orders of a gazetted officer as to their discontinuance or retention for a further period shall be obtained. 2. Merely because a suspect/rowdy, having a history sheet, is not figuring as accused in the previous 5 years after the last case in which he was involved, it should not preclude the SP/DCP/CP to continue his history sheet if SP/DCP/CP is of the considered view that his activities are prejudicial to the maintenance of public order or one affecting peace and tranquility in the area or the victims are not coming forward to give complaint against him on account of threat from him.” It may be noticed that Standing Order No.601 speaks of not only ‘breach of peace’ in connection with habitual offenders but also ‘disturbance to public order and security’ which were not mentioned in the earlier Standing Order No.742. The details of the offences in which the petitioner was alleged to have been involved in, over the years 2000 to 2009, under various provisions of the Indian Penal Code are as follows: “Sec.148 Rioting, armed with deadly weapon Sec.151 Knowingly joining or continuing in assembly of five or more persons after it has been commanded to disperse Sec.188 Disobedience to order duly promulgated by public servant Sec.224 Resistance or obstruction by a person to his lawful apprehension Sec.291 Continuance of nuisance after injunction to discontinue Sec.307 Attempt to murder Sec.324 Voluntarily causing hurt by dangerous weapons or means Sec.326 Voluntarily causing grievous hurt by dangerous weapons or means Sec.332 Voluntarily causing hurt to deter public servant from his duty Sec.341 Punishment for wrongful restraint Sec.352 Punishment for assault or criminal force otherwise than on grave provocation Sec.353 Assault or criminal force to deter public servant from discharge of his duty Sec.355 Assault or criminal force with intent to dishonour person, otherwise than on grave provocation.” Sec.384 Punishment for extortion Sec.452 House-trespass after preparation for hurt, assault or wrongful restraint Sec.506 Punishment for criminal intimidation with threat of death or grievous hurt. It is no doubt true that the petitioner has not been convicted in any case so far. However, as pointed out in EJAZ4 it is not necessary that a person should be convicted of the offence. Presently, his mere involvement in more than two cases on the allegation of lawless activities resulting in breach of peace or public order or security would be enough to attract the provisions of the Standing Order relating to rowdies. In the present case, there can be no dispute that the offences in which the petitioner was involved pertain to breach of peace. At the time the rowdy sheet was opened in 2005, there were four cases pending against the petitioner. The inception of the rowdy sheet cannot therefore be found fault with. Further, it is an admitted fact that the petitioner continues to be implicated in criminal offences. The details furnished cover the period 2000 to 2009, that is, upto a few months prior to the filing of this writ petition. The two cases which are pending trial also involve serious offences having impact on peace, public order and security. The record produced by the learned Assistant Government Pleader for Home reflects that the petitioner was bound over for one year on 10.10.2009 by the Special Executive Magistrate in connection with Crime No.221 of 2009 under Section 107 IPC. The period is yet to expire. His classification as a ‘Rowdy’ therefore cannot be assailed as clause-C of Standing Order No.601 is squarely applicable. In that view of the matter, the continuance of the rowdy sheet in the petitioner’s name cannot be said to be in violation of the Standing Orders of the Andhra Pradesh Police Manual Part-I, Volume-II, and the law laid down by this Court. The record further reflects that the Assistant Commissioner of Police, Mirchowk Division, reviewed the petitioner’s case and permitted renewal of his rowdy sheet for the years 2008, 2009 and 2010. As regards the year 2010, the Inspector of Police, Rein Bazar Police Station, informed the Assistant Commissioner of Police, Mirchowk Division about the activities of the petitioner necessitating a watch over his movements and thereupon, the rowdy sheet was renewed upto the end of the year. It may however to be noticed that as laid down in SUNKARA SATYANARAYANA6, police surveillance over the petitioner cannot be obtrusive or invasive. As long as the surveillance is not so, it does not violate the petitioner’s right to privacy under Article 21 of the Constitution. The record discloses that the surveillance was limited to a visit to the petitioner’s premises once in each month, which cannot be said to be excessive or oppressive. It must be remembered that infringement of the petitioner’s right would have to be direct as well as tangible and as long as it does not transgress this limit, police surveillance in accordance with the executive/departmental guidelines cannot be objected to. The Writ Petition is therefore devoid of merit and is accordingly dismissed. It is for the police authorities to periodically review the necessity for continuance of the petitioner’s rowdy sheet and take necessary action in the matter. No order as to costs. ____________________ SANJAY KUMAR, J. _________ AUGUST, 2010 VGSR [1] 2004 (2) ALT (Crl.) 115 (DB) (AP) [2] (1975) 2 SCC 148 [3] 1998 (3) ALT 55 (DB) [4] 1998 (2) ALT 469 [5] 1997 (6) ALD 583 [6] 1999 (6) ALT 249