Jammu, Sept 13: In WP(Crl) No. 19/2024 titled Nagar Singh vs Union Territory of J&K and others after hearing Advocate Parag Sharma HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ordered as under:-
1. The petitioner herein has maintained the instant writ petition under Article 226 of the Constitution of India for seeking the following relief: (i) Writ of mandamus directing and commanding the respondents No. 2 to 4 to remove, discontinue/delete the name of the petitioner from surveillance register No. 10 and as a history sheeter in Police Station, Gandhi Nagar, Jammu, which is against the Rule-698 to Rule-704 of Jammu and Kashmir Police Rules, 1960; (ii) Writ of mandamus directing the respondents No. 2 to 4 to remove the photographs of the petitioner as a history sheeter fixed in the Police Station, which is totally against the Rules 698 to 704 of Jammu and Kashmir Police Rules, 1960. (iii) Any other order to be passed as additional/alternate relief to which the petitioner is found entitled to in the given facts and circumstances of the case in hand in order to delivery fair and impartial justice.”
2. The facts as stated in the petition on the strength of which the aforesaid reliefs have been sought are that the petitioner is a business man being highest tax payer to the Government got implicated as an accused in FIR No. 247/2009 registered with Police Station, Gandhi Nagar, Jammu for offences under Sections 302, 34, 201 and 120-B RPC and Sections 3, 25 and 27 of the Arms Act along with his son, namely Jatinder Singh (now deceased) and brothers, namely, Jagar Singh and Rakesh Choudhary, wherein in the said FIR, after trial in the charge sheet laid from the said FIR, the petitioner herein came to be acquitted by the court of 2nd Additional Sessions Judge, Jammu on 10.08.2020 and that prior to the registration of the said FIR, the petitioner have had also been got implicated in FIR 107/2006 registered with Police Station, Bahu Fort, Jammu in connection with the murder of five persons in which FIR after laying of charge sheet and trial thereon as well, the petitioner came to be acquitted by the court of Principal Sessions Judge, Jammu on 02.02.2015 and besides the said FIR, the petitioner also came to be implicated as an accused in FIR No. 275/2009 along with his above named brothers for commission of offence under section 5(2) of the Prevention of Corruption Act, which, however, came to be closed as “Not Admitted”, however, stands reopened by the court of competent jurisdiction and is under further investigation and in addition thereto, a complaint under sections 107 and 117 Cr.P.C. has also been instituted against the petitioner and his aforenamed brother-Rakesh Choudhary which is pending before Executive Magistrate 1st Class, Bahu Fort, Jammu.
3. The petitioner has stated in the petition that the respondents on 09.05.2010 entered his and his above named brothers’ names in Surveillance Register 10 of the Police Rules, 1960 besides opening a history sheet in Police Station, Gandhi Nagar, Jammu, aggrieved whereof, the petitioner herein has maintained the instant petition on the following grounds: A) That the action of the respondents No. 2 to 4 entering the names of the petitioner in the Surveillance Register-10 under Rule-698 and opening of the history sheet under Rule 702 is totally against the Jammu and Kashmir Police Rules, 1960. Copy of relevant portion of the Jammu and Kashmir Police Rules, 1960 is enclosed herewith and marked as Annexure-II.
As the petitioner has not been convicted thrice or more mentioned in Rule-698. From the perusal of Rule-702 it becomes clear that when the history sheet of a person is opened, a great care caution has to be exercised by the Police Incharge of a Police station or any other competent officer. The said Rule provides the particulars and the manner in which those particulars are to be recorded in the history sheet. It is clear that before branding a person as a history sheeter and entering his particulars in history sheet, a great care and caution has to be taken by the officer. While surveillance of movement of a person, is permissible inaccordance with the provisions contained in the Jammu and Kashmir Police Rules but at the same time, as individual’s right to respect his private and family life, has to be recognized.\
There cannot be any interference by the Police with the exercise of right of privacy of a person except in accordance with the law. While for the purposes of public safety and prevention of disorder and crime, it is necessary that the Police is allowed to keep a surveillance on an individual on the basis of credible material available with the Police, but at the same time, it cannot be an arbitrary exercise of power on the part of the Police and there cannot be any excessive surveillance so as to intrude and offend the dignity of an individual.
Thus, the name of a person can be entered into the history sheet only on the basis of the subjective satisfaction of a competent authority and in the manner as provided under the J&K Police Rules.
The age, height of the petitioner has to be shown when the same is opened and also the petitioner apprehends that the concerned Station House Officer or any other authority of the Police at the time it was open in the year 2009, there was no signatures and total non-application of mind had been adopted by the police authorities when the history sheet of the petitioner was opened in the Police Station, Gandhi Nagar, Jammu. Thus this action of the respondents is glaring example of non-application of mind and total violation of the Rules specified from Rule 698 to 704 of Police Rules, 1960. B) That the petitioner herein had been acquitted in F.I.R No. 247/2009 registered with Police Station, Gandhi Nagar, Jammu by the court of 2nd Additional Sessions Judge, Jammu in case No. 25-A/Session on 10.08.2020. Copy of the order dated 10.08.2020 is enclosed herewith and marked as Annexure-Ill. Also the petitioner has been acquitted in F.I.R No. 107/2006 registered with Police station Bahu Fort, Jammu and acquitted by the Principal Sessions Judge, Jammu 4 WP(Crl) No. 19/2024 in File No. 76/Session dated 02.02.2015.
The petitioner, after opening of the history sheet, till date has not been involved in any case and no criminal case have been reported or any other suspicious activities have been reported in the history sheet of the petitioner herein.
The continuation of the petitioner’s name in the history sheet in such circumstances when the case on the basis of which, has resulted into the acquittal or no offence has been made out, cannot be justified.
Already this Hon’ble Court on the same identical facts have removed the name of his brother Jagar Singh in WP(C) No. 612/2023. Copy of the court order is enclosed herewith and marked as Annexure-IV. Also the case where his brother’s name has also been discontinued/removed by the order of the Honble High court in WP(C) No. 371/2022.
Copy of the order dated 02.03.2024 is also enclosed herewith and marked as Annexure-V. As far as the complaint filed by the Police Station, Gangyal against the petitioner before the Executive Magistrate lst Class Bahu, Jammu under section 107 and 117 Cr.P.C. is concern, the same has been dismissed in terms of order dated I7.04.2021 by the said Executive Magistrate lst class, Bahu Jammu. Thus there arises no question of continuation of the name in the history sheet. C) That the petitioner is a respectable person in the eyes of society and shall be compensated for the long continuation of his name as history sheeter without any reason and thus is against the right to life in a dignified manner, which has been guaranteed under the Constitution of India. D) That the petitioner has at this stage left with no other alternative efficacious remedy other than to invoke the extraordinary writ jurisdiction under Article 226 of the Constitution of India for getting his genuine grievance redressed, hence the instant writ petition. E) That the petitioner may be allowed to urge other additional or alternate grounds to call in question the order impugned during the course of adjudication of the writ petition.
4. Reply to the petition has been filed by the respondents, wherein the petition is being resisted and its dismissal is being sought on the premise that none of the fundamental and statutory rights of the petitioner have been infringed and that the petitioner has been involved in serious criminal cases necessitating his surveillance. Heard learned counsel for the parties and perused the record.
5. Perusal of the record produced by the learned counsel for the respondents pertaining to the petitioner would reveal that a “history sheet” of the petitioner in terms of Rule 702 of the Police Rules, 1960 has been opened by the respondent 4 herein on the basis of the case FIR No. 247/2009 on 05.02.2009 followed by the entry of the involvement of the petitioner made on 30.09.2009 in connection with FIR No. 275/2009, registered for offence under section 5(2) of the Prevention of Corruption Act read with sections 161 and 165 RPC. However, record reveals that the name of the petitioner has not been put in Surveillance Register No. 10 in terms of Rule 698 of the Police Rules, 1960 which position is also admitted by the counsel for the respondents as also the Superintendent of Police, South Jammu who had appeared before the Court in person in compliance to order dated 30.08.2024. Thus, in view of the aforesaid position obtaining in the matter, the issue for consideration before this Court would be qua the opening of history sheet of the petitioner in terms of Rule 702 of the Police Rules(supra).
6. Before proceeding to address to the said issue, it will be appropriate to refer hereunder to Rules 702, 703, 704, 705 and 706 of the Police Rules 1960 being relevant and germane herein: “702. Preparation of history sheets: The initial preparation of a history sheet requires great care, and should invariably be done by the officer incharge of the police station himself or by a thoroughly experienced Assistant Sub-Inspector under specific orders.
(1) The description of the criminal should be such as will enable the person reading it to form for himself a picture of the individual described, special attention being given to peculiarities of appearance, gait, speech, etc., by means of which the man may be distinguished.
(2) The space for ‘relations and connections’ should be filled in with a view to affording clues to those persons with whom the criminal is likely to harbour when wanted by the police, including relations or friends living at a distance from his home, and his associates in crime, abettors and receivers, The particular nature of each person’s connection should be noted against each, and, when persons shown as connections themselves have history sheets, a cross reference with those sheets should be given.
(3) Under property, and mode of earning livelihood, such particulars should be entered as will facilitate a judgment as to whether the criminal is at any time living beyond his means; whether he is capable of 6 WP(Crl) No. 19/2024 furnishing a personal recognizance of any value; whether he is an owner of property, a tenant or a wage-earner, and so on.
(4) The “description of crime to which addicted” should be in some detail, showing not merely the class of crime, but the particular type of that crime, methods followed, localities frequented, weapons or instruments used, etc. When these particulars have been carefully and concisely entered, the initial entry on the reverse side of the form should be made in the form of a summary of the individual’s criminal career up to the date of his history sheet being prepared, and should include the particular reasons and authority for its being prepared. Copies of history sheets prepared and published by the Criminal Investigation Department and published in the Criminal Intelligence Gazette shall be filed with the history sheets of the persons concerned in their home police stations. The police station history sheets in all such cases shall be endorsed with the letters C.I.D. and the Criminal Provincial numbers in red ink. The activities of all such criminals subsequent to the publication of their provincial history sheets must be communicated promptly to the Criminal Investigation Department. 703. History sheets when opened (1) A history sheet, if one does not already exist, shall be opened in Form 183 for every person whose name is entered in the surveillance register, except conditionally released convicts. (2) A history sheet may be opened by or under the written orders of, a Police Officer not below the rank of Inspector for any person not entered in the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such person. 704. Custody of history sheets: (1) The history sheets at each police station shall be kept in three separate bundles as follows:- (a) Bundle containing the history sheets of persons whose names are entered in the surveillance register. (b) Bundle containing the history sheets of persons whose names are not entered in the surveillance register and which have not been removed to personal files under rule 706. In this bundle should be recorded the history sheets of persons who (1) have been removed from surveillance on probation owing to there being no recent complaints against them, but who cannot be said definitely to be no longer addicted to crime, (2) have been the subject of action under rule 726, but have not yet been placed on security for good behaviour or under surveillance. (c) Bundle containing the history sheets of Bad characters undergoing sentences of imprisonment sufficiently long to justify the removal of their names from the surveillance register until their release. These history sheets shall be put up by the officer in charge of the police station before a gazetted officer for orders six months before the nominal date of the release of the Bad Character concerned. (2) In each bundle, the history sheets of each village shall be kept in a separate cover on the inside of which a list of the history sheets 7 WP(Crl) No. 19/2024 pertaining to the village with their index serial numbers shall be maintained.” 705. Checking of history sheets: (1) Gazetted officers on tour and inspectors shall personally check the entries in history sheets by local enquiry in the presence of the persons concerned and their lambardars and so far as possible, at their homes. Such officer shall also carefully scrutinize the conviction register, in order to see that history sheets are opened or properly kept up, as the case may be, for all convicts whose record justifies such action. (2) In checking history sheets of proclaimed offenders they shall make sure that constant and recent enquiries have been made to ascertain the proclaimed offenders whereabouts and to effect his capture, whether he be in the jurisdiction or elsewhere, and that all necessary information about the proclaimed offender and his associates has been obtained from or communicated to other district and police stations. 706. Treatment of history sheets and personal files (1) The history sheet of a person who is no longer addicted to crime shall be transferred to his personal file. Under no circumstances shall the history sheet of a person who is undergoing sentence be relegated to his personal file. (2) The history sheet and personal file of a person who takes up his residence permanently in another police station jurisdiction shall be transferred to such police station. (3) The history sheet and personal file of a person who dies shall be destroyed. (4) All disposal action referred to in this rule shall be taken in accordance with the orders of a gazette officer.
7. Having regard to the aforesaid provisions, it is manifest that it is the bounded duty of the Police to prevent commission of offences and also to collect intelligence affecting the public peace and in discharge of said duty efficiently and in furtherance thereof, the Police has been empowered in terms of the J&K Police Rules 1960 supra to open a history sheet of a criminal where the Police has reasonable grounds to believe that a criminal is a person habitually addicted to crime, however, the basis of the said belief must be founded on the basis of information collected by the Police requiring it to enter in the said history sheet, the description of the criminal, particulars of his property, mode of his earning livelihood, his relations, connections and associates, the crimes to which he is believed to be addicted, his convictions, if any, and his 8 WP(Crl) No. 19/2024 involvements, inasmuch as, other details including the names and residences of the complainants. The said history sheet has to be opened in Form 183 to be opened by or under the written orders of a Police Officer not below the rank of Inspector and the said history sheets are to be kept in three separate bundles.
8. Perusal of the record of the history sheet produced by the learned counsel for the respondents pertaining to the petitioner would reveal that after its opening on 05.12.2009 upon the involvement of the petitioner in FIR No. 247/2009 supra, his acquittal in the said case has not been entered therein and even an entry in regard to the involvement of the petitioner in FIR No. 275/2009 though has also been entered therein in the history sheet, yet its having been closed as not admitted has also not been entered in the Register so has also not been its further investigation entered in the Register after it came to be directed to be reopened by the court.
A deeper and closer examination of the aforesaid record of the history sheet of the petitioner also manifestly demonstrates that the initial entry made therein in the said Register dated 05.12.2009 supra has been carried forward in a mechanical and routine manner overlooking the fact of acquittal of the petitioner in the said case, thus, suggesting complete non application of mind on the part of the respondents, which act of the respondents would be having an effect on the rights of the petitioner, which rights recognized in law include the right to respect for his private and family life, in that, opening of a history sheet of a person can certainly said to effect one’s image and reputation in the society rather in essence, would taint his image and reputation.
Thus, though the opening of a history sheet of a person has been held to be a power vested in the Police, yet same has to be exercised judiciously, reasonably, fairly and on the basis of the credible and cogent material constituting reasonable grounds for believing that the person is habitually addicted to crime, as in law, it has been held that a mere belief is not sufficient for the said purpose.
A reference in this regard to the judgment of the Apex Court passed in case tilted as Dhanji Ram Sharma v Superintendent of Police, North District, Delhi Police and others reported in AIR 1966 SC 1766 would be appropriate and advantageous.
9. For what has been observed, considered and analyzed hereinabove, the instant petition deserves to be allowed, Accordingly, petition is allowed, as a corollary whereof, the respondents herein are directed to remove and close the history sheet of the petitioner along with all extensions carried therein, opened in Police Station, Gandhi Nagar, Jammu on 05.12.2009.
10. The record produced by the counsel for the respondents is directed to be returned. (JAVED IQBAL WANI) JUDGE
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