BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/09/2008 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.2286 of 2005 W.P.(MD)Nos.2408 and 5378 of 2005 and M.P.No.2314 of 2005 in W.P.(MD)No.2286 of 2005 and M.P.No.5854 of 2005 in W.P.(MD)No.5378 of 2005 W.P.(MD).No.5378 of 2005 S.Vani ... Petitioner Vs. 1.The Superintendent of Police, Sivagangai District. 2.The Deputy Superintendent of Police, Sivagangai District, Sivagangai. 3.The Inspector of Police, Tiruppathur Town Police Station, Tiruppathur, Sivagangai District. ... Respondents W.P.(MD).No.2286 of 2005 #Ganesan ... Petitioner Vs. $1.The Station House Officer, Ayyampettai Police Station, Thanjavur District. 2.The Superintendent of Police, Thanjavur, Thanjavur District. ... Respondents W.P.(MD).No.2408 of 2005 #E.S.V.Pandian ... Petitioner in WP No.2408/05 Vs. $1.The Superintendent of Police, Thirunelveli District, Thirunelveli. 2.The Sub-Inspector of Police, Manur Police Station, Manur, Thirunelveli District. 3.Syed Nizar Ahamed (42) S.P.C.I.D. Police Station, Manur, Thirunelveli District. 4.Balamurugan Sub-Inspector of Police, Natham, Dindigul District. 5.Mohamed Ikbal Deputy Superintendent of POlice, Kolatchal, Kanyakumari District. ... Respondents PRAYER in WP No.2286/05 Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of mandamus, directing the respondents to remove the name of the petitioner from the Rowdy History Sheets Serial No.20 on the file of the Ayyampettai Police Station, Thanjavur District. PRAYER in WP No.2408/05 Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorified Mandamus and call for the file and proceedings relating to the rowdy list number 693, Manur Police Station or any other number in that Police Station including the name of the petition in the Rowdy list, quash the same and direct the respondents 1 and 2 to pay a of Rs.3,00,000/- (Rupees three lakhs) as damages to third respondent petitioner and recover the same from the salary of respondents 3 to 5 issue further. PRAYER in WP No.5378/05 Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of mandamus, directing the respondents to pay the petitioner a sum of Rs.2 lakhs as compensation for having published the petitioners photograph in the habitual offenders list. !For Petitioner ...Mr.M.Karunanithi (in WP No.2286/05) ...Mr.T.S.R.Venkatramana (in WP No.2408/05) ...Mr.Mahendrapathy (in WP No.5378/05) ^For Respondents ...Mr.K.A.Thirumalaiappan (in all W.Ps) Addl.Govt.Pleader ******
:COMMON ORDER
******
In all these Writ Petitions, the petitioners have raised questions of far-
reaching importance, namely, the rights of citizens of India to lead a free life
subject to social control imposed by valid law. The question raised in all these
Writ Petitions at the instance of the alleged dis-reputable characters cannot be
allowed to deflect the perspective of this Court. If the police do what they did
to these petitioners, they can also do the same to the honest and law abiding
citizens.
2. The common thread in all these three Writ Petitions are that the
actions taken by the respective Station House Officers in opening History Sheets
in the name of the petitioners, mechanically counter signed by the respective
Superior Police Officers is justified.
3. In W.P.(MD)No.5378 of 2008, the unfortunate victim was a woman, who
seeks for a compensation of Rupees Two Lakhs for having published her
photographs in the habitual offenders list. The Writ Petition was admitted on
23.06.2005. Though a counter affidavit was filed by the Inspector of Police,
Tiruppattur Town Police Station, during the month of July, 2005, the matter was
not listed for quite some time.
4. When the matter came up for final hearing on 13.08.2008, this Court
directed the third respondent to produce the connected file for opening of the
History Sheets in the name of the petitioner. Since the same was not forth
coming, on 29.08.2008, this Court directed the Inspector of Police to appear
along with the records before this Court on 08.09.2008. Accordingly, he
appeared before this Court and produced the original file. After hearing both
the parties, the matter was reserved for orders on 08.09.2008.
5. In W.P.No.2286 of 2005, the petitioner was an elected Panchayat
President of Soolamangalam Village. It is stated that he belonged to the DMK
Party and due to animosity, the Inspector of Police, Ayyampettai Police
Station, Thanjavur District, foisted a criminal case against the petitioner.
Utilising that opportunity, the Inspector of Police included the name of the
petitioner in a History Sheet maintained for rowdies in that P.S.area. He had
challenged the said inclusion and sought for removal of his name from the list.
The Writ Petition was admitted on 23.03.2005. A counter affidavit was
filed by the Inspector of Police, Ayyampettai Police Station on 09.06.2005.
However, the matter was not taken up for hearing for quite some time. When the
matter came up on 06.09.2008, the said Inspector of Police was directed to
appear along with records relating to the petitioner on 11.09.2008.
Accordingly, the said Inspector of Police had appeared before this Court on
11.09.2008 and produced the original file. After hearing both sides, the matter
was reserved for orders on 11.09.2008.
7. In W.P.No.2408 of 2008, the Writ Petition is filed by one
E.S.V.Pandiyan seeking for a compensation of Rupees Three Lakhs as damages from
the respondents for having included the petitioner name as rowdy in the History
Sheets in the Manur Police Station by the Sub-inspector of Police, by name
Balamurugan. He has also made the Deputy Superintendent of Police in his
individual capacity as a party, fifth respondent.
8. The grievance of the petitioner in this case was that he is a
graduate with B.A.degree and was an active member of the Indian National
Congress. Since he questioned certain activities of the Sub-Inspector of
Police, in not accounting for the entire stolen jewellery on behalf of another
village, he became inimical towards him. In order to damage the reputation of
the petitioner, he included his name in the rowdy list of the Manur Police
Station, Tirunelveli District. The Writ Petition was admitted on
28.03.2005.
9. Inspite of the several adjournments, till date no counter affidavit
has been filed by the respondents. Therefore, when the matter came up for
hearing on 06.09.2008, this Court directed the Inspector of Police of Manur to
appear before this Court along with the records on 11.09.2008. Accordingly, he
had appeared before this Court and produced the original file. After hearing
both sides, the matter was reserved for orders on 11.09.2008. In view of the
common question raised in all these three Writ Petitions, a common order is
being passed.
10. Case of Ms.S.Vani:-
10.1. In the case of Ms.S.Vani (W.P.No.5378 of 2005), the petitioner was put up
at Akilmanai street, Tiruppattur (Post), Sivagangai District. She belonged to
Yadava Community. A criminal case was registered against the petitioner at
Tiruppattur Police Station in Crime No.214 of 2001 under Section 380 IPC on the
basis of a alleged confession statement given by the accused. The petitioner
was also charge sheeted.
10.2. Subsequently, the third respondent, the Inspector of Police, Tiruppattur
Town Police Station opened a History Sheet with history No.654 of 2004 on
23.11.2004. Her photograph was also taken and kept in the files. The History
Sheet that was opened was under the Tamil Nadu Police Standing Order 746 in Part
V Form No.111. The criminal case was taken on file in C.C.No.282 of 2002 on the
file of the Judicial Magistrate, Tiruppattur. Even though, the petitioner was
present at most of the hearings, the case got delayed for one reason or other.
The petitioner had appeared for 61 out of 64 adjournments and the case was not
conducted in all earnestness.
10.3. This forced the petitioner to file a Criminal Original Petition before
this Court in Crl.O.P.No.3610 of 2006 for an early hearing of the criminal case
by the Judicial Magistrate. This Court, by an order dated 15.12.2004, directed
the Judicial Magistrate, Tiruppattur to complete the trial and dispose of the
C.C.No.282 of 2002 as expeditiously as possible. Notwithstanding the same, the
criminal case was continued. It is now stated that the petitioner was acquitted
finally on 30.09.2007.
10.4. It is seen from the records that notwithstanding the acquittal, her name
continues to be kept in the record with periodical entries made by the third
respondent. The original file shows that the History Sheets was opened and was
counter signed by the Deputy Superintendent of Police. The note put up for
opening the History Sheets stated that the petitioner might have done similar
thefts. she is always found fashionably dressed without any income and
therefore, her activities should be watched. It is also stated that she is
having bad conduct and she is unmarried.
10.5. Right from the noting dated 21.01.2005, it was written that she is working
in an Automobile Company, at Madurai but her activities are not satisfactory. It
is seen from the records that the same entry was mechanically repeated month
after month. In the entry dated 31.12.2006, it is stated by the Sub-inspector
of Police that she was living with her mother and she is still unmarried. But
she is working in a Plastic Company at Madurai and she had applied for a part-
time studies; but her conduct was not satisfactory.
10.6. For those entries, without any basis, the Deputy Superintendent of Police
had been counter singed year after year. In all those entries, it is noted that
she was unmarried and she was having bad conduct. But she was found working in
an Automobile company at Madurai and she was living with her family, who are
doing milk business.
10.7. Even after her acquittal by the Criminal Court as early as on 30.09.2007,
the Inspector of Police continued to retain her name in the History Sheets.
Shockingly, even on 30.09.2007, a note was put up to continue her name under the
surveillance list for one more year.
10.8. A perusal of the original file clearly shows that there was no basis for
opening a History Sheets in the name of the petitioner and for making such
entries there was no factual basis.
10.9. It is stated in the counter affidavit that all precautionary steps were
taken in terms of P.S.O.746(I). In paragraph No.6, it is averred as follows:-
“…Only to make awareness among the people about the criminals for
precaution, the suspect sheets against such criminals are being opened and kept
an eye on those criminals to avoid further commission of crimes”.
It is also surprising that the third respondent could use terminologies like
“unmarried woman” “having bad character” and her conduct was not satisfactory.
Excepting for foisted criminal case against the petitioner, in which she was
also subsequently acquitted by the Criminal Court, there is no factual basis for
opening such a file in favour of the petitioner.
11.Case of Ganesan:-
11.1. In the case of Ganesan (W.P.No.2286 of 2005), the petitioner belonged to
Scheduled Caste Community. In his case, a history sheet was opened by the
Inspector of Police, Ayyampettai Police Station on 12.11.2004 stating that a
case was registered in Crime No.293 of 2004 under Sections 147, 148, 341 and 307
IPC read with Section 3(1) of the PPD Act. It was stated that he had created
caste conflict and therefore, a History Sheets was opened in his name. In this
case, the counter signature was done mechanically by the Deputy Superintendent
of Police, Papanasam. Even the office seal of the said officer was not found.
11.2. Under his signature, in the periodical notings found in the file shows
that he was working as an agricultural labourer. In every endorsement, it is
stated that he is doing coolie work and he is behaving properly. In fact, ever
since he got elected as a Panchayat President, the notings had undergone
dramatic change and it was stated that he was behaving well, yet he must be
constantly kept under the surveilance list. Even after he became a Panchayat
President under a DMK ticket, extension was sought for one year for keeping him
under the surveilance list. As late as 01.01.2008, the request for extending
his name the list for one more year was granted by the Deputy Superintendent of
Police, Papanasam. In the counter affidavit filed dated Nil June 2005, it is
stated that the petitioner was the 27th accused in Criminal No.293 of 2004 and
he was found always in an intoxicated mood creating hardships to the residents
of the village.
12. Case of E.S.V.Pandian
12.1.In the case of Mr.E.S.V.Pandiyan (W.P.No.2408 of 2004) the petitioner
belonged to Maravar Community. He is a resident of Manur Village, Tirunelveli
District. In this case, a History Sheets was opened under the orders of the
Deputy Superintendent of Police, Tirunelveli (Rural), on 16.06.2003. It was
stated that at the time of opening of the history sheet a criminal case was
pending against the petitioner. Right from 17.08.2003, periodical endorsements
were made in the file.
12.2.In all the endorsements, it is stated that he does not have a job, but
roaming around in a white shirt and white dhoti. It is also stated that no
complaint had come against him. It is unthinkable as to how the police could
take exception to the petitioner wearing white shirt and white dhoti; but that
seems to be the theme running through every endorsement. Each time, the higher
officials, namely, the Deputy Superintendent of Police, Tirunelveli (Rural),
recommended extension of surveillance over him.
12.3.But from the endorsement dated 30.04.2008 onwards, it is shown that he is
working as a collie. It is seen from the representation made by the petitioner
to the District Collector that he was a B.A.Graduate and was a member of the
Indian National Congress Party. Since he questioned about the stolen properties
were not being accounted for in the Criminal Court on behalf of the villager, a
History Sheets was opened in his name due to mala fide motives.
12.4.The allegations made by the petitioner were not denied by the respondents.
In any event, the file notings showed that the police was very much aggrieved
about the attire worn by the petitioner and his not having a job. It is not
clear as to how these issues can be a ground to continue the petitioner’s name
under the surveilance list. If these were the yardstick for keeping a name in a
History Sheet, then many in the Political field will find their names included
in such lists.
13. The facts so far narrated clearly shows that in none of the cases,
there has been any material basis for opening history sheet and there existed
situations warranting opening of such history sheets. All the three petitioners
were not convicted by any Criminal Court and there was only a case pending. In
one case, the petitioner in W.P.NO.5378 of 2005 was acquitted. In the second
case, the petitioner was on bail and he was also an elected Panchayat President.
The notings in the files relating to the second and the third petitioners,
noting were made periodically by the respondents stating that their conduct was
not blameworthy. In the case of the first petitioner Ms.Vani, an endorsement
stating that she is a unmarried woman, living with her parents and working in an
Automobile Company, at Madurai but she was having bad character. There was not
even an iota of material to support such remark found in the file. Either it
shows the subjective opinion of the Station House Officer or that it shows their
clear animus towards the petitioners.
14. Therefore, the submissions of the learned counsel for the
petitioners that the very act of opening of History Sheets were without any
jurisdiction and at times, it was made to settle personal scores.
15. In the second and third case, history sheets were opened when the
two petitioners were in opposition political parties and when those political
parties became ruling parties and governing both at the State and Centre, the
file notings undergone sea change. But, yet, the continuance of surveillance did
not cease. All these will show that the respondents hardly had any regard for
the privacy of any individual and notes were made without scruples in such
history sheets.
16. In the above factual matrix, it is necessary to refer the PSO 746 of
Tamil Nadu Police Standing Orders providing power for opening history sheets and
it reads as follows:-
“PSO 746. Part-IV – History Sheetss.
(1) Part V (Form No.111) shall contain the History Sheetss 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.”
17. It is pertinent to point out that opening of History Sheets,
surveillance list and domicilary visits came to be considered by the Supreme
Court in several decisions. In Kharak Singh v. State of U.P. and others, in
that, a Larger Bench of the Supreme Court vide its decision reported in AIR
1963 Supreme Court 1295 struck down a regulation authorising domicilary visits
to the houses of suspect individuals as unconstitutional. In the majority
opinion in paras:14 and 18, it was observed as follows:-
Para:14 “The question that has next to be considered is whether the
intrusion into the residence of a citizen and the knocking at his door with the
disturbance to his sleep and ordinary comfort which such action must necessarily
involve, constitute a violation of the freedom guaranteed by Art. 19(1)(d) or “a
deprivation” of the “personal liberty” guaranteed by Art. 21. Taking first
Art.19(1)(d) the “freedom” here guaranteed is a right “to move freely”
throughout the territory of India. Omitting as immaterial for the present
purpose the last words defining the geographical area of the guaranteed
movement, we agree that the right of “move” denotes nothing more than a right of
locomotion, and that in the context the adverb “freely” would only connote that
the freedom to move is without restriction and is absolute, i.e., to move
wherever one likes, whenever one likes and however one likes subject to any
valid law enacted or made under cl. (5). It is manifest that by the knock at
the door, or by the man being roused form his sleep, his locomotion is not
impleaded or prejudiced in any manner. Learned Counsel suggested that the
knowledge or apprehension that the police were on the watch for the movements of
the suspect, might induce a psychological inhibition against his movements but,
as already pointed out, we are unable to accept the argument that for this
reason there is an impairment of the “free” movement guaranteed by sub-cl.(d).
We are not persuaded that Counsel is right in the suggestion that this would
have any effect of diverting or impeding his movement, we are clear that the
freedom guaranteed by Art.19(1)(d) has reference to something tangible and
physical rather and not to the imponderable effect on the mind of a person which
might guide his action in the matter of his movement or locomotion.
….
Para 18. “It is true that in the decision of the U.S. Supreme Court from
which we have made these extracts, the Court had to consider also the impact of
a violation of the Fourth Amendment which reads:
“The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated;
and no warrants shall issue but upon probable cause, supported by oath or
affirmation and particularly describing the place to be searched, and the
persons or things to be seized”
and that our Constitution does not in terms confer any like constitutional
guarantee. Nevertheless, these extracts would show that an unauthorised
intrusion into a person’s home and the disturbance caused to him thereby, is as
it were the violation of a common law right of a man – an ultimate essential of
ordered liberty, if not of the very concept of civilisation. An English Common
Law maxim asserts that “every man’s house is his castle and in Semayne’s case,
(1604) 5 Co Rep 91a : 1 Sm.L.C.(13th Edn.) 104 at p. 105 where this was applied,
it was stated that “the house of everyone is to him as his castle and fortress
as well as for his defence against injury and violence as for his repose.” We
are not unmindful of the fact that Semayne’s case (1604) 5 Co Rep 91a : 1 Sm
L.C.(13th Edn.) 104 at p 105 was concerned with the law relating to executions
in England, but the passage extracted has a validity quite apart from the
context of the particular decision. It embodies an abiding principle which
transcends mere protection of property rights and expounds a concept of
“personal liberty” which does not rest on any element of feudalism or on any
theory of freedom which has ceased to be of value.”
18. In Gobind V. State of Madhya Pradesh and another (1975) 2 Supreme
Court Cases 148, the Supreme Court upheld the regulations 855 and 856 of the
Madhya Pradesh Police Regulations providing for surveillance. In paragraph
nos.28 and 29, of the Supreme Court struck a note of caution, which is as
follows:-
Para 28. “The right to privacy in any event will necessarily have to go
through a process of case-by-case development. Therefore, even assuming that
the right to personal liberty, the right to move freely throughout the territory
of India and the freedom of speech create an independent right of privacy as an
emanation from them which one can characterize as a fundamental right, we do not
think that the right is absolute.
…….
Para 30: “……. Our founding fathers were thoroughly opposed to a Police
Raj even as our history of the struggle for freedom has borne eloquent testimony
to it. The relevant Articles of the Constitution we have adverted to earlier,
behove us therefore to narrow down the scope for play of the two regulations.
We proceed to give direction and restriction to the application of the said
regulations with the caveat that if any action were taken beyond the boundaries
so set, the citizen will be entitled to attack such action as unconstitutional
and void.”“
19. In Malak Singh and others V. State of P & H and others reported in
(1981) 1 Supreme Court Cases 420, the Supreme Court while holding that entry
for surveillance register should be made on the basis of the materials, though
they may be kept as a confidential document and it does not require observance
of Principles of Natural Justice before opening the history sheet, in para nos.9
and 10 of the said judgment, the Court provided for judicial review over illegal
actions and those passages may be usefully extracted below:-
Para.9. “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. Surveillance of persons who do not fall within the categories
mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime,
or excessive surveillance falling beyond the limits prescribed by the rules,
will entitle a citizen to the court’s protection which the court will not
hesitate to give. The very Rules which prescribe the conditions for making
entries in the surveillance register and the mode of surveillance appear to
recognise the caution and care with which the police officers are required to
proceed. The note following Rule 23.4 is instructive. It enjoins a duty upon
the police officer to construe the rule strictly and confine the entries in the
surveillance register to the class of persons mentioned in the rule. Similarly
Rule 23.7 demands that there should be no illegal interference in the guise of
surveillance. Surveillance, therefore, has to be unobtrusive and within
bounds.”
Para 10. “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 only 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 the 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 of
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 fact in the present case we sent for the relevant records and we have
satisfied ourselves that there were sufficient grounds for the Superintendent of
Police to entertain a reasonable belief.”
(emphasis added)
20. Therefore, in the light of the facts narrated and the legal
precedents, it must be held that the actions of the respondents in all the three
Writ Petitions are condemnable. Opening of the history sheets in the name of
three petitioners are arbitrary, unreasonable and whimsical and it would amount
to denial of right of citizens provided under Article 21 of the Constitution of
India to have the right of privacy. Though opportunities were given to the
respondents, they have not shown any credible materials to justify their action
before this Court. The superior officer though had considerable responsibility
to oversee such records have acted in a mechanical fashion to put their initials
periodically without any verification.
21. In the light of the same, all these three Writ Petitions are bound
to succeed and the respondents are directed to remove the names of the
petitioners from the History Sheets maintained by the respondents in each writ
petition.
22. Though in the two Writ Petitions being W.P.Nos.2406 & 5378 of 2005,
the petitioners were seeking a compensation, this Court is not ordering
compensation as sought for by the petitioners. However, the respondents cannot
be allowed to go scot-free in these three matters. Therefore, the concerned
Police Inspectors, who were responsible for opening of the History Sheets in
respect of the petitioners herein are hereby directed to pay a sum of Rs.5,000/-
as costs to the respective petitioners for having acted arbitrarily and without
any jurisdiction.
23. If they do not pay the costs within a period of four weeks from the
date of the receipt of a copy of this order, the respective Superintendents of
Police, shall pay the amount from the funds of the department and later recover
the same from the salaries of those respondents, who were responsible for
opening of History Sheets in respect of each of the petitioners.
24. All these Writ Petitions are allowed to the extent indicated above
and connected miscellaneous petitions are closed.
ssm
copy to:-
1.The Superintendent of Police,
Sivagangai District.
2.The Deputy Superintendent of Police,
Sivagangai District,Sivagangai.
3.The Inspector of Police,
Tiruppathur Town Police Station,
Tiruppathur.
4.The Station House Officer,
Ayyampettai Police Station,
Thanjavur District.
5.The Superintendent of Police,
Thanjavur,Thanjavur District.
6.The Superintendent of Police,
Thirunelveli District,
Thirunelveli.
7.The Sub-Inspector of Police,
Manur Police Station,
Manur,Thirunelveli District.