ORDER
1. The questions that arise in this writ petition are when a rowdy-sheet for a citizen under the police manual can be opened and how long it can be continued, and whether such a continuance offends the fundamental rights of the citizen under Article 21 of the Constitution of India.
2. The facts of the case as stated in the writ affidavit in brief are : The petitioner is a resident of H. No. 18-10-40/16, Barkas of Hyderabad city. A rowdy-sheet was opened for him on 12-8-1967 and the same is continued till today in the Chandrayana Gutta police-station. The petitioner claims that he is a law-abiding citizen doing social-work and that he was also given ticket by the Telugu Desam party as a candidate to contest for the elections of the Municipal Corporation of Hyderabad. He has established a good reputation and the people of the locality repose trust and confidence in him. While matters stood thus the police-authorities sent a notice D/- 15-9-86 to him under the Hyderabad City Police Act of 1345 fasli directing him to report to the police-station, Chandrayana Gutta between 8 and 9 in the morning and between 8 and 9 again in the evening for about one month on the ground that they had information that the petitioner was going to commit some offence. He gave explanation and later the matter was closed.
3. It is further stated that he is not involved in any offence or associated himself in any unlawful activities. The police-authorities on some untenable ground included his name in the rowdy-sheet register and opened a rowdy-sheet for him under Standing Order 742 of the A.P. Police Standing Orders and instructed him on frequent occasions to appear in the police-station without stating the cause or reason. They are also making him to sit in the police-station for hours together restricting the right of his movement under the cover of rowdy-sheet. They call on him at odd hours and ask him to report to the police-station immediately and that in his absence his family members were also harassed. It is further stated that opening of a rowdy sheet for a particular individual carries with it the stigma against his character which belittles the image of the individual in the society. The opening of a rowdy sheet gives opportunity to the police authorities to act arbitrarily and abridge the fundamental right of the citizen to move freely. It is not in every case that a person can be classified as a rowdy. It is also stated that none of the conditions contemplated by Standing Order 742 of the A.P. Police Standing Orders are fulfilled in the case of this petitioner to classify him as a rowdy and to open a rowdy-sheet for him. It is further stated that a Police Clearance Certificate D/- 11-2-1985 was also given to him stating that there is no adverse information against him as a holder of passport No. W 179900. In the circumstances he prayed for a writ of mandamus declaring the rowdy sheet opened to be illegal and unconstitutional and for a consequent direction to remove the petitioner’s name from the rowdy-sheet register.
4. The respondents have filed a counter stating that the petitioner was doing passport business in Barkas and that he (was) involved (in) a number of cases since 1969. He was in the habit of assaulting innocent people at public places in order to create terror and panic in the minds of public. He also involves in Crime No. 5/377 of Chatrinaka police-station under section 25 of the Immigration Act. As such a rowdy sheet was opened for him on 12-3-67 at Chandrayanagutta Police-Station in order to keep a close watch on his activities which are likely to cause breach of public peace and tranquillity and take suitable preventive action. It is stated that the petitioner is one of the persons who is known to be frequently indulging in activities likely to disturb public order and cause damage, alarm and harm to the public. It is stated that the grant of ticket by the Telugu Desam Party has nothing to do with the present question and that in any event his nomination was rejected during scrutiny. As regards the notice D/- 15-9-86 it is stated that it was withdrawn as the Ganesh festival passed off peacefully. It is stated in paragraphs-5 that opening of a rowdy sheet by itself does not curtail the fundamental rights of a citizen except that the police will have suitable watch over the anti-social activities of such a person. As per Order 742 Clause (a) rowdy sheet can be opened for persons who habitually commit, attempt to commit or abet the commission of offences involving breach of peace. The counter furnished the list of cases in which the petitioner was convicted as under :
1. Cri. No. 36/67 under Compromised
See. 324 IPC of Chatrinaka P.S.
2. Petty Case No. 335/67 of Mogalpura P.S.
under C.P. Act fined Rs. 2/-
3. Petty Case No. 590/67
under C.P. Act fined Rs. 5/-
4. Cri No. 7/70 under Bond for good
Section 151/110 Cr.P.C. behaviour executed
5. Cr. No. 36/71 under Convicted and released
Section 379 IPC under P.O. Act
6. Cr. No. 5/77 under section 25 Acquitted.
of Immigration Act
5. Thus, the petitioner was convicted in a number of cases and accordingly the allegation that he was not convicted is stated to be false. Referring to the police-certificate, it is stated that granting the passport on that basis has nothing to do with the activities of the petitioner. The writ petition was accordingly sought to be dismissed as it is without any merit.
6. As regards the infraction of the fundamental right under Art. 21 of the Constitution, no doubt mere opening of the rowdy-sheet does not by itself curtail the said right, but frequent interference with the free movement of the citizen and directing his presence in the police-station would surely restrict the right of movement and personal liberty guaranteed under Art. 21 and Art. 19(1)(d). Dealing with discreet surveillance over reputed bad characters, etc., under section 23 of the Police Act and the encroachment during the course of such surveillance on the privacy of a citizen the Supreme Court has in Malak Singh v. State of Punjab held that though surveillance may be intrusive, it shall not seriously encroach on the privacy of a citizen so as to infringe his fundamental right to personal liberty and freedom of movement guaranteed by Articles 21 and 19(a)(d) of the Constitution. Therefore, to the extent that, the serious encroachment on the privacy of a citizen would have the effect of infringing the fundamental rights, though in pursuance of the rowdy-sheet opened for him, is a settled principle. But at the same time simple intrusion into the privacy is permissible so as to prevent the crime. It is further observed by the Supreme Court :
“History sheets and surveillance registers have to be and are confidential documents. Neither the person whose name is entered in the register nor any other member of the public can have access to the surveillance register.”
Primarily history sheets and surveillance registers are documents of confidential nature. The very individual for whom the history (rowdy) sheet is opened should not have the knowledge of its opening and such should be the nature of confidential maintenance. In the instant case, not only the petitioner knows that a rowdy sheet is opened for him and there has been surveillance against him, but in fact seeks in this writ petition a declaration that the rowdy sheet opened for him is illegal and unconstitutional. Therefore, it is obvious, the very spirit behind keeping the documents confidential is defeated.
7. In this case, the rowdy-sheet was opened for the petitioner as long back as in August, 1967. The latest offence for which he was convicted was in 1971, i.e. as long back as 18 years back. The last offence for which he was prosecuted, as per the counter, is of the year 1977 and in that he was acquitted. Since 1977 onwards there has been no offence registered against him, but the rowdy sheet opened for him is being continued though as many as ten years have passed-by and there is no material adversely against the petitioner.
8. At this stage it is apposite to notice that this Court in SK. Mahaboob Ali v. Commr. of Police (1990) 2 LS (AP) 178 : (1991 Cri LJ 1) had the occasion to deal with the opening of rowdy sheet against a person without material and in that context it was held (at p. 5 of Cri LJ) :
“True whether commission of an offence or attempt to commit an offence could be taken as the relevant factor for the purpose of entering the name of a person in the rowdy sheet within the meaning of Standing Order 742, but mere assertion does not lead to the situation that a person attempted to commit an offence. In the circumstances adequate material has not been made out so as to enter the name of the petitioner in the ‘rowdy sheet’ and continue the same unless substantial cogent material is available.”
Therefore, for the opening as well as continuance of a rowdy sheet there should be sufficient material available against the person for whom it was opened.
9. The next important aspect in this regard is surveillance consequent upon the opening or continuing the rowdy sheet. As has already been stated the history/rowdy sheet and the surveillance register are basically documents of confidential nature. Surveillance follows the opening or continuing a rowdy sheet so as to observe the conduct and movement of the person concerned. The exercise of this power of surveillance by the public has its own balances and limitations, lest it would offend the freedom of liberty guaranteed by Arts. 21 of the Constitution to every citizen of this Country. In this case the petitioner is a rickshaw-puller and since ten years earlier to the filling of this writ petition there is neither a crime registered nor any adverse remark made against him. Thus firstly the very continuance of the rowdy-sheet for the petitioner is without sufficient material. Nextly it is averred in the affidavit filed that the police were under the guise of surveillance very often disturbing his day to day personal life, calling him to the police station and detaining him there for longer periods and that the neighbours in and around his locality are gaining a wrong impression and looking him down. It is also stated that in the absence of the petitioner the police were even harassing the family members and thus interfering with the personal liberty of the petitioner. These averments do establish, as rightly pointed out by the learned counsel, that the exercise of the power by the police under she cover of surveillance is very much invading into the personal liberty of the petitioner as regards his free movements in day to day life, apart from the fact that there is no sufficient material to continue the history/rowdy sheet for the petitioner. The power or authority vested in the police to have surveillance against the criminals or rowdies is no doubt in the interests of peace and freedom of the citizens in the society. However the power so exercised shall not invade into the personal liberty of the criminal or rowdy for whom the rowdy sheet is opened or continued since it would have the effect of violating the freedom guaranteed under Article 21 of the Constitution of India. No doubt a simple intrusion but not invasion into the personal liberty to have check against the criminals or rowdies by exercising the power of surveillance does not amount to violation of the freedom of liberty protected by Art. 21. The limitation, thus, is one of intrusion and not invasion and any imbalance in this regard is sure to violate Art. 21 of the Constitution.
10. In the result there shall be a declaration as prayed for that the continuance of the rowdy sheet for the petitioner is illegal and unwarranted there being no material available against the petitioner and accordingly the name of the petitioner shall be deleted from the register concerned. The writ petition is allowed. No costs.
11. Petition allowed.