ORDER
1. The petitioner herein seeks a writ in the nature of mandamus declaring the rowdy sheet opened against him as illegal and unconstitutional and for consequential direction to delete the name from the rowdy sheet.
2. The relevant averment in brief is that the petitioner, who worked as a senior compositor in Government Press retired as Government servant in 1984 and is receiving pension of Rs. 800/- p.m. Throughout his service there was no blemish. He is the President of All India Physical Welfare Organisation registered under Societies Registration Act with the object of maintaining unity among members, to promote sports and games, to inculcate the habit of physical exercises and for social service. While so he received a notice on 20-3-1985 to the effect that he was involved in Cr. No. 68/84 under sections 148 and 155A and C of the I.P.C. Subsequently C.C. No. 182 of 1985 was filed in the Court of IV Metropolitan Magistrate, Hyderabad against the petitioner and two others alleging that there were communal clashes between two communities and tensions were prevailing. The said case is said to have been ended in acquittal on 17-7-1986. Subsequently Cr. No. 59/87 was registered against him for an offence under Section 325, I.P.C. wherein the petitioner is A1. He is said to have beaten the complainant and A2 had given a fist blow on the face of the complainant. No charge-sheet is said to have been filed as yet. Further in the remand case diary it was mentioned that the petitioner is also a rowdy sheet. It is then that he came to know that he was put under rowdy sheet. Though it was questioned as to on what ground he is put on the rowdy sheet and a representation to the Commissioner of Police was made was in vain. In order to put somebody’s name in the rowdy sheet one has to comply with the Police Standing Order 742. As this is contrary to the provisions made in Police Standing Order 742 and since representation was made to the police officials and it did not yield any results the jurisdiction of this Court is moved.
3. The averments in the counter-affidavit filed it is stated inter alia while the petitioner floated an association in the name of ‘Physical Welfare Association’ – himself a President – he is giving training to youth belonging only to certain areas of the old city. The training is in martial arts with lethal weapons. This is in order to help the Muslim youths in attacking any other community people and promoting ill-feelings and hatred towards Hindus. When the old city was in the grip of communal disturbances and tension was prevailing a case was registered in Cr. No. 68/84 under sections 144 and 145, I.P.C. That had resulted in quarrels. As the petitioner is habituated to commit offences involving breach of peace a rowdy sheet was opened in December, 1984. Ever since he was kept under watch. Though the case had ended in acquittal it has become necessary for the police to continue the surveillance on the petitioner. It is stated by the learned counsel for the petitioner that the second case registered against the petitioner has also ended in acquittal.
4. As per the averments in the counter the petitioner is a rowdy sheet, some confidential reports of the Special Branch of Police show that the petitioner threatened the Managing Editor of Siasat daily for not publishing a news about his association and also threatened to burn the paper and that the local police were also directed to keep surveillance over him. It is further averred that the petitioner comes under one of the categories of the Police Standing Order, 742. According to that surveillance can be effected against a person who habitually commits or attempts to commit an offence involving breach of peace. Conviction is not necessary for person who is registered as rowdy sheet. Therefore the action of the police is within the rules.
5. The contention of the learned counsel for the petitioner is that both the cases have ended in acquittal and the third situation referred to in the counter cannot be taken cognisance of, as no action in view of the material stated has been initiated nor any complaint has been made and, therefore, the same may not be taken as a base. Further argued that in order to bring within the ambit of Standing Order 742, the offence must be by the habitual offender and mere involvement on two occasions cannot be taken cognisance of so as to hold that he was a habitual offender and that those two offences also have ended in acquittal. For this proposition, reliance has been placed on a decision of the Supreme Court in Gopalanachari v. State of Kerala, :
Section 110, Cr.P.C. reads :
“When an Executive Magistrate receives information that there is within his local jurisdiction a person who
(a) is by habit a robber, house-breaker, theif, or forger, or
(b) is by habit a receiver of stolen property knowing the same to have been stolen, or
(c) habitually protects or harbours thieves or aids in the concealment of disposal of stolen property, or
(d) habitually commits, or attempts to commit, or abets the commission of, the commission of the offence of kidnapping, abduction extortion, cheating or mischief or any offence punishable under Chapter XII of the Indian Penal Code (45 of 1860) or under Section 489A, Section 489B, Section 489C or Section 489D of that Code or
(e) habitually commits, or attempts to commit, or abets the commission of offences involving a breach of peace, or
(f) habitually commits, or attempts to commit, or abets the commission of –
(i) any offence under one or more of the following Acts, namely :-
(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);
(b) the Foreign Exchange Regulation Act, 1973 (46 of 1973);
(c) the Employees’ Provident Funds and Family Pension Fund Act 1952 (19 of 1952)
(d) the Prevention of Food Adulteration Act, 1954 (47 of 1954);
(e) the Essential Commodities Act 1955 (10 of 1955);
(f) the Untouchability (Offences) Act 1955 (22 of 1955);
(g) the Customs Act 1962 (52 of 1962) or
(ii) any offence punishable under any other law providing for the prevention of hording or profiteering or of adulteration of food or drugs or of corruption, or
(g) is so desperate and dangerous as to render his being at large without security a hazardous to the community.
such Magistrate may, in the manner herein after provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit.”
Police Standing Order 742 reads :
“Rowdies :- (1) The following persons may be classified as rowdies and Rowdy Sheets (Form 88) may be opened for them under the order of the Superintendent of Police or Sub-divisional Officer :
(a) persons who habitually commit, attempt to commit or abet the commission of, offences involving a breach of the peace;
(b) persons bound over under sections 106, 107, 108(c) and 110(1) of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974);
(c) persons who have been convicted more than once in two consecutive years under Section 75 of the Madras City Police Act or under Section 3, Clause (12), of the Town Nuisances Act;
(d) persons who habitually tease women and girls by passing indecent remarks or otherwise; and
(e) in the case of rowdies in an area under one Police Station but are found to be frequently visiting the area under one or more other Police Stations their rowdy sheets can be maintained at all such Police Stations.
(2) Instructions in O. 735 regarding discontinuance of History Sheets shall also apply to Rowdy Sheets.”
In Gopalanachari’s case (1981 Cri LJ 337) (supra) the Supreme Court held (Paras 5 and 6) :
“A closer look at Section 110 of the Code in the setting of peril to personal liberty thus becomes a necessity in this case. Counsel for the State, Shri Francis, amicus curiae Shri Abdul Kader and Senior Advocate Shri Tarkunde, agreed that unless the preventive power under S. 110 were prevented from pervasive misuse by a zealous judicial vigilance and interpretative strictness, many a poor man may be cast into prison by sticking the label of ‘habitual’ or by using such frightening expressions as ‘desperate’, ‘dangerous’ and ‘hazardous to the community’. Law is what the law does, even as freedom is what freedom does. Going by that test, Section 110 cannot be permitted in our free Republic to pick up the homeless and the have-nots as it did when under British subjection because today to be poor is not a crime in this country. George Bernard Show, though ignorant of Section 110, did sardonically comment that “the greatest of evils and the worst of crimes is poverty.”
Article 21 insists that no man shall be deprived of his life or personal liberty except according to the Procedure established by law. In Maneka Gandhi case, , Per Bhagwati, J. this Court in clearest terms strengthened the rule of law vis-a-vis personal liberty by insisting on the procedure contemplated by Art. 21 having to be fair and reasonable, not vagarious, vague and arbitrary;
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Art. 14 like a brooding omnipresence and the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Art. 21 would not be satisfied.
The principles, and procedure are to be applied which, in any particular situation or set of circumstances, are right and just fair. Natural justice, it has been said, is only “fair play in action”. Nor do we wait for directions from Parliament. The common law has abundant riches; there may we find what Byles, J., called “the justice of the common law. “Wiseman v. Borneman, (1971) AC 297 : (1969) 3 All ER 275.
Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is largely the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights, observance of fundamental rights is not regarded as good politics and their transgression as bad politics. I sometimes pensively reflect that people’s militant awareness of rights and duties is a surer constitutional assurance of governmental respect and response than the sound and fury of the ‘question hour’ and the slow and unsure delivery of Court writ ….
To sum up, ‘procedure’ in Art. 21 means fair, not formal procedure. ‘Law’ is reasonable law, not any enacted piece. As Art. 22 specifically spells out the procedural safeguards for preventive and punitive detention a law providing for such detentions should conform to Art. 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Art. 21 are available. (per Krishna Iyer, J.) :
Further held (Para 6) :
“… We have not the slightest doubt that expressions like ‘by habit’, ‘habitual’, ‘desperate’, ‘dangerous’, ‘hazardous’ cannot be flung in the face of a man with laxity of semantics. The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit, which is second nature, the counter-petitioner is sure to commit the offences mentioned if he is not kept captive. Preventive sections privative of freedom, if incautiously proved by indoment judicial processes, may do deeper injury. They will have the effect of detention of one who has not been held guilty of a crime and carry with it the judicial imprimatur, to boot. To call a man dangerous is itself dangerous; to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available. A sociologist may pardonably take the view that it is the poor man, the man without political clout the person without economic stamina, who in practice gets caught in the coils of Section 110 of the Code, although, we as Court, cannot subscribe to any such proposition on mere assertion without copious substantiation. Even so, the Court cannot be unmindful of social realities and be careful to require strict proof when personal liberty may possibly be the casuality. After all the judicial process must not fail functionally as the protector of personal liberty.”
Admittedly the two cases registered against the petitioner have ended in acquittal. The third reference that a report was received from Special Branch Police that the petitioner threatened the Managing Editor of Siasat daily ‘for not publishing in that paper about his organisation’ and also ‘threatened to burn the newspaper’, cannot be taken as ‘copiously substantiated.’ Something more is required so as to hold that threat was real, which requires preventive measure, as either the complainant himself would have registered a complaint or the police ought to have taken some initiative on this threat. In the absence of this it is not in accord with law to treat the said situation as cogent evidence so as to bring within the ambit of ‘the person being habitual offender.’ taking that case as a third incident. 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 S.O. 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 bean 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. In this case, it is not possible to hold that enough material within the meaning of the judicial pronouncement laid down is available. Hence, mandamus is issued directing the respondents to delete the name of the petitioner from the rowdy sheet. This will not however preclude the respondent if fresh circumstances in future arise, warranting opening of rowdy sheet.
6. The writ petition is accordingly allowed. No costs. Advocate’s fee Rs. 150/-.
7. Petition allowed.