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Judgment
M.L. Singhal, J. (Oral)
This is a criminal writ petition filed by Baljit Singhpetitioner under Article 226 of the Constitution of India whereby he has sought writ in the nature of mandamus directing the respondents to remove/delete his name from the Police Surveillance Register No. 10 kept in Police Stations, Civil Lines, Rohtak and City Bahadurgarh. He has sought further direction to them to close his history sheet opened under the Punjab Police Rules, 1934 and remove his photograph kept in both the Police Stations and further stop summoning him at the said Police Stations daily and make him sit from sun rise to sun set. The facts set up by him in this petition are as follows :
The petitioner is a B.A. student and a political worker having affiliation with the left parties. He is generally a much respected man in the Ilaqa. People come to him for his help and he accompanies them to the Police Stations and other offices. He organises agitations and raises banner against the corruption in different departments of the State including the police of Police Stations, Civil Lines Rohtak and City Bahadurgarh. On account of his organising agitations and raising banner against the corruption being indulged into by the police of the said Police Stations, the police of these Police Stations have turned hostile to him and they are out to implicate him in false case. FIR No. 266 dated 2.7.1994 was registered at Police Station Civil Lines, Rohtak under Section 393 read with Section 397 IPC. He was acquitted by Sh. R.C. Bansal, Additional Sessions Judge, Rohtak vide order dated 23.1.1995 holding that the prosecution had miserably failed to bring home to the accusedpersons the charge levelled against them. Case FIR No. 269 dated 5.7.1994 was registered against him at Police Station Civil Lines, Rohtak under Section 25 of the Arms Act in which he was tried and was acquitted by Sh. R.C. Bansal, Additional Sessions Judge, Rohtak vide order dated 6.12.1995 holding that the prosecution had failed to prove its case against the accused beyond all reasonable doubt. Case FIR No. 109 dated 21.3.1994 was registered against him under Sections 457/380 IPC in which he and his coaccused were discharged by Sh. A.R. Raghav, Addl. Chief Judicial Magistrate, Rohtak with the observation that there was not even iota of evidence to connect them with the commission of offence. Case FIR No. 231 dated 1.7.1994 under Sections 457/380 IPC was registered at Police Station City Bahadurgarh. He was tried along with his coaccused and was acquitted by Shri J.R. Chauhan, Sub Divisional Judicial Magistrate, Bahadurgarh. He observed that there was no incriminatory evidence so that the same could be put to the accused under Section 313 Cr.P.C. Their examination under Section 313 Cr.P.C. was dispensed with by the Magistrate and they were acquitted of the charge. Case FIR No. 179 dated 16.5.1994 under Sections 394/397/411/216A IPC was registered at Police Station Civil Lines, Rohtak in which he and his coaccused were acquitted by Shri R.C. Bansal, Addl. Sessions Judge, Rohtak with the observation that the prosecution had failed to prove its case against them beyond all reasonable doubt vide order dated 12.12.1995. Similarly case FIR No. 183 dated 2.7.1994 under Sections 395/393 IPC was registered at Police Station Sadar, Rohtak in which he and his coaccused were acquitted by Sh. S.K. Kapoor, Additional Sessions Judge, Rohtak. He observed while acquitting them that the prosecution had failed to lead any incriminating evidence against them which could be put to them under Section 313 Cr.P.C. He acquitted them without recording their statements under Section 313 Cr.P.C. as there was not even grain of evidence against them. It is averred that his photograph was taken in both the Police Stations and is hanging on the wall just in front of the entrance door so as to be visible to everybody. His history sheet has been opened in Form No. 23.09 of the Punjab Police Rules, 1934 and his name has been entered under Rule 34.4. His name has been entered in Class B, C and D of the Register of Bad Characters under Rule 23.3 of the Punjab Police Rules. His name is also entered in the Basta A and B of the Bad Characters Register No. X PartII and history sheet opened in respect of the petitioner pursuant to entry in the Register. He is called in the said Police Stations by the respective Station House Officers and he is made to sit from sun rise to sun set. The averments made in the writ petition have been supported by a duly sworn affidavit of the petitioner.
SI/SHO Police Station City Bahadurgarh has put in short affidavit on behalf of the State of Haryana controverting the averments of the petitioner in so far as they relate to Police Station City, Bahadurgarh. It was submitted by him in his reply that his name is not kept in the Surveillance Register No. X of Police Station City Bahadurgarh nor was his photograph ever taken for being displayed on the wall of Police Station, City Bahadurgarh. Only one case FIR No. 231 dated 1.7.1994 under Sections 457/380 IPC was registered against the petitioner at Police Station City Bahadurgarh, in which he was acquitted. It was also denied that he was called to the Police Station and made to sit from sun rise to sun set.
Shri Vimal Kumar, Advocate for the State of Haryana says that respondent No. 4 has not put in reply, although a T.P.M. was sent to him.
Police Station Civil Lines, Rohtak has been given adequate opportunity for controverting the averments made in the writ petition. In the absence of the averments of the writ petition having been controverted by SHO Police Station Civil Lines, Rohtak, it has to be taken that those averments are correct in so far as they relate to the Police Station Civil Lines, Rohtak.
I have heard learned counsel for the petitioner, learned Advocate for the State of Haryana and have gone through the record.
As per the petitioner he was acquitted in every case relating to Police Stations Civil Lines Rohtak and City Bahadurgarh. It is well settled that acquittal blots out the existence of guilt altogether. A person after acquittal is placed in the same position in which he was when there was no case at all registered against him.
Section 110 Cr.P.C. becomes at once relevent, Section 110 Cr.P.C. reads as follows :
"When an Executive Magistrate receives information that there is within his local jurisdiction a person who :
(a) is by habit a robber, house breaker, thief, 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 or disposal of stolen property, or
(d) habitually commits, or attempts to commit, or abets 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 the 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 (34 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 or hoarding 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 hazard to the community, such Magistrate may, in the manner hereinafter 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."
How could it be said that petitioner was by habit a robber, house breaker, thief, forger, receiver of stolen property knowing the same to have been stolen or was attempting to commit or abetting the commission of offence involving breach of peace ?
Learned counsel for the petitioner submitted that the petitioner is neither habitual offender nor such a bad character that his history sheet could be opened under Rule 23.9 of the Punjab Police Rules. It was submitted that petitioner is neither addicted to crime nor is he a habitual offender. In support of this submission he has sought to draw support from the judgment reported as Raghubir Singh v. Commissioner of Police and others, 1988(2) RCR 217, where it was held that where a suspect earned discharge in two cases, acquittal in three cases and two other cases ended in compromise, no inference could be drawn that suspect was a habitual offender and that he was addicted to crime. No history sheet could be opened with regard to him under Rules 23.9(2) and 23.4(3)(b). A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. Reasonable belief of the Police Officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under Rules 23.4(3)(b) and 23.9(2). However, mere belief is not sufficient. The belief must be reasonable and based on reasonable grounds. The condition precedent to the opening of the history sheet under Rule 23.5(2) is that the suspect must be a person "reasonably believed to be habitually addicted to crime or to be an aider or abetter of such person." Similarly, the condition precedent to the entry of the names of the suspects in PartII of the Surveillance Register No. X is that he is a ''person who is reasonably believed to be habitual offender or receiver of stolen property whether he has been convicted or not.''
In Ram Lubhaya v. State of Punjab and another, 1992(1) RCR 672, learned Single Judge of this Court held that where the petitioner was involved in some criminal cases and in one case he was acquitted and other case against him was cancelled and another case under Section 188 IPC was pending against him, it could not be said that he was a habitual offender.
Rules 23.4(3)(b) and 23.9(2) of the Punjab Police Rules run as under :
Rules 23.4(3)(b):
"persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not."
Rules 23.9(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 abetter of such persons."
It is, thus, clear that there was absolutely no justification for the opening of the history sheet of the petitioner or the entry of his name in the Surveillance Register No. X kept at Police Stations Civil Lines Rohtak and City Bahadurgarh and keeping his photograph hung on the walls of these Police Stations when he was acquitted in every case. Assuming he was a habitual offender why did SHOs of concerned Police Stations not request the Executive Magistrate having jurisdiction over the area concerned to take action against him under Section 110 Cr.P.C. ?
In the result, this criminal writ petition is accepted and a mandamus is issued to the respondents directing them to remove/delete the name of the petitioner from the Police Surveillance Register No. X kept in Police Stations Civil Lines, Rohtak and City Bahadurgarh, close his history sheet opened under the Punjab Police Rules, 1934 and remove his photographs kept in both the Police Stations as also to stop summoning him at the said Police Stations daily and make him sit from sun rise to sun set.