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Judgment
The petitioner, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent
and his subordinates not to harass him and his mother, demanding photograph and other details for exhibiting the same in the rowdy list maintained in
the Police Station. The further relief sought for is a writ of mandamus commanding the 2nd respondent Superintendent of Police (Rural),
Kottarakkara, to see that the 1st respondent Circle Inspector of Police, Anchal Police Station or any other police officers under him are harassing and
intimidating the petitioner and his mother; and a writ of mandamus commanding the 2nd respondent to inquire into Ext.P2 and take a decision on the
same without any further delay. The petitioner was an accused in a criminal case registered by Anchal Police, which ended in acquittal. According to
the petitioner, for the last 15 years no crime has been registered against the petitioner in Anchal Police Station.
On 07.12.2020, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions.
A statement has been filed on behalf of the 1st respondent. Paragraph 4 of that statement reads thus:
“4. It is submitted that Anchal Police is checked 63 Rowdies, Anti-social, known Depradator (KDs) and Docier Criminals (DCs) in station limit in
the season of festivals and election times. On behalf of it he is also checked by the police as per the existing rules. It is most humbly submitted that no
one from Anchal Police Station has harassed or demanded his photograph. Since he is included in the rowdy list it is essential to check him at least in
festival and election seasons. However it is also submitted that the petitioner is well aware about inclusion of his name in the Rowdy History Sheet of
Anchal Police Station. If he is not involved in any crimes or offences he may not face any procedure from Anchal Police Station.â€
Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents.
Clause 259 of the Kerala Police Manual, 1970 deals with Station Crime History Part VI (Rowdy History Sheet). As per sub-clause (1) of Clause
259, Rowdy History Sheet is a record maintained individually in KPF 174(D) to keep a progressive record and watch the activities of persons found to
be indulged in rowdyism. These sheets will be opened on the orders of the Sub Divisional Police Officer or any higher authority on the basis of the
reports from the local police officer or from other sources. Sub-clause (2) of Clause 259, which deals with the main forms of rowdyism, reads thus;
“(2) The main forms of rowdyism are: -
(1) Indecent behaviour towards women and girls at educational centres, bus stands, parks, Railway Stations, running trains etc. by passing obscene
remarks etc. This is popularly known as ""eve-teasing"".
(2) Habitually committing affray and rioting.
(3) Habitually committing offences involving stabbing (Section 324 IPC).
(4) Threatening and beating up prosecution witnesses in court premises and forcing them to turn hostile, by hirelings employed by political parties,
moneyed people etc.
(5) Intimidation of peace loving people by acts of violence or by show of force or by abusive language.
(6) Rowdyism in cinema halls, theatres, sports stadiums, milk booths, bus stands, toddy shops, running trains etc.
(7) Habitual gambling, smuggling of foodgrains and illicit distillation.
(8) Forcible collection of subscriptions.
(9) Drunken and disorderly behaviour.
(10) Decoying persons to houses of ill-repute by pimps.
(11) Snatching of gold chains, etc.
(12) Any other anti-social activity associated with violence.â€
As per sub-clause (3) of Clause 259 of the Kerala Police Manual, the History Sheets will be maintained, separately for each individual, as shown in
the said sub-clause. As per sub-clause (4) of Clause 259, Rowdy History Sheets in a Station shall be numbered serially in the manner specified in the
said sub-clause. As per sub- clause (5) of Clause 259, the Sub Inspector of Police in charge of the Station should maintain the Rowdy History Sheets
personally or under his direct supervision. Whenever any entry is made in the G.D. Non-cognizable Case Register or Petty Case Register about an
individual for whom a History Sheet is maintained, relevant notes from the above registers should be made in the History Sheets also.
As per sub-clause (6) of Clause 259 of the Kerala Police Manual, the Circle Inspector of Police should check the Rowdy History Sheets of a
Station during the visits and inspections and make a record of it with instructions, if any, in Section IV of the Sheet. As per sub-clause (7) of Clause
259, activities of non-resident rowdies should be promptly communicated to the concerned Police Station in B.C. Rolls after making entries in Item 12,
Section II of Station History Sheet. As per sub-clause (8) of Clause 259, a Rowdy History Sheet may be closed on the orders of the Superintendent of
Police, based on the recommendations of the Circle Inspector of Police routed through the Deputy Superintendent of Police/Assistant Superintendent
of Police. As per sub-clause (9) of Clause 259, list of Rowdies of a Circle will be maintained in the Office of the Circle Inspector of Police. The
Circle Inspector of Police will check the list with the Rowdy History Sheets in the respective Police Station every half year.
As per sub-clause (10) of Clause 259 of the Kerala Police Manual, rowdies may be dealt with under the provisions of Law enumerated in sub-
clauses (1) to (9), namely, (1) Section 106 Cr.P.C. (security for keeping the peace, on conviction); (2) Section 107 Cr.P.C. (security for keeping the
peace etc.); (3) Section 109 Cr.P.C. (security from vagrants etc.); (4) Section 110(g) Cr.P.C. (security for good behaviour from a person so
desperate and dangerous, etc.); (5) Sections 48, 51 and 51A of the Kerala Police Act (for being found armed between sunset and sunrise intending to
commit an offence, drunken and disorderly conduct, riotous or indecent behaviour in street etc. respectively); (6) Prosecution in appropriate cases for
obscene acts and songs â€" Section 294 IPC; and (7) Prosecution for any other specific offence that may be committed.
In Rajesh. R. v. State Police Chief and others [2019 (1) KLD 306 : 2018 KHC 888] a Division Bench of this Court was dealing with a writ petition
that has been preferred by the petitioner therein seeking a direction against respondents 1 to 3 not to harass him. The petitioner has further sought for
a direction to take immediate action in Ext.P1 representation and to remove his name from the 'goonda' list. The Division Bench noticed that there is
no case for the respondents that the petitioner has been indulging in or about to indulge in or abet any anti-social activity within their area warranting
an action under the Kerala Anti Social Activities (Prevention) Act, 2007. As per sub-clause (8) of Clause 259 of the Kerala Police Manual, Rowdy
History Sheet may be closed on the orders of the Superintendent of Police, based on the recommendations of the Circle Inspector of Police routed
through the Deputy Superintendent of Police/Assistant Superintendent of Police. When that is the position, certainly, the petitioner has been facing the
brunt of the insult of including his name in the rowdy list for the last ten years without any reason whatsoever. If the assertion made by the petitioner
in Ext.P1 representation is correct, the respondents are obliged to ensure the fundamental right to life guaranteed to the petitioner under the
Constitution, including his right to live with dignity. Hence, the Division Bench directed the 2nd respondent to consider Ext.P1 representation, hear the
petitioner and pass appropriate orders thereon, in terms of sub-clause (8) of Clause 259 of the Kerala Police Manual, within a period of two months
from the date of receipt of a copy of the judgment. The Division Bench had made it clear that, if at all the petitioner involves himself in any criminal
activities in future and if a considered opinion is formed by the respondents based on materials and solid evidence, appropriate action in accordance
with law can still be taken against him. Paragraphs 7 to 10 of the said decision read thus;
“7. Basically, it is the responsibility of the Station House Officers to find out whether there are 'known rowdies' indulging in or about to indulge in or
abet any anti-social activity within their area and furnish the necessary inputs to the respective Superintendent of Police, who is the sponsoring
authority. On the information received from such a sponsoring authority, it is for the Government or authorised officer (District Magistrate) to pass an
order of detention, in exercise of their powers under Section 3(1) of the Kerala Anti Social Activities (Prevention) Act, 2007. Preventive detention
under the English Common law, is discernible from The King (at the Prosecution of Arthur Zadig) v. Halliday [1917 AC 260]. It was held that
preventive detention is not punitive but a precautionary measure to prevent apprehended objectionable activities. Lord Macmillan in Liversidge v. Sir
John Anderson and another [1942 AC 206] held that, the object of preventive detention is not to punish a person for having done something but to
intercept him before he does it and prevent him from doing it. Both the above decisions were approved by the Supreme Court in A. K.Gopalan v.
State of Madras [AIR 1950 SC 27].
There is no case for the respondents that the petitioner has been indulging in or about to indulge in or abet any anti-social activity within their area
warranting an action under the KAA(P)A. The jurisdiction of such an action is suspicion or reasonable probability and not the criminal conviction
which can be warranted by legal evidence after the accused is found guilty in a trial in which the accused has the fullest opportunity to defend himself
from the charges. Though four crimes were registered against the petitioner by the Station House Officer, Kottiyam Police Station, the petitioner has
already been acquitted in the said cases after recording the evidence. In fact, the petitioner has not committed any offence or breach of peace for the
last ten years. The petitioner cannot therefore be termed as a habitual offender.
Paragraph 259(8) of the Kerala Police Manual provides that Rowdy History Sheet may be closed on the orders of the Superintendent of Police,
based on the recommendations of the Circle Inspector of Police routed through the Deputy Superintendent of Police/Assistant Superintendent of
Police. When that is the position, certainly, the petitioner in the present case has been facing the brunt of the insult of including his name in the rowdy
list for the last ten years without any reason whatsoever.
The fundamental right guaranteed under Article 21 of the Constitution of India assures every one ""right to life and personal liberty"", which includes
the right to lead meaningful, complete and dignified life. As far as personal liberty is concerned, it means freedom from physical restraint of a person
by personal incarceration or otherwise, and it includes all the varieties of rights other than those provided under Article 19 of the Constitution. If the
assertion made by the petitioner in Ext.P1 representation is correct, the respondents are obliged to ensure the fundamental right to life guaranteed to
the petitioner under the Constitution including his right to live with dignity. Hence, there will be a direction to the second respondent to consider Ext.P1
representation, hear the petitioner and pass appropriate orders thereon in terms of paragraph 259(8) of the Kerala Police Manual, at any rate within a
period of two months from the date of receipt of a copy of this judgment. Needless to say, if at all the petitioner involves himself in any criminal
activities in future and if a considered opinion is formed by the respondents based on materials and solid evidence, appropriate action in accordance
with law can still be taken against the petitioner.â€
Clause 265 of the Kerala Police Manual deals with general instructions regarding surveillance. As per sub-clause (1) of Clause 265, persons for
whom History Sheets have been opened shall be informally watched by the Police. When a History Sheet shows that the individual is leading a
criminal existence, the Superintendent of Police or the Sub Divisional Officer, if so empowered by the Superintendent of Police, shall decide whether
the individual should be 'closely watched' or not. As per sub-clause (2) of Clause 265, whenever a History Sheet is opened for a bad character for the
first time, he shall be under 'close watch' for a specified period. As per sub-clause (3) of Clause 265, the bad characters returning from jail should be
under 'close watch'. If they settle down and are of good character 'close watch' can be removed. As per sub-clause (4) of Clause 265, there should
be free transfer of bad characters from 'close watch' to 'non-close watch' and vice versa. Orders for such transfers should be obtained from the Sub
Divisional Officer or the Superintendent of Police as the case may be. A bad character who continues to be under 'close watch' for a considerable
period, is a fit person for action under Section 110 of the Criminal Procedure Code. As per sub-clause (5) of Clause 265, the surveillance of a suspect
or rowdy other than an ordinary criminal shall be conducted in a confidential manner. As per sub-clause (6) of Clause 265, under the History Sheet
heading 'current doings', entries which are informative and useful based on the facts ascertained both by the Sub Inspector and his men since the date
of the last entry shall be made month-war for 'close watch bad characters' and quarterly for 'non-close watch bad characters'. Anything of interest
coming to notice in respect of a bad character during a month should be entered then and there, without waiting for the end of the month or the
quarter. As per sub-clause (7) of Clause 265, when any information favourable to an individual for whom a History Sheet is being kept is received, it
shall be entered therein. As per sub-clause (8) of Clause 265, the entries in the various columns in the History Sheet should be checked by the Sub
Inspector personally and brought upto-date once a year. The fact of such verification should be certified to by him in the column under 'current
doings'.
In the instant case, the name of the petitioner is included in the Rowdy History Sheet maintained in Anchal Police Station, under Clause 259 of the
Kerala Police Manual. It is in such circumstances that, the Police Officers attached to Anchal Police Station undertook surveillance in terms of the
general instructions contained in Clause 265. Such surveillance by the Police Officers cannot be said to be police harassment, in order to seek
interference of this Court under Article 226 of the Constitution of India.
In case the petitioner is entitled for closure of Rowdy History Sheet, under sub-clause (8) of Clause 259 of the Kerala Police Manual, he shall file
an application before the 2nd respondent Superintendent of Police, for that purpose. If any such application is received by the 2nd respondent, within
three weeks from the date of receipt of a certified copy of this judgment, the said respondent shall call for a report from the 1st respondent Circle
Inspector of Police, through the concerned Deputy Superintendent of Police, and thereafter take an appropriate decision on that application, taking
note of the provisions under the Kerala Police Manual referred to hereinbefore and also the law laid down by the Division Bench of this Court in
Rajesh R. [2019 (1) KLD 306], as expeditiously as possible, at any rate, within a further period of two months.
The writ petition is disposed of as above.