Binod Yadav vs Senior Superintendent of Police and Others

S.K. Jain, J.—On the order dated 8.8.1998, passed by Sri Arvind Kumar Jain, D.I.G. Varanasi, the history sheet of the Petitioner was opened vide history sheet No. 12-A/98 at P.S. Luxxa, district Varanasi as the Petitioner is a permanent resident of the said police station.

Feeling aggrieved by the said order, the Petitioner has filed this petition praying for issuing a writ in the nature of certiorari quashing the history sheet against him and also for issuing a writ in the nature of mandamus directing the Respondent Nos. 1. 3 and 4 not to treat the Petitioner as history-sheerer of any class and to cancel his name from the list of history sheet in the aforesaid police station. It is admitted that history sheet No. 12A/98 has been opened at Police Station Luxxa against the Petitioner vide D.I.G., Varanasi''s order dated 8.8.1998.

The facts, briefly stated, are that the Petitioner along with two others was involved in an offence u/s 307, I.P.C. in Case Crime No. 268 of 1998, police station Bhelupur, district Varanasi. The Petitioner has been granted bail in the aforesaid case and the bail order in the said case Annexure-0 is on the record. The Petitioner has alleged that the police station Bhelupur and Luxxa in collusion with the informant of the Case Crime No. 268 of 1998 are watching the activities of the Petitioner keeping him under surveillance, which amounts to encroachment upon the privacy of the Petitioner and also the Police personnel''s of the said Police Stations used to knock on the door of the Petitioner''s house during midnight. It is further alleged that the Petitioner has no criminal history and the order dated 8.8.1998 passed by the D.I.G., Varanasi, for opening the history sheet of the Petitioner is without jurisdiction and is liable to be quashed. The Petitioner has alleged that keeping him under surveillance and knocking on the door of Petitioner''s house during the odd hours of night and forcing him to go to the police station and asking him to seek Police permission before he moves anywhere else, tantamount to encroachment upon the privacy of the Petitioner and violates/infringes his Fundamental right of the personal liberty guaranteed under Article 21 of the Constitution and freedom of movement guaranteed by Article 19(1)(d). According to the Petitioner, since he is involved in a solitary criminal case, he cannot be termed as habitual and professional criminal and. therefore, has prayed that the Respondents be directed to close the history sheet and not to keep surveillance on him.

We have heard the learned Counsel for the parties and perused the record.

Sri B.K. Singh, who is posted as Station Officer at Police Station, Luxxa has filed his affidavit. In his affidavit, he has admitted that only one criminal case is pending against the Petitioner and he is involved along with two others in Case Crime No. 268 of 1998 u/s 307, I.P.C.P.S. Bhelupur, district Varanasi, except the said criminal case, the Petitioner does not appear to be involved in any other criminal activity whatsoever. The Station Officer Sri B.K. Singh has alleged in the counter affidavit that history sheet opened against the Petitioner is of class ''A'' and not of class ''B'' as claimed by him.

Now the important question for consideration is that whether involvement of the Petitioner in a single criminal case justifies the opening of the history sheet against him. We have been referred to Moti Sunar alias Moti Lal Vs. State of U.P. and Others, , wherein it was held that Para 228 of the U.P. Police Regulations casts duty on Police Officer to entertain reasonable belief that the person against whom history sheet is opened, is a confirmed and professional criminal or habitual offender. In Kharak Singh Vs. The State of U.P. and Others, , Hon''ble Supreme Court while defining the right of the personal liberty under Article 21 observed that it was a right of an individual to be free from restriction or encroachment of his person, whether those restrictions or encroachment are directly imposed or indirectly brought about by calculated measures. If so understood, all the acts of surveillance under Regulation 236 infringe the fundamental rights of the Petitioner under Article 21 of the Constitution.

Dealing with Article 19(1)(d) pertaining to the right of a citizen to move freely, it was held that:

"Mere movement unobstructed by physical restrictions cannot in itself be the object of a person''s travel. A person travels ordinarily in quest of some objective. He goes to a place to enjoy, to do business to meet friends, to have secret and intimate consultations with others and to do many other such things. If a man is shadowed, his movements are obviously restricted. He can move physically, but it can only be a movement of automation. How could a movement under the scrutiny gaze of the policemen be described as a free movement? The whole country is his Jail. The freedom of movement in Clause (d) therefore, must be a movement in a free country, i.e., in a country where he can do as he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The Petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engenders inhibitions in him and he cannot act freely as he would like to do. We, would, therefore, hold that the entire Regulation 236 offends also Article 19(1)(d) of the Constitution."

It was further held that the Police surveillance in case of the Petitioner seriously encroaches upon his privacy, his fundamental rights of personal liberty guaranteed under Article 21 and freedom of movement guaranteed under Article 19(1)(d) of the Constitution.

Ordinarily the names of the 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 behavior. 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.

In the instant case, we find that admittedly there is only one criminal case pending against the Petitioner as he is involved in a Case Crime No. 268 of 1998 P.S. Bhelupur, district Varanasi and this solitary case is not sufficient to entitle the police authorities to open a history sheet against the Petitioner, because he was involved in one criminal case and he cannot be termed as confirmed and professional criminal. If this proposition is not accepted, then even a first offender may find him history sheeted and it will be an alarming situation to conceive. In the instant case, we are definitely of the view that the Police Surveillance in the case of the Petitioner has seriously encroached upon the privacy of the Petitioner and his fundamental right of the personal liberty guaranteed under Article 21 of the Constitution of India and freedom of movement guaranteed by Article 19(1)(d).

Taking in consideration the entire facts and circumstances of the case, we are satisfied that there was no sufficient ground for the D.I.G., Varanasi, to entertain a reasonable belief that the surveillance was required in the case of the Petitioner and there existed no evidence to support the fact that the surveillance of the Petitioner is necessary. Hence the order passed by the D.I.G., Varanasi, dated 8.8.1998 opening the history sheet No. 12A of 1998 of the Petitioner at Police Station Luxxa District Varanasi, deserves to be quashed.

In the result, the writ petition is allowed. The order dated 8.8.1998 passed by the D.I.G. Varanasi opening the history sheet No. 12-A of 1998 of the Petitioner is, hereby, quashed. The opposite parties are directed to close the present history sheet of the Petitioner and not to keep him under surveillance in pursuance of the said history sheet.