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Judgment
Honourable Mr. Justice K. Chandru
This is yet another incident where the respondent police have misused their power and had included the name of a trade union leader as an
history-sheeter in the records kept by the police station. The petitioner, who was the President of the Indian National Trade Union Congress (for
short INTUC) and was a workman in the Covanto Samalpatti Power Company, has filed the present writ petition seeking for a direction to the
respondents to remove his name from the list of the history-sheet rowdy pending with the second respondent Inspector of Police, Pochampalli
police station, Krishnagiri District.
The writ petition was admitted on 20.3.2007. On notice from this court, the second respondent has filed a counter affidavit, dated Nil (July
2007) on behalf of both respondents. Since the court was not satisfied with the counter affidavit, it had directed the original files to be produced for
perusal by this court. Accordingly, the files were produced by the learned Additional Government Pleader. But the files did not contain any records
relating to inclusion of the name of the petitioner as an history-sheeter. On the other hand, it only contained the case diary relating to the Crime No.
3 of 2005, dated 3.1.2005.
It is seen from the records, that a case was registered against the petitioner and 17 other workers belonging to Covanto Samalpatti Power
Company for offences under Sections 147, 341, 323, 294-B and 506(ii) of IPC registered by the second respondent Station House Officer. It is
the case of the petitioner that their factory gate is about 5 Kms in the south east side of the police station. Their union had wanted to celebrate the
Independence Day in front of the company gate by hoisting the national flag. The trade union office bearers had prepared banner and flag post,
name board and paper garlands. On 09.08.2005, on instigation of the Company Accountant by name Lakshmana Perumal and one Sivasankar,
the Manager of the Company, several persons came to the gate and had damaged the flag post. When the petitioner came to know about these
facts, he went to lodge a complaint before the second respondent police requesting them to take an action against the persons who were
responsible for damaging the flag post. On receipt of the complaint, the second respondent had registered a criminal case in Crime No. 356 of
2005 under Sections 427 and 379 IPC.
The petitioner had further stated that he went to the police station seeking for police protection for hoisting the flag in front of the gate. His
request was rejected by the respondents. Therefore, he filed a writ petition before this court being W.P. No. 27493 of 2005 seeking for a
direction to the first respondent to initiate an action against the second respondent. When the matter came up on 09.09.2005, the second
respondent had appeared and expressed his regret for not understanding the seriousness and denying permission to hoist the national flag. The
second respondent was waiting for an opportunity to punish the petitioner. Therefore, instead of enquiring into the complaint lodged by him, they
were supporting the accused persons whose names were mentioned in the complaint. The petitioner made a representation to the first respondent
on 23.9.2005 which was sent by the registered post. Even after the same, no enquiry was conducted. On the other hand, the second respondent
had registered three cases against the petitioner and other co-employees in Crime No. 3 of 2005 in C.C. No. 61 of 2005, Crime No. 194 of
2005 in C.C. No. 82 of 2005 and Crime No. 103 of 2005 relating to C.C. No. 24 of 2006 for various offences. In the first case in C.C. No. 61
of 2005, the petitioner was acquitted by the Judicial Magistrate, Pochampalli by a judgment dated 8.2.2006. The other two cases are pending trial.
The petitioner continue to work in the said company. It was at the instigation of the management, those two cases were registered.
According to the petitioner, he is a respectable person in the locality. He is a senior citizen as well as a freedom fighter. When he came to know
that his name was kept as an history-sheeter, he gave a representation to the District Collector and the first respondent on 02.12.2006 and
complained about the activities of the local police. When nothing happened, he came before this court.
In the counter affidavit, it was stated that the petitioner is not a union leader. He had indulged in anti-labour activities. As per the report given by
the Deputy Commissioner of Labour, no employee of the said company was a member of the petitioner''s trade union. The complaint given by him
was closed as undetected and that a report was filed before the Judicial Magistrate, Pochampalli.
In paragraphs 8 and 9 of the counter, it was averred as follows:
8.... Likewise, 3 cases were registered on the basis of the reports given by the management of the company, in Cr.No. 3/05, 194/05 and 103/06.
But whereas, on the report given by Ramanathan and his associates, 4 cases were registered against the staff of the management of the company.
It is not correct to state that the petitioner is not a habitual offender and he has not acted against the public. It is not correct to state that the
petitioner is respectable person and a senior citizen and freedom fighter. Only a person above the age of 60 can call himself as a senior citizen. The
petitioner has clearly stated that he is aged about 50 years only and so his claim that he is freedom fighter is also false and baseless. Further the
petitioner is a petition monger and used to send several petitions against the officers of various departments and used to threaten the public and the
workers of many companies and agriculturists, by falsely claiming that he is president of INTUC of Pochampalli Village.
9.... But inspite of that he is involved in Pochampalli P.S. Cr.No. 103/06 u/s 341, 294(b), 506(ii), 323 and 284 r/w 511 IPC.... as per the Police
Standing Orders, the petitioner should have given a petition only to the concerned D.S.P. for canceling or removing his name from the history
sheet. But the petitioner has chosen to give a petition to the Collector and to the Superintendent of Police. Further there is no reason for canceling
the history sheet or for removing his name from the history sheet....
However, when the matter came up before this court, it was brought to the notice of this court that the Superintendent of Police, Krishnagiri,
i.e., the first respondent, by his communication, dated 21.5.2010 sent to the Deputy Inspector General of Police, Salem Range, Salem, informed
as follows :
Ref. : 1.Petition Dated 14.04.2010 of Tr. S. Ramanathan,
addressed to the Minister for Home, Govt. of India.
D.O. Lr. No. 3631/Pol. XIV/2010-1, dt. 7.5.2010 of
the Secretary to Govt. of Tamil Nadu, Home and P&E
addressed to IGP / West Zone / Coimbatore.
Rowdy sheet opened for Tr. S. Ramanathan (55) s/o Swamikannu, Rasi Nagar, Kallavi road, old Pochampalli in HS No. 63/2005 of Pochampalli
PS has been closed on 20.05.10. This is for favour of kind information.
(Emphasis added)
A perusal of the above letter will clearly show that since the petitioner had made a complaint to the Minister of Home Affairs, Government of India
and a letter was sent from the Delhi, the order came to be passed canceling his name. The said information was also given to the petitioner when he
approached under the Right to Information Act by a communication dated 10.2.2011.
In normal circumstances, this court could have closed the case as infructous. But considering the high-handedness of the respondents, this court
is not inclined to dismiss the writ petition merely by taking note of the subsequent development. According to the respondents, the petitioner was
an history-sheeter.
Hence it is necessary to refer the PSO 746 of Tamil Nadu Police Standing Orders providing power for opening history sheets and it reads as
follows:-
PSO 746. Part-IV - History Sheets.
(1)Part V (Form No. 111) shall contain the History Sheets of the persons resident permanently or temporarily in their Station limits who are known
or believed to be addicted to or to aid and abet the commission of crime, whether convicted or not, or who are believed to be habitual receivers.
It is pertinent to point out that opening of History Sheets, surveillance list and domicilary visits came to be considered by the Supreme Court in
several decisions. In Kharak Singh Vs. The State of U.P. and Others, , in that, a Larger Bench of the Supreme Court vide its decision struck down
a regulation authorising domicilary visits to the houses of suspect individuals as unconstitutional. In the majority opinion in paragraphs 14 and 18, it
was observed as follows:
The question that has next to be considered is whether the intrusion into the residence of a citizen and the knocking at his door with the
disturbance to his sleep and ordinary comfort which such action must necessarily involve, constitute a violation of the freedom guaranteed by Art.
19(1)(d) or ""a deprivation"" of the ""personal liberty"" guaranteed by Article 21. Taking first Article 19(1)(d) the ""freedom"" here guaranteed is a right
to move freely"" throughout the territory of India. Omitting as immaterial for the present purpose the last words defining the geographical area of
the guaranteed movement, we agree that the right of ""move"" denotes nothing more than a right of locomotion, and that in the context the adverb
freely"" would only connote that the freedom to move is without restriction and is absolute, i.e., to move wherever one likes, whenever one likes
and however one likes subject to any valid law enacted or made under clause (5). It is manifest that by the knock at the door, or by the man being
roused form his sleep, his locomotion is not impleaded or prejudiced in any manner.
Learned Counsel suggested that the knowledge or apprehension that the police were on the watch for the movements of the suspect, might induce
a psychological inhibition against his movements but, as already pointed out, we are unable to accept the argument that for this reason there is an
impairment of the ""free"" movement guaranteed by sub-clause (d). We are not persuaded that Counsel is right in the suggestion that this would have
any effect of diverting or impeding his movement, we are clear that the freedom guaranteed by Article 19(1)(d) has reference to something tangible
and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or
locomotion.
... 18. It is true that in the decision of the U.S. Supreme Court from which we have made these extracts, the Court had to consider also the impact
of a violation of the Fourth Amendment which reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated;
and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the
persons or things to be seized
and that our Constitution does not in terms confer any like constitutional guarantee. Nevertheless, these extracts would show that an unauthorised
intrusion into a person''s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man - an ultimate
essential of ordered liberty, if not of the very concept of civilisation. An English Common Law maxim asserts that ""every man''s house is his castle
and in Semayne''s case, (1604) 5 Co Rep 91a : 1 Sm. L.C.(13th Edn.) 104 at p. 105 where this was applied, it was stated that ""the house of
everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose."" We are not unmindful of the
fact that Semayne''s case (1604) 5 Co Rep 91a : 1 Sm L.C.(13th Edn.) 104 at p 105 was concerned with the law relating to executions in
England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which
transcends mere protection of property rights and expounds a concept of ""personal liberty"" which does not rest on any element of feudalism or on
any theory of freedom which has ceased to be of value.
In Gobind Vs. State of Madhya Pradesh and Another, the Supreme Court upheld the regulations 855 and 856 of the Madhya Pradesh Police
Regulations providing for surveillance. In paragraphs 28 and 30, the Supreme Court struck a note of caution, which is as follows:-
The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the
right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy
as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.
....
30.... Our founding fathers were thoroughly opposed to a Police Raj even as our history of the struggle for freedom has borne eloquent testimony
to it. The relevant Articles of the Constitution we have adverted to earlier, behove us therefore to narrow down the scope for play of the two
regulations. We proceed to give direction and restriction to the application of the said regulations with the caveat that if any action were taken
beyond the boundaries so set, the citizen will be entitled to attack such action as unconstitutional and void.
In Malak Singh and Others Vs. State of P and H and Others, , the Supreme Court while holding that entry for surveillance register should be
made on the basis of materials, though they may be kept as a confidential document and it does not require observance of Principles of Natural
Justice before opening the history sheet, in paragraph Nos.9 and 10 of the said judgment, the Court provided for a judicial review over illegal
actions and those passages may be usefully extracted below:
But all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the
surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those
freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories
mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by
the rules, will entitle a citizen to the court''s protection which the court will not hesitate to give. The very Rules which prescribe the conditions for
making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are
required to proceed. The note following Rule 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule strictly and confine the
entries in the surveillance register to the class of persons mentioned in the rule. Similarly Rule 23.7 demands that there should be no illegal
interference in the guise of surveillance. Surveillance, therefore, has to be unobtrusive and within bounds.
Ordinarily the names of 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 behaviour. 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. It is only in
the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance
register. But, here, the entry can only be made by the order of the Superintendent of Police who is prohibited from delegating his authority under
Rule 23.5. Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered
in Part II are habitual offenders of receivers of stolen property. While it may not be necessary to supply the grounds of belief to the persons whose
names are entered in the surveillance register it may become necessary in some cases to satisfy the court when an entry is challenged that there are
grounds to entertain such reasonable belief. In fact in the present case we sent for the relevant records and we have satisfied ourselves that there
were sufficient grounds for the Superintendent of Police to entertain a reasonable belief.
Curiously, the respondents did not produce the original file leading to opening of the history-sheet. The history sheet was opened in No.
63/KGI/2005, dated 6.6.2005. The only file produced was relating to the FIR in Crime No. 3/2005 in which he was acquitted along with 17
others. Even in that case, the persons whose statements were recorded were all statement recorded from the Accountant Lakshmana Perumal, a
Technician, the Security Officer, the Manager of the company and the Safety Training and Materials Officer of the company. This throws strong
suspicion that the respondents were acting at the behest of the company and trying to dabble in what was essentially an industrial dispute between
the petitioner trade union and the company.
In the counter affidavit, it was stated that the petitioner is not the office bearer. But in the complaint in which statement of the management was
recorded, he was described as the union leader. Therefore, this court has no hesitation to reject the stand of the respondent police in initially
opening the history-sheet that too against the trade union leader belonged to INTUC. Merely because successive criminal cases were registered on
account of the labour problem in the company cannot be a ground to open an history-sheet against the petitioner. It was only when the petitioner
made a complaint to the higher authorities in the Government of India, i.e., Minister for Home Affairs, his name was removed. This would show
that the respondents did not have any materials for opening the history-sheet against the petitioner at the first instance. In fact whether he is a
desperate or dangerous character is the issue which will have to be decided in terms of the materials on record and that the file produced did not
contain any such materials.
In this context, the Supreme Court had clearly deprecated labelling such persons desperate or dangerous, vide its judgment in Prem Shankar
Shukla Vs. Delhi Administration, and in paragraph 35, it was observed as follows :
35.Labels like ''desperate'' and ''dangerous'' are treacherous. Kent S. Miller, writing on ''dangerousness'' says : 6
Considerable attention has been given to the role of psychological tests in predicting dangerous behaviour, and there is a wide range of opinion as
to their value.
Thus far no structured or projective test scale has been derived which when used alone, will predict violence in the individual case in a satisfactory
manner. Indeed, none has been developed which will adequately postdict let alone predict, violent behaviour.....
... But we are on dangerous ground when deprivation of liberty occurs under such conditions.
... The practice has been to markedly over predict. In addition, the courts and mental health professionals involved have systematically ignored
statutory requirements relating to dangerousness and mental illness....
.... In balancing the interests of the State against the loss of liberty and rights of the individual, a prediction of dangerous behaviour must have a high
level of probability, (a condition which currently does not exist) and the harm to be prevented should be considerable.
In view of the above, while disposing of the writ petition after recording the communication sent by the first respondent to the Deputy Inspector
General of Police, Salem, dated 21.5.2010, this court is of the opinion that costs should be ordered against the respondents. Accordingly, this writ
petition will stand disposed of with a direction to the respondents to pay costs of Rs. 5000/- (Rupees five thousand only). The cost is ordered
because without any justification, the respondents have opened an history-sheet against the local trade union leader only because he had indulged
in trade union activities and obviously respondents were acting at the behest of the management.