Kamal Khan vs State of M.P. and Others

N.K. Mody, J.

This order shall also govern the disposal of WP Nos. 2127/2006, 2128/2006, 2129/2006, 2132/2006 and 2133/2006.

In all these writ petitions, the prayer of the petitioner is that the history sheets kept in the office of Respondent No.3 relating to the petitioner be quashed, without following the process of law, the petitioner should not be detained and the petitioner be permitted his constitutional right of freedom.

Short facts alleged in the petition are that upon the instructions of respondent No. 1 history sheet has been opened by the Respondent No. 3 in the year 2004. It is alleged that after opening of the history sheets, the respondent Nos. 2 and 3 are keeping a watch over the petitioner. Availability of the petitioner is being checked at his residence. Petitioner is not being allowed to go out of the city. It is submitted that under the garb of history sheet, the fundamental right of the petitioner has been infringed. It is also alleged that if any incident take place then the petitioner is being taken to the Police Station, by the Police Authorities. It is submitted that the action of the respondents is illegal, un-constitutional and is also in violation of Regulation 651 of MP Police Regulations, which shall be referred hereinafter as ''Regulations''.

Learned counsel for the Respondents Shri L.R. Bhatnagar submits that history sheet of the petitioner was opened in the year 2004, while the petition is filed in the year 2006. Thus, prima-facie, the petition is barred by limitation. It is also alleged that vide Notification SO-96-E dated 27.09.2001 issued by Govt, of India, the Students Islamic Movement of India has been declared as an un-lawful Association. It is submitted that in compliance of the said Notification in exercise of powers conferred by Section 1-a of Unlawful Activity (Prevention) Act, 1967, the Central Government has directed that all the powers which are exercised by it u/s 7 and 8 of the Act shall also exercised by the State Government and Union Territory Administration in relation to unlawful Association. It is further submitted that since petitioner is an Acting Member of the Students Islamic Movement of India which shall be referred (hereinafter as "SIMI") and a criminal case is pending against the petitioner, therefore, the petition has no force and deserves to be dismissed.

Part V of M.P. Police Regulations deals with the working of Police Stations. Chapter II deals with the Police Station and its daily work. As per Regulation 651 and 652 of the Regulations, the Station Officer has to maintain the history sheets, which reads as under:

History Sheets-Part-V:-History sheets are maintained under the orders of the District Superintendent of Police for (a) all ex-convicts who are under regular surveillance, (b) police registered ex-convicts who are not under regular surveillance (c) all persons bound over under Sections 109 and 110, Criminal Procedure Code, and (d) persons who, there is reasons to suspect, are habitual criminals, even though nothing definite can be proved against them. Ordinarily, history sheets will be opened on orders issued by the Superintendent on conviction slips. If a station officer is of opinion that a history sheet should be opened for a per son, who though not convicted, is reasonably suspected of being a habitual thief a habitual receiver of stolen property or of being concerned in systematic cattle theft or other serious offences against property he will apply through the Circle Inspector for permission to open a history sheet. History sheets should never be opened for petty or casual criminals, or for any person who has fixed residency such as a member of a vandering tribe.

A person not under regular surveillance for whom a history sheet is maintained, should be watched quietly and information collected about him from village officials and others when opportunity offers. He must not be subjected to any annoyance of obtrusive enquiries, nor must the fact that an account is being kept of his doings be divulged. The object of the history sheet is to enable the station officer and Circle Inspector to decide whether or not a suspect is really a dangerous criminal, and it should ordinarily not be necessary to maintain the history for over a year. It should be possible to decide within that period whether the suspect should be bound over u/s 110, Criminal Procedure Code, or brought under regular surveillance, or the history sheet closed.

Shri Wajid Khan, learned counsel for the petitioner placed reliance on a decision in the matter of Kharak Singh Vs. The State of U.P. and Others, , wherein the Hon''ble Apex Court has observed that,

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 does not constitute a violation of the freedom guaranteed by Article 19 (1) (d), as it is manifest that by the knock at the door, or by the man being roused from his sleep, his locomotion is not impeded or prejudiced in any manner.

Further reliance was placed on a decision in the matter of Swaroop Chand Jain Vs. The District Superintendent of Police and Others, , wherein the Division Bench of this Court has observed that,

In order to invoke the aid of Clause (d) of Regulation 651 Madhya Pradesh Police Regulations for opening a history sheet of a person there should be reason to suspect that he is a habitual criminal. Thus, for the exercise of this power the existence of reasons has to be determined objectively even though the opinion of the District Superintendent of Police would be subjective where the reasons in fact exist. If the action of the District Superintendent of Police challenged on the ground by non-existence of circumstances or reasons to justify any suspicion the Court has to see whether material exists to justify such suspicion.

In the matter of Chholela Vs. S.P. Sahdole reported in 1983 JLJ (1), the Division Bench of this Court has observed that, "The stray incidents of quarrel is not sufficient to put the name of the concerned person in the Surveillance Register." In the matter of Jorawar Singh Vs. State of M.P. and Others, , Division Bench of this court has observed that, "Order can be passed against only those persons against whom reasonable material exists to form opinion that they show a determination to lead the life of crime.

In the case of Prakash Chandra Vs. State of MP reported in 1989 (1) MPWN 194, it has been observed that,

Minor Offences under Sections 324,294 etc. IPC are not sufficient to order surveillance. In the matter of Shyam Sunder Vs. State of MP reported in 1995 (Vol-II) MPWN 138, it has been observed that, "Citizen should be allowed to lead life with dignity." In the matter of Sheikh Shazad Vs. State of MP & Others reported in 2002 (4) MPLJ 190, this court has observed that "Surveillance creates dent in privacy of an individual and it must be effected totally in accordance with stipulations of Police Regulations and not at whim or caprice of authorities." In the matter of Malak Singh Vs. State of Punjab & Haryana reported in AIR 1981 SC 3200. It has been observed by the Apex Court that "it is the right of person whose name is included in surveillance register to be given opportunity to show cause against such inclusion.

From perusal of the record it is evident that there is no material existing on the basis of which it can be found that the petitioner is leading a life of controversies. The order passed by the Superintendent of Police is also not on record, except one criminal case u/s 10 of the Unlawful Activities (Prevention) Act, 1967. There is nothing on record on the basis of which it can be said that surveillance is necessary because of the conduct of the petitioner. Under Regulation 652 also, the object of the history sheet is to enable the station house officer and Circle Inspector to decide whether or not a suspect is really a dangerous criminal, and it should ordinarily not be necessary to maintain the history sheet for over a year. It should be possible to decide within that period whether the suspect should be bound over u/s 110, Criminal Procedure Code, or brought under regular surveillance, or the history sheet closed.

In view of the aforesaid position of law, this petition is disposed of with a direction that respondent No. 1 shall after verifying and satisfying with the record shall pass a reasoned order under Regulations 652 regarding closing of history sheet of the petitioner within a period of one month from today.

With the aforesaid observations, petition stands disposed of c.c. as per rules.