Hon'ble Arvind Kumar Tripathi (II),J.
1. This writ petition has been filed for quashing the order dated 31.7.2013 passed by the Superintendent of Police, Balrampur and also for issuing a writ of mandamus commanding the opposite parties to cease the continuous surveillance of the petitioner on the basis of history sheet no.51-A/2002 dated 23.1.2002 opened at police station Tulsipur, District Balrampur; and also deleting the name of the petitioner from register no.8 vide history sheet no.51-A/2002 dated 23.1.2002 opened at police station Tulsipur, District Balrampur.
2. It has been mentioned in the petition that on the basis of FIR lodged in case crime no.62 of 1998, under Sections 394, 120-B IPC, Police Station Kotwali Uttaraula, District Balrampur the charge sheet was submitted against the petitioner. It was further submitted that due to political rivalry, the petitioner was challaned under Section 110 (g) Cr.P.C. vide report dated 23.1.2002. The challani report was cancelled by the Sub Divisional Magistrate, Tulsipur after perusal of record. The petitioner has no criminal history except case crime no.62 of 1998, under Sections 394/120-B IPC, and vide judgment and order dated 1.9.2011 the petitioner was acquitted in the above case.
3. We have heard Shri M. Waris Farooqui, learned counsel for the petitioner and the learned AGA.
4. It was submitted by the learned counsel for the petitioner that the petioner is a law abiding and qualified citizen. He is a registered medical practisioner and has never been involved in other criminal cases except, mentioned above. The name of the petitioner was included in register no.8, meant for keeping surveillance over people, whose name found place in the register. The petitioner is being illegally deprived of the fundamental rights, privacy and freedom of movement, as guaranteed under Articles 19 (1) (d) and also under Section 21 of the Constitution of India. It was further submitted that the provisions of para 228 of U.P. Police Regulations (hereinafter referred to as the Regulations) is not applicable in the present case of the petitioner, and the case of the petitioner is not covered under any of the class, as provided under para 228 of the Regulations. It was further submitted that Regulation 231 of the Regulations provides that history sheet of class 'A' shall remain in surveillance for at aleast two consecutive years for which they have spent no part in jail. It was further submitted that para 240 of the Regulations casts an onerous duty on public prosecutor to inform the Superintendent of Police about the acquittal of a person as to whether history sheet was required to be opened or to be continued. In the instant case, there is no such information from the Public Prosecutor.
5. It was submitted by the learned AGA that the representation was moved by the petitioner, in compliance of the order passed above by this Court, and the same was decided vide order dated 31.7.2013, and it was mentioned that if he maintains good conduct and clean record for two years, then the matter can be considered for closing history sheet. It was submitted that this order is perfectly justified and is in consonance to the provisions of Rule 231 of the Regulations.
6. A perusal of record reveals that the petitioner has earlier filed Writ Petition No.3582 (M/B) of 2013 challenging the validity of maintaining history sheet of class 'A' opened by the police at Police Station Kotwali Uttaraula, District Balrampur against the petitioner. That writ petition was decided on 8.7.2013 and the order passed is extracted hereinbelow: -
"The petitioner by means of the present petition challenged the validity of maintaining the history sheet of class A opened by the police of P.S. Kotwali Utraula, District Balrampur against the petitioner.
We have heard learned counsel for the petitioner and also learned A.G.A.
It would appear from the record that the police of P.S. Kotwali Utraula, District-Balrampur opened the history sheet of the petitioner on the basis of three cases.
The argument of the learned counsel for the petitioner is that the history sheet of Class A can be opened when it has been established by suspicion or conviction that a suspect is an active and prominent member of a gang of dacoits. It is further argued that mere suspects should not be starred until established that one has become dangerous and confirmed criminals and is unlikely to reform. The next contention is that the case of the petitioner is not covered by paragraph 228 of the U.P. Police Regulations.
Per contra, learned A.G.A. drew attention of the court to the decision in Chaman Lal V. State of U.P. 1992 Supp. (2) SCC 84(1) and suggested that the matter should be relegated to authority concerned for deciding whether the history should be closed or should be continued.
We are also of the view that the interest of justice would be best served if the matter is relegated to the police authority to take appropriate decision in the matter.
In view of the above, it is directed that in case the petitioner prefers a representation before the S.S.P. /S.P. concerned alongwith a self attested copy of the writ petition within two weeks from today, the authority concerned shall consider it according to law and pass appropriate order within two months.
The petition is in terms of the above directions."
7. A petition under Article 32 of the Constitution of India was filed before the Apex Court challenging the validity of Chapter 22 of the Regulations and the powers conferred upon the police officials by its several provisions on the ground that they violate the right guaranteed to the citizens under Articles 19 (1) (d) and 21 of the Constitution of India. The Apex Court by a majority decision struck down paragraph 236 (b), which authorizes the "domiciliary visit" being unconstitutional and for the rest the petition was dismissed. (See : Kharak Singh v. State of U.P. And others, AIR 1963 SC 1295)
8. In view of the above, it cannot be said that the provisions of the Regulation are violative of Articles 19 (1) (d) and 21 of the Indian Constitution.
9. Learned counsel for the petitioner has relied upon the decision of Uttarakhand High Court in the case of Ganesh Thakurathi v. State of Uttarakhand and others, 2012 (3) JIC 376 (Uttarakhand) and on the strength of the decision submitted that no case was registered against the petitioner except in case crime no.62 of 1998, under Sections 394, 120-B IPC, Police Station Kotwali Uttaraula, District Balrampur, and in that too, he was acquitted, hence opening of history sheet is liable to be quashed.
10. We find that this decision is of no help to the petitioner for the reasons given below.
11. In the case of Chaman Lal v. State of U.P. And others, 1992 Supp (2) SCC 84 (1) too, the matter of closing of history sheet was raised, but the Full Bench of Apex Court considering the provisions of para 228 and 240 of the Regulations declined to interfere in the order passed by the High Court rejecting the writ petition to close the history sheet.
12. As the constitutional validity of the Regulations has been upheld by the Apex Court except that of para 236 (b), the matter has to be decided in terms of the provisions of the Regulations. For convenience, para 231, which is applicable in this case, is reproduced below: -
"231. The subjects of history-sheets of class A will unless they are 'starred' remain under surveillance for at least two consecutive year of which they have spent no part in jail. When the subject of a history-sheet of class 'A' whose name has not been 'starred' who has never been convicted of cognizable offence and has not been in jail or suspected of any offence or absented himself in suspicious circumstances for two consecutive years his surveillance will be discontinued, unless for special reasons to be recorded in the inspection book of the police station the Superintendent decides that it should continue.
When the subject of a history-sheet of class A is 'starred' he will remain starred for at least two consecutive years during which he has not been in jail or been suspected of a cognizable offence or had any suspicious absence recorded against him. At the end of that period if he is belived to have reformed he will cease to be 'starred' but will remain subject to surveillance will be discontinued only if during that period no complaints have been recorded against him.
In closing the history-sheets of an 'unstarring' ex-convicts and especially ex-convict dacoits great care should be exercised."
13. Admittedly, the history sheet, which was opended, was under class 'A', which relates to dacoits, burglars, cattle thieves, and railway goods-wagon thieves on the basis of FIR against the person under Section 394/120-B IPC.
14. Para 229 clearly mentions that the classification of history sheet as 'A' and 'B' based on the principle that, whereas there is always hope of dacoits, burglars, cattle thieves, and railway goods-wagon thieves mending his ways, the classification thereof solely on the kind of crime to which suspects are addicted and is designed to regulate only (1) the length of time for which a suspect should ordinarily remain nder surveillance in the absence of complaints against him; and (2) the kind of surveillance, which his activities require. In the instant case, as an earlier petition was filed challenging the validity of opending of history sheet and the matter was relegated to police authorities to take appropriate decision in the matter, hence it has only to be seen as to whether the order passed by the police authorities is in conformity of the Regulations. Rule 231 of the Regulations clearly mentions that unless the subject of history sheet of Class 'A' is starred, he shall remain under surveillance of at least for two consecutive years of which he has not spent no part in jail, then his surveillance may be discontinued.
15. A perusal of impugned order dated 31.7.2013 clearly reveals that the provisions of paragraph 231 of the Regulations has not been violated and Superintendent of Police has mentioned that if the petitioner maintains good conduct and clean record consecutively for two years, then the matter will be considered for closing the surveillance. This order is in conformity with Rule 231 of the Regulations.
16. So far as the argument of the petitioner's counsel regarding requirement of the opinion of Public Prosecutor regarding history sheet to be required to be opened or to be continued is concerned, Rule 240 (2) casts a duty on the Public Prosecutor to inform the Superintendent of Police, in his report, as to whether, in his opinion, a history sheet is required. Rule 240 (2) does not mention that for continuation of history sheet, after the acquital, a report of Public Prosecutor is required.
17. In view of the, this submission has no force.
18. From the above, it is clear that the order passed by the Superintendent of Police, Balrampur is perfectly justified and no interference is warranted under Article 226 of the Constitution of India.
19. The writ petition is liable to be dismissed, and is hereby dismissed.
Order Date :- 10.10.2014 Anupam