Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 4497 of 2021
Petitioner :- Rahul @ Rahul Chaudhary Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Swetashwa Agarwal Counsel for Respondent :- G.A.
Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Ram Krishna Gautam,J.
1. Heard Shri Swetashwa Agarwal, learned counsel for the petitioner and learned AGA for the State-respondent.
2. The present writ petition has been preferred for a direction in the nature of certiorari, quashing the impugned order dated 27.3.2020, passed by the Senior Superintendent of Police, Saharanpur (in part) whereby his prayer for closing of History-sheet No. 147-A, Police Station Rampur Maniharan, District Saharanpur, has not been considered, nor accepted, rather the police surveillance has been merely closed temporarily.
3. The brief facts, which emerged from the record qua to his criminal history is Case Crime No. 234/2014, under Section 302/34 IPC, Police Station Rampur Maniharan, District Saharanpur, was lodged upon the information furnished by police of Police Station Rampur Maniharan, District Saharanpur and based upon the testimony of police witnesses only. In the said proceeding, petitioner was acquitted of the charges framed against him by the impugned judgment and order dated 12.6.2015 passed by the Additional Sessions Judge, Court No. 3, Saharanpur. It is also submitted that for all practical purposes, the said judgment and order has attained finality. No appeal has been preferred against the said judgment.
4. Case Crime No. 235/2014, under Section 25/27 of Arms Act, Police Station Rampur Maniharan, District Saharanpur, in the said case, is an offshoot of the aforementioned Case Crime No. 234/2014, relating to recovery of the licensee rifle of his father from his house. The FSL report did not support the allegation of firing from the weapon nor any independent witness was procured to support the alleged recovery. Consequently, by means of the aforementioned judgment and order dated 12.6.2015, the petitioner was acquitted of the charges framed against him and the same has also attained finality.
5. Since, it is being claimed that for almost four-five years no proceeding was initiated against the petitioner. Lastly, a first information report/Case Crime No. 164/2020, under Sections 153-A, 188, 269, 270, 506 IPC and Section 3 of Epidemic Act and Section 66-A of Information Technology Act, Police Station Rampur Maniharan, District Saharanpur, was lodged on 7.5.2020. The aforesaid proceeding was lodged by the police on its own on the basis of an alleged video clip which went viral on social media containing some altercation regarding certain community. It is also claimed that in the said proceeding the petitioner has also been discharged in the aforesaid case crime number by order dated 24.9.2020 passed by the Chief Judicial Magistrate, Saharanpur. NCR No. 63/2020, under Sections 323, 504, 506 IPC, Police Station Rampur Maniharan, District Saharanpur was lodged on 5.6.2020. The said NCR was also closed containing G. D. No. 53 dated 4.7.2020.
6. Learned counsel for the petitioner in this backdrop states that the petitioner has preferred a Criminal Misc. Writ Petition No. 12688 of 2020 (Rahul @ Rahul Chaudhary @ Rahul Pawar versus State of U.P. and 2 others) for quashing History Sheet No. 147-A dated 10/11.6.2020 at Police Station Rampur Maniharan, District Saharanpur. The said writ petition was disposed of asking the appropriate authority to take appropriate decision in the matter. Consequently, the order impugned has been passed wherein the surveillance has been closed.
7. Aggrieved with the said order, writ petition under Article 226 of the Constitution of India has been filed with a prayer for issuing a writ of certiorari quashing the impugned order dated 27.3.2021 passed by the Senior Superintendent of Police, Saharanpur (in part) whereby his prayer for closing History-sheet No. 147-A, Police Station Rampur Maniharan, District Saharanpur has not been considered, nor accepted, rather the police surveillance has been merely closed temporarily. With a further prayer for issuing appropriate writ, order or direction in the nature of certiorari quashing the impugned History-sheet No. 147-A dated 10/11.6.2020, Police Station Rampur Maniharan, District Saharanpur, against the petitioner.
8. Learned counsel for the petitioner has pressed law laid down in Nandan Singh Bora versus State of U.P. through Secretary Home reported at 2010 (71) ACC 94, Nafis Ahmad @ Achchey Babu versus State of U.P. and others 2016 (92) ACC 166.
9. Per contra, learned AGA has vehemently opposed and submitted that while passing the impugned order, the Senior Superintendent of Police has correctly appreciated Para 228 of U.P. Police Regulation and surveillance has been closed on the ground of no fresh criminal antecedent of petitioner. But criminal history was to be taken in future, if any, further indulgence of criminal offence is there and impugned order is in consonance with the provision of Para 228 of U.P. Police Regulation. Hence, no interference is required.
10. Heard rival submissions and perused the record.
11. The U. P. Police Regulations, framed under the provisions of the Police Act have the force of law and it is a delegated legislation. Para 228 of Chapter XX of U.P. Police Regulations provides Part V with regard to history sheets.
"228. Part V consists of history sheets. There are the personal records of criminals under surveillance. History-sheets should be opened only for persons who are or likely to become habitual criminal or abettors of such criminals. There will be two classes of history-sheets:
(1) Class A history-sheets for dacoits, burglars, cattle- thieves, railway-goods wagon thieves, and abettors thereof.
(2) Class B history-sheets for confirmed and professional criminals who commit crimes other than dacoity, burglary, cattle-theft, and theft from railway goods wagons, e.g., professional cheats and other experts for whom criminal personal files are maintained by the Criminal Investigation Department, poisoners, railway passenger thieves, bicycle thieves, expert pick-pockets, forgers, coiners, cocaine and opium smugglers, hired ruffians and goondas, telegraph wire- cutters, habitual illicit distillers and abettors thereof.
History-sheets of both classes will be maintained in similar form, but those for class B will be distinguished by a red bar marked at the top of the first page. No history-sheet of class B may be converted into a history-sheet of class A, though should be the subject of a history-sheet of class B be found to be also addicted to dacoity, burglary, cattle-theft or theft from railway goods wagons. A class, as well as B class, surveillance may under paragraph 238 be applied to him. In the event of a class A history-sheet man becoming addicted to miscellaneous crime his history-sheet may be converted into a class B history-sheet with the sanction of the Superintendent."
12. The history sheets are the personal record of criminal under surveillance and this history sheets should be opened only for person who are or likely to become habitual criminals or abettors or such criminals i.e. it is not a condition precedent that a person against whom criminal history is being opened must be a criminal. Rather a persons who are or likely to become habitual criminals or abettors of such criminals. Hence, a person likely to become criminal or abettor or a suspected criminal, may have its history sheet opened. The same is situation in Para 240 of Manual, which provides that history sheets of both classes may be opened (1.) on suspicion; (2.) on conviction or (3.) on acquittal. No history sheet may be opened without the order of the Superintendent. That is on suspicion as well as on conviction or on acquittal history-sheets may be opened. There is no illegality or irregularity in opening a history sheets of an accused who got acquittal. Even, a suspected accused may be with opened history sheet and if one is suspected or convicted or stood acquitted, he may have history sheet opened. Hence, the admitted fact in present case is that, petitioner Rahul @ Rahul Chaudhary son of Vinod Pawar, resident of village Jangheda Samaspur, Police Station Rampur Maniharan, District Saharanpur was having Case Crime No. 234/ 2014, under Section 302/34 IPC registered, investigated and charge-sheeted, wherein there was a recovery of a licensed rifle along with live cartridges for which Case Crime No. 235/2014, under Section 25/27 of Arms Act was registered at Police Station Rampur Maniharan, District Saharanpur, investigated and charge- sheeted. Though there was judgment of acquittal in all those two cases, but there were also cases of Case Crime No. 164/2020, under Sections 153-A, 188, 269, 270, 506 IPC, Section 3 of Epidemic Act and Section 66-A (i) of Information Technology Act, non cognizable report No. 63/2020, under Sections 323, 504, 506 IPC against him. There was report about highhandedness and terror created by accused, reported by officer Incharge, Police Station Rampur Maniharan against petitioner. No body was daring to be witness against him. Therefore, report was made by Incharge of Police Station Rampur Maniharan to Senior Superintendent of Police, Saharanpur, for sanction of opening of history sheet and in lieu of same, above history-sheet was got opened. Then after, this writ petition was filed before this Court and it was decided with a direction for making a representation before Senior Superintendent of Police, Saharanpur, and this was to be decided within stipulated period and this Criminal Misc. Writ Petition No. 12688 of 2020 (Rahul @ Rahul Chaudhary @ Rahul Pawar versus State of U.P. and 2 others) was disposed of. In compliance of same order, Senior Superintendent of Police, Saharanpur has passed impugned order dated 27.3.2020, wherein contention of petitioner was accepted to this extent that surveillance is not required any more and it was closed, but history-sheet was not closed. Rather, it was kept for future incident, if any. Hence, very argument of learned counsel for the petitioner, with regard to present case, in hand, is not in consonance with facts involved in those two decided precedents mentioned (supra). Because they were with different facts. But the argument that there was a judgment of acquittal as well as discharge, hence, history-sheet may not be in existence, is not tenable, because even on the basis of judgment of acquittal and what to say of judgment of conviction or acquittal even on the basis of suspicion, history- sheet may be opened. In Para 240 of U.P. Police Manual, which is in continuance of Para 228 in the same chapter itself.
13. So far as list A and list B is concerned, it is two categories of history sheet given in Para 228 and Class-A history-sheets is for dacoits, burglars, cattle-thieves, railway-goods wagon thieves, and abettors thereof. Class-B history-sheets for confirmed and professional criminals who commit crimes other than dacoity, burglary, cattle-theft, and theft from railway goods wagons, i.e., professional cheats and other experts for whom criminal personal files are maintained by the Criminal Investigation Department, poisoners, railway passenger thieves, bicycle thieves, expert pick-pockets, forgers, coiners, cocaine and opium smugglers, hired ruffians and goondas, telegraph wire-cutters, habitual illicit distillers and abettors thereof.
14. Para 228 provides that history-sheets of both classes will be maintained in similar form, but those for class B will be distinguished by a red bar marked at the top of the first page. No history-sheet of class B may be converted into a history-sheet of class A, though should be the subject of a history-sheet of class B be found to be also addicted to dacoity, burglary, cattle-theft or theft from railway goods wagons. A class, as well as B class, surveillance may under paragraph 238 be applied to him. In the event of a class A history-sheet man becoming addicted to miscellaneous crime his history-sheet may be converted into a class B history-sheet with the sanction of the Superintendent. Meaning thereby the degree of gravity is mere in Class-B and the effect of these two lists are with regard to surveillance to be made under Para 238. Hence, the mere purpose of history sheet is for making surveillance under Para 238 of Manual and in the present case, the impugned order is of this effect that surveillance has been closed. Hence, the effective relief, being claimed by petitioner, has already been granted by the Senior Superintendent of Police in the impugned order. So far existence of history sheet is concerned, it is merely for the consideration for future in case of any commission of subsequent offence. Hence, the same is of no prejudice to petitioner. Moreso, even suspected subject may be opened with a history-sheet under Para 240 and 228 of regulations. In the present case, petitioner was with criminal antecedent narrated as above, though there is judgment of acquittal, but this judgment of acquittal is of no effect, because even in case of judgment of acquittal history sheet may be opened.
15. The very argument of learned counsel, that for five years, there had been no history sheet and it was got opened in year 2020, whereas the charge-sheet, for which petitioner stood on trial for offence of murder and under Arms Act, was of year 2014. It may not be an impediment, because the jurisdiction to start history of a criminal arises from the stage for the particular person is considered or thought to be a confirmed or professional criminal for which there should be some basis or material and in present case this situation has occurred after registration of subsequent offence in the year 2020. Hence, the time essence is also not a condition precedent for opening of history-sheet.
16. The Senior Superintendent of Police has correctly appreciated Para 228 to Para 240 of Part-V of Chapter-XX of Police Regulations with regard to registration and surveillance of bad characters and has already passed impugned order, which is in consonance with provisions of Police Regulations as well as Police Act supported with precedents. There is no illegality or irregularity, requiring any indulgence.
17. This writ petition merits disposal as above. Disposed of accordingly.
Order Date :- 24.8.2021 Ravi Prakash
JUSTICE MAHESH CHANDRA TRIPATHI Digitally signed by JUSTICE MAHESH CHANDRA TRIPATHI Date: 2021.08.26 13:01:06 +05'30'
RAM KRISHNA GAUTAM Digitally signed by RAM KRISHNA GAUTAM Date: 2021.08.26 13:02:46 +05'30'