Allowed

Shahbaz Nawaz , Shahbaz v. The State of Telangana

Telangana HC7 Dec 2020WP/18288/2020

Case brief

AI extract

What is this about?

Writ petition allowing a petitioner seeking closure of a rowdy sheet. The High Court held that opening a rowdy sheet for two non-similar criminal charges did not justify the label of 'habitual' offender, violating privacy rights under Article 21.

What did the court decide?

Rowdy sheet against the petitioner was set aside and directed to be closed forthwith by Respondents 4 and 5.

Shahbaz Nawaz , Shahbaz Vs The State of… — Pension and Retirement Benefits | Telangana HC (2020)

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HIGH COURT FOR THE STATE OF TELANGANA (Special Original Jurisdiction)

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MONDAY, THE SEVENTH DAY OF DECEN/BER TWO THOUSAND AND TWENTY

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PRESENT

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HON'BLE SRI JUSTICE P. NAVEEN RAO

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WRIT PETITION No. 18288 OF 2020

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Between:

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Shahbaz Nawaz @ Shahbaz, S/o. Mohd. Osman Patel, Aged about 29 years, Occ. Business, R/o. H.No.23-2-177, Near Urdu Ghar, Ivloghalpura, Hyderabad.

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...PETITIONER

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AND

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1 The State of Telangana, Represented by its Principal Secretary, Home Department, Secretariat, Hyderabad

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2 The Commissioner of Police, Hyderabad.

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J The Deputy Commissioner of Police, South Zone, Hyderabad.

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4 The Assistant Commissioner of Police, Bandnaka Division, Hyderabad.

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The Station House Officer, Police Station Bhavaninagar, Hyderabad

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...RESPONDENTS

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Petition under Article 226 of lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue any writ, order or directron more particularly one in the nature of WRIT OF MANDAIVUS declaring the action of the Respondents refuse to close the rowdy sheet to the Petitioner without following the guidelines framed by Hon'ble Supreme Court of lndia and this Hon'ble Court in WP.No.19194/2012 daled 2410812015 and without any reasonable findings passing Order No.HS-41162212020 dated 2710712020 against the Petitioner is illegal and arbitrary and against the principles of natural^justice and in violatron of Articles 14 and 21 of the Constitution of lndia, besides this Hon'ble Court directions and consequently set aside the Order No.HS-41162212020 dated 2710712020 passed by the Respondent No.3 against the Petitioner.

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lA NO:^'f OF 2020

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the Order No.HS-41162212020 daled 27107/2020 passed by the Respondent No.3 against the Petitioner, pending dlsposal of main writ petition.

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Counsel for the Petitioner: SRI M.A.K. MUKHEED

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Counsel for the Respondents: AGP FOR HOME

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The Court made the following: ORDER

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I'\R-I tl l' \o l,-.)i# tl:t)lt)

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HON'BLE SRI JUSTICE P.NAVEEN RAO

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WRIT PETITION NO.18288 OF 2O2O

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ORDER:

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Heard learned counsel for petitioner and learned Assistant (iovernmen t Pieader lor I-lomc.

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Petitioner is aggrieved by opcning of ron,dy sheet and rejecting his request lor review of further continuation of rorvdy' sheet by order dated 27.7.2O2O, impugned in the writ petition. Crime No.22 ol 2Ol9 was registered on 13.2.2019 under Sections 3O2, l2OB, 1O9,2Ol ,2O2,212 ol IPC and Section 21 (1) A Indian Arms Act. Petitioner was shown as Accused No.4. On completion ol investigation, charge sheet is filed Vide PRC No.485 ol 2O 19 in lhe Court of VIII Addition:rl Chrcl' Mctropolitai'r Magislrate, Hyderabad and the matter is pending. In substancc, allegation is that petitioner along with three others attacked one person b1, name Syed Llussain with deadly weapons at Banana Markct, besides Minar Garden, Nayapool, Hyderabad and deceascd succumb to several stab injuries. After involvement of the petitioner in the above crimc, rorvdy sheet u'as opcnecl on 27.6.2019 in Mirchowk Police Station and on thc^{poit'tl ol'} jurisdiction, the rowdy sheet was transferred to Bhavaninagar I)o1ice Station on 22.12.2079.^{I)etitioner was aiso implicatcd in} Crime No. l2O of 2Ol9 in^{MirchowkPolice Station under Section} 107 of Criminal Procedure^{Code, petitioner was boundoverlor} good conduct by the Special Executive^{Magistrate,I-lyderabadvide} his orders dated 22.08.2019^{for a periodof one year.}

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P.'R,.J wP No 18288 ol)020

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]'he issue for consideration is on account of^{involvement of} petitioner in Crime No.22 of 20 19 and order of binding over in Crime No. 12O of 2019 whether opening of rowdy sheet and continuing thc same is^justified.

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Right to life and liberty are sacrosanct to a person. A person is crrtitled to k:ad his lrlc rvrth dignity and sclf rcspect. tlc is cntitlcd to privacl'. t{is rights flow ouL of Article 21 of the Constitution of India. Surveillance on person certainly infringes on his right to life, privacy and liberty. These rights cannot be infringed except by due process of law. Compelling public interest may require intrusion into privacy of a person but while doing so great care and caution has to be observed.^'lhus, if police open a rou,dy sheet to keep surveillance on a person it must show justification, impelled to ensure peace and order in the society.

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ij. 1'he scopc and width of Article 21 of the Constitution of India, scope of power of police to infringe privacy of a person and scope and ambit of Police Standing Orders (for short, 'PSO') were vividl-v analvzed and dealt wlth extensrvely by two learned Judges r;l this Court in Mohammed Quadeer and others Vs. Commissioner of Police, Hyderabad and anotherr and Sunkara Satyanarayana Vs State of Andhra Pradesh, Home Department and others2. In both these decisions it is held that PSOs are non statutory exccutive instructions and have no binding force of la'a..

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In Mohammed Quadeer and others (supra), it is held:

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"31. Opening of a ror,vdy sheet against a citizen is undoubtedly fraught with serious consequences. Article 21 of the Constjtution of India guarantees right to life .,, ith dignity and the right to live, as a dignified man, carries with it the right to

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' 1999⁽³⁾ ALD 60 r999⁽⁶⁾ Ar-.I 2.19

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P,\R.J WP No.18288 ol2t):t)

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reputation. Right to reputation is an integral part of right to life guaranteed by Article 21, and such a right cannor be deprived except in accordance with thc proocdure r:stablishcd by law. Sr,tch laws *hrch authol.]se thc l)olico t() open rowd! shects and exercisc survcillance arc requircd Lo bc ver_, strictl) oonstrucd. Opening of the rowdy sheeLS and retention thereol cxcept in accordance with law would amount to infringcment of fundamental right guaranteed by Article 2l of the Constitution of India. It is true that the State is duty bound at all levels to protect the persons and property from the criminals and criminal activity. Prevention of organised crime is an obligation on the parr of the State.

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Right to Privacy:

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32, Fundamental rights and civil liberties exist and can only flourish in an orderly society. Civil liberties and fundamental rights are intimateiy connected with the nature and dynamics of the Society. It is the duty of the Police to deal with crime and criminals expeditiously and effectively while at thc same time holding to the values and concepts of the fundamcnral rrghts and the Constitution. Both the competing interests are to be reconciled. This much is clear so far as our Constirutionai system is concerned that intrusion into personal liberty without an authority of law is forbidden. Surveillance and warching of movements of a citizen by the Poiice is noL a matter of courso. Such rights can be exercised b)'the Policc only in accordancc with law which permits such surveillance. The action in this regard which is in accordance with law may result in violation of the fundamental rights guaranteed by Article 2l of the Constitution of India. Every citizen has fundamental right and entitled to indulge in harmless activities without observation or interference. It is a right to be left alone. The guarantee in Article 8 of the European Convention of Human Rights that "Everyone has the righr to respccr for his private and family lite, his home and has correspondence" re0ects both the individual s psychological need to preserve an intrusion-frcc zone of pcrsonality and family, and thc anguish and stress which can be suffered whcn that zone is violated. Thc, sal,rng that an Englishman s home is his castle \yould be eqLrall)'appircabl(r ro lndian srtuation and it can be seiid thar an Indian crtizen s home is his castle.

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33, Therefore, I haue no hesitation Luhdtsoever to reject the plea that mere suweill(rl.ce and udtch by the Police ltsel-f would not infringe the Jund.d.mentdl rights oJ a citizen, Such surveillqnce^qnd. aatch @hlch is iot a.ulhorised bg lau mag be unconstltutlonal. Such surveilldnce and @atch eve^ if it is authorlsed by law btt f it is not in accordance 'r',ith^{th.rt lau u.touldequdllgbe u^constitutlo^a1."} (emphasis su pplied)

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7 In paragraph 49 of Sunkara Satyanarayana^{(supra),learned} single Judge culled out^principles on^{police surveillance against}

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history/ rowdy sheeters. It reads^{as under:}

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'49. Therelore, in the^{context of police surveillanceagainst} history sheeters and rowdy^{sheeters, the followingprinciples} vis-a-vis right to^{privacyunder Article21 of the ConstjtuLion} rr,ould emerge:

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(i) Il thc sLlrveillance is nol ob!l'uslv(r,^{thcsi:tm(idoes not} vioLatc thc right tr.:^{pttvacy undcr Articlc2lof thcConstitutrorl} of lndia. The same^{does noteilherin rriaterialor palpablc form} affect the right of^{thesuspectto move freelynor can it be hcld} to deprive the^{history sheeter} /^{rowdysheetcroI his personal} liberty.

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(ii) ln testing whcther Iundamental^{rightof free movemcnLor} pcrsonal lrberr! is infrrngcd or not, il^{is to be remcmbcredthat}

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PNR..I WP No.18288 oI202A

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)

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infringement should be direct as well as tangible. If surveillance hurts personal sensitivities, the same is not a violation, for the constitr-ltion makers never intended to protect mere personal scnsitivcness.

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(iii) Il police surveillance is in accordance with cxccutlvc/dcpartmcntal gurdr:lrnes and not aulhonsed b'),statutc or rules having statuton' forcc, it rs for tl'rc Statc to provc that surveillancc does not ln anv\ray rnfrrngc fhe fundamcntal right of the person and that the .ruthoritres have follorvcd rhe guidelines scrupulously in ordering surveillance,

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liv) If the action of the police is found to infringe the freedoms guaranteed to the history sheeter / rowdy shceter and violates his right to privacy, in that, the surveillance is cxccssiveil' obtrusive and intrr-rsive, it may seriousll, cncroach on the privacy of a citizen as to infringe thc fundamental right to privacy and personal liberty under Articlc 2l as wcll as the freedom of movement guaranteed under Article lg(1)(d) of the Constitution of lndia and the samc is impermissible,

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(v) Evcn where therc is statutory sanction for sur.r'eillance against histor '., shectcr/rou'dy- shceter principle (iv) is equally rrpplrr aol, rl the survcillancc is obtrusrvc.

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(vi) ln crthcr case whether policc regulations are statutory ol rvhcrc thc'r'have no statu ton, force- therc should bc sufficient matcrial to induce the opinion that the history shecters/rowdy sheetcrs show a determination to lead a lile of crime which rrrvolves publrc peace or secunty only. Mere convictions in crimrnal cases where nothing imperils the safety of the society cannot be regarded as warrange surveillance under the relevant regulations, however broadly and in whatever language the regulation might have been couched,

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(vii) In either case-whether thc regulation is statutory or non-statutory-domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community sccurity, and there can be no routine follow-up at the end of a conviction or release from prison in every case.

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(uiii) The aboue prtnclples that ernerge from udrious blnd.i^g precedents aie onlg ge^erdl pri^ciples. As see^ Jrotu ld.rio'as decided cdses oJ this Courl, opening oI hlstory sheet or rowdy sheet can be justiJied onlg uhen it is proved beJore the Courl bg the State that based on the releuant material the compete^t police olJicer h(Is applied milrd ulth due care aid. consldered. o.ll aspects in the tight oJ the t@u) and theft ordered ope^ing oJ history sheet or rowdg sheet or ord.ered. co^tlnudtion ot retention oJ the hlstory sheet, In the begl^^l^g of thls J1tdgtueflt, dll the relerant d.ecisions oJ this Court haoe been reJerred. to dnd those principles mag also hdve to be kept l^ mlnd." (cnrphasrs suppllcd)

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The Andhra Pradesh Police Manual deals with various aspects of functioning of police personnel which include reglstration of crimes, investigation, conducting of trial and opening of ro\,dv sheets etc. PSO-60 13 deals with opening of rowdy sheet. According to Clause-Aa thereof, if a person habitually commits, attempts to commit or abet the commission of offences

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I "Ordcr 60l. '1he lollowrng pcrsons may be classified as rowdies alld Rowdy Sheets (Form 80) may bts opened for Lhcm under Ihe orders of LheSP/DCP and ACP/SDPO. { 'Clause'A. Persons who habitually commit, attempt to commit or abet the commission of, olTcnces involving a breach of thc peace, disturbance to public order and security."

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i']'l l ,l P fo /fl.\ ,,/ .'/r-rr,

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involving breach of peace, disturbance to public order and security, a rowdy sheet can be opened to closely observe his movements and activities. According to Clause-Bs thereof, thc persons who are bound over should be classified as rowdies and rowdy sheets can be opened and continued.

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Reading ol extracted provision of PSO-601-A, makes it clear that to open rowdy sheet emphasis is on habitually committing offence involving breach of peace, disturbance to public order and security.

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The justification shown to continue rowdy sheet against petitioner is he is young and energetic and if rowdy sheet is closed, he may cause breach of public peace and tranquility.

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I 1, The expression 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing togethcr similar repetitive acts. Repeated, persistent and similar, but not isolated, individual or dissimilar acts are necessary to^justify an inference of habit [Paragraph-31, Vijay Narain Singh vs. State of Bihar - (1983) 4 SCC 14j. The two crimes registered against petitioner are not on similar offences. Further, mere involvement: in two crimes it cannot be inferred that petitioner is 'habitually' committing offences involving breach of peace, disturbancc^trr public order and security.

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12, It is not the case of Police that^petitioner is^involvingirr several crimes and is in the habit of^{disturbing peaceand} tranquility. It is also not the case of^Police that^{after opening ol} rowdy sheet he indulged in activities detrimcntal to^{peace in tht'}

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'Clause-B. Persons bound over undcr Sectr(rns l06, 107. 108(l)(i) and I 10(e)^{(g) ol Crl']C}

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P\R J tYl,.\o l828lt of )020

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locality. Thus, the ingredients of PSO 601-A are not^attractedin the case.

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I3. In W.P.No.19194 ol 2012, Iearned single Judge of this Court in the^judgment rendered on 24.O8.2O!5 reviewed the entire case law on the subject.^'l'he lcarned single Judgc held that the requirement to opcn a rowdy sheet would arise if a person is involved in more than two crimes and, therefore, held that opening rowdy sheet for involving in lu,o crimes as tainted in law from the inception. ln the case on hand also, petitioner is involved in only tu,o crimes.

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As held in precedent decisions, PSO is non-statutory instrument to guide police in discharge of their duties. It can not give licr:nse t.o poiice to opcn rowdy shcct in a casual and mechanical manner. Opening of rowdy sheet is not as a matter of course whenever crimes are reported. Opening rowdy sheet against petitioner and continuing, in the facts of this case, cannot be termed as in public interest. Petitioner's right to life and liberty is infringed by police without reasonable cause. It is made in abuse of power and auttrority, is illegal and infraction of lundamental righ t s guarantccd ro pctitioncr.

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Thc decision impugned in the Writ Petition Lo conrinue rosd-r' shcct is sr:t aside. Writ Petition is accordingl5,' allowed. Respondents 4 and 5 are directed to forthwith close the rowdv sheet and inform the petitioner accordingly. Pending miscellaneous petitions if anv shall stand closed.

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SD/.N.CHANDRA SEKHAR ASSISTANT REG //TRUE COPY// SECTI OFFICER

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