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Rajasthan High Court
Ramgopal Jain vs State Of Rajasthan And Ors on 4 April, 2013
In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur
O R D E R
S.B. Criminal Miscellaneous Petition No.3916 of 2012.
Ramgopal Jain
VERSUS
The State of Rajasthan and Others
Date Of Order ::: 04/04/2013.
Hon'ble Mr. Justice R.S. Chauhan
Mr. Pankaj Gupta, Counsel for the Petitioner
Mrs. Alka Bhatnagar, Public Prosecutor for the State
***
Reportable: (Per Court ):
The petitioner, Ramgopal Jain, is aggrieved by the fact that he has been declared as a history-sheeter and his name has been entered into Surveillance Register No.8, maintained by the Police under the Rajasthan Police Rules, 1965. The brief facts of the case are that the petitioner happens to be the Secretary of Ramrajpura Grah Nirman Sahkari Samiti. The said Samiti has certain disputes with the Anand Grah Nirman Sahkari Samiti. Thus, several F.I.Rs. have been registered against the petitioner and other office bearers of Ramrajpura Grah Nirman Sahkari Samiti. So far, ten F.I.Rs. have been registered against the petitioner from 1999 to 2008. However, out of these ten cases, in five cases the petitioner has either been acquitted honourably, or on the basis of compromise entered between the complainant and the petitioner. Presently, five-cases are pending against him. The Police has, however, opened his history-sheet and has declared him to be a history-sheeter. Hence, this petition before this Court. Mr. Pankaj Gupta, the learned counsel for the petitioner, has vehemently contended that the Police has over stepped its jurisdiction; it has gone beyond the requirement of Rule 4.4 of the Police Rules, 1965 [the Rules, for short] read with Section 8 of the Rajasthan Habitual Offenders Act, 1953 [the Act, for short]. Rule 4.4 of the Rules permit a person's name to be entered in the second part of the Surveillance Register at the discretion of the Superintendent, if the person is an habitual offender, or receiver of stolen property whether the other person has been convicted or not. According to the Act, the word habitual offender has been defined as a person who has been sentenced on conviction, on not less than three occasions. Therefore, according to the learned counsel, the definition of habitual offender given in the Act would necessarily have to be imported into the Rules. Admittedly, the petitioner has not been convicted even in a single case. Thus, he would not fall within the definition of the word habitual offender as contained in Rule 4.4. of the Rules. Moreover, there is no evidence to show that he is a receiver of stolen property. Hence, he would not fall within Rule 4.4. of the Rules. Therefore, he cannot be declared as a history-sheeter under Rule 4.4 of the Rules. Lastly, such declaration made by the State would adversely affect the reputation, the social standing of the petitioner. Since reputation is part of the word 'life' used in Article 21 of the Constitution of India, the same can be denied only by a procedure established by law. However, presently, the reputation of the person is being tarnished in violation of the procedure established by law. Therefore, by declaring the petitioner as history-sheeter, the respondents have violated his fundamental right under Article 21 of the Constitution of India. Hence, the Police should be directed to remove his name from the Surveillance Register No.8. On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor for the State, along with Mr. Naresh Kumar, A.C.P. Police Station, Adarsh Nagar, Jaipur, have contended that the petitioner happens to be involved in a large number of criminal cases. Therefore he has repeatedly brushed with the law. Looking to his alleged violation of laws, he needs to be kept under surveillance. Therefore, the Police were certainly justified in declaring him as a history-sheeter and in entering his name in the Surveillance Register No.8, according to Rule 4.4 of the Rules. Hence, the learned Public Prosecutor for the State has justified the respondent's action. Heard the learned counsel for the parties.
Chapter IV of the Rules deals with prevention of offences by the Police. Rules 4.4 dealing with the maintaining of Surveillance Register No.8 is as under :-
4.4. Surveillance Register No.,8 (1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in form 4.4. (1).
(2) In part I of such register shall be entered the names of persons commonly resident within or commonly frequenting the local jurisdiction of the police station concerned, who belong to one or more of the following classes:-
(a) All persons who have been proclaimed under Section 87, Code of Criminal Procedure.
(b) All released convicts in regard to whom, an order under Section 565, Criminal Procedure Code, has been made.
(c) All convicts the execution of whose sentence as suspended in the whole, or any part of whose punishment has been remitted conditionally under Section 401, Criminal Procedure Code.
(3) In part II of such register may be entered at the discretion of the Superintendent.
(a) Persons who have been convicted twice, or more than twice, of offences mentioned in rule 8.22;
(b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not;
(c) persons under security under sections 109 or 110, Code of Criminal Procedure;
(d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without imposition of any conditions.
Note :- This rule must be strictly constued, and entries must be confined to the names of persons falling in the four classes named therein.
A bare perusal of the Rule clearly reveals that there are two categories of persons whose names may be entered in the Surveillance Register: the first category deals with persons who are commonly resident within or commonly frequenting the local jurisdiction of the police, and who are either proclaimed under Section 87 Code of Criminal Procedure, or released convicts in regard to whom an order under Section 565 Criminal Procedure Code, has been made, or all convicts the execution of whose sentence is suspended in the whole, or any part under Section 401 Criminal Procedure Code. The second category of persons are those who at the discretion of the Superintendent of Police have been convicted twice, or more than twice, of offences mentioned in Rule 8.22; Rule 8.22 deals with specific offences in Chapter XI, XII, XIII, XVI, XVII and XXI of I.P.C. or under Chapter VIII of Cr.P.C. or under Gambling Ordinance, Indian Arms Act or where the previous conviction would lead, but enhanced conviction subsequently.
Another category covered under the second category are those persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not, or persons under security under Sections 109 or 110, Code of Criminal Procedure, or convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without imposition of any conditions. The learned Public Prosecutor for the State has tried to justify the declaration of the petitioner as a history-sheeter, ostensibly on the ground that he is covered by Rule 4.4 (3) (b) of the Rules i.e. he is believed to be a habitual offender, or a receiver of stolen property. According to her, it is immaterial whether the petitioner has been convicted or not. On the first blush, the argument seems to be an attractive one. However on a closer scrutiny, the argument is unsustainable. For, the word habitual offender has not been defined in the Rules, but has been defined in the Act. Section 2 (a) of the Act defines habitual offender as under :
The definition is as under :-
2(a) 'habitual offender' means a person who, during any continuous period of five years, whether before or after the 15th day of September, 1952 or partly before and partly after the said day, has been sentenced on conviction on not less than three occasions since he attained the age of eighteen years to a substantive terms of imprisonment for any one or more of the scheduled offences committed on different occasions and not so connected together as to form parts of the same transaction, such sentence not having been reversed in appeal or revision: Provided that in computing the continuous period of five years referred to above any period spent in jail either under a sentence of imprisonment or under detention shall not be taken into account.
Obviously, under the Act, a person can be declared to be a habitual offender, if he has three convictions recorded against him. However, in the present case, the petitioner does not even have a single conviction recorded against him. Therefore, he does not fall within the definition of the words habitual offender under the Act. Thus, he is not a habitual offender. Although, the words have been used convicted or not, but considering the fact that the definition of habitual offender makes it a pre-requisite that the person has to be convicted at least thrice, obviously, the word 'convicted or not' cannot refer to the words habitual offender. After all, the fact that he has not been convicted thrice, would ipso-facto take him out of the category of being a habitual offender. Therefore, the words convicted or not would necessarily refer to the words 'receiver of stolen property'. For, there could be a case that a person is involved in receiving stolen property, who is facing number of criminal proceedings, but does not have a conviction recorded against him. Such a person would, obviously, be included in Rule 4.4 (3) (b) of the Rules. Admittedly, in the present case, ten F.I.Rs. were registered against the petitioner for various offences. Out of these ten cases, in five cases, he has been acquitted. Thus presently, he is facing criminal proceedings only in five cases. So far, there is not a single conviction recorded against him. Hence, obviously, he cannot be categorized as a habitual offender. Moreover, there is not an iota of evidence to show that he is a receiver of stolen property. Thus, obviously, he does not fall within Rule 4.4 (3) (b) of the Rules. Reputation is, indeed, part and parcel of word 'life' as repeatedly interpreted by the Apex Court. Before the reputation of a person can be stained by the State, the State has to follow the procedure established by law. Since the Rules and the Act are both partly penal provisions, as they adversely affect the standing of a person, they have to be interpreted strictly and narrowly. Thus, before classifying a person as a history-sheeter under Rule 4.4 of the Rules, the requirement of the said Rule had to be fulfilled. Since the petitioner does not fall under the ambit of the said Rule, his declaration as a history-sheeter is beyond the procedure established by law. Such an action on the part of the respondents has violated the petitioner's fundamental right under Article 21 of the Constitution of India. For the reasons stated above, this petition is, hereby, allowed. The Police is directed to delete the name of the petitioner from the Surveillance Register No.8, forthwith. The Police is also directed to remove his photograph from their website immediately. [R.S. Chauhan] J.
ashok/
Certificate - All corrections have been incorporated in the judgment/order being emailed.
Ashok Kumar Songara/P.A.cum J.W
Rajasthan High Court
Ramgopal Jain vs State Of Rajasthan And Ors on 4 April, 2013
In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur
O R D E R
S.B. Criminal Miscellaneous Petition No.3916 of 2012.
Ramgopal Jain
VERSUS
The State of Rajasthan and Others
Date Of Order ::: 04/04/2013.
Hon'ble Mr. Justice R.S. Chauhan
Mr. Pankaj Gupta, Counsel for the Petitioner
Mrs. Alka Bhatnagar, Public Prosecutor for the State
***
Reportable: (Per Court ):
The petitioner, Ramgopal Jain, is aggrieved by the fact that he has been declared as a history-sheeter and his name has been entered into Surveillance Register No.8, maintained by the Police under the Rajasthan Police Rules, 1965. The brief facts of the case are that the petitioner happens to be the Secretary of Ramrajpura Grah Nirman Sahkari Samiti. The said Samiti has certain disputes with the Anand Grah Nirman Sahkari Samiti. Thus, several F.I.Rs. have been registered against the petitioner and other office bearers of Ramrajpura Grah Nirman Sahkari Samiti. So far, ten F.I.Rs. have been registered against the petitioner from 1999 to 2008. However, out of these ten cases, in five cases the petitioner has either been acquitted honourably, or on the basis of compromise entered between the complainant and the petitioner. Presently, five-cases are pending against him. The Police has, however, opened his history-sheet and has declared him to be a history-sheeter. Hence, this petition before this Court. Mr. Pankaj Gupta, the learned counsel for the petitioner, has vehemently contended that the Police has over stepped its jurisdiction; it has gone beyond the requirement of Rule 4.4 of the Police Rules, 1965 [the Rules, for short] read with Section 8 of the Rajasthan Habitual Offenders Act, 1953 [the Act, for short]. Rule 4.4 of the Rules permit a person's name to be entered in the second part of the Surveillance Register at the discretion of the Superintendent, if the person is an habitual offender, or receiver of stolen property whether the other person has been convicted or not. According to the Act, the word habitual offender has been defined as a person who has been sentenced on conviction, on not less than three occasions. Therefore, according to the learned counsel, the definition of habitual offender given in the Act would necessarily have to be imported into the Rules. Admittedly, the petitioner has not been convicted even in a single case. Thus, he would not fall within the definition of the word habitual offender as contained in Rule 4.4. of the Rules. Moreover, there is no evidence to show that he is a receiver of stolen property. Hence, he would not fall within Rule 4.4. of the Rules. Therefore, he cannot be declared as a history-sheeter under Rule 4.4 of the Rules. Lastly, such declaration made by the State would adversely affect the reputation, the social standing of the petitioner. Since reputation is part of the word 'life' used in Article 21 of the Constitution of India, the same can be denied only by a procedure established by law. However, presently, the reputation of the person is being tarnished in violation of the procedure established by law. Therefore, by declaring the petitioner as history-sheeter, the respondents have violated his fundamental right under Article 21 of the Constitution of India. Hence, the Police should be directed to remove his name from the Surveillance Register No.8. On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor for the State, along with Mr. Naresh Kumar, A.C.P. Police Station, Adarsh Nagar, Jaipur, have contended that the petitioner happens to be involved in a large number of criminal cases. Therefore he has repeatedly brushed with the law. Looking to his alleged violation of laws, he needs to be kept under surveillance. Therefore, the Police were certainly justified in declaring him as a history-sheeter and in entering his name in the Surveillance Register No.8, according to Rule 4.4 of the Rules. Hence, the learned Public Prosecutor for the State has justified the respondent's action. Heard the learned counsel for the parties.
Chapter IV of the Rules deals with prevention of offences by the Police. Rules 4.4 dealing with the maintaining of Surveillance Register No.8 is as under :-
4.4. Surveillance Register No.,8 (1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in form 4.4. (1).
(2) In part I of such register shall be entered the names of persons commonly resident within or commonly frequenting the local jurisdiction of the police station concerned, who belong to one or more of the following classes:-
(a) All persons who have been proclaimed under Section 87, Code of Criminal Procedure.
(b) All released convicts in regard to whom, an order under Section 565, Criminal Procedure Code, has been made.
(c) All convicts the execution of whose sentence as suspended in the whole, or any part of whose punishment has been remitted conditionally under Section 401, Criminal Procedure Code.
(3) In part II of such register may be entered at the discretion of the Superintendent.
(a) Persons who have been convicted twice, or more than twice, of offences mentioned in rule 8.22;
(b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not;
(c) persons under security under sections 109 or 110, Code of Criminal Procedure;
(d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without imposition of any conditions.
Note :- This rule must be strictly constued, and entries must be confined to the names of persons falling in the four classes named therein.
A bare perusal of the Rule clearly reveals that there are two categories of persons whose names may be entered in the Surveillance Register: the first category deals with persons who are commonly resident within or commonly frequenting the local jurisdiction of the police, and who are either proclaimed under Section 87 Code of Criminal Procedure, or released convicts in regard to whom an order under Section 565 Criminal Procedure Code, has been made, or all convicts the execution of whose sentence is suspended in the whole, or any part under Section 401 Criminal Procedure Code. The second category of persons are those who at the discretion of the Superintendent of Police have been convicted twice, or more than twice, of offences mentioned in Rule 8.22; Rule 8.22 deals with specific offences in Chapter XI, XII, XIII, XVI, XVII and XXI of I.P.C. or under Chapter VIII of Cr.P.C. or under Gambling Ordinance, Indian Arms Act or where the previous conviction would lead, but enhanced conviction subsequently.
Another category covered under the second category are those persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not, or persons under security under Sections 109 or 110, Code of Criminal Procedure, or convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without imposition of any conditions. The learned Public Prosecutor for the State has tried to justify the declaration of the petitioner as a history-sheeter, ostensibly on the ground that he is covered by Rule 4.4 (3) (b) of the Rules i.e. he is believed to be a habitual offender, or a receiver of stolen property. According to her, it is immaterial whether the petitioner has been convicted or not. On the first blush, the argument seems to be an attractive one. However on a closer scrutiny, the argument is unsustainable. For, the word habitual offender has not been defined in the Rules, but has been defined in the Act. Section 2 (a) of the Act defines habitual offender as under :
The definition is as under :-
2(a) 'habitual offender' means a person who, during any continuous period of five years, whether before or after the 15th day of September, 1952 or partly before and partly after the said day, has been sentenced on conviction on not less than three occasions since he attained the age of eighteen years to a substantive terms of imprisonment for any one or more of the scheduled offences committed on different occasions and not so connected together as to form parts of the same transaction, such sentence not having been reversed in appeal or revision: Provided that in computing the continuous period of five years referred to above any period spent in jail either under a sentence of imprisonment or under detention shall not be taken into account.
Obviously, under the Act, a person can be declared to be a habitual offender, if he has three convictions recorded against him. However, in the present case, the petitioner does not even have a single conviction recorded against him. Therefore, he does not fall within the definition of the words habitual offender under the Act. Thus, he is not a habitual offender. Although, the words have been used convicted or not, but considering the fact that the definition of habitual offender makes it a pre-requisite that the person has to be convicted at least thrice, obviously, the word 'convicted or not' cannot refer to the words habitual offender. After all, the fact that he has not been convicted thrice, would ipso-facto take him out of the category of being a habitual offender. Therefore, the words convicted or not would necessarily refer to the words 'receiver of stolen property'. For, there could be a case that a person is involved in receiving stolen property, who is facing number of criminal proceedings, but does not have a conviction recorded against him. Such a person would, obviously, be included in Rule 4.4 (3) (b) of the Rules. Admittedly, in the present case, ten F.I.Rs. were registered against the petitioner for various offences. Out of these ten cases, in five cases, he has been acquitted. Thus presently, he is facing criminal proceedings only in five cases. So far, there is not a single conviction recorded against him. Hence, obviously, he cannot be categorized as a habitual offender. Moreover, there is not an iota of evidence to show that he is a receiver of stolen property. Thus, obviously, he does not fall within Rule 4.4 (3) (b) of the Rules. Reputation is, indeed, part and parcel of word 'life' as repeatedly interpreted by the Apex Court. Before the reputation of a person can be stained by the State, the State has to follow the procedure established by law. Since the Rules and the Act are both partly penal provisions, as they adversely affect the standing of a person, they have to be interpreted strictly and narrowly. Thus, before classifying a person as a history-sheeter under Rule 4.4 of the Rules, the requirement of the said Rule had to be fulfilled. Since the petitioner does not fall under the ambit of the said Rule, his declaration as a history-sheeter is beyond the procedure established by law. Such an action on the part of the respondents has violated the petitioner's fundamental right under Article 21 of the Constitution of India. For the reasons stated above, this petition is, hereby, allowed. The Police is directed to delete the name of the petitioner from the Surveillance Register No.8, forthwith. The Police is also directed to remove his photograph from their website immediately. [R.S. Chauhan] J.
ashok/
Certificate - All corrections have been incorporated in the judgment/order being emailed.
Ashok Kumar Songara/P.A.cum J.W
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दोस्तों, कुछ गिले-शिकवे और कुछ सुझाव भी देते जाओ. जनाब! मेरा यह ब्लॉग आप सभी भाईयों का अपना ब्लॉग है. इसमें आपका स्वागत है. इसकी गलतियों (दोषों व कमियों) को सुधारने के लिए मेहरबानी करके मुझे सुझाव दें. मैं आपका आभारी रहूँगा. अख्तर खान "अकेला" कोटा(राजस्थान)