ORDER
1. The petitioners have come up with a prayer to command Respondent Nos. 2 and 3 (the Senior Superintendent of Police, Meerut and the Station House Officer, Brahmpuri, District Meerut respectively) to close down the history-sheet which was opened in 1983 against them, and to discontinue surveillance and domiciliary visits to them and their family.
2. They asset, inter alia, that petitioner No. 1 is S. A., aged about 32 years and is presently serving as Storekeeper in Venus Cement Factory Ltd., Dehradun and Petitioner No, 2 is S. Sc., aged about 28 years and is presently serving as an Accountant in the same Venus Cement Factory Ltd. Dehradun; that they hail from a well to do, cultured and respectable Thakur family of District Meerut, whose antecedents have been all along above board; that the members of their family reside at Brahmpuri, Meerut; that in the year 1983 both of them were falsely implicated in a criminal case under Section 395, IPC and their Criminal Appeal is pending before this Court; that on the basis of the aforesaid solitary case the police of police Station Brahmpuri opened a history-sheet in 1983, which is in operation since then; that more than 11 years have passed yet the history-sheet has not been closed; that Narendra Kumar Agarwal and Abdul Fahim-Corporators of Municipal Corporation of Brahmpuri, along with other respectable persons of the locality, on 5-7-1992 submitted a memorandum (copy appended as Annexure-1) before Respondent No. 3 recommending closure of the history-sheet in question certifying that the petitioners are leading their life like other law abiding persons against whom alter 1984 no complaint or F.I.R. was lodged; that Respondent No. 2, however, paid no head rather continued with the surveillance; that Regulation 228 of the police Regulations provides that a history-sheet should be opened only for persons who are likely to become habitual criminals or abettors of such criminals; that having regard to fair antecedents after 1983 the history-sheet ought to have been closed by Respondent Nos. 2 and 3 and the surveillance discontinued altogether; that Regulation 229 read with Regulation 230 makes it clear that protracted surveillance shall be exercised only if the subject of an A class history sheeter is thought to be dangerous or incorrigible; that in the garb of keeping surveillance Respondent No. 3 has been harassing and humiliating the petitioners and other inmates of the family day in and day out; that the police have so far realized illegally quite a large sum of money by way of gratification and when resisted they were given threats of dire consequences; that the entire family of the petitioners has been, thus, greatly fear striken; that police has no authority of law to pay domiciliary visits even at the dead of nights and awaken the family members of the petitioners when they are fast asleep and ruthlessly disturb their peace and tranquillity; that these are clearly violative of their fundamental right guaranteed under Article 21 of the Constitution of India; and that, thus, the desired writ or interim mandamus be issued.
3. From the order sheet it appears that on 18-10-95 an opportunity was granted to the Respondents for filing counter-affidavit before 24-11-95 and that even though on 3-4-96 three weeks time and no more further was granted for filing counter-affidavit no counter-affidavit has been filed till to date.
4. Sri K.K. Srivastava, learned counsel appearing on behalf of the petitioners after reading out Regulation Nos. 228, 229, 230 and 231 of the police Regulations and two Division Bench decisions of the Court in Jugla Sharan v. Superintendent of police Gonda 1989 Lab LJ 345 and Guru Bux Singh Bakshi v. State of U.P. 1994 JTC 299 (LB) contended that in view of the unrebutted facts and circumstances mentioned in the writ petition the continuance of surveillance is bad and the history-sheet be directed to be closed.
5. Sri Sudhir Mehrotra, learned Addl. Government Advocate, on the other hand, contended that since the petitioners were convicted of an offence of dacoity under Section 395, IPC and it is not their case that they have been acquitted, there was necessity to keep surveillance on them and the members of their family and accordingly this writ petition is liable to be dismissed.
6. Regulations 228 to 231 of the police Regulations read as follows :-
228 :- Part V Consists of History Sheets. These are the personal records of criminals under surveillance. History sheets should be opened only for persons who are or likely to become habitual criminals or abettors of such criminals, there will be two classes of history sheets.
(i) class A. History sheet for dacoits, Burglars, Cattle Thieves, Railway goods Wagon thieves, and abettors thereof.
(ii) Class B. History sheet for confirmed and professional criminals who commit crime other than dacoity, Burglary, cattle theft, and theft from railway goods wagons e.g. professional cheats and other experts for whom criminal persons files are maintained by the criminal investigation Department, poisoners, cattle poisoners, Railway passenger thieves, bicycle thieves, expert pick pockets, forgers, coiners, Cocaine and opium smugglers hired fuffians 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 found to be also addicted to dacoity, Burglary, cattle theft or theft from railway goods wagons. A class as well as B class surveillant may under paragraphs 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.
229. This classification of history sheet as A and B is based on the principle, that whereas there is always hope of a dacoit, burglar, or cattle thief or railway goods wagon thief mending his ways the expert miscellaneous criminal is as a general rule incapable of reform. The classification therefore solely on the kind of crime to which suspects are addicted and is designed to regulate only :
(a) the length of time for which a suspect should ordinarily remain, under surveillance in the absence of complaints against him,
(2) the kind of surveillant which is his activities require. The degree of surveillance of the appropriate kind to be exercised over a suspect will depend not on his classification but on the extent to which he is believed to be active at any particular time.
230. If the subject of an A class history sheet is thought to be so dangerous or incorrigible as to require more protracted surveillance than the generality of his class, he may be started by the order of the superintendent. Here again the fact that a history sheet man is started will necessarily indicate only that he is to be kept under continuous surveillance for a longer period. It will not necessarily indicate that his surveillance while it lasts is to be more intense. The aim is to concentrate the most intense surveillance on the criminal whether starred or unstarred who is believed to be temporarily active.
Superintendent of District Police may not give orders for the starring of or discontinuance of surveillant over any history sheeter of a railway police suspect without the concurrence of the Superintendent of Govt. Railway Police.
231. The subjects of history sheet of class A will unless they are starred remain under surveillance for at least two consecutive years 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 or a cognizable offence or had any suspicious absence recorded against him. At the end of that period if he is believed to have reformed he will cease to be starred but will remain subject to surveillant 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.
6.1 In this context it is also relevant to notice Regulation 236 which reads thus :-
Without prejudice to the right of Superintendents of Police to put into practice any legal measures, such as shadowing in cities, by which they find they can keep in touch with suspects in particular localities or special circumstances, surveillance may for most practical purposes be defined as consisting of one or more of the following measures :-
(a) secret picketing of the house of approaches to the house of suspects;
(b) domicilliary visits at night;
(c) through periodical inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation;
(d) the reporting by constables and chaukidars of movements and absence from home;
(e) the verification of movements and absences by means of inquiry slips;
(f) the collection and record on a history-sheet of all information bearing on conduct.
6.2 Regulation 237 provides that all 'history-sheet men' of class A 'starred' and 'unstarred' would be subject to all these measures of surveillance.
7. Article 21 of the Constitution of India reads thus :-
21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law.
7.1 In Kharak Singh v. State of U.P. (1964) 1 SCR 332 : AIR 1963 SC 1295 : 1963 All LJ 711 the Supreme Court through its majority judgment observed/held as follows (at page 712 of All LJ):-
Regulation 228 which occurs in Chap. XX of the police Regulations defines 'history-sheets' as 'the personal records of criminals under surveillance'. That regulation further directs that a 'history sheet' should be opened only for persons who are or are likely to become habitual criminals or the aiders or abettors of such criminals. These history-sheets are of two classes: Class A for dacoits, burglars, cattle-thieves, and railway goods-wagon thieves, and class B for those who are confirmed and professional criminals who commit crimes other than dacoity, burglary, etc. like professional cheats.
x x x x x x x x...the regulations contained in Chap. XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be 'a law' which the State is entitled to make under the relevant clauses 2 to 6 of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Article 19(1); nor would the same be 'a procedure established by law' within Article 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks to restrain the State from taking action under the regulations.
x x x x x x x xRegulation 236(b) which authorises 'domiciliary visits' is struck down as unconstitutional.
7.2 In People's Union for Civil Liberties v. Union of India AIR 1997 SC 568 : 1997 AIR SCW 113, it was observed and held as follows :-
13. Both sides have relied upon the seven Judge Bench judgment of this Court in Kharak Singh v. State of U.P. (1964) 1 SCR 332 : AIR 1963 SC 1295 : 1963 All LJ 711. The question for consideration before this Court was whether 'surveillance' under Chapter XX of the U. P. Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b) which permitted surveillance by 'domiciliary visits at night' was held to be violative of Article 21 on the ground that there was no 'law' under which the said regulation could be justified.
14. The word 'life' and the expression 'personal liberty' in Article 21 were elaborately considered by this Court in Kharak Singh's case AIR 1963 SC 1295 : (1963 All LJ 711). The majority read 'right to privacy' a part of the right to life under Article 21 of the Constitution on the following reasoning (at pp. 1302-03) :
We have already extracted a passage from the judgment of Field, J. in Munn v. Illingnois (1876) 94 US 113 142, where the learned Judge pointed out that 'life' in the 5th and 14th Amendments of the U. S. Constitution corresponding to Article 21, means not merely the right to the continuance of a person's animal existence, but a right to the possession of each of his organs his arms and legs etc. We do not entertain any doubt that the word 'life' in Article 21 bears the same signification. Is then the word 'personal liberty' to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man's home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to 'assure the dignity of the individual' and, therefore, of those cherished human value as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concept underlying the constitution which would point to such vital words as 'personal liberty' having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objective and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire constitutional theories. Frankfurter, J. observed in Wolf v. Colorado (1948) 338 US 25.
The security of one's privacy against arbitrary intrusion by the police... is basic to a free society. It is, therefore, implicit in 'the concept of ordered liberty' and as such enforceable against the States through the due process clause. The knock at the door, whether by day or by night, as a preclude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.... We have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guarantee of the Fourteenth Amendment.
Murphy, J. considered that such invasion was against 'the very essence of a scheme of ordered liberty.
It is true that in the decision of the U. S. Supreme Court from which we have made these extracts, the Court had to consider also the impact of a violation of the Fourth Amendment which reads.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized and that our Constitution does not in terms confer any like constitutional guarantee. Nevertheless, these extracts would show that an unauthorised intrusion into a person's home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man an ultimate essential of ordered liberty, if not of the very concept of civilisation. An English Common Law maxim asserts that 'every man's house is hid castle' and in Semayne's case (1604) 5 Co Rep 91a, where this was applied, it was stated that 'the house of everyone is to him as his castle and fortress a well as for his defence against injury and violence as for his repose.' we are not unmindful of the fact that Semayne's case was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which transcends mere protection of property rights and expounds a concept of 'personal liberty' which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value.
In our view Cl. (b) of Regulation 236 is plainly violalive of Article 21 and as there is no 'law' on which the same could be justified it must be struck down as unconstitutional.
15. Subba Rao, J. (as the learned Judge then was) in his minority opinion also came to the conclusion that right to privacy was a part to Article 21 of the Constitution but went a step further and struck down Regulation 236 as a whole on the following reasoning (at p. 1306 of AIR):
Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his 'castle', it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter, J. in Wolf v. Colorado (1948) 338 US 25, pointing out the importance of the security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movements affect his persona! liberty, physical encroachments on his private lift- would affect it in a larger degree. Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. We would, therefore, define the rigid of personal liberty in Article 21 as a right of an individual to be free from restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. If so understood, all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution. 16. Article 21 of the Constitution has, therefore, been interpreted by all the seven learned Judges in Kharak Singh's case AIR 1963 SC 1295 : (1963 All LJ 711) (Majority and the minority opinions) to include that 'right to privacy' is a part of the right to 'protection of life and personal liberty' guaranteed under the said Article.
17. In Govind v. State of Madhya Pradesh (1975) 2 SCC 148 : AIR 1975 SC 1378 : 1975 Cri LJ 1111, a three Judge Bench of this Court considered the constitutional validity of Regulations 355 and 856 of the Madhya Pradesh Police Regulations which provided surveillance by way of several measures indicated in the said regulations. This Court upheld the validity of the regulations by holding that Article 21 was not violated because the impugned regulations were 'procedure established by law' in terms of the said article.
In R. Rajagopal alias R.R. Gopal v. State of Tamil Nadu (1994) 6 SCC 632: 1994 AIR SCW 4420 Jeevan Reddy, J. speaking for the Court observed that in recent times right to privacy has acquired constitutional status. The learned Judge referred to Kharak's Case AIR 1963 SC 1295 : (1963 All LJ 711), Govind's case AIR 1975 SC 1378 : (1975 Cri LJ 1111) and considered a large number of American and English cases and finally came to the conclusion that 'the right to privacy is implicit in the right to life and liberty guaranteed the citizens of this country by Article 21, It is a 'right to be let alone'. A citizen has a right 'to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.
18. We have, therefore, no hesitation in holding that right to privacy is a part of the right to 'life' and 'personal liberty' enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attraded. The said right cannot be curtailed 'except according to procedure established by law.
19. The right to privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case....
8. In Jugla Sharan v. Superintendent of Police Gonda 1989 Lab LJ 345 and Gurubux Singh Bakshi v. State of U.P. 1994 JIC 299 (LB) the two Division Benches of this Court, one of the Principal Bench and the other of the Lucknow Bench, had categorically laid down that in no case the surveillance could continue after lapse of two years period specially when no order was passed by the Superintendent of Police for its continuance by giving any special reason and in absence of such order, surveillance could not continue beyond two yeas and that the history sheet cannot be allowed to continue in an arbitrary manner.
9. Regulation 231 provides that subject to history sheet of Class A shall continue for two consecutive years and thereafter the surveillance will be discontinued unless some special reason is recorded by the Superintendent of Police.
9.1 By the non-filing of any counter-affidavit or production of any record by the respondents we are handicapped to know as to what were the special reasons assigned by respondent No. 2 in the record for continuing the surveillance. We draw a presumption in favour of the petitioners and against the respondents and hold that there is nothing before the police to justify surveillance.
10. For the reasons aforementioned we are of the view that the petitioners are entitled to the reliefs claimed for.
11. In the result this writ petition succeeds. Respondent Nos. 2 and 3 are directed to closedown the history-sheet against the petitioners and to discontinue surveillance and domiciliary visits.
12. It is clarified that: this order shall not be interpreted to mean that of the petitioners or members of their family had indulged in criminal activities and case/cases had been registered against them, then the Police cannot act. as per its Regulations.
13. In the peculiar fact and circumstance however, we make no order as so cost,
14. Let writ of mandamus issue accordingly.
15. The office is directed to hand over a copy of this order within one week to Sri Sudhir Mehrotra, learned A.G.A. for its communication to and follow up action by respondent Nos. 2 and 3.