Jammu and Kashmir and Ladakh High Court: While considering the instant matter wherein the petitioner sought the quashment of Verification of Character and Antecedents Certificate by the Sub-Divisional Police Officer, Mahore describing him as a history sheeter as being under surveillance; the bench of M.A. Chowdhary, J.*, allowed the petition finding that the local police just on the basis of registration of five cases for a period of over eight years against the petitioner, had concluded that he is an habitual offender and is required to be kept in surveillance, and the history sheet was opened at Police Station, Mahore. The Court stated that opening or retention of history sheets, which interferes with the right to privacy of a person, should be done strictly, adhering to parameters inbuilt in the police rules, keeping in mind the object sought to be achieved.
The Court further stated that the criteria for opening a history sheet is the subjective satisfaction of the authority and it has to be arrived at, on the reasonable belief or knowledge that the person, for whom the history is opened or retained is habitually addicted or aid or abet, the commission of crime, whether convicted or not etc. If an officer, mechanically under the guise of prevention of crime and to protect others, opens or extends history sheets, it impacts the right of privacy of not only the individual against whom the order is passed, but also causes harm to other person’s rights. Therefore, a fair and reasonable decision should be taken, taking into consideration the constitutional rights under Art. 21 of the Constitution.
Background: The respondents alleged that the petitioner was involved in large number of cases and on the basis of his involvement in those cases, a history sheet was opened on 19-11-2022 against him in terms of Rule 703 of the Police Rules, 1960. About five cases against the petitioner was registered at Police Station, Mahore from the year 2009 to 2018 and it was alleged that the said crimes are not only include ordinary offences but also that of theft and rape as well.
Contentions: Counsel for the petitioner contended that to describe a person as history sheeter, has severe and preposterous consequences, subjecting him/her to various restrictions and police surveillance, in order to ensure that further criminal activities do not occur. As such, the history sheeters are treated as social outcasts and are referred as habitual offenders, subjecting such a person to profiling and discrimination, making him a lifetime suspicious person.
The petitioner further argued that cases against the petitioner have been dismissed, the police cannot describe him as a history sheeter and keep him under surveillance, as such a recourse, is not available to them to the disadvantage and detrimental to his interests and fundamental rights.
Per contra, the respondents argued that for opening a history sheet it is immaterial as to whether a person is acquitted or convicted in various criminal activities.
Court’s Assessment: Perusing the arguments and facts of the case, the Court delved into the technicalities of preparing a history sheet by the police. It was noted that preparation of a history sheet is not expected to be a mechanical exercise. The Police Rules, 1960 do not leave the matters at the sole discretion of any one police officer, as the same is required to be dealt with by the senior officers as well. All materials have to be considered and no relevant material should be excluded from consideration. There has to be a deliberated decision taken, giving reasons which should reflect application of mind to such materials, “After all being levelled a history sheeter as grave and adverse consequence for a person and, therefore, such a power should be exercised with caution and responsibility”.
Vis-à-vis surveillance, it was noted that so long as surveillance is for the purpose of preventing crime, there cannot be any complaint about inclusion of a name in the surveillance register, however, the entry has to be made on the basis of the material provided by history sheet, whose contents by their very nature have to be confidential. There must be sufficient material to justify inclusion of the name in the surveillance register.
The Court further opined that when it comes to history sheet, discretion of the authorities has to be exercised, according to the rules of reason and justice and not according to private opinion, according to law and not humour. “It is to be not arbitrarily vague, fanciful, but legal and regular and it must be exercised within the limit to which an honest man competent to discharge of his office or to confine himself”. While arriving at the subjective satisfaction, the activities of such persons which are informative and useful, based on the facts ascertained by the police from the date of last entry, shall be made month-wise for close watch of characters and quarterly for non-close watch of characters.
The Court further pointed out that branding a person as a history sheeted has a tainted image in the society as compared to others. “Needless to say that his relationship with others and the prospects of personal development may not remain the same. Characterization of a person is stigmatic, if any photographs is displayed in some conspicuous places in the area, where he resides, or in public places, and it affects not only his personal life, but there is every likelihood of damage being caused to his family and it cannot be lost sight of. Innocent children of such persons could be even looked down”.
Furthermore, upon perusal of the respondents arguments, the Court pointed out that five cases having been registered against the petitioner from the year 2009 to 2018, out of which four cases resulted into his acquittal and one of the case was concluded as not proved during investigation, the petitioner cannot be said to be addicted to certain patterns of crime or a habitual offender. It has not been reported that the petitioner had absconded or did not subject him to investigation or face the trial and also except bald assertion on the part of the respondents that he was in the process of being a gang/mafia leader, involving others in the crimes, is not evident from any of the material.
The Court also pointed out that the history sheet of the petitioner has been opened not in accordance with the relevant police rules and the opening of the history sheet against the petitioner offends his fundamental right enshrined in Art. 21 of the Constitution.
Based on the afore-stated assessment, the Court thus found the history sheet to be not in accordance with the Rules on the subject. The history sheet of the petitioner along with all extensions was, thus, ordered to be removed from the record of the police station concerned.
[Bashir-ud-Din v. UT of J&K, 2023 SCC OnLine J&K 650, decided on 15-09-2023]
*Judgment by Justice M.A. Chowdhary
Advocates who appeared in this case :
Petitioner- C.M. Koul, Sr. Advocate with A.R. Bhat, Advocate.
Respondent: Mohd. Irfan Inqlabi, GA.
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