P.S. Reengus District Sikar (Raj.) v. State of Rajasthan, through Public Prosecutor

Judgment

3. Versus State of Rajasthan, through Public Prosecutor Superintendent of Police, Sikar, Rajasthan Deputy Superintendent of Police, Reengus, Dist. Sikar, Rajasthan

4. Station House Officer, Police Station Reengus, Dist. Sikar, Rajasthan ----Respondents For Petitioner(s) : Petitioner in person For Respondent(s) : Mr. Vivek Choudhary, PP HON'BLE MR. JUSTICE SUDESH BANSAL Order REPORTABLE 12/09/2025

1. A history-sheet at Police Station Brahmpuri, Jaipur, has been allowed to be opened against petitioner vide order dated

25.07.2011, issued by the Superintendent of Police, Sikar, Rajasthan, treating him a habitual offender and this petition has been filed on 09.04.2024, invoking inherent jurisdiction of the High Court under Section 482 CrPC (Now 528 of BNSS, 2023), seeking directions against respondents to close the history-sheet.

2. According to petitioner, he claims himself to be a civilized person and merely on account of implicating his name by Police in

several FIRs, he cannot be assumed to be a habitual offender. His [2025:RJ-JP:37227] (2 of 15) [CRLMP-2276/2024] submission is that by opening the history-sheet against petitioner and directing the petitioner to be on surveillance causes immense hardship, hinders his liberty and peaceful social life in the Society and tarnishes his image as also maligns reputation of his family. Further, submission of petitioner is that opening history-sheet in exercise of powers under Rule 4.9 of the Rajasthan Police Rules, 1965 (hereinafter referred to as “the Rules of 1965”), without fulfilling the legal parameters prescribed therein and treating the petitioner a habitual offender arbitrarily, violates fundamental right of petitioner of right to life and liberty as envisaged under Article 21 of the Constitution of India, hence, the history-sheet opened against the petitioner deserves to be closed and impugned order be set aside so also the proceedings in furtherance to the opening of history-sheet be declared as arbitrary, illegal and contrary to the statutory provisions of law so that petitioner may be able to lead his routine life as a common social citizen. It has been urged that despite making requests before the respondents to close the history-sheet, his request has been turned unresponded, hence, petitioner has to approach before the High Court seeking directions against respondents to close the history-sheet and to drop consequential proceedings against the petitioner in order to secure ends of justice.

3. Notices were issued to the respondents and on their behalf a joint written reply to the present petition has been filed. Along with reply, the details of criminal complaint/ FIRs and criminal activities wherein petitioner has been booked, have been placed [2025:RJ-JP:37227] (3 of 15) [CRLMP-2276/2024] on record in the form of Annexure-R/1. On the basis of such criminal conduct of petitioner, the decision of opening the history- sheet and putting surveillance on the criminal activities of petitioner has been sought to be justified by the Public Prosecutor.

4. It has been stated by the Public Prosecutor that considering the involvement of petitioner in diverse criminal activities, he has rightly been held as a habitual offender and although in some of criminal cases, he has been acquitted, yet the history-sheet opened against petitioner deserves to be sustained in the eye of law and may not be interfered with by the High Court. Thus, a prayer has been made to dismiss the petition.

5. Before proceeding in the matter on merits, this Court deems it apropos to look into number of criminal cases as also the nature of offences wherein petitioner has been involved and the present status of such cases, because on the basis of such cases, decision to open the history-sheet has been stated to be taken by the respondents. The details of criminal cases registered against the petitioner along with their present status, have been provided by the respondents in the form of Annexure-R/1 enclosed with the reply and same are being tabulated herein:- eq-u- 79 fnukad /kkjk Fkkuk 30-03-03 U;k;ky; Urhtk pktZ”khV 73@6-5-03 fnukad 04- 341] 323] 504] 34 Hkknl 420] 379] 411] 120&ch Hkknl 43 15-03-05 160@22-9- 06 330 04-10-2007 380 Hkknl xksfoUnx<+ Tk;iqj 35@27-03-10 09-09 jkthukek nks’keqDr fnukd 02- 03-16 lansg ykHknsdj nks’keqDr fnukd 30- dza la 1- 2- 3- [2025:RJ-JP:37227] (4 of 15) [CRLMP-2276/2024] 4- 5- 6- 7- 8- 135 631 3-7-2008 379 Hkknl fo/kk/kjuxj Tk;iqj 9-7-2008 379 Hkknl pkSeq Tk;iqj 210 12-08-2009 420] 467] 468] 471] 120 406] 504 Hkknl 12 4-1-2010 379] 411 Hkknl “kkgiqjk Tk;iqj 269@26- 11-08 801@24- 10-08 ,Qvkj ua 70@29-09- 2009 U;k;ky; n~okjk fnukad 20- 03-2012 dks izlaKku 245@18- 08-10 142 17-05-2010 379] 411 Hkknl 141@02- 08-10 9- 10- 136 287 1-06-2011 15-9-2011 11- 108 22-02-14 12- 110 22-02-14 78@13-05- 2012 64@30-04- 13 uhedkFkkuk “kgj 29@28-03- 14 uhedkFkkuk “kgj 31@28-03- 14 306] 506 Hkknl 420] 467] 468] 471] 120 Hkknl 143] 323]327] 384 Hkknl o 3 (1) ,llh ,lVh ,DV 143] 323]327] 384 Hkknl 3 o (1) ,llh ,lVh ,DV 07-2016 dks nks’keqDr fd;k x;kA & fnukd 01- 04-2017 dks lansg dk ykHknsdj nks’keqDr fd;k x;k SSQSlyk fnukad 23- 11-2015 dks lansg dk ykHk nsdj nks’keqDr fd;kA QSlyk fnukad 01- 10-2015 nks’keqDr fd;k x;kA tSj Vªk;y U;k;ky; vkxkeh rkjhd is”kh fnukad 02- 05-2024 QSlyk fnukad 19- 09-2017s lansg dk ykHk nsdj nks’keqDrA tSj Vªk;y ,l lh ,l Vh dksV Z vkxkeh rkjhd is”kh fnukad 13- 05-2024 tSj Vªk;y ,l lh ,lVh dksVZ lhdj vkxkeh rkjhd is”kh fnukad 13- 05-2024 [2025:RJ-JP:37227] (5 of 15) [CRLMP-2276/2024]

6. At the outset, it is noteworthy that undoubtedly, a history- sheet against a person having criminal conduct can be allowed to be opened by the Police but under the written orders of a Police Officer, not below the rank of Inspector, and within the ambit and scope of Rule 4.9 of the Rules of 1965. For ready reference Rule

4.9 is being reproduced hereunder:- “4.9 History Sheets when opened. - (1) A history sheet, if one does not already exist, shall be opened in Form 4.9 for every person whose name is entered in the surveillance register, except conditionally released convicts. (2) A history sheet may be opened by or under the written orders of a police officer not below the rank of Inspector for any person not entered the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such person." (3) The Government Railway Police will maintain the history sheet of criminals known or suspected to operate on the railway in accordance with Police Rule 4.8. They will open history sheets themselves for criminals living in railway premises, who have been absent from their original homes so long that the railway premises may be regarded as their permanent residence. They may also open wandering history strangers sheets for reasonably believed to be habitually addicted to crime on the railway, whose original homes cannot be traced.” Thus, any person, whose name is entered in the surveillance register or who is reasonably believed to be habitually addicted to crime or to be aider and abettor of such person, can be allowed to be kept on surveillance by issuance of an order by a Police Officer not below the rank of Inspector, to open history-sheet against him. [2025:RJ-JP:37227] (6 of 15) [CRLMP-2276/2024]

7. Rule 4.4 of the Rules of 1965 deals with the surveillance register No. 8 to be maintained in every Police Station in form 4.4 (1), which reads 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 is suspended in the whole, or any part of whose punishment has been remitted conditionally under section 401, Criminal Procedure Code. (d) All persons restricted under Rules of Government made under section 8 of the Rajasthan Habitual Offenders Act, 1953. (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 section 109 or 110, Code of Criminal Procedure; (d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without the imposition of any conditions. Note:-This rule must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein.” [2025:RJ-JP:37227] (7 of 15) [CRLMP-2276/2024]

8. Thus, surveillance register contains two parts, Part I of register records name of person indicated in Rule 4.4(2) classified in (a) to (d) category and Part II, shows the category of those persons indicated in Rule 4.4 (3) (a) to (d).

9. A bare perusal of order impugned herein only shows that history-sheet has been allowed to be opened by the Superintendent of Police in exercise of powers under Rule 4.9 of the Rules of 1965, but it does not specify that petitioner falls under which category, specifically classified and categorized in Rule 4.4 (2) & (3) to enter his name in surveillance register for keeping surveillance on him regularly.

10. It is true that even without registering name of a criminal in the surveillance register, Police Officer can direct to open a history-sheet against him, if that criminal is reasonably believed to be a habitual offender or habitually addicted to crime or to be an aider or abettor of such criminal to commit crime. For passing such an order/ direction, the concerned and authorized officer of Police has to act cautiously and not casually because there must be his reasonable belief that the criminal is habitually addicted to crime and keeping surveillance on his regular activities is warranted to prevent him from maligning law and maintain order situation in the Society.

11. What can be the basis to treat a criminal to be a habitual offender or habitually addicted to crime, is not specifically prescribed in the Police Act or under the Police Rules of 1965, however, term “Habitual Offender” has been defined under Section [2025:RJ-JP:37227] (8 of 15) [CRLMP-2276/2024] 2(a) of the Rajasthan Habitual Offender Act, 1953 (hereinafter referred to as “the Act of 1953”), which reads as under:- “'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 occasion since he attained the age of eighteen years to a substantive term 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”

12. The definition of “Habitual Offender” as prescribed in the Act of 1953, has not been adopted and relied upon in the Rules of 1965, rather Rule 4.4 (3) talks about conviction of a criminal twice or more than twice for offenders mentioned in Rule 11, to enter his name in surveillance register, whereas the definition given in Section 2(a) of the Act of 1953, requires three convictions of a criminal to declare him a habitual offender. Thus, in the Act and Rules, prevailing in Rajasthan, there is an element of uncertainty, in respect of criteria to declare a criminal to be a habitual offender or habitually addicted to crime.

13. Be that as it may, the case of petitioner is that he has been held as a habitual offender without scrutinizing the status of his criminal cases as in none of the cases, petitioner has been convicted, rather in few cases he has been acquitted after trial or compromise. In that view, benefit of acquittal should be extended [2025:RJ-JP:37227] (9 of 15) [CRLMP-2276/2024] to petitioner by striking out his name from the surveillance register, if exists, and to close the history-sheet opened against him.

14. Adverting back to the factual matrix of case in hand and from the criminal antecedents of petitioner, it is apparently clear that petitioner was booked in as many as 12 criminal cases during the period from 2003-2014, the details of which have been indicated in the afore-referred tabulation.

15. In criminal cases No. 79/2003, 43/2005, 330/2007, 135/2008, 631/2008, 210/2009, 12/2010 detailed out at Serial No. 1 to 7 and in criminal case No. 287/2011 referred at Serial No. 10 of tabulation, petitioner has been acquitted from the criminal charges either on the basis of compromise or by extending benefit of doubt by the Court or on merits. Remaining four criminal cases, referred at Serial No. 8, 9, 11 and 12 of tabulation, are yet pending at the stage of trial before Criminal Court. Thus, it is apparent that petitioner has not been convicted by the Court in any of the criminal cases out of 12, on the basis of which he has been held to be a habitual offender and history-sheet has been decided to be opened against him. In this way, the parameters to assume and declare the petitioner as habitual offender, as per law prevailing in Rajasthan do not stand fulfilled and decision of opening of history-sheet against petitioner, treating him as habitual offender may not be countenanced by this Court and such decision cannot be said to be taken within parameters of law. [2025:RJ-JP:37227] (10 of 15) [CRLMP-2276/2024]

16. Learned Public Prosecutor from the side of respondents has referred and relied upon the judgment of the Apex Court in case of Dhanji Ran Sharma Vs. Superintendent of Police [AIR 1966 SC 1766] and Malak Singh Vs. State of Punjab and Haryana [AIR 1981 SC 760] to condone that a condition of conviction in three criminal cases as prescribed in Section 2(a) of the Act of 1953, may not be held as an absolute condition to declare a person habitual offender. His submission is that the definition of habitual offender referred in Section 2(a) of the Act of 1953 has also not been relied upon by the legislature under the Police Act and Rules of 1965.

17. In case of Dhanji Ram Sharma (supra), the similar question has cropped up before this Court for consideration that “Whether the respondents had reasonable grounds for believing that the appellant was a habitual offender or a person habitually addicted to crime?” Considering the peculiar factual matrix, placed on record by the respondents- Police Authorities before the Court, it was observed therein that sufficient material is available on record, for not interfering with the decision of respondents to declare the appellant as a habitual offender. The Hon’ble Supreme Court considered the definition of “habitual offender”, as given in the law Lexicon (Second Edition) by Whytes & Co. That definition is as under”- “Habitual Offender- a habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. Responsible belief of the Police Officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify [2025:RJ-JP:37227] (11 of 15) [CRLMP-2276/2024] again. Mere belief is not sufficient. The belief must be reasonable. It must be based on reasonable grounds.” As per the above definition, it is not required that the person should be convicted twice or thrice or more to be declared as habitual offender but even a person, who is habitually involved to commit offence or crime, can be treated as a habitual offender.

18. In case of Malak Singh (supra), the name of Appellant was entered into surveillance register without recording any conviction in any of the criminal case, but the Hon’ble Supreme Court declined to interfere therein and the requirement of conviction as a pre-condition to declare a person as a habitual offender, was not accepted.

19. Be that as it may, the Hon’ble Supreme Court in case of Dhanji Ram Sharma (supra) as also in case of Malak Singh (supra) opined to take a cautious decision by the concerned Police Authority before entering the name of a person in the surveillance register. The provisions under consideration before the Hon’ble Supreme Court were pari materia as the relevant provisions find place in the Act of 1953 and in the Rules of 1965, in respect of treating a person as a habitual offender or habitually addicted to crime and for recording his name in the surveillance register.

20. This Court does not and cannot express any different opinion than the opinion expounded by the Hon’ble Supreme Court and their cannot be a distinguished opinion or quarrel on the issue of treating a person to be habitual offender or habitually addicted to crime. The definition as prescribed under Section 2(a) of the Act of 1953, has neither been adopted and followed in the Rules of 1965 [2025:RJ-JP:37227] (12 of 15) [CRLMP-2276/2024] and the condition of conviction cannot be held to be a condition precedent or a mandatory condition to declare a person habitual offender. However, on the strength of ratio decidendi expounded by the Hon’ble Supreme Court in case of Dhanji Ram Sharma (supra) and Malak Singh (supra), it can certainly be held that while a pre-condition of conviction may not be put as a condition precedent to declare a criminal as a habitual offender, nevertheless, at least for observing a reasonable belief that concerned person is a habitual offender or habitually addicted to crime, there must be an analytical appreciation of material before the Authority concerned, to justify its action and belief, which must be reasonable, because mere belief is not sufficient. Thus, an authorized Officer of Police, before opening a history-sheet, treating a person as a habitual offender or habitually addicted to crime, is required to take a cautious decision with his subjective satisfaction of existing reasonable grounds to draw a reasonable belief for such a coercive action. This Court finds support to its view and opinion, as expressed hereinabove from the judgment delivered by the Coordinate Bench of this Court at Jodhpur, in case of Diwan Singh Vs. State: S.B. Criminal Misc. Petition No. 1305/2016 decided on 19.09.2022 reported in [2022 4 CrLR 1557].

21. In addition to above observations/ findings noted hereinabove, it would not be out of place to observe that opening a history-sheet against a person, certainly affects his social life and public reputation and to some extent, curtails his liberty as well occasionally. Although, it is within discretionary power and [2025:RJ-JP:37227] (13 of 15) [CRLMP-2276/2024] domain of the authorized Police Officers to permit opening of history-sheet of a criminal and allow to keep surveillance on his day to day activities, either by entering his name in the surveillance register or otherwise, obviously with an aim and object to maintain the law and order situation in the society, but such a discretionary power should be exercised cautiously and on subjective satisfaction about existence of reasonable grounds. Since the decision of authorized Police Officer, to open a history- sheet is directly or indirectly connected with the social reputation and liberty of that person, guaranteed under the Constitution of India, therefore, a balance has to be struck out and decision must be taken with due application of mind and after analytical analysis of the criminal record and conduct of the person concerned. Reputation of a citizen, indeed has been treated as part and parcel of the word “Life”, therefore, State Authorities should follow the procedure established by law, before taking a coercive decision to open history-sheet against a person, which undoubtedly impinge his reputation and constitutional right. Thus, before classifying a person as a history-sheeter by the Police, in exercise of its powers under Rule 4.9 of the Rules of 1965, a cautious, just and proper decision must be taken within the criterias as prescribed in the statutory Rules and law settled by the Hon’ble Supreme Court and High Courts by way of principle of judicial precedents and stare decisis.

22. In the case at hand, the impugned decision of the Police does not fulfill the requirements of taking a cautious decision with subjective satisfaction of existence of reasonable grounds to take [2025:RJ-JP:37227] (14 of 15) [CRLMP-2276/2024] a decision for opening and continuing the history-sheet against petitioner as also to keep surveillance on day to day activities of the petitioner. Respondents miserably failed to establish before this Court that from the details of criminal cases, registered against petitioner, and considering their present status and nature of offence, same constitutes a reasonable ground to sustain the order of opening history-sheet against petitioner. Undisputedly, petitioner has not been convicted in any of the criminal case. There are no findings against the petitioner that he is receiver of stolen properties. It has not been clarified in the order impugned or by respondents in their reply that how and on what basis, a reasonable belief was drawn by the Authority to treat the petitioner as a habitual offender or habitually addicted to crime, more so when as per details of his criminal cases, referred in the tabulation hereinabove, in few of criminal cases, he has been acquitted and few others were withdrawn by the State. Thus, this Court may not affirm and countenance the decision of the respondents, to continue and sustain the order of opening history- sheet against petitioner and to keep his name in the surveillance register, if existing.

23. For the discussion and enunciation hereinabove, this Court finds that the order impugned dated 25.07.2011, permitting to open a history-sheet against petitioner and putting him on surveillance, is not liable to be affirmed and continued in the eye of law, hence, same deserves to be quashed. However, this judgment will not preclude the respondents to take a decision [2025:RJ-JP:37227] (15 of 15) [CRLMP-2276/2024] afresh on merits, if in future, warranting circumstances to take such decision arises.

24. As a final result, instant petition succeeds and the impugned order dated 25.07.2011, issued by the Superintendent of Police, Sikar, Rajasthan, is hereby quashed and set aside. The history- sheet opened against the petitioner, in pursuance of the impugned order, is hereby quashed. Respondents are directed to remove the details including the name, photograph, address etc. of petitioner from the history-sheet/surveillance register of the concerned Police Station as well as from the official website of Police Department within a period of one month, if existing.

25. All pending application(s), if any, stand(s) disposed of. NITIN /135 (SUDESH BANSAL),J