Malak Singh Vs. State of Punjab &
Haryana & Ors [1980] INSC 227 (5 December 1980)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) PATHAK, R.S.
CITATION: 1981 AIR 760 1981 SCR (2) 311 1981
SCC (1) 420
ACT:
Right to privacy of the citizen versus duty
of the police to prevent crime-Surveillance register to be maintained by the
police as per Punjab Police Rules, vires;
thereof not challenged-Whether a person is
entitled to be given an opportunity before his name is included in the said
register-Whether the names in the register could be entered only if persons
fitted into the category of those who are reasonably believed to be habitual
offenders or receivers of stolen property whether they have been convicted or
not- Punjab Police Rules, 1.5, 1.21, 23.4, 23.5, 23.7, 23.8 and 23.31 scope
of-Police Act 1861 Section 23-Constitution of India, Article 19(1)(d).
HEADNOTE:
Dismissing the appeals, the Court ^
HELD : (1) Prevention of crime is one of the
prime purposes of the constitution of a police force. In connection with the
duties spoken of in section 23 of the Police Act, 1861, it will be necessary to
keep discreet Surveillance over reputed bad characters, habitual offenders and
other potential offenders. Organised crime cannot be successfully fought
without close watch of suspects. But surveillance may be intrusive and it may
so seriously encroach on the privacy of a citizen as to infringe his
fundamental right to personal liberty guaranteed by Article 21 of the
Constitution and the freedom of movement guaranteed by Art. 19(1)(d). That such
a thing cannot be permitted is recognised by the Punjab Police Rules
themselves. [316G, 317A-B] Rule 23.7 which prescribes the mode of surveillance
permits close watch over the movements of the person under surveillance but
without any illegal interference.
Permissible surveillance is only to the
extent of a close watch over the movements of the persons under surveillance
and no more. So long as surveillance is for the purpose of preventing crime and
is confined to the limits prescribed by Rule 23.7 a person whose name is
included in the surveillance registered cannot have a genuine cause for
complaint. Interference in accordance with law and for the prevention of
disorder and crime is an exception recognised even by the European Convention
of Human Rights to the right to respect for a person's private and family life
(Article 8). [317B-D]
2. Discreet surveillance of suspects,
habitual and potential offenders, may be necessary and so the maintenance of
history sheet and surveillance a register may be necessary too, for the purpose
of prevention of crime.
History sheets and surveillance registers
have to be and are confidential documents. Neither the persons whose name is
entered in the register nor any other member of the public can have access to
the surveillance register, the exception being that the District Magistrate and
the Ilaqa Magistrate are entitled to examine the records in accordance with
Rules 1.15 and 1.21. The nature and character of the function involved in the
making of an entry in the surveillance register 312 being utterly
administrative and non-judicial the rule of audi altrem partem is not
applicable. In fact observance of the principles of natural justice may defeat
the very object of the rule providing for surveillance. There is every
possibility of the ends of justice being defeated instead of being served.
[317G-H, 318A-B] Further the entry in the
surveillance register is to be made on the basis of the material provided by
the history sheet whose contents, by their very nature have to be confidential.
It would be contrary to the public interest to reveal the information in the
history sheet, particularly the source of information. Revelation of the source
of information may put the informant in jeopardy. The observance of the
principle of natural justice, apart from not serving the ends of justice may
thus lend to undesirable results. The rule audi altrem partem is, therefore,
not attracted. [318C-E] Re v. K (Infants), 1965 A.C. 201 & 238, quoted with
approval.
3. The intention behind Rule 23 is not to
give the police a licence to enter the names of whoever they like (dislike ?)
in the surveillance register; nor can the surveillance be such as to squeeze
the fundamental freedom guaranteed to all citizens or to obstruct the free
exercise and enjoyment of those freedoms; nor can the surveillance so intrude
as to offend the dignity of the individual.
Surveillance of persons who do not fall
within the categories mentioned in Rule 23.4 or for reasons unconnected with
the prevention of crime, or excessive surveillance falling beyond the limits
prescribed by the rules, will entitle a citizen to the Court protection which
the court will not hesitate to give. The very rules which prescribe the
conditions for making entries in the surveillance register recognises the
caution and care with which the police officers are required to proceed. The
note following Rule 23.4 enjoins a duty upon the police officer to construe the
rule strictly and confine the entries in the surveillance register to the class
of persons mentioned in the rule. Similarly Rule 23.7 demands that there should
be no illegal interference in the guise of surveillance.
Surveillance, therefore, has to be
unobtrusive and within bounds. [318E-H, 319A] While it may not be necessary to
supply the grounds of belief to the persons whose names are entered in the
surveillance register-it may become necessary in some cases to satisfy the
Court when an entry is challenged on the ground that there are grounds to
entertain such reasonable belief. [319C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 707-708 of 1980.
Appeals by Special Leave from the Judgment
and Order dated 12-9-1978 of the Punjab and Haryana High Court in C.W.2391 and
2392/78.
V.M. Tarkunde, S. Bagga and Mrs. S. Bagga for
the Appellants.
M.S. Dhillon for the Respondents.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J.-To what extent may the citizen's right to be let alone be
invaded by the duty of the Police to prevent crime 313 is the problem posed in
these two appeals by special leave under Art. 136 of the Constitution. The two
appeals are directed against the judgment of the High Court of Punjab &
Haryana dismissing the Writ Petitions filed by the appellants seeking the
removal of their names from the surveillance register maintained at Police
Station 'A' Division, Amritsar City and for a direction that the respondent
Police Officers should be restrained from harassing the appellants by calling
them to the Police Station frequently without any justification. The appellants
Malak Singh and Jaswant Singh are brothers and they claim to be engaged in a
business known as 'Continental Electricals' besides owning a hotel named Park
Restaurant on Grand Trunk Road Amritsar. They state that they are Income-tax
assessees and assert that they are law abiding citizens. They claim that on
account of their active political affiliation to the Akali party, one Prithipal
Singh a Congress M.L.A. is enimically disposed towards them and has been
instrumental in having the appellants falsely implicated in some criminal
cases. All the criminal cases ended either in acquittal or discharge. The
appellants were also detained under the MISA for sometime but they were
released from detention as the Advisory Board refused to confirm their
detention. The appellants claim that they took active part in exposing the
corrupt activities of the Deputy Superintendent of Police, Amritsar and had
even published wall posters with the result that the Deputy Superintendent of
Police had instituted a prosecution for defamation against the appellants. As a
measure of humiliation and harassment, the names of the appellants were entered
in the surveillance register maintained at the Police Station 'A' Division,
Amritsar. The appellants allege that their photographs have been displayed
amongst those of notorious criminals and bad characters at the Police Station.
Whenever a Senior Police Officer visits the Police Station the appellants are
required to attend the Police Station alongwith other persons whose names are
entered in the surveillance register. They are also needlessly asked to
associate themselves with various investigations though they have nothing
whatever to do with those investigations. As, according to the appellants,
there is no material whatsoever on the basis of which the names of the
appellants could be entered in the surveillance register, they filed Writ
Petitions in the High Court questioning the inclusion of their names in the
surveillance register and also praying that the police should be restrained
from harassing them by calling them to the Police Station without any
justification.
In the High Court, counter affidavits on
behalf of the respondents were filed by the Senior Superintendent of Police,
Amritsar, who 314 claimed that the appellants were opium smugglers and habitual
offenders and receivers of stolen property and therefore, their names were
entered in the surveillance register. It was, however, denied that their
photographs had been displayed at the Police Station. It was pleased that the
reasons for entering their names in the surveillance register were to be found
in the history sheets which were confidential documents and which, therefore,
could not be disclosed. It was also pleaded that one of the appellants had been
convicted in a criminal case but it transpires from the rejoinder filed by the
appellants that the conviction was set aside on appeal. As the Writ Petitions
were dismissed by the High Court, the appellants have preferred these two
appeals after obtaining special leave from this Court.
Shri V.M. Tarkunde, learned counsel, who
appeared as Amicus curiae for the appellants urged that there were no grounds
on the basis of which the respondents could entertain a reasonable belief that
the appellants were habitual offenders or receivers of stolen property and
therefore, there was no justification for including the names of the appellants
in the surveillance register. He further submitted that an order for
surveillance was a serious encroachment on the liberty of the citizen and
therefore, it was necessary that a person should be given an opportunity to
show cause before his name was included in the surveillance register. As this
was not done, the inclusion of the names of the appellants in the register was
bad. We may add that the vires of the Punjab Police rules which provide for the
maintenance of a surveillance register was not questioned before us.
Chapter 23 of the Punjab Police rules deals
with prevention of offences. Rule 23.4 which provides for the maintenance of a
surveillance register in every Police Station is in the following terms:
"23.4 (1) In every police station, other
than those of the railway police, a Surveillance Register shall be maintained
in Form 23.4(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 (s.82 of the Criminal Procedure Code of
1973).
315 (b) All released convicts in regard to
whom an order under section 565, Criminal Procedure Code, has been made (S. 356
of the Criminal Procedure Code of 1973).
(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 (S. 432 of
the Criminal Procedure Code of 1973) (d) All persons restricted under Rules of
Government made under section 16 of the Restriction of Habitual Offenders
(Punjab) Act, 1918.
(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 27.29;
(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 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".
Rule 23.5 provides that the surveillance
register shall be written up by the officer incharge of the Police Station
personally or by an Assistant Sub Inspector. No entry in Part II is to be made
except by the order of the Superintendent of Police and no entry in Part I is
to be made except by the order of a Gazetted Officer. It is also provided that
ordinarily a history sheet shall be opened for a person before his name is
entered in Part II of the Surveillance Register. If from the entries in the
history sheet the Superintendent is of opinion that such person should be
subjected to surveillance he shall enter his name in Part II of the register.
In the case of persons who have never been convicted or placed on security for
good behaviour their names shall not be entered until the Superintendent has
recorded definite reasons for doing so.
The recording of reasons is to be treated as
confidential.
316 Rule 23.7 prescribes that Police
surveillance shall comprise such close watch over the movements of the person
under surveillance, by Police Officers, Village headmen and village watchmen as
may be applicable without any illegal interference. Rule 23.8 provides that the
initial preparation of a history sheet is to be done with great care and
invariably, by the officer incharge of the Police Station or by a thoroughly
experienced Sub Inspector.
Detailed provision is made in the Rules with
regard to the preparation, maintenance and custody of history sheets. Rule
23.31 provides that all records connected with Police surveillance are
confidential and nothing contained in them may be communicated to any person
and that inspection may not be allowed or copies given. The District Magistrate
and the Ilaqa Magistrate are, however, entitled to examine the records in
accordance with Rules 1.15 and 1.21.
As mentioned by us, earlier, the vires of the
Punjab Police Rules which provide for the maintenance of the surveillance
register was not questioned before us, perhaps, because of Kharak Singh v.
State of U.P. & Ors. and Gobind v. State of Madhya Pradesh & Anr. The
two principal questions which were raised for our consideration were whether a
person was entitled to be given an opportunity to show cause before his name
was included in the surveillance register and whether, in the instant case,
their names were included in the register without any grounds for reasonably
believing them to be habitual offenders or receivers of stolen property, as
required by Rule 23.4 (3) (b). The second submission was based on the
circumstance that the appellants have not been previously convicted or placed
on security for good behaviour under Sec. 109 or 110 Code of Criminal Procedure
or proclaimed as offenders. So, their names could be entered in the
surveillance register only if they fitted into the category of persons who are
reasonably believed to be habitual offenders or receivers of stolen property,
whether they have been convicted of not".
Prevention of crime is one of the prime
purposes of the constitution of a police force. The preamble to the Police Act
1861 says :
"Whereas it is expedient to reorganise
the police and to make it a more efficient instrument for the prevention and
detection of crime".
Sec. 23 of the Police Act prescribes it as
the duty of police officers "to collect and communicate intelligence
affecting the public peace, to pre 317 vent the commission of offences and
public nuisances". In connection with these duties it will be necessary to
keep discreet surveillance over reputed bad characters, habitual offenders and
other potential offenders. Organised crime cannot be successfully fought
without close watch of suspects. But, surveillance may be intrusive and it may
so seriously encroach on the privacy of a citizen as to infringe his fundamental
right to personal liberty guaranteed by Art. 21 of the Constitution and the
freedom of movement guaranteed by Art. 19(1) (d). That cannot be permitted.
This is recognised by the Punjab Police Rules themselves. Rule 23.7, which
prescribes the mode of surveillance, permits that the close watch over the
movements of the person under surveillance but without any illegal
interference. Permissible surveillance is only to the extent of a close watch
over the movements of the person under surveillance and no more. So long as
surveillance is for the purpose of preventing crime and is confined to the
limits prescribed by Rule 23.7 we do not think a person whose name is included
in the surveillance register can have a genuine cause for complaint. We may
notice here that interference in accordance with law and for the prevention of
disorder and crime is an exception recognised even by European Convention of
Human Rights to the right to respect for a person's private and family life.
Art. 8 of the Convention reads as follows :
"(1) Everyone's right to respect for his
private and family life, his home and his correspondence shall be recognised.
(2) There shall be no interference by a
public authority with the exercise of this right, except such as is in
accordance with law and is necessary in a democratic society in the interests
of national security, public safety, for the prevention of disorder and crime
or for the protection of health or morals".
As we said, discreet surveillance of
suspects, habitual and potential offenders, may be necessary and so the
maintenance of history sheet and surveillance register may be necessary too,
for the purpose of prevention of crime.
History sheets and surveillance registers
have to be and are confidential documents. Neither the person whose name is
entered in the register nor any other member of the public can have access to
the surveillance register. The nature and character of the function involved in
the making of an entry in the surveillance register is so utterly administrative
and non-judicial, that it is difficult to con- 318 ceive of the application of
the rule of audi altrem partem.
Such enquiry as may be made has necessarily
to be confidential and it appears to us to necessarily exclude the application
of that principle. In fact observance of the principles of natural justice may
defeat the very object of the rule providing for surveillance. There is every
possibility of the ends of justice being defeated instead of being served. It
was well observed in Re : K(Infants) :
"But a principle of judicial inquiry,
whether fundamental or not, is only a means to an end. If it can be shown in
any particular class of case that the observance of a principle of this sort
does not serve the ends of justice, it must be dismissed; otherwise it would
become the master instead of the servant of justice".
The entry in the surveillance register is to
be made on the basis of the material provided by the history sheet whose
contents, by their very nature have to be confidential. It would be contrary to
the public interest to reveal the information in the history sheet,
particularly the source of information. Revelation of the source of information
may put the informant in jeopardy. The observance of the principle of natural
justice, apart from not serving the ends of justice may thus lead to
undesirable results. We accordingly held that the rule audi altrem partem is
not attracted.
But all this does not mean that the police
have a licence to enter the names of whoever they like (dislike?) in the surveillance
register; nor can the surveillance be such as to squeeze the fundamental
freedoms guaranteed to all citizens or to obstruct the free exercise and
enjoyment of those freedoms; nor can the surveillance so intrude as to offend
the dignity of the individual. Surveillance of persons who do not fall within
the categories mentioned in Rule 23.4 or for reasons unconnected with the
prevention of crime, or excessive surveillance falling beyond the limits
prescribed by the rules, will entitle a citizen to the Court's protection which
the court will not hesitate to give. The very rules which prescribe the
conditions for making entries in the surveillance register and the mode of
surveillance appear to recognise the caution and care with which the police officers
are required to proceed. The note following R. 23.4 is instructive. It enjoins
a duty upon the police officer to construe the rule strictly and confine the
entries in the surveillance register to the class of persons mentioned in the
rule. Similarly R.23.7 demands that there should be no illegal 319 interference
in the guise of surveillance. Surveillance, therefore, has to be unobstrusive
and within bounds.
Ordinarily the names of persons with previous
criminal record alone are entered in the surveillance register. They must be
proclaimed offenders, previous convicts, or persons who have already been
placed on security for good behaviour.
In addition, names of persons who are
reasonably believed to be habitual offenders or receivers of stolen property whether
they have been convicted or not may be entered. It is only in the case of this
category of persons that there may be occasion for abuse of the power of the
police officer to make entries in the surveillance register. But, here, the
entry can only be made by the order of the Superintendent of Police who is
prohibited from delegating his authority under Rule 23.5. Further it is
necessary that the Superintendent of Police must entertain a reasonable belief
that persons whose names are to be entered in Part II are habitual offenders or
receivers of stolen property. While it may not be necessary to supply the
grounds of belief to the persons whose names are entered in the surveillance
register it may become necessary in some cases to satisfy the Court when an
entry is challenged that there are grounds to entertain such reasonable belief.
In fact in the present case we sent for the relevant records and we have
satisfied ourselves that there were sufficient grounds for the Superintendent
of Police to entertain a reasonable belief. In the result we reject both the
appeals subject to our observations regarding the mode of surveillance. There
is no order as to costs.
S.R. Appeal dismissed.
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