HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Writ Petition No.321/2024 Kamlesh Kumar S/o Shri Kanhiya Lal, aged about 51 Years, R/o Bihariyan Chran Nadhi Benad Road, Police Station Kardhani, Jaipur, Rajasthan. ----Petitioner Versus 1. State of Rajasthan, through PP 2. Superintendent of Police, Jaipur City (West), District Jaipur. 3. S.H.O., Police Station Kardhani, District Jaipur (West). ----Respondents For Petitioner(s) : Mr. Harish Agrawal For Respondent(s) : Mr. Vivek Chaudhary, P.P. JUSTICE ANOOP KUMAR DHAND Order 24/03/2026 1. By way of filing the instant criminal writ petition, a challenge has been led to the impugned order dated 06.11.2009 issued by the Superintendent of Police, Jaipur City (South), Jaipur by which it was ordered to open history sheet against the petitioner under Rule 4.9 of Rajasthan Police Rules, 1965 (for short “the Rules of 1965”). 2. Aggrieved by the aforesaid order, the petitioner has approached this Court for quashing and setting aside the same on the ground that the case of the petitioner does not fall within the prescribed parameters and the relevant provisions of the Rules of 1965 for opening history sheet. Counsel submits that in all, five different criminal cases were registered against the petitioner (2 of 9) [CRLW-321/2024] between the year 2003 to 2009 and in four criminal cases the petitioner has already been acquitted and only in one criminal case i.e. 56/2009, he has been convicted of the offences under Sections 143, 342, 365, 395, 323 I.P.C. by the Court of the Additional District & Sessions Judge No. 2, Jaipur Metropolitan vide judgment dated 19.07.2012. Counsel submits that, as per the provisions contained under the Rules, 1965, there must be three successive convictions in five consecutive years for opening a history sheet against an accused. However, in the instant case, except for the one criminal case No.56/2009, the petitioner has not been convicted in any other case. Hence, the order impugned passed by the respondent-Authority is not sustainable in the eyes of law. 3. Per contra, learned Public Prosecutor opposed the prayer, but he is not in a position to controvert the submissions made by counsel for the petitioner. 4. Heard and considered the submissions made at the Bar and perused the material available on record. 5. Rule 4.9 of the Rules of 1965 provides for opening of the History sheets, and the same reads as under:- “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 of 9) [CRLW-321/2024] (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 history sheets for wandering strangers reasonably believed to be habitually addicted to crime on the railway, whose original homes cannot be traced.” 6. Rule 4.4 of the Rules of 1965 deals with 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 maybe 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; (4 of 9) [CRLW-321/2024] (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.” 7. As per Clause (1) of Rule 4.9 of the Rules of 1965, a history- sheet can be opened against a person, whose name is entered in the Surveillance Register, except conditionally released convicts. As per Clause (2) of the Rule 4.9 of the Rules of 1965, a history- sheet can be opened under the written orders of a police officer not below the rank of Inspector against any person, whose name has not been entered in the Surveillance Register, but who is reasonably believed to be habitually addicted to commit crime or to be an aider or abettor of such person. 8. Rule 4.4 of the Rules of 1965 clearly reveals that there are two categories of persons whose names can be entered in the Surveillance Register. The first category deals with such persons, who are commonly resident within or commonly frequenting the local jurisdiction of the concerned police station, and who have been either proclaimed under Section 87 Cr.P.C., or released convicts in regard to whom an order under Section 565 Cr.P.C. has been made, or 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 Cr.P.C. The second category of persons are those whose names may be entered at (5 of 9) [CRLW-321/2024] the discretion of the Superintendent of Police, given that they have been convicted twice, or more than twice, of offences mentioned in the Rule 8.22. The Rule 8.22 deals with specific offences in Chapter XI, XII, XIII, XVI, XVII and XXI of the I.P.C. or under Chapter VIII of the Cr.P.C. or under the Rajasthan Public Gambling Ordinance, 1949, Indian Arms Act, 1959 or where subsequent conviction, of a person previously convicted of the same or similar offence, would lead to enhanced punishment. Other cases, covered under the second category, include 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 Cr.P.C., or convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without imposition of any conditions. 9. As per the definition of the word ‘habitual offender’, as provided under the Rajasthan Habitual Offenders Act, 1953 (hereinafter referred to as ‘the Act of 1953’), a person can be declared as habitual offender if he has three convictions recorded against him. In the present case, there is only one conviction recorded against the petitioner i.e. in FIR No.56/2009 registered with the Police Station Kardhani, Jaipur. In the rest of the cases, the petitioner has been acquitted either on the basis of compromise or for the benefit of doubt. Hence, under these circumstances, the petitioner does not fall within the definition of “habitual offender”. 10. The Rules of 1965 do not empower the police to act in a manner that infringes upon citizen’s fundamental freedom. The (6 of 9) [CRLW-321/2024] police does not possess a licence to enter the names of whosoever they like or dislike, in the surveillance register. 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 under 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, can be categorized as such and their names can be entered in the surveillance register under the Rules, 1965. 11. The Apex Court in the case of Govind v. State of Madhya Pradesh reported in (1975) 2 SCC 148, observed that when a person is subjected to surveillance, the object and limitation of such surveillance depends upon the character and antecedents of the person concerned. The Police Regulation has force of law and, therefore, it cannot be said to be infringement of fundamental rights. Nevertheless, Article 21 of the Constitution of India is a right of an individual to be free from such restriction or encroachment whether imposed directly or indirectly by calculated measures. 12. 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 sheet is opened or retained is habitually addicted to aid or abet, the commission of crime, whether convicted or not etc. 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 (7 of 9) [CRLW-321/2024] monthly for close watch of characters and quarterly for non-close watch of characters. The 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 must not be arbitrarily vague and fanciful, but legal and regular and it must be exercised within the limits to which an honest and competent man, in the discharge of his office would confine himself. 13. 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. Reasonable belief of the police must be based on strong and reasonable grounds. Mere belief is not sufficient. The belief must be reasonable, it must be based on reasonable grounds. 14. Opening of ‘History-sheet’ must be on the basis of subjective satisfaction of the competent authority and subjective satisfaction must be arrived at in accordance with legal provisions, i.e., it should be a well reasoned and speaking decision, failing which it would be hit by Articles 14 and 21 of the Constitution of India, being arbitrary in nature and not permissible in law. 15. In the present case, order has been passed for opening the History Sheet against the petitioner simply on the basis of registration of certain criminal cases against him. 16. Perusal of the list furnished by the S.H.O. Police Station Kardhani, Jaipur (West) dated 08.04.2024 indicates that in all, five following criminal cases were registered against the petitioner and the same are mentioned in the following table as under:- (8 of 9) [CRLW-321/2024] Sr. No. Case No. Section Date Charge- sheet P.S. Case Status 1. 303/03 147, 384 IPC 30.06.03 193/03 22-07-03 Jhotwara Acquitted of the offence under Sections 147 & 384 IPC in absence of evidence by giving the benefit of doubt vide judgment dated 27.05.2016 passed by the Court of Additional Sr. Civil Judge & Addl. Chief Metro Magistrate, Jaipur Metro. 2. 534/03 341, 323, 379 IPC 17.10.03 278/03 31-10-03 Vaishali Nagar Acquitted of the offence under Sections 341, 323 & 379 IPC on account of compromise vide judgment dated 02.06.2010 passed by the Court of J.M. No. 12, Jaipur Metro. 3. 165/08 147, 447, 427 IPC 22.02.08 82/09 22-03-09 Jhotwara Acquitted of the offence under Sections 147, 447 & 427 IPC on account of compromise vide judgment dated 22.09.11 passed by the Court of A.C.J.M. No. 3, Jaipur Metro. 4. 173/08 147, 447, 427 IPC 22.02.08 117/09 31-03-09 Jhotwara Acquitted of the offence under Sections 147, 447 & 427 IPC on account of compromise vide judgment dated 22.09.11 passed by the Court of A.C.J.M. No. 3, Jaipur Metro. 5. 56/09 143, 342, 365, 395, 323 IPC 17.02.09 230/09 29-12-09 Kardhani Acquitted under Sections 395, 365 & 143 of IPC in absence of evidence by giving the benefit of doubt and convicted for the offence under Sections 342 & 323 of IPC by the Court of Additional District & Sessions Court No. 2, Jaipur Metro vide order dated 19.07.2012. 17. Perusal of the aforesaid factual report furnished by the S.H.O. Police Station Kardhani, Jaipur (West) indicates that the petitioner has been acquitted in criminal case Nos.303/2003, P.S. Jhotwara; 534/2003, P.S. Vaishali Nagar; 165/2008 P.S. Jhotwara; and 173/2008 P.S. Jhotwara, but he has been convicted only in one criminal case i.e. 56/2009 registered at P.S. Kardhani, Jaipur (West) for the offence under Sections 342 & 323 IPC. The case of the petitioner does not fall within the parameters as prescribed under the Rules, 1965 for opening history sheet. (9 of 9) [CRLW-321/2024] 18. It is clear that the history sheet of the petitioner has not been ordered to be opened in accordance with relevant provisions of Police Act and Rules. Hence, opening of history sheet against the petitioner offends his fundamental right, enshrined under Article 21 of the Constitution of India. 19. Considering the overall facts and circumstance of the case, it is clear that the petitioner is not a “habitual offender” in terms of Section 2(1)(a) of the Act of 1953. Hence, his name cannot be recorded in the history sheet/surveillance register. The order passed by the Superintendent of Police, Jaipur City (South) District Jaipur on 06.11.2009 is not legally sustainable in the eyes of law and the same is liable to be and is hereby quashed and set- aside. 20. Accordingly, the instant petition stands allowed. The Superintendent of Police, Jaipur City (South), District Jaipur is directed to remove the name of the petitioner from the history sheet/surveillance register, if already entered, of the Police Station Kardhani, Jaipur (West) forthwith. 21. The stay application and all pending applications, if any, stand disposed of. (ANOOP KUMAR DHAND),J Aayush-Shivam/12