[2024:RJ-JP:52716] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 5255/2024 Divesh Kumar @ Happy Choudhary S/o Shri Harpal Singh Choudhary, Aged About 36 Years, R/o H.no. 41, Yadav Nagar, Near Desert Inn Hotel, Panipech, Jhotwara Road, Police Station Shashtri Nagar, Jaipur (Raj). ----Petitioner Versus 1. State of Rajasthan, through Secretary, Department Of Home, Secretariat, Jaipur. 2. Commissioner Of Police, Jaipur Metropolitan, Jaipur. 3. Dy. Commissioner Of Police ( North), Jaipur Metropolitan, Jaipur. 4. S.H.O., Police Station Shashtri Nagar, Jaipur. ----Respondents For Petitioner(s) : Mr. Sandeep Garssa For Respondent(s) : Mr. M.S. Shekhawat, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN O R D E R DATE OF PRONOUNCEMENT : 15/05/2025 1. Heard. 2. The instant misc. petition under Section 482 Cr.P.C has been filed on behalf of the petitioner for quashing and setting aside history sheet opened against him, being contrary to the provisions of the Rajasthan Police Rules, 1965 and Rajasthan Habitual Offenders Act, 1953. 3. Learned counsel submits that on the basis of previous involvement of the petitioner in criminal cases, history sheet has been opened against him. Learned counsel submits that the petitioner belongs to a well-educated family as his father is a [2024:RJ-JP:52716] (2 of 8) [CRLMP-5255/2024] Doctor (Ayurvedic) and mother is a retired Government Teacher. He himself is a graduate and running a textile business in Gaurav Tower, Jaipur. It is contended that in the communication dated 22.07.2024 (Anenxure-7), sent by SHO Police Station Shastri Nagar, Jaipur to State Public Information Officer and Addl. Deputy Commissioner of Police (North), Jaipur, the petitioner’s name is included in the name of the history-sheeters of the Police Station Shastri Nagar, Jaipur and his details including name and address have been uploaded on the official website of the Police Department. Learned counsel submits that previous criminal record of the petitioner is annexed with the reply filed on behalf of the respondents (Annexure-R/1), as per which, seven criminal cases have been shown to be registered against him. However, in none of those cases, he has been convicted. It is contended that as per the reply itself, in one case arising out of FIR No.214/2010, PS Ashok Nagar, he has been acquitted by giving benefit of doubt whereas in another criminal case arising out of FIR No.168/2008 PS Sindhi Camp, matter has been resolved as parties entered into compromise. Rest of the criminal cases are pending trial. Thus, it is clear that the petitioner has not been sentenced on conviction in a single case. However, despite that, contrary to the provisions of law, history sheet of the petitioner has been illegally ordered to be opened by DCP Jaipur (North) vide order dated 22.07.2024. It is argued that the petitioner is neither a habitual offender nor he is habitual receiver of stolen property and thus, the provisions of Rajasthan Police Rules do not empower the Deputy Commissioner of Police, Jaipur East to direct opening of the history sheet against [2024:RJ-JP:52716] (3 of 8) [CRLMP-5255/2024] the petitioner. In support of his contention, learned counsel places reliance upon the following cases:- (1) Shyam Lal vs State of Rajasthan reported in 2012(3) Cr.L.R. 1325 (2) Pankaj Charan vs State of Rajasthan reported in 2015 MANU/RH/0068/2015 (3) Ibrahim Khan Vs. State of Rajasthan reported in 2006 Raj CANDID 1509 and (4) Ramgopal Jain Vs. State of Rajasthan & Ors. reported in 2013(3) WLC (Raj.) 466 4. Per contra, learned Public Prosecutor has opposed the prayer made in this misc. petition and contends that looking to the past history and criminal antecedents, history sheet of the petitioner was opened vide order dated 22.07.2024 passed by DCP Jaipur. He argues that the petitioner is a habitual offender as seven criminal cases have been registered against him, list whereof is annexed with the reply as Annexure-R/1. He, however, fairly concedes that the petitioner has not been convicted in any case till date. In two criminal cases, he has been acquitted by the court concerned whereas in four criminal cases, trial is pending and one case is pending investigation. He thus prays for dismissal of the instant criminal misc. petition. 5. Rule 4.9 of the Rajasthan Police Rules, 1965 (hereinafter referred to as the 'Rules of 1965') provides for opening of the History sheets, 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 [2024:RJ-JP:52716] (4 of 8) [CRLMP-5255/2024] 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.” 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:- [2024:RJ-JP:52716] (5 of 8) [CRLMP-5255/2024] (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. [2024:RJ-JP:52716] (6 of 8) [CRLMP-5255/2024] 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 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 may be entered in the Surveillance Register: the first category deals with persons, who are commonly resident within or commonly frequenting the local jurisdiction of the police, and who are either proclaimed under Section 87 of Code of Criminal Procedure, or released convicts in regard to whom an order under Section 565 Criminal Procedure Code, has been made, or all convicts the execution of whose sentence is suspended in the whole, or any part under Section 401 Criminal Procedure Code. The second category of persons are those who have been convicted twice, or more than twice, of offences mentioned in Rule 8.22; Rule 8.22 deals with specific offences in Chapter XI, XII, XIII, XVI, XVII and XXI of I.P.C. or under Chapter VIII of Cr.P.C. or under Gambling Ordinance, Indian Arms Act or where the previous conviction would lead, but enhanced conviction subsequently. Another category covered under the second category are 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 [2024:RJ-JP:52716] (7 of 8) [CRLMP-5255/2024] security under Sections 109 or 110, Code of Criminal Procedure, 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 reply, name of the petitioner was entered into the surveillance register as per the directions given by DCP, Jaipur (North) as the petitioner is a habitual offender and have past history and criminal antecedents. 10. The word “habitual offender” has not been defined in the Rules of 1965, but has been defined in the Rajasthan Habitual Offender Act, 1953 (hereinafter referred to as 'the Act of 1953'). Section 2(a) of the Act of 1953 reads as under :- “(a) '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 occasions since he attained the age of eighteen years to a substantive terms of imprisonment for any one or more of the scheduled offences committed on different occasions and 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;” 11. As per the definition of the 'habitual offender', provided under the Act of 1953, a person can be declared as habitual [2024:RJ-JP:52716] (8 of 8) [CRLMP-5255/2024] offender, if he has three convictions recorded against him during any continuous period of five years. Admittedly, the petitioner has not been convicted not even in a single case and therefore, he does not fall within the definition of word “habitual offender”. Apart from this, the petitioner’s case does not fall in any of the categories mentioned under Sub Rules (2) and (3) of Rule 4.4 of the Rajasthan Police Rules, 1965. 12. Thus, having regard to the totality of the facts and circumstances of the case and the material available on record and in the light of the view expressed by this Court in the aforesaid cases, the misc. petition is allowed and the order dated 22.07.2024 passed by Deputy Commissioner of Police, Jaipur North is set aside. The history-sheet, opened in pursuance of the order dated 22.07.2024 is hereby quashed. The respondents are directed to remove the details including name, photograph and address etc. of the petitioner from the surveillance register as well as from the official website of the police department within one month from today. 13. The misc. petition is allowed accordingly. Stay application also stands disposed of. (ANIL KUMAR UPMAN),J GAUTAM JAIN /733