29 Jan 2021 11:21 AM GMT
Allahabad High Court has held that the practice of putting names of the accused persons on the flysheet board without issuance of proclamation under sec. 82 of Cr.P.C. is derogatory to the concept of human dignity and privacy enshrined under Art. 21 of the Constitution.The judgment was delivered by a Division Bench comprising of Justice Pankaj Naqvi and Justice Vivek Agarwal. Justice...
Allahabad High Court has held that the practice of putting names of the accused persons on the flysheet board without issuance of proclamation under sec. 82 of Cr.P.C. is derogatory to the concept of human dignity and privacy enshrined under Art. 21 of the Constitution.
The judgment was delivered by a Division Bench comprising of Justice Pankaj Naqvi and Justice Vivek Agarwal. Justice Naqvi presided over the bench and delivered a concurring opinion.
Overview of the Judgment:
"The DGP, UP is directed to forthwith remove the names/identities of Top-10 criminals along with their criminal antecedents from the flysheet board from all the police stations. He is also directed to ensure that a circular in the light of this judgment is sent to all the police heads of the districts so as to ensure strict compliance." The Court held.
The Court however clarified that the benefit of the judgment will not be given to any "claimed offenders and fugitives in law".
The three petitioners were aggrieved by the publication of their names in the list of top 10 criminals displayed at various police stations at districts of Prayagraj and Kanpur Nagar. The petitioners being real brothers were also relatives of an ex Member of Parliament from Allahabad constituency and contended that it was because of the political vendetta that the police authorities published their names in the criminal list.
According to the petitioners, only one case was registered against each of them and it was on the basis of one case that their names were included under top 10 criminals.
Therefore, the petitioners contented that personal enmity was being taken to illogical ends so as to harass them and that the act of police authorities publishing their names was in violation of Right to Life and Right to Privacy as enshrined under Art. 21 of the Constitution.
Adv. Vinay Saran, learned amicus curiae in the matter had submitted that the disclosure of criminal antecedents and history sheet is governed under Chapter XX of U.P. Police Regulations which deals with registration and surveillance of bad characters.
While relying on the case of Malak Singh and Others vs. State of Punjab and Haryana and Others (1981) 1 SCC 420, the amicus curiae submitted that even history sheets and village crime note books are not public documents, therefore, publishing names of the petitioners as top-10 criminals is neither envisaged under the U.P. Police Regulations nor it can be read into the policy of the State.
Therefore the Court examined the case under the following three issues:
1. Whether policy/circular is ultra vires of the provisions contained in Constitution of India especially Art. 14, 15 and 21, Police Act of 1861 or UP Police Regulations?
2. Whether the policy/circular grants right to the police authorizes to publish names of so called criminals/accused persons on the flysheet board of the concerned police station?
3. Whether publication of names of such accused persons violates the right to privacy and dignity?
The Court while relying on the judgment of Indian Express Newspapers (Bombay) Private Limited v. Union of India AIR 1986 SC 515 observed that the validity of any subordinate legislation can be challenged on the grounds of unreasonableness, vagueness or arbitrariness. Therefore, the Court held that the policy regulation does not suffer from any lack of competences and cannot be held as ultra vires of the Constitution, Police Act or the UP Police Regulations.
Coming to the second issue in the case, the Court analyzed Rule 287 of the of the UP Police Regulations which deals with Class A and Class B of history sheets.
"Two things emanates from this discussion, namely; Police Regulation 287 does not authorize publication of anything other than a proclamation issued under authority of a judicial officer authorized to issue such proclamation besides public notices only. It does not authorize publication of anything else other than what has been provided under Police Regulation 287. Therefore, publication of top 10 list is not permissible even on a careful and liberal consideration of Police Regulation 287." The Court held.
Answering the last issue concerning violation of Right to life and Right to Privacy due to the said publication, the Court relied on the judgment of KS Puttuswamy v. Union of India and observed that the judgment focusing on an aspect of privacy as a right to life has in fact insulated an individual from exercise of authority either by the legislation or the State so to prevent a person being made an object of ridicule or scorn.
"In the above backdrop, it is apparent that neither socially nor politically it is desirable to curtail human dignity, which is infringed when names of accused persons are displayed on the flysheet board of the police station concerned or anywhere else without there being any proclamation issued against them under Section 82 Cr.P.C. Thus, this practice of putting the names on the flysheet board is derogatory to the concept of human dignity and privacy." The court held.
Concurring judgment of Justice Pankaj Naqvi:
Justice Naqvi while agreeing upon the reliefs granted, touched upon the larger issue of public importance i.e. Whether the State has a right to disclose the identity and criminal antecedents of an accused in the public domain?
"Dignity means self-respect. It cannot be gainsaid that once self-respect is affected, dignity is compromised. Dignity of an individual is inalienable and is not dependent on the status and class of an individual as it originates from the person being a human being and continues even after death." J. Naqvi opined.
He also relied on the judgment of Mohd Nayyar Azam Vs. State of Chhattisgarh, (2012) 8 SCC 1 wherein the Apex Court observed that It is imperative to state that it is the sacrosanct duty of the police authorities to remember that a citizen while in custody is not denuded of his fundamental right under Article 21 of the Constitution.
"Sensitization is an important aspect of policing as the Police being in the forefront to maintain law and order are expected to strictly uphold the rule of law. A police force sans sensitivity could play havoc with the life and liberty of an individual including his / her dignity. Fundamental rights of an accused while in custody or not are never wholly denuded, they stand abrogated only to the extent he is unable to enjoy them on account of his incarceration. The State has no right whatsoever to indulge in any act, which dents the dignity of an individual, as once dignity is lost, it cannot be retrieved."
While observing so, J. Naqvi went ahead to observed that the circular of UP Police is valid in the eyes of law. However, there is nothing in the circular which enables the police to disclose the identity of an accused and his criminal antecedents in public gaze and would therefore be violative of Art. 21.
"Surveillance is expected to be secretive and discreet so that the person concerned does not know that he is under surveillance. It is an important power of police with a view to keep both criminals and crimes at bay. Once the identity of a person under surveillance is made known to public not only the purpose of surveillance stands frustrated, but the State and its officers also become vicariously liable for infringing the dignity of an individual."
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