Holding

The rule of audi alteram partem does not apply to entries in the police surveillance register, and the police had a reasonable belief justifying the inclusion of the appellants' names, so the appeals were dismissed.

Summary

The appellants, Malak Singh and Jaswant Singh, challenged the inclusion of their names in a police surveillance register maintained under the Punjab Police Rules, alleging that the entry was made without any material basis and violated their fundamental right to privacy under Articles 21 and 19(1)(d) of the Constitution. The police contended that the appellants were habitual offenders or receivers of stolen property and that the entry was based on confidential history sheets as permitted by Rules 23.4, 23.5, 23.7, 23.8 and 23.31. The Supreme Court examined whether the rule of audi alteram partem applied to such administrative entries and whether the police had a reasonable belief justifying the inclusion. It held that the surveillance register is a confidential administrative tool, the principles of natural justice do not apply, and the police had sufficient grounds under the Rules to enter the names. Consequently, the Court dismissed the appeals, upholding the validity of the surveillance register entries.

Issues considered

Whether a person is entitled to a hearing (audi alteram partem) before his name is entered in a police surveillance register.
Whether the inclusion of the appellants' names complied with Rule 23.4(3)(b) of the Punjab Police Rules requiring a reasonable belief that they are habitual offenders or receivers of stolen property.
Whether the surveillance register infringes the constitutional right to privacy and freedom of movement under Articles 21 and 19(1)(d) of the Constitution of India.

Legislation cited

Code of Criminal Procedures. 109, s. 110, s. 401, s. 565, s. 87
Constitution of Indias. Art.19(1)(d), s. Art.21
European Convention on Human Rightss. Art.8
Police Act, 1861s. 23
Punjab Police Ruless. 23.31, s. 23.4, s. 23.5, s. 23.7, s. 23.8
Restriction of Habitual Offenders (Punjab) Act, 1918s. 16

Subjects

surveillance registerright to privacyfundamental rightspolice powersnatural justiceaudi alteram partemconstitutional lawadministrative lawcriminal procedure

Judgment

MALAK .SINGH ETC ..
v.
STATE OF PUNJAB & HARYANA & ORS.
December 5, 19 80
(R. S. PATHAK AND 0. ClnNNAPPA REDDY, JJ.]
B.

Rfght to privacy of the citizen versus duty of the police to prevent crime-
Surv~illance register to be maintained by the police as per Punjab Police Rules,
vircs·. thereof not challenged-Whether a perso?J. is entitled to be .given .an
opportunity before his name is included in the said register-Whether tlte

•
names in the register could be entered only if persons fitted into the category c•i
of 1hose n•ho 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
I 23....:Constitution oflndia, Article 19(1)(d). · ·

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 Sur-
veillance over reputed bad characters, habitual offenders and other potential
', offenders. Organised crime cannot be successfully· fought without dose 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
E
movement guaranteed by Art. 19(1)(d). That such a thing cannot be per•
milted is recognised by the Punjab Police Rules themselves. [316G, 317A-B)

Rule 23.7 which prescribes the mode of surveillance permits close \Vatch
over the moven1ents of the person under surveillance but without any illegal
interference. Permissible surveillance is only to the extent of a close _\vatch
over the movements of the person under surveillance and no 1nore·. So -lorig F
as surveillance . is for . the purP:ose of preventing_ crime and is confined to the
lirilits prescribed by Rule 23.7 a person · whosC naine is included in the sur-
veillance 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 lif.e (Article 8). [317B-DJ
G
2. Discreet surveillance of suspects, habitual arid 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- llaqa Magistrate are entitled to examine the R
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 SUPREME COURT REPOl\TS [1981] 2 S.C.R. '-

A being utterly admini~1rative a.nd DOB-judicial the rule of tludi aitrem partem
is not applicable. Ir. 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·BJ
Further the entry in the surveillance register is to be made on the basis
B of the nJ:i:erial provided by the history sheet whose contents, by their very
nature have to be confidential. It \\'OUld be contrary to the public interest to
reveal the inform2tion in the history sheet, particularly the source of informa-
tion. Revelation of the source of information may put the informant i;i
jeopardy. The observance of the principle of natural justice, apart from not
ser\'ing the ends Of justice may thus lead to undesirable results. The rule
audi altre111 partern is, therefore, not attracted. [31SC-E]
c Re v. K (lnfams). 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 tbe surveillance be such as to squeeze the fundamental freedom guaranteed t
to all citizens or to obstruct the free· exercise and enjoyment of those free-
doms; nor can the surveillance so intrude as to offend the dignity of the
D individual. Surveitlance of petl)()Il5 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
e11tries in the surveillance register recognises the caution and care with which
the police officers are required to proceed. The note following Rule 23.4
E enjoins a duty upon the police officer to construe the rule strictly and con.flee
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. Sunreillance, therefore·. has to be unobtrusive and
within bounds. [3!8E-H, 3!9AJ
While it may not he necessary to supply the grounds of belief to the per-
F sons whose names are entered in the surveillance register-it may become
ecessary in some cases to satisfy the Court when an· entry is challenged on
the ground that there are grounds to entertain such reasonable belief. [311JC..DJ

Crv!L APPELLATE JURISDICTION : Civil Appeal Nos. 707-708 of
1980. ' r •
Appeals by Special Leave from the Judgment and Order dated
G
12-9-1978 of the Punjab and Haryan1' 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.
ff The Judgment of the Court was delivered by
CHINNAPPA REDDY, J.-To what exteint may the citizen's right
to be let alone be invaded by the duty of the Police to prevent crime
'
MALAK SINGH v. PUNJAB & HARYANA (Chinnoppa Reddy,/.) 3\3

is the problem posed in these two appeals by special leave under Art.
136 of the Constitution. The two appeals are directed against tho
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 pirection that the respondent Police
Officers should be restrained from harassing the appellants by calling
B
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 c
they are law abiding citizens. They claim tliat on account of their
active political affiliation to the Akali party, one Prithipal Singh. a Con-
gress M. L. A. is enimically disposed towards them and has been ins-
f
trumental 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 D
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 sur-
veillance register maintained at tl1e Police Station 'A' Division,
Amritsar. The appellants allege that their photographs have been
displayed amongst those of notorious crinlinals 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 F
alongwitk other persons whose names are entered in the surveillance.
register. They are also needlessly asked to associate themselves with
Yarious 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 appel-
G
lants could be entered in the surveillance regigter, 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
H

were filed by the Senior Superintendent of Police, Amritsar, who
•
314 SUPREME COURT REPORTS [1981] 2 S.C.R.

'A 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 pleaded that the reasons Jior entering their names in the surveil-
lance register were to be found in the history sheets which were con-
B
fidential 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 appel-
lants that the conviction was set aside on appeal. As the Writ
Petitions were dismissed by the High Court, the appellants have
c preferred these two appeals after obtaining special leave from
this Court.

Shri V. M. Tarkunde, learned counsel, who appeared as Amicus
t
curiae for the appellants urged that there were no grounds on the
basis of which the respondents could entertain a reasonable belief
D that the appellants were habitual offenders or receivers of stoll:n
property and therefore, there was no justification for including the
names of the appellants in the surveillance register. He further sub-
mitted 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
E included in the surveillance register. As this was not done, the i&
clusion 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.

11 Chapter 23 of the Punjab Police rules deals with prevention of
offences. Rule 23.4 which provides for the maintenance of a surveil-
lance register in every Police Station is in the following tenns : '\
"23.4 ( 1) In every police station, other than those of
the railway police, a Surveillance Register shall be main- ~ •
tained in Form 23.4(1).
G
(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 con-
cerned, who belong to one or more of the following
classes : -
u (a) All persons who have been proclaimed under sec-
tion 87, Code of Criminal Procedure (s.82, of the
Criminal Procedure Code of 1973).
•
/ MALAK SINGH v. PUNJAB & HARYANA (Chinnappa Reddy, I.) 315

(b} All released convicts in regard to whom an order A
under section 565, Criminal Procedure Code, has
been made (S. 356 of the Criminal Procedure Code
of 1973).
(c) All convicts the execution qf whose sentence is sus-
pended in the whole, or any part of whose pnnish- B
ment has been remitted conditionally under section
401, Criminal Procedure Code (S. 432 of the Cri-
minal Procedure Gode of 1973)
( d) All persons restricted under Rules of Government
made under section 16 of the Restriction of Habi-
• tual Offenders (Punjab) Act, 1918. c
(3) In Part II of such register may be entered at the
1 discretion of the Superintendent-
( a) persons who have been convicted twice, or more
than twice, of offences mentioned in rule 27 .29;
D
(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;
E
( d) convicts, released before the expiration of their sen-
tences under the Prisons Act and Remission Rules
without the, imposition of any conditions.
Norn.-This rule must be strictly construed, and entries
must be confined to the names of persons falling in the four
classes named therein". F
-)·· 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 G
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 H
entered until the Superintendent has recorded definite reasons for do-
ing so. The recording of masons is to be treated as confidential.
•
•
316 SUPREME COURT REPORTS [1981] 2 S.C.R.

A Rul'e 23. 7 prescribes that Police surveillance shall comprise such close
watch over the movements of the person under surveillance, by Police
Officer~, 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 in-
variably, by the officer incharge of the PoJ:ce Station or by a
B
thoroughly experienced Sub Inspector. Detailed provision is made in
the Rules with regard to the preparation, maintenance and custody of
history sheeis. Rule 23.31 provides that all records connected with
Polic.e surveillance are confidential and nothing contained in them may
be communicated to any person and that inspection may not be
c allowed or copies given. The District Magistrate and the JHaqa Magis-
trate are, however, entitled to examine the records in accordance with
Rules 1.15 and 1.21.
As mentioned by us, earJ:q, the vires of the Punjab Police Rules t
which provide for the maintenance of the surveillance register was
D not questioned before us, perhaps, because of Kharak Singh v. State of
U.P. &. Ors.(') and Gobind v. State of Madhya Pradesh & Anr.(2) 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
E 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 11 0 Code of Criminal
Procedure or proclaimed as offenders. So, their names could be
F entered in the surveillance register only if they fitted into the ~alegory
of p~rsons 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 constitu- ' .
G tion 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 preventio1• and
detection of cri!ne".
Sec. 23 of the Police Act prescribes it as the duty of police officers "to
H collect and communicate intelligence affecting the public peace, to pre-
(!) [196411 SCR 332
(2) [19751 2 s.c.c. 148

•
, MALAK SINGH v. PUNJAB & HARYANA (Chinnappa Reddy,!.) 317

A
vent the commission of offences and publio nuisances". In connection
with these duties it will be necessary to keep discreet surveillance over
reputed bad characters, habitual offenders and other potential offen-
ders. 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 funda- B
mental right to personal liberty guaranteed by Art. 21 of the Constitu-
tion 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 mcxlc of surveillance,
pennits that the close watch over the movements of the person under
surveillance but without any illegal interference. Permissible surveil- c
lance 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. \Ve may
notice here that interference in accordance with law and for the pre- D
vention of disorder and crime is an exception recognised even by
Europian 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:

"(I) Everyone's right to respect for his private anu E
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 accord-
F
ance \Vith law a'nd is necessary in a den1ocratic society in the
intei;csts of national security, public safety, for the prevention
of disc'rdcr and crime or for the protection of health or
' . mora!s".

As \Ve said, discreet surveillance of suspects, habitual and potential
G
offenders, may be necessary and so the maintenance of history sheet
and surveillance register may be necessary too, for the purpose of pre-
vention 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 H
function involved in the making of an entry in the surveillance register
is so utterly administrative and non-judicial, that it is dilficult to con-
318 SUPREME COURT REPORTS [1981] 2 S.C.R. '·
A
ceive of the application of the rule of audi altrem partem. Such e.n-
quiry as may be made has necessarily to be confidential and it appears
to us to necessarily exclude the application of that principle. Jn fact
observance of the principles of natural justice may defeat tb.e very ob-
ject of the rule providing for surveillance. There is every possibility
8 of the ends of justice being defeated instead of being served. It was
well observed in Re: K(lnfants) (') :

"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 dis-
c
missed; 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 lheir
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 0f
natural justice, apart from not serving the ends of justice may thus
lead to undesirable results. We accordingly held that the rule audi
E a/trem partem is not attracted.

But all this does not mean tha~ 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 free-
doms guaranteed to all citizens or to obstruct the free exercise and
F enjoyment of those freedoms; nor can the surveillance so iutrndc as to
o!Iend 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 citraen
to the Court's protection which the court will not hesitate to give. The
G
very rules which prescribe the conditions for making entries in the
surve>llance 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
ff •
the rule. Similarly R.23.7 demands that there should be no illegal
(1) [1965] AC 20t @ 238
,
/ M~LAK SINGH v. PUNJAB & HARYANA (Chinnappa Reddy, !.) 319

interference in the guise of surveillance. Surveillance, therefore, has A
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 pro-
claimed offenders. previous convicts, or persons who have already been
placed on security for good behaviour. In addition, names of persons B
who arc 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
·t entries in the surveillance register. But, here, the entry can only be
made by the order of the Superintendent of Police who is prohibited c
from delegating his authority under Rule 23.5. Further it is necessary
that the Supcrint>:ndent 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 properly. While it may not be neces-
sary to supply the grounds of belief to the persons whose names are
entered in the surveillance register it may become necessary in some D
cases to rntisfy the Court when an entry is challenged that there are
grounds Lo 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 Superiutendent of Police to enter-
tain a reasonable belief. In the result we reject both the appeals sub-
E
ject to our observations regarding the mode of surveillance. There is
no order as to costs.

:S.R. Appeal dismissed.

' .
'

•

'