# Jeeshan @ Jaanu & Anr v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 94
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Criminal Misc. Writ Petition No. 10974 of 2020
- **Bench:** Pankaj Naqvi, Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jeeshan-jaanu-anr-v-state-of-u-p-ors-46851
- **Pages:** 29

## Headnote

Criminal Law-Petitioners-real brothers and
claim to be tax payees-aggrieved by published
list of top 10 criminals for the year 2020 and
opening of history sheet-Policy issued after
video conferencing convened by the Chief
Minister-to prepare list of top 10 criminals at
each police station-to keep tab on their
activity-policy is not illegal-but putting such
list on fly sheet board is substantive ultraviresand against Regulation 287.

W.P. allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,696 of 96,361. This is a partial read: ask again with offset=39696 for what follows._

94 INDIAN LAW REPORTS ALLAHABAD SERIES
the court and not stealthily take away the
child. There should not be an absolute right
of either parent deciding the destiny of the
child, importance has to be given to the
best interest of the child.

33. Considering the above facts
and circumstances, this Court is of the
considered opinion that the custody of
''D' with ''F' and his father Mr Anil
Singh is held to be illegal, and
consequently,
the
writ
petition
is
allowed with a direction that the
custody of ''D' should be immediately
handed over to ''M'.

34. It is clarified that this order
shall not preclude any of the parties to
exercise
their
statutory
right
as
provided for under the Guardians and
Wards Act or Hindu Minority and
Guardianship Act, 1956.

35. Looking into the fact that ''D'
has remained in the custody of ''F' and
his father Mr Anil Singh, it is provided
that ''F' shall have visitation rights to
meet ''D' on every Saturday or Sunday
at the convenience of ''M'. He shall take
''D' at 10 AM on the given day and
return her by 4.00 PM on the same day.
In case custody of ''D' is not restored by
4.00 PM as provided, then on the
request of ''M' respondent No.5 is
directed to immediately intervene and
restore the custody of ''D' to ''M'.

36. Mr Anil Singh may also meet ''D'
on any one day on alternative weekends, as
per convenience of ''M', in the presence of
''M'. ''M' shall also permit and make
necessary
arrangements
for
video
conferencing
for
five
minutes
every
alternative day with ''F' or his father.
----------
(2021)02ILR A94
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2021 &
29.01.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE VIVEK AGARWAL, J.

Criminal Misc. Writ Petition No. 10974 of 2020
with
Criminal Misc. Writ Petition No. 13521 of 2020
with
Criminal Misc. Writ Petition No. 14300 of 2020

Jeeshan @ Jaanu & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Abou Sofian Usmani, Sri Upendra
Upadhyay, Sri Saumitra Dwivedi, Sri Vinay
Saran (Amicus)

Counsel for the Respondents:
A.G.A.

Criminal Law-Petitioners-real brothers and
claim to be tax payees-aggrieved by published
list of top 10 criminals for the year 2020 and
opening of history sheet-Policy issued after
video conferencing convened by the Chief
Minister-to prepare list of top 10 criminals at
each police station-to keep tab on their
activity-policy is not illegal-but putting such
list on fly sheet board is substantive ultraviresand against Regulation 287.

W.P. allowed. (E-7)

List of Cases cited:-

1. Maneka Gandhi Vs U.O.I., AIR 1978 SC 59,

2. Re Banners Placed at Roadside in the City of
Lucknow Vs St. of U.P. (2020) 4 ADJ 386

3. Mehmood Nayyar Azam Vs St. of Chhatt. &
ors. , (2012) 8 SCC 1
2 All. Jeeshan @ Jaanu & Anr. Vs. State of U.P. & Ors.
95
4. R. Rajagopal alias R.R. Gopal & anr. Vs St. of
T.N. (1994) 6 SCC 632

5. Bhavesh Jayanti Lakhani Vs St. of Mah. &
ors., (2009) 9 SCC 551

6. Malak Singh & ors. Vs St. of Punj. &
Haryana & ors., (1981) 1 SCC 420

7. Abdul Rahman Vs Abdul Rahim, (1924) ILR
46 (All) 884

8. Umesh Kumar Vs St. of Andhra Pradesh &
ors., (2013) 10 SCC 591

9. Kailash Chandra Sharma etc. etc. Vs St. of
Raj. & ors. as reported in (2002) 6 SCC 562

10. U.O.I. Vs Navin Jindal & anr., (2004) 2
SCC 510

11. Narendra Kumar Maheshwari Vs U.O.I. &
ors., (1990) SCC Supl. 440,

12. Syndicate Bank Vs Ramchandran Pillai,
(2011) 15 SCC 398,

13. Navtej Singh Johar & ors. Vs U.O.I.
through Secretary Ministry of Law and justice
& oth. onnected matters - (2018) 10 SCC 1

14. K.S.Putta swamy (Retd) Vs U.O.I. & ors.
(2019) 1 SCC 1,

15. National Human Rights Commission Vs St.
of Arunachal Pradesh - (1996) 1 SCC 742

16. Prakash Singh & ors. Vs U.O.I. & ors.,
(2006) 8 SCC 1

17. Indian Express Newspapers (Bombay) Pvt.
Ltd. Vs U.O.I., AIR 1986 SC 515

18. Nawab Khan Abbas Khan Vs St. of Guj.,
AIR 1974 SC 1471

19. Council of Civil Services Union Vs Minister
for the Civil Service, (1984) 3 All ER 935

20. Kharak Singh Vs St. of U.P., AIR 1963 SC
1295

21.
Francis
Coralie
Mullin
Vs
The
Administrator, Union Territory of Delhi & ors.,
AIR 1981 SC 746

22. K.S. Puttaswamy (Retd.) Vs U.O.I. -
(2017) 10 SCC 1

23. St. of Mah. Vs Saeed Sohail Sheikh -
(2012) 13 SCC 192

24. Bhim Singh Vs St. of J&K - (1985) 4 SCC
677

25. Sandeep Kumar Bafna Vs St. of Mah. (2014)
16 SCC 623

26. Sunil Batra Vs Delhi Administration & ors.
(1978) 4 SCC 494,

27.
Prem
Shankar
Shukla
Vs
Delhi
Administration (1980) 3 SCC 526,

28. Sunil Gupta Vs St. of M.P. (1990) 3 SCC 119,

29. Francis Coralie Mullin Vs Administrator,
Union Territory of Delhi & ors. (1981) 1 SCC 608

30. Bandhua Mukti Morcha Vs U.O.I., (1984) 3
SCC 161,

31. Bhim Singh Vs St.of J & K & ors.(1985) 4
SCC 677

32. Khedat Mazdoor Chetna Sangath Vs St. of
M.P, (1994) 6 SCC 260

33. Mohd Nayyar Azam Vs St. of Chhatt., (2012)
8 SCC 1

34. Joginder Kumar Vs St. of UP & ors., (1994) 4
SCC 260

35. D.K. Basu Vs St. of W.B., (1997) 1 SCC 416

36. M. Nagraj Vs U.O.I, (2006) 8 SCC 212

37. Selvi Vs St. of Kerala, (2010) 7 SCC 263

38. Shabnam Vs U.O.I., (2015) 6 SCC 702

39. Jeeja Ghosh Vs U.O.I., (2016)7 SCC 761
96 INDIAN LAW REPORTS ALLAHABAD SERIES
40. K.S. Puttaswamy & ors. Vs U.O.I. & ors.,
(2017) 10 SCC 1

(Delivered by Hon'ble Vivek Agarwal, J.)

Heard Sri Upendra Upadhyay, Siya
Ram Verma and Sri Shiv Bahadur Singh,
learned counsel for the petitioners, Sri
Vinod Diwaker, learned A.A.G. for the
State assisted by Sri Deepak Mishra and
Ms. Manju Thakur, learned A.G.A. and Sri
Vinay Saran, learned Amicus assisted by
Sri Saumitra Dwivedi.

These three petitions raise a common
issue of violation of Right to Privacy on
account
of
list
of
top-10
criminals
displayed at different Police Stations
namely,
Khuldabad,
District-Prayagraj,
Police
Station-Bithoor,
District-Kanpur
Nagar and at Police Station-Karchhana,
District-Prayagraj.

Brief facts of each petition

1. Petitioners in C.M.W.P. No. 10974
of 2020 are real brothers engaged in
business and claim to be income tax
payees. They are aggrieved with a list
published at Police Station-Khuldabad,
showing their names as top-10 criminals
for the year 2020. Petitioner no. 1- Jeeshan
@ Jaanu is at serial no. 3 and petitioner no.
2 at the top of list of top-10 criminals at
Police Station-Khuldabad, (Annexure-2) to
the writ petition. Petitioner no. 1 is also
aggrieved with the opening of his history
sheet on 20.08.2020.

(1A) Petitioners grievance is that
they are relatives of Ex-Member of
Parliament from Allahabad Constituency
and due to political vendetta, they are being
harassed by the police authorities by
illegally publishing their names in the list
of top-10 criminals of Police StationKhuldabad.

(1B) As per the contention of
petitioner no. 1, police has shown nine
cases against him, out of which, he has yet
not been charge-sheeted in four cases while
two cases are lodged at the behest of
Prayagraj
Development
Authority
regarding irregularities in the constructions.

(1C) Case of petitioner no. 2 is
that in the year 2007, three cases were
registered against him simultaneously at
Police
Station-Dhoomanganj,
DistrictPrayagraj.

(1D) Vide order dated 29.10.2013
passed by the Court of learned Additional
Sessions Judge, Court No. 2, Allahabad,
petitioner no. 2 has been acquitted in Case
Crime No. 287 of 2007. In another Case
Crime No. 120 of 2007, he is on bail,
granted by the Court of Sessions Judge,
Allahabad while in third case, i.e. Case
Crime No. 113 of 2007, he was granted bail
by the High Court.

(1E) Two new cases have been
registered against petitioner no. 2 in the
year 2019 and 2020 purely on political
motivation. In one of the cases, he has been
granted anticipatory bail while in another,
police authorities have been restrained from
taking any coercive action against the
petitioner. Another fresh case has been
registered against him in 2020 at Police
Station-Khuldabad under Section 27 of the
Arms Act.

(1F) It is submitted that only one
case is registered against each of the
petitioners at Police Station-Khuldabad and
yet on the basis of a single case their names
have been included in the list of top-10
criminals of Police Station-Khuldabad.

(1G) It is petitioner's contention
that the act of the authorities of State is
violative of Article 21 of the Constitution
of India inasmuch as Right to Life includes
2 All. Jeeshan @ Jaanu & Anr. Vs. State of U.P. & Ors.
97
the right to live with human dignity.
Placing reliance on the judgment of the
Hon'ble Supreme Court in Maneka Gandhi
vs. Union of India, AIR 1978 SC 59, it is
pointed out that Right to Life also means
that the State cannot curtail the dignity of a
citizen in an arbitrary manner.

(1H) Petitioner's contention is
that personal enmity is being taken to
illogical ends, so as to harass them by
violating their fundamental rights and
malafidely declaring them to be top-10
criminals of Police Station-Khuldabad, so
as to tarnish their image and dent their
dignity in public and harass their entire
family. In above backdrop, a prayer has
been made for issuance of a writ, order or
direction in the nature of mandamus
directing the respondents to delete the
name of the petitioners from the list of top10 criminals of Police Station-Khuldabad,
District-Prayagraj with a further prayer to
direct the police authorities to close the
history sheet of petitioner no. 1 and not to
harass them.

Brief facts in C.M.W.P. No. 13521of
2020

2. Petitioner claims himself to be an
Advocate, practicing at District-Kanpur
Dehat. Petitioner's contention is that he being
a legal professional, appears for litigants
facing criminal prosecution, as a result of
which, police personnel posted at Police
Station-Bithoor, District-Kanpur Nagar have
developed enmity. This enmity became
aggravated when petitioner refused to support
the brother of his opponent in the election of
Gram
Pradhan,
Gram
PanchayatBaikunthpur, District-Kanpur Nagar. On
11.03.2018, an FIR was registered at the
behest of petitioner against his rivals as Case
Crime No. 66 of 2018, in which his
opponents have been charge-sheeted.

(2A). According to the petitioner,
he is being falsely implicated in different
cases by including his name in the list of top10 criminals of Police Station-Bithoor,
District-Kanpur Nagar, (Annexure 1), where
his name is mentioned at serial no. 8.

(2B). Petitioner's contention is that
he has nothing to do with criminal activities
yet he is being falsely implicated. It is
submitted that in pending Case Crime No. 64
of 2018, under Sections 147, 148, 149, 452,
307, 323, 504, 506 IPC and Section 3(1)(10)
of SC/ST Act, cognizance has already been
taken and matter is pending before the Court
of learned IInd Additional Sessions Judge
(SC/ST Act), Kanpur Nagar, yet on the basis
of a single case, inclusion of the petitioner's
name in the list of top-10 criminals of Police
Station-Bithoor, District-Kanpur Nagar is
arbitrary and illegal.

Brief facts in C.M.W.P. No. 14300 of
2020

3. Petitioner's contention is that he is
into the business of a concrete and sand, his
firm is registered, along with GST number.
Petitioner claims to be an income tax payee.

(3A). It is submitted that out of
rivalry between two groups, false FIR was
lodged in the year 2011, in which final
report was submitted on 29.08.2011,
discharging petitioner and final report was
accepted by the Court. Petitioner's case is
that again in the year 2019, a false case has
been registered against him and his entire
family has been roped in under Sections
323, 504, 506 IPC, and also under Section
3(1)(da) and 3(1)(dha) of Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 at Police StationKarchhana, District-Prayagraj. In this case,
Investigating Officer has given a clean chit
to the petitioner and final report too has
98 INDIAN LAW REPORTS ALLAHABAD SERIES
been accepted by the Court, yet another
FIR was registered against him on
27.05.2020 under Section 379 IPC ,
Sections 4 and 21of Mines and Minerals
(Regulation and Development) Act, 1957
and Rules 3, 57, 7 of U.P. Minor Minerals
(Concession) Rules, 1963.

(3B). It is submitted that High
Court has been pleased to quash the FIR
against the petitioner and others in regard
to all offences except offence under Section
379 IPC, as can be verified from order
passed in C.M.W.P. No. 6027 of 2020.
Placing reliance on said judgment, it is
submitted that name of the petitioner has
been wrongly included at serial no. 4 in the
list of top-10 criminals pasted at Police
Station-Karchhana, District-Prayagraj, a
copy of which is enclosed as Annexure-13,
to the petition.

(3C).
It
is
submitted
that
petitioner had sought information as to on
what grounds his name has been included,
but information sought under Right to
Information Act, 2005 has not been
provided. It is submitted that no notice
under Section 41 Cr.P.C. has been issued to
the petitioner, yet on account of certain
election rivalry and political affiliations,
petitioner has been falsely included in the
list of top-10 criminals.

(3D). Petitioner's case is that
from 2011 to 2020, only three cases have
been registered against him, yet in violation
of his fundamental rights, his name is being
scandalized
and
propagated
without
following procedure established by law.
Petitioner has not yet been convicted in any
of the criminal cases and therefore, a prayer
has been made to remove/delete his name
at serial no. 4 from the list of top-10
criminals with a further prayer to take
action against respondent no. 4 directing
the authorities to initiate appropriate
proceedings against the Station House
Officer for arbitrarily and malafidely
including his name in the list of top-10
criminals.

(3E). It is submitted that on
inquiry, police authorities are not in a
position to disclose as to what is the criteria
for preparation of list of top 10 criminals of
a police station or of district and under
what authority of law it is being published.

(3F). A common thread running
through all the three petitions is so called
action
of
the
police
authorities
in
displaying names of the petitioners along
with others though they are undertrials,
having different vocations like business,
advocacy or politics, but their image is
being tarnished and dignity dented by the
police by canvassing their names as top-10
criminals of the district or the police station
concerned, as the case may be.

(3G). This act of the respondent
authorities is assailed on the ground that
publication/displaying/disclosing
of
the
names of petitioner infringes upon right to
privacy and right to live with dignity which
brings disrepute.

4. Learned counsel for the petitioners
led by Sri Vinay Saran, Amicus submits
that Right to Privacy is recognized as a
sacred fundamental right under Article 21
of the Constitution of India. He submits
that publication of the name of petitioners
as well as their criminal history is a clear
violation of Right to Privacy and the right
to live with human dignity, which is a facet
of Article 21 of the Constitution. He
submits that dignity of a citizen is of
utmost importance and police authorities
cannot tinker with the same.

5. Learned Amicus places reliance on
the order of Allahabad High Court in case
of In re Banners Placed at Roadside in the
City of Lucknow vs. State of U.P. (2020) 4
2 All. Jeeshan @ Jaanu & Anr. Vs. State of U.P. & Ors.
99
ADJ 386, wherein it was held that without
there being any rational nexus between the
object and means adopted to achieve them,
there cannot be any violation of either the
Right to Life guaranteed under Article 21
of the Constitution or the human rights
covered
under
the
United
Nations
Declaration of Human Rights, and our
Municipal Law so also Right to Privacy
recognized
under
the
International
Covenant on Civil and Political Rights and
other International and Regional Treaties.

6. Reliance is also placed on the
judgment of the Supreme Court in case of
Mehmood Nayyar Azam vs. State of
Chhattisgarh and Others, (2012) 8 SCC 1,
wherein it has been held that

"any form of torture or cruel,
inhuman or degrading treatment would fall
within the ambit of Article 21 of the
Constitution, whether it occurs during
investigation, interrogation or otherwise. It is
further held that the right to life of a citizen
cannot be put in abeyance on his arrest. The
precious right guaranteed by Article 21 of the
Constitution of India cannot be denied to
convicts, undertrials, detainue and other
prisoners in custody, except according to the
procedure established by law by placing such
reasonable restrictions as are permitted by
law. This judgment further deals with the
aspects of inhuman treatment having many a
facet. It can cover such acts which have been
inflicted with an intention to cause physical
suffering or severe mental pain. It would also
include a treatment when inflicted causes
humiliation and compels a person to act
against his will or conscience. Torture is not
merely physical but may even consist of
mental and psychological torture calculated
to create fright to submit to the demands of
the police. Any treatment meted out to an
accused while he is in custody which causes
humiliation and mental trauma corrodes the
concept of human dignity. The majesty of law
protects dignity of a citizen in a society
governed by law."

7. Reliance is also placed on the
judgment of the Supreme Court in R.
Rajagopal alias R.R. Gopal and another v.
State of Tamil Nadu (1994) 6 SCC 632,
Jeevan Reddy, J. speaking for the Court
observed that in recent times right to privacy
has acquired constitutional status. The Apex
Court held that

"the right to privacy is implicit in
the right to life and liberty guaranteed to
the citizens of this country by Article 21. It
is a "right to be let alone". A citizen has a
right "to safeguard the privacy of his own,
his
family,
marriage,
procreation,
motherhood, child-bearing and education
among other matters".

8. Reliance was also placed on the
judgment in Bhavesh Jayanti Lakhani vs.
State of Maharashtra and Others, (2009) 9
SCC 551, wherein it was held that:

"right to privacy is a part of the
right to 'life' and 'personal liberty'
enshrined
under
Article
21
of
the
Constitution. Once the facts in a given case
constitute a right to privacy, Article 21 is
attracted. The said right cannot be
curtailed
'except
according
to
the
procedure established by law'."

9. Learned Amicus submits that
disclosure of criminal antecedents and
history sheet is governed by U.P. Police
Regulations. Chapter XX of U.P. Police
Regulations deals with the registration and
surveillance of bad characters. Regulation
223 states about the village crime note
book, which is a confidential record, kept at
100 INDIAN LAW REPORTS ALLAHABAD SERIES
police station. Regulation 223 envisages
that officer incharge of the police station is
responsible for case study of such village
crime note book. Part V of case crime note
book consist of history sheet, which is
again a personal record of a criminal under
surveillance.

10. Regulation 240 deals with history
sheet of Class-A 'offenders considered
capable of reform' and Class-B 'offenders
considered
incapable
of
reform'
and
provides that it may be opened either on the
basis of suspicion, on conviction or
acquittal.

11. It is submitted that Regulation 240
will be applicable to the facts of the present
set of cases where history sheet can be
opened on the basis of suspicion, however,
Regulation 250 provides that the list of bad
characters in history sheets are confidential
records and it is the responsibility of the
Station House Officer to ensure that
persons
other
than
authorized
under
Regulation 240 namely, the Station House
Officer,
the
Circle
Officer
and
the
Superintendent
of
Police/Senior
Superintendent of Police and no other
person has access to them.

12. Placing reliance on the judgment
of Supreme Court in Malak Singh and
Others vs. State of Punjab and Haryana
and Others, (1981) 1 SCC 420 and the
judgment of Allahabad High Court in
Abdul Rahman vs. Abdul Rahim, (1924)
ILR 46 (All) 884, it is submitted that even
history sheets and village crime note books
are not public documents, therefore,
publishing names of the petitioners as top10 criminals is neither envisaged under the
U.P. Police Regulations nor it can be read
into the policy of the State dated 06th July,
2020. It is submitted that there is nothing in
the policy to reveal that even policy
envisages publication of any such list of
top-10 criminals on the notice board or
flysheet board of a police station.

13. Placing reliance on the judgment
of Supreme Court in Umesh Kumar vs.
State of Andhra Pradesh and Others,
(2013) 10 SCC 591, it is submitted that
Right to Life includes right to ones
reputation, freedom from defamation. It is
submitted that right to reputation is held to
be a personal right protected under Article
21. It is submitted that

"reputation is a sort of right to
enjoy the good opinion of others and it is a
personal right and an injury to reputation
is a personal injury. Thus, slander and
defamation are injurious to reputation.
Reputation has been defined in dictionary
as "to have a good name; the credit, honor,
or character which is derived from a
favourable public opinion or esteem and
character by report". Personal rights of a
human
being
include
the
right
of
reputation. A good reputation is an element
of personal security and is protected by the
Constitution equally with the right to the
enjoyment of life, liberty and property.
International Covenant on Civil and
Political Rights 1966 recognizes the right
to have opinions and the right of freedom of
expression under Article 19 is subject to the
right of reputation of others. Reputation is
"not only a salt of life but the purest
treasure and the most precious perfume of
life." Placing reliance on this judgment, it is
submitted
that
even
if
the
circular/guidelines issued by the DGP on
06th July, 2020 is taken as it is, then also
the guidelines does not permit publication
of
names
of
criminal/accused/history
sheeters on the flysheet board of a police
station.
2 All. Jeeshan @ Jaanu & Anr. Vs. State of U.P. & Ors.
101

(13A). Placing reliance on the
judgment of the Supreme court in Natural
Resources Allocation, in Re, Special
Reference No.1 of 2012 - (2012) 10 SCC 1,
it is submitted that while determining
violability of a legislation or executive action
on the touchstone of Article 14 of the
constitution, test that is to be applied is that
State action, to escape the scrutiny of Article
14 has to be fair, reasonable and nondiscriminatory, in pursuit of promotion of
healthy competition and equitable treatment.
State action must conform to norms, which
are rational, informed with reasons and
guided by public interest. Executive action
should have clearly defined limits and should
be predictable. Man on the street should
know why a decision has been taken in
favour of a particular person. Lack of
transparency in decision making process
would render it arbitrary.

14. Shri Vinod Diwakar, learned
Additional Advocate General for the State of
Uttar Pradesh in turn supports the impugned
policy dt.06.07.2020 and submits that
Chapter I Regulation 1 of the Uttar Pradesh
Police Regulations provides that the Inspector
General is the head of the police department
and the Adviser of the Governor-in-Council
in all questions of police administration. All
orders from the Governor-in-Council to a
member of police force are issued through
him, except in cases of urgency when copies
of any orders issued directly to subordinate
officers are sent to him. Thus placing reliance
on such provisions of Regulation 1, it is
submitted that orders passed by the Director
General of Police is a valid order and has a
binding force on all the personnel of the
police department subordinate to the Director
General of Police.

15. Learned A.A.G. submits that
policy/circular even if not law, yet State can
on the basis of intelligible criteria publish
names of the accused. Learned counsel for
the State placed reliance on the judgment of
the Supreme Court in the case of Kailash
Chandra Sharma etc. etc. Vs. State of
Rajasthan and others as reported in (2002)
6 SCC 562 specifically drawing attention to
para 11 of the judgment, wherein circular
dated 10.06.1998 providing for bonus marks
to residents of the concerned district and the
rural areas within that district was put to test.
On the touchstone of Article 14 read with
Article 16 of the Constitution it was held that
impugned circular is the product of the policy
decision taken by the State Government.
Even then, as rightly pointed out by the High
Court, such decision has to pass the test of
Articles 14 and 16 of the Constitution. If the
policy decision, which in the present case has
undoubted effect of deviating from normal
and salutary rule of selection based on merit
is subversive of the doctrine of equality, it
cannot sustain. It should be free from the vice
of arbitrariness and conform to the wellsettled norms both positive and negative
underlying Articles 14 and 16, which together
with
Article
15
form
part
of
the
Constitutional code of equality.

16. Reliance has also been placed on
the decision of the Supreme Court in Union
of India Vs. Navin Jindal and another,
(2004) 2 SCC 510, which provides that
Flag Code is not a statute and can not
regulate fundamental right to fly national
flag, however, the guidelines as laid down
under the Flag Code deserve to be followed
to the extent it provides for preservation of
dignity and respect for the national flag.
Reliance is also placed on the decision of
the Supreme Court in Narendra Kumar
Maheshwari Vs. Union of India and
others, (1990) SCC Supl. 440, wherein
importance of subordinate and delegated
legislation has been discussed and it has
102 INDIAN LAW REPORTS ALLAHABAD SERIES
been held that "it has to be borne in mind
that State instrumentalities should be
committed to the endeavours of the
constitutional aspiration to secure justice,
inter alia, social and economic, and also
under Article 39 (b) & (c) of the
Constitution to ensure that the ownership
and control of the material resources of the
community are so distributed as to best
subserve the common good and that the
operation of the economic system does not
result in concentration of wealth and means
of production to the common detriment.
Yet, every instrumentality and functionary
of the State must fulfill its own role and
should not trespass or encroach/entrench
upon the field of others. Progress is ensured
and development helped if each performs
his role in common endeavour.

17. Reliance is also placed on the
judgment of the Supreme Court in Syndicate
Bank Vs. Ramchandran Pillai, (2011) 15
SCC 398, wherein it was held that

"If any executive instructions are to
have the force of statutory rules, it must be
shown that they were issued either under the
authority conferred on the Central Government
or a State Government or other authority by
some Statute or the Constitution. Guidelines or
executive instructions which are not statutory in
character, are not 'laws', and compliance
thereof can not be enforced through courts.
Even if there has been any violation or breach
of such non-statutory guidelines, it will not
confer any right on any member of the public,
to seek a direction in a court of law, for
compliance with such guidelines." Placing
reliance on this judgment of Syndicate Bank
(supra), it is submitted that policy or guidelines
are not justiciable and therefore petitioners can
not claim any right claiming violation of the
guidelines.

18. Reliance is also placed on the
judgment of the Supreme Court in Navtej
Singh Johar and others Vs. Union of India
through Secretary Ministry of Law and
justice and other connected matters -
(2018) 10 SCC 1, wherein in para 637.2,
twin-test of classification under Article 14 has
been reiterated which provides that ;

(i) there should be a reasonable
classification based on intelligible differentia;
and,

(ii) this classification should have a
rational nexus with the objective sought to be
achieved.

19. Learned A.A.G. submits that
accused have no right to privacy as society
needs to be aware of the criminals and their
antecedents. Dissemination of information
to antecedents of criminals does not
amount to any discrimination. He submits
that police regulation 287 provides for a
notice board to be set up in a conspicuous
place at every police station for displaying
proclamation and public notice. He submits
that when Police Regulation 287, itself
provides for a notice board for putting up
proclamations and public notices, then
pasting names of top 10 criminals of a
police station or a district can not be faulted
with. He further submitted that even
Interpol has a policy of listing top 10 most
wanted criminals/fugitives, thus, publishing
such a list on the flysheet of a police station
can not be termed as arbitrary or illegal.

20. Learned A.A.G. placed reliance
on the concept of dignity as propounded by
Immanuel Kant, to submit that even he
accepted that human dignity is not an
unfettered right and an accused cannot
claim any immunity from publication of his
name on the display board of a police
2 All. Jeeshan @ Jaanu & Anr. Vs. State of U.P. & Ors.
103
station seeking protection under the cover
of dignity.

21. It is submitted that policy/guidelines
framed by the State government and
circulated on 06.07.2020 demonstrates a
resolve of the State to show zero tolerance to
crime. It is submitted that the Police Act of
1961, permits opening of history sheets and it
further permits display of such history sheets
on display board maintained by each police
station. It is submitted that law laid down by
Supreme court in K.S.Puttaswamy (Retd)
Vs. Union of India and others as reported in
(2019) 1 SCC 1, has its own limitations in
regard to securing right to privacy. Placing
reliance on para 98 of the judgment, which
quotes from another judgment of Supreme
Court
in
National
Human
Rights
Commission Vs. State of Arunachal
Pradesh - (1996) 1 SCC 742, that

"We are a country governed by the
Rule of Law. Our Constitution confers certain
rights on every human being and certain
other rights on citizens. Every person is
entitled to equality before the law and equal
protection of the laws.", it is submitted that if
criminals have any right, then citizens too
have their rights; Rights of citizens can not be
jeopardized in the name of extending
protection to the criminals.

22. Learned A.A.G. submits that policy
can not be quashed merely for the asking and
further as per concept of rule of law
propounded by Dicey, maintenance of law
and order is the prime responsibility of the
functionaries of police, therefore, publishing
list of top 10 criminals can not be faulted
with. Policy is unquestionable, therefore,
petitions be dismissed.

23. Having heard learned counsel for
the parties and after going through the
records, it is apparent that policy/guidelines
issued by the Director General of Police is
not in the exercise of executive powers of
the Governor conferred under Article 162
of the Constitution. The policy/guideline is
neither issued in the name of or by the
order of Governor nor it has any force of
law.

24. However, a close scrutiny of the
policy and its aim and object can be
inferred from the opening lines of the
circular dated July 6, 2020, which lays
down the background in which it has been
issued. Backdrop is a video conference
convened by the Chief Minister to discuss
law and order situation especially in the
context of loss of lives of seven police
personnel in an ambush between police
personnel and miscreants recently at
Village Bikru of Kanpur Nagar.

25. Para 2 of the policy/circular
provides for preparation of a list of top 10
criminals at the level of each police station
and district so to keep it updated to help
police in keeping a tab on active hardened
and functional criminals. In fact, most of
the provisions in the circular are in
consonance with law laid down by the
Supreme Court in Prakash Singh and
others Vs. Union of India and others,
(2006) 8 SCC 1, which extensively dealt
with the subject of police reforms and the
exercises which are required to be taken to
insulate police machinery from political
and executive interference so as to make it
more efficient, effective and strengthen rule
of law. Thus, when tested on this
touchstone, circular/guidelines/policy of
the State cannot be said to be arbitrary, but
any action taken by the police personnel in
excess of the authority bestowed upon them
through the circular/policy/regulations or
Police Act is definitely required to be tested
104 INDIAN LAW REPORTS ALLAHABAD SERIES
on the touchstone of Articles 14, 15 and 16
of the Constitution of India.

26. Issues which need to be examined
in the present context are as under :-

(i) Whether policy/circular is
ultra vires of the provisions contained in
Constitution of India especially Articles 14,
15 and 21 of the Constitution, Police Act,
1861 or U.P. Police Regulations?

(ii) Whether the policy/circular
grants right to the police authories to
publish
names
of
so
called
criminals/accused persons on the flysheet
board of the concerned police station ? and

(iii)
Whether
publication
of
names of such accused persons violates the
right to privacy and dignity?

27. Re Question (i) :- As far as
challenge to the policy/circular is concerned,
it is well settled that validity of any
subordinate legislation can be challenged on
the following four grounds as have been laid
down in Indian Express Newspapers
(Bombay) Private Limited Vs. Union of
India, AIR 1986 SC 515 :-

(i) It is possible that the courts
might invalidate statutory instrument on the
grounds of unreasonableness or uncertainty,
vagueness or aribitrariness; but the writer's
(1) [1964] 1 Q.B.. 214 view is that for all
practical purposes such instruments must be
read as forming part of the parent statute,
subject only to the ultra vires test.

(ii) The courts are prepared to
invalidate bye- laws, or any other form of
legislation, emanating from an elected,
representative authority, on the grounds of
unreasonableness uncertainty or repugnance
to the ordinary law; but they are reluctant to
do so and will exercise their power only in
clear cases.

(iii) The courts may be readier to
invalidate bye-laws passed by commercial
undertakings under statutory power, although
cases reported during the present century
suggest that the distinction between elected
authorities and commercial undertakings, as
explained in Kruse v. Johnson, might not now
be applied so stringently.

(iv)
As
far
as
subordinate
legislation of non- statutory origin is
concerned, this is virtually obsolete, but it is
clear from In re French Protestant Hospital
[1951] ch. 567 that it would be subject to
strict control."

28. A subordinate legislation is
amenable to challenge on the above four
grounds besides excessive delegation would
be another ground for challenge. It may also
be challenged as being manifestly arbitrary
and unreasonable. Besides, it may be
challenged for non- conformity with the
parent statute, in reference to which it is made
or any other plenary law.

29. The grounds of challenge to an
administrative or quasi judicial action are
substantive and procedural ultra vires. It
would be a case of substantive ultra vires if
it transgresses the limits set by the parent
statute; is repugnant to its other substantive
provisions or its general purpose or is
repugnant to any other plenary statute. It
would suffer from the vice of procedural
ultra vires if the procedure prescribed by
publication, consultation, laying or any
condition precedent for enacting it or the
manner of performance is not followed.

30. It is trite that all instrumentalities,
which have powers and authority conferred
on them by the Constitution or the Statute,
must act within the limits of such powers.
Otherwise their actions would be ultra vires
i.e. outside their powers and hence invalid.
2 All. Jeeshan @ Jaanu & Anr. Vs. State of U.P. & Ors.
105
If the authority acts outside or in excess of
the authority conferred on it, then it would
be a case of substantive ultra vires.

31. It is seen that many statutes clothe
an authority with discretionary powers,
however, discretion is to be exercised
judiciously and not whimsically. According
to ''Aharon Barak', Discretion really exists,
only when there is a choice between more
than one reasonable and legal alternative.
Two reasonable persons can come to two
opposite conclusions without either of them
being unreasonable.

32. As per Tom Bingham, "The Rule
of law", Allen Lane (an imprint of Penguin
Books) 2010, the authority vested with
discretion is expected to exercise the
discretion judiciously. It should not abuse
the discretion nor abdicate it. What matters
is that decisions should be based on stated
criteria and that they should be amenable to
legal challenge, although a challenge is
unlikely to succeed if the decision was one
legally and reasonably open to the decision
maker. The rule of law does not require that
official or judicial decision makers should
be deprived of all discretions, but it does
require that no discretion should be
unconstrained so as to be potentially
arbitrary. No discretion may be legally
unfettered.

33. Other grounds for annulling an
order include fraud, malice or malafide,
non application of mind, promissory
estoppel and legitimate expectation.

34. When power is exercised in
breach of law, it is a fraud on power.
Malice has two facets, namely; malice in
law and malice in fact. Malice in law, is to
do with something not permitted by law
even if it is done with best motives. Malice
in fact, is when power is exercised for an
improper motive.

35. In Nawab Khan Abbas Khan Vs.
State of Gujarat, AIR 1974 SC 1471, it
has been held that when an order
encroaches fundamental rights without due
process of law it is still-born and liable to
be ignored.

36. In view of the aforesaid
discussion,
when
circular/policy
dt.06.07.2020 is considered then policy per
se does not appear to suffer from vice of
ultra vires, because the aim and object of
the policy is to keep the police updated of
the activities of the criminals with a view to
keep a better control on law and order
situation. No facet of fraud, malice or non
application of mind has been brought out
by the learned counsel's for the petitioners
including learned Amicus to assail the
policy/circular
and
therefore
while
answering Reference Question No.(i) I
have
no
hesitation
to
hold
that
policy/circular in its content or language
does not suffer from lack of competence.
When tested within the four corners of the
law laid down in the case of Indian
Express Newspapers (supra), policy can
not be said to be the arbitrary, illegal or
ultra vires of either the Constitution or the
Police Act or the Police Regulations.

37. Re Question (ii) : After having
held that policy/ circular is not ultra vires I
may hasten to add that there is no provision
in the circular to publish list of identified
top 10 criminals and mafia elements either
on the flysheet board of the concerned
police station or anywhere else.

38.