Murlidher Rao, J.:—
Petitioner is a registered partnership firm; it is asserted that it is running a Nature Cure Clinic at Yamunabai Road, Madhavnagar, Bangalore. It is said that it is registered under the Companies Act and is assessed for professional tax. Its functions, as claimed in the petition, is to solve health problems by nature cure without drug or surgery. It has the facility of steam bath, massaging and yogas. Petitioners grievance is as follows:
“…. …. …. The Respondents are sending Policemen regularly to the institute of the petitioner and the posting of the Policemen at the institute of the petitioner is preventing the registered patients of the petitioner from taking treatment. By illegal acts and surveillance of the Respondents and their officers, the business of the petitioner is affected very much and if the same is continued by the Respondents, the petitioner will be forced to close down the business. The acts of the Respondents violates the guaranteed fundamental rights of the petitioner under Article 14, 19(1)(g) and 21 of the Constitution of India…. …. ….”
Again in para ‘J’ it is averred thus:
“The posting of the two policemen at the premises of the petitioner and the regular intrusion of police officers who enter the premises of the petitioner and threaten the petitioner is illegal, arbitrary and is without the authority of law and violates the right to privacy and right to personal liberty guaranteed the petitioner. The said illegal action also violates the fundamental right of the petitioner under Article 19(1)(g) of the Constitution of India i.e, the right to carry on any business vocation or profession.”
The relief prayed for is to issue a writ in the nature of mandamus not to interfere with the business and not to harass by having police surveillance.
W.P 14540/1986
Petitioner is a proprietory concern. It claims to treat patients on lines of Naturopathy with specialised sophisticated instruments. In para 19, it is averred thus:
“The posting of the two policemen at the premises of the petitioner and the regular intrusion of police officers who enter the premises of the petitioner and threaten the petitioner in illegal, arbitrary and is without the authority of law and violates the right to privacy and right to personal liberty guaranteed the petitioner. The said illegal action also violates the fundamental right of the petitioner under Article 19(1)(g) of the Constitution of India (i.e) the right to carry on any business vocation or profession.”
The relief in both the petitions is one and the same.
Common question of law and fact arise, hence they are clubbed and are taken up for final disposal.
2. The relevant paragraphs in statement of objection, filed in these two cases read thus:
“…. …. …. The Respondents have been receiving complaints that the petitioner, in the guise of running a Naturopathy Institute, has been as a matter of fact, running a Brothel. On receipt of credible information, on 17-12-1985 at about 13 hours, the Assistant Commissioner of Police, Special Squad, Bangalore, conducted a raid on the premises of the petitioner referred to in the Writ Petition in the presence of panchas, when it was found, there were eight ladies, and two men, who on interrogation admitted that the ladies had been procured for the purpose of immoral activities and the men had come there for the very same purpose. The activities of these persons amounted to offences punishable under the provisions of the Supression of Immoral Traffic Act. Hence, these persons along with the cashier and partner of the petitioner-firm, who were present in the premises, were arrested and produced before the jurisdictional Magistrate. A case was registered in Crime No. 546 of 1985 of High Grounds Police Station, for offences punishable under Sections 3, 4, 7 and 8 of the Suppression of Immoral Traffic Act. Subsequently, a charge-sheet has been laid in the above case in C.C No. 92 of 1986 …. …. ….”
“…. …. …. However, in the discharge of their lawful duties and on credible information before conducting the raid, whenever it became necessary, these Respondents or the Investigating Authorities have directed surveillance of the premises in question; but these surveillances have not been made with the intention of harassing the petitioner in any manner. It is submitted, to curb the illegal activities of the petitioner and persons indulged in similar activities, it is absolutely necessary that surveillances are made at times. Such surveillances cannot be treated as offending the fundamental rights guaranteed to the petitioner under Articles 14, 19(1)(g) and 21 of the Constitution of India. It is not open to a citizen, who is involved in an illegal activity which is punishable under the law of the land, to contend that the law enforcing authorities should not be permitted to keep a check over his illegal activities or should not be permitted to take steps to prevent and prosecute persons involved in illegal activities. Since the petitioner, as mentioned above, has repeatedly involved himself in the illegal activities referred to above, the reliefs sought for by the petitioner cannot be granted.”
3. It is admitted that both the petitioners have filed civil suits and have obtained injunction orders. In both the cases charge-sheets are filed under Suppression of Immoral Trafic Act. These cases are pending.
4. Petitioners have filed rejoinder and have contended that Surveillance is unlawful and it affects their fundamental right guaranteed under Articles 14, 19(1)(g) and 21 of the Constitution of India.
5. The Karnataka Police Act, 1963 does not contain any provision directly dealing with surveillance. However it is sought to be justified under the “Duties of Police Officer” in Section 65. Particular reference was made in clauses (b),(c) and (d) which read thus:
“(b) to the best of his ability to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences;
(c) to lay such information and to take such other steps, consistent with law and with the orders of his superiors, as shall be best calculated to bring offenders to justice;
(d) to prevent the commission of offences.”
In Police Manual, certain guidelines have been prescribed for police administration. For ‘suspects’, it provides:
“1058. (1) The following persons should be classed as suspects and history sheets should be opened for them under orders of the Superintendent or the Sub - Divisional Police Officer, if so empowered by the Superintendent:
(a) Persons once convicted under any Section of the Indian Penal Code who are considered likely to commit crime.
(b) Persons not convicted but believed to be addicted to crime.
(2) Care should be taken to see that history sheets are opened under this order only for persons who are likely to turn out to be habitual criminals and, therefore, required to be closely watched.
(3) The fact that a history sheet has been opened for a suspect other than an ordinary criminal should be kept confidential.”
Chapter XXIV deals with surveillance. Surveillance in this Chapter consists of:—
1. Maintenance of history sheets.
2. Keep close watch on the movements of persons with history sheets, persons registered under Mysore Habitual Offenders Act, 1961, persons notified under Section 565 Cr. P.C, (old) corresponding to Section 356 (new) Cr. P.C, persons conditionally released on bail and lastly wandering gangs.
3. Shadowing of convicts on release.
4. Keep careful watch on suspicious strangers.
6. The question to be considered is whether the respondents are justified in keeping surveillance on petitioners who are facing trial in criminal Court for alleged offences under the Suppression of Immoral Traffic Act; further whether such surveillance affects the fundamental right guaranteed under Articles 19(1)(g), 14 and 21 of the Constitution of India.
7. Mr. Datar appearing for the petitioners contended that it affects Article 21 of the Constitution of India. Mr. Advocate General, however maintained that petitioners in these petitions are ‘institutions’ and Article 21 deals only with natural persons and not artificial or legal persons. He argued that the words ‘his life’ and ‘personal liberty’ in Article 21 refer to life and personal liberty of a living human being. He submitted that in the cases decided by Supreme Court in Kharak Singh v. State of U.P . AIR 1963 SC 1295., Satwant v. Passport Officer . AIR 1967 SC 1836., Govind v. State of M.P . 1975 2 SCC 148, Maneka Gandhi v. Union of India . 1978 1 SCC 248, the rights of a person, as an individual and as a human being, were dealt with. This submission is well founded and I am inclined to hold that ‘person’ in Article 21 does not refer to a ‘legal person’ or artificial person, but it applies only to natural person, as a human being. Hence petitioners being institutions like firm or company cannot invoke Article 21. Even otherwise as held by Supreme Court in Kharak Singh's case, Article 21 has no relevance, in this context.
8. The Petitioners have invoked Article 19(1)(g) as also Article 14. Therefore notwithstanding the above conclusion it becomes necessary to consider the grievance of the petitioners with reference to these Articles.
9. Petitioners assert that they are institutes whore patients are treated by nature cure. Petitioner in W.P 14540 of 1986 has produced some material to show his nature of activity. Annexures ‘A’ and ‘B’ are two invoices regarding purchases of instruments like Roller machine, massager, wheel cyclo, drum cycle, figuroll etc. Annexures ‘C’ series are notifications published in local news paper and pamphlets circulated for information of general public. Annexure ‘D’ series are the photographs of instruments, alleged to be for the use of nature cure. Annexure E1, E2 and E3 are the certificates of M.A Ramamurthy in Naturopathy who, it is asserted, is an instructor with the petitioner. Annexure ‘G’ series are (G-1 to G-7) the receipts given to various persons who have attended the institute, on various dates. Annexure ‘H’ is a letter of State Bank of Mysore, regarding ‘loan’ availed by petitioner. Along with the rejoinder, petitioner has filed extract of employment register and extract of ‘wage’ register.
10. Petitioner in W.P 14274/1986, has filed a pamphlet list of staff members and list of patients who have attended the institute for treatment.
11. Article 19(1)(g) guarantees to every citizen the right to practice any profession or carry on any occupation, trade or business, subject to such reasonable restrictions as are prescribed under Clause 6.
12. While the petitioners assert that they are carrying on the business of Naturopathy, it is asserted by the State that the petitioners are indulging in prostitution; in other words, the institutions are brothels. The learned Advocate General relied on the criminal cases pending under the Suppression of Immoral Traffic Act, 1956. On the factual issue, namely nature of activity in the premises, there is a serious dispute. Petitioners who are facing the trial can be convicted, if and only if, the prosecution establishes that the premises are used as brothel and petitioners are living on the earnings of prostitution and in the said activity, they are guilty of offences under Sections 6 and 7 of the Suppression of Immoral Traffic Act. Per contra if on evidence it is established that it is a Naturopathy Clinic, the petitioners will have to be acquitted. It would be premature to express any opinion on that factual issue. To avoid embarassment to the Court dealing with these matters, I refrain from giving a finding on that issue. What is manifest is that parties are at variance with regard to nature of ‘business’ or profession at the premises.
13. In these circumstances, to hold that petitioners are carrying on the business or occupation and hence they are entitled to invoke Article 19(1)(g) would be unsafe. This factual issue has to be dealt with by the criminal Court where it is alleged that the petitioners are running a brothel. The factual foundation which is necessary for invoking Article 19(1)(g) being in dispute, it would be futile to contend that the right is violated.
14. In Kharak Singh v. State of U.P the Supreme Court held that the provisions relating to periodical enquiries, regarding repute, habits, associations, income, expenses and occupation, reporting by constables and chowkidars of movements and absence from home, and verification of movements and absence in U.P Police regulations, the freedom guaranteed under Article 19(1)(d) is not violated and Article 21 has no relevance. Similar views are reiterated in Govind v. State of M.P. In this view of the matter, the contention based on Articles 19(1) and 21 deserves to be rejected.
15. Therefore the only point that survives for consideration is whether the act of keeping surveillance is arbitrary and this is violative of Article 14 of the Constitution of India. To examine this contention, it has to be seen whether it is lawful. As mentioned above, there is no statutory provision in the Police Act, directly dealing with surveillance. Assuming that it comes under clauses (b), (c) and (d) of Section 65 of Police Act, whether it is justifiable in these cases. Admittedly no history sheets are maintained. Petitioners are not previously convicted. As per the guidelines in the manual, even for ‘suspects’ history sheet has to be opened. A ‘suspect’ according to the Manual, is a person who is convicted under any Section of Indian Penal Code and is considered likely to commit crime, or a person though not convicted is believed to be addicted to crime. No material is placed by respondents to show that the petitioners could be treated as ‘suspects’ having the above ingredients. Except stating that they are being prosecuted for the alleged offence under the Suppression of Immoral Traffic Act, nothing else is stated. Now that the charge sheets are filed, the investigation must have been completed. In our jurisprudence, accused is presumed to be innocent till it is proved otherwise. Unless established it is not possible to brand a person as ‘criminal’. Para 1062 of the Manual classifies criminals in two categories; firstly professional criminals and casual offenders. To label person as professional criminal, it must be borne out from the records that he has chosen crime as his profession. In the instant case, there is no such material. On the nature of profession, parties are at variance and that is the subject matter of trial. Casual offender is one who has committed a crime more or less by accident or by design. The words ‘addicted to crime’ may include professional criminals. As explained in the Manual, it means that by a series of similar or approximately similar offences, it becomes evident that a person has taken to the type of crime for livelihood. Considering the material, now on record, it is difficult to conclude that the petitioners are ‘suspects’. The person who is accused of an offence or who is facing a trial though suspected of the commission of offence in common parlance is not a ‘suspect’ as defined in the Manual which authorises the police to maintain a surveillance, either on his movements or at his place. Therefore the action of the authorities to maintain surveillance cannot be justified and it is not in accordance with law. The cases of the petitioners do not also come under the categories of bad characters or suspicious strangers and rightly no such plea is taken and there is no material in that regard.
16. Two authorities of the Supreme Court which directly dealt with surveillance were cited.
In Kharak Singh v. State of U.P the petitioner therein was a dacoit. He was released as there was no evidence. The police had opened a ‘history sheet’. Regulation 236(a) of the U.P Police Regulation which permitted domiciliary visits at night was held as unconstitutional.
In Govind v. State of M.P, Regulations 855 and 856 of the Madhya Pradesh Police Regulations were challenged. Both these Regulations deal with surveillance. The Court rejected the contention that they are violative of Articles 21 or 19(1)(d) of the Constitution, ultimately the Court held:
“…. So read, the two regulations are more restricted than Counsel for the petitioner sought to impress upon us. Regulation 855, in our view, empowers surveillance only of persons aginst whom reasonable materials exist to induce the opinion that they show a determination, to lead a life of crime - crime in this context being confined to such as involve public peace or security only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperilling safety of society cannot be regarded as warranting surveillance under this Regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prisonal or at the whim of a police officer. In truth, legality apart, these regulations ill-accord with the essence of personal freedoms and the State will do well to revise these old police regulations verging perilously near unconstitutionality.”
In that case Govind had to face several cases in criminal Courts and he was acquitted in all but two cases. Treating him as a habitual criminal, history sheet had been opened and he was under surveillance.
17. In Rameshwar Prasad v. Superintendent of Police, Muradabad . AIR 1963 Allahabad 408., the Court was dealing with a case, where police had opened a history sheet. Petitioners's contention was that he was not a professional or habitual criminal nor had he been convicted for any offence. The Court, after considering the affidavits, held that the action was not bona fide. The Court rejected the plea that Regulations amounted to unreasonable restriction on his fundamental right. Bearing in mind the legal position, examination of the facts of these cases clearly establishes that the action is arbitrary and there is no material to support the action.
18. The fact that petitioners are facing trial in criminal Court for offences under Suppression of Immoral Traffic Act does not ipso facto warrant surveillance, inasmuch as, it does not come under the categories of cases, which justify surveillance, as mentioned in the Police Manual.
19. In view of this conclusion, it is unnecessary to consider the argument of Sri Datar that under the Suppression of Immoral Traffic Act only ‘Special Police Officers’ as notified in the Notification dated 28-12-1963, can deal with the matters, and they alone can pass order for surveillance.
20. For the aforesaid reasons, these petitions are entitled to succeed. I make the following order:—
Writ Petitions are allowed; a writ in the nature of mandamus is issued to respondents to stop the surveillance forthwith. No costs.