J.S. Verma, J.
1. This petition is directed against the action of the District Superintendent of Police, Chhatarpur, respondent No. 1, in opening a history sheet of the petitioner and placing him under surveillance. Accordingly, a writ of certiorari is sought. The petitioner also claims that the respondents be restrained from continuing this action against the petitioner.
2. The petitioner is a resident of Chhatarpur and, apart from being a businessman, he lays claim to being a respectable inhabitant of that place by virtue of his holding several elective posts there. According to the petitioner, one Somchand, also of Chhat-tarpwr, has in respect of an incident alleged te have occurred on 8th April, 1970, filed a complaint against respondents Nos, 3 and 5 for having committed alleged offences under Sections 392, 323, 341 and 506(2) of the Indian Penal Code, which complaint is pending in the Court of Magistrate First Class, Chhatarpur and in which the petitioner is cited by the complainant Somchand as a wit-mess for the prosecution. Respondents 1 to 5 are police officers who had been posted at Chbatarpur at the relevant time. Out of them, respondent No. 3 was Station Officer, Police Station Kotwali, Chhatarpur, till September 1970, and has thereafter been transferred to Sagar; and respondent No. 5 was posted as Sub-Inspector of Police, Police Station Kotwali, Chhatarpur, till October 1970, whereafter he has been transferred as Station Officer, Bajna, also in district Chhat-tarpur. The petitioner's case is that the respondent police officers and particularly respondents 2, 3 and 5 entertained an unfounded belief that the petitioner was instrumental in getting the aforesaid criminal complaint iled by Somchand. It is further alleged that in pursuance of such belief they approached the petitioner to persuade Somchand to withdraw the complaint and on account of the petitioner's inability to comply with their demand, respondents Nos. 2, 3 and 5 entered into a conspirary to humiliate the petitioner. Accordingly, some false reports were obtained by the police officers against the petitioner and the impugned action has been taken as a consequence thereof. It is alleged that the action taken by respondent No. 1 in order-ins the opening of a history-sheet of the petitioner and placing him under surveillance is a consequence of such reports of police efficers, particularly of respondents 2 and 4 who made reports in this background.
3. On behalf of the respondents a joint return has been filed and the only affidavit in support thereof is filed by Shri Mahesh Dutt Sharma, Superintendent of Police, Chhatarpur (respondent No. 1). According to the respondents, the petitioner has been involved in satta gambling because of which his activities required a close watch. It is further alleged that the petitioner's activities, though illegal, cannot be checked in any other manner because of the lack of legal evidence against him. On behalf of the respondents it has not been denied that a history-sheet has been opened in respect of the petitioner and that he has been placed under surveillance. Accordingly, the respondents seek to justify the impugned action taken against the petitioner and reliance is placed on the Police Regulations for this purpose.
4. Shri R. S. Dabir, learned Counsel for the petitioner, contends that even though power may be available to the police officers to take such an action under Regulations 651 and 652 of the Madhya Pradesh Police Regulations, yet in the facts and circumstances of this case the action taken is not legally valid. On the other hand, Shri M. V. Tamaskar, learned Government Advocate, contends that the opinion formed by respon-dent No. 1 making such an order was based on material and such an opinion can, therefore, not be successfully assailed as it is not open to judicial review.
5. The relevant portions of Regulations 651 and 652 are as under:
651. History Sheets Part V. History sheets are maintained under the orders of the District Superintendent of Police for (a) ... (b) ... (c)....
and (d) persons who, there is reason to suspect, are habitual criminals, even though nothing definite can be proved against them. Ordinarily, history sheets will be opened on orders issued by the District Superintendent on conviction slips. If a station house officer is of opinion that a history sheet should be opened for a person, who, though not convicted, is reasonably suspected of being a habitual thief, a habitual receiver of stolen property or of being concerned in systematic cattle theft or other serious offences against property he will apply through the Circle Inspector for permission to open a history sheet ....
652... The object of the history sheet is to enable the station house officer and Circle Inspector to decide whether or not a suspect is really a dangerous criminal, and it should ordinarily not be necessary to maintain the histbry sheet for over a year. It should be possible to decide within that period whether the suspect should be bound over under Section 110, Criminal Procedure Code, or brought under regular surveillance, or the history sheet closed.
Clause (d) of regulation 651 as quoted above clearly shows that the provision is wide enough to cover a case like the present. However, it is also clear that in order to invoke the aid of this clause for opening the history-sheet of a person there should be reason to suspect that the person is a habitual criminal. Thus, for exercise of this power the existence of reasons has to be determined objectively even though the ultimate opinion of the District Superintendent of Police would be subjective where such reasons in fact exist. In the present case, asi a challenge is made to the validity of the impugned action on the basis of non-existence of any circumstances or reasons to justify any suspicion against the petitioner, it will have to be Seen whether such reasons or circumstances did exist in fact, and since the respondents seek to support the impugned action on the basis of the aforesaid provision. The challenge on behalf of the petitioner is on the ground that there is no material to suggest the existence of any reason to suspect the petitioner of being a habitual criminal which would confer power on the respondent No. 1 to make the impugned order.
6. Before dealing with the facts of this case it is necessary to refer to the legal position laying down the principles governing the limits of the power of judicial review where the subjective satisfaction of an authority is challenged. Such a question arose in respect of the provision contained in Section 237(b) of the Indian Companies Act, 1956, before the Supreme Court, and the two cases in which the question was decided are Barium Chemicals Ltd. v. Co. Law Board : 1SCR898 and Rohtas Industries Ltd. v. S. D. Agarwal : 3SCR108 . Section 237 of the Indian Companies Act, 1956, in so far as it is material, is as under:
237. Without prejudice to its powers under Section 235, the Central Government
(b) may do so (i.e., appoint one or more competent persons as inspectors to investigate, etc.) if, in the opinion of the Central Government, there are circumstances suggesting
The law on the subject was summarised by 'Hegde, J., in Rohtas Industries case (supra) after considering the decision in Barium Chemicals case (supra). Hegde, J., who delivered the majority judgment, held in paragraph 39 as follows:. In interpreting Section 237(b) we cannot ignore the adverse effect of the investigation on the company. Finally we must also remember that the section in question is an inroad on the powers of the company to carry on its trade or business and thereby an infraction of the fundamental right guaranteed to its share-holders under Article 19(1)(g) and its validity cannot be upheld unless it is considered that the power in question is a reasonable restriction in the interest of the general public. ... For the reasons stated earlier we agree with the conclusion reached by Hidayatullah and Shelat, JJ, in Barium Chemicals' case AIR 1967 SC 295 that the existence of circumstances suggesting that the company's business was being conducted as laid down in sub-clause (1) or the persons mentioned in sub-clause (2) were guilty of fraud or misfeasance or other misconduct towards the company or towards any of its members is a condition precedent for the Government to form the required opinion and if the existence of those conditions is challenged, the courts are entitled to examine whether those circumstances were existing when the order was made. In other words the existence of the circumstances in question is open to judicial review though the opinion formed by the Government is not amenable to review by the courts ....Thus it is clear from these decisions of the Supreme Court that even when the ultimate opinion of an authority being subjective is not open to judicial review, the existence of circumstances leading to such an opinion is open to challenge on the ground of their non-existence and when such a challenge is made, it is for the Court to determine whether such circumstances did exist in fact at the time when the opinion was formed by the authority and the impugned order passed. When a challenge is made on the ground of non-existence of such circumstances, it is for the opposite party to satisfy the Court that such circumstances did in fact exist at the relevant time and that they had led to the opinion so formed. In dealing with cases of preventive detention also, where the opinion of the detaining authority is subjective, the same view has been taken by the Supreme Court with regard to the question of the existence of circumstances justifying the detention. A recent decision on the point is P. Mukherjee v. State of West Bengal : 1970CriLJ852 .
7. Accordingly, the facts of this case have to be examined in the light of the above legal position in order to determine whether circumstances as alleged by the respondents did exist in this case for justifying the impugned action. We may further observe that the power of judicial review to this limited extent is available in order to check any arbitrary exercise of power by an authority which has been conferred with wido powers, like the present, in the larger public interest. Their Lordships of the Supreme Court in laisinghani v. Union of India : 65ITR34(SC) observed in paragraph 14 of the judgment as follows:. it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey 'Law of the Constitution' Tenth Edn., Introduction ex), 'Law has reached its finest moments, stated Douglas, J., in United States v. Wunderlich, (1952) 342 US 98 'when it has freed man from the unlimited discretion of some ruler. Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkies, (1770) 4 Burr 2528 at p. 2539 'means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague and fanciful'.
in this context it is also not disputed that the exercise of such a power, if founded on mala fides, is liable to be struck down on 'this ground alone. (See P. Mukherjee's case : 1970CriLJ852 ).
8. Coming to the facts of the present case, it is significant to notice that the only affidavit in support of the joint return filed on behalf of the respondents is by the Superintendent of Police, Chhatarpur, (respondent No. 1) who has verified the facts stated in the return as being 'based on information received from the official records'. Apparently, the respondent No. 1 has not stated any fact in the return on the basis of any personal knowledge. In the petition it was expressly alleged that the respondents Nos. 2, 3 and 5 had entered into a conspiracy to falsely implicate the petitioner and for that purpose had obtained false reports; that these respondents had approached the petitioner to persuade one Somchand to withdraw his criminal complaint which he had filed against the local police officers; and that it was in these circumstances that respondents Nos. 2 and 4 had made reports, acting on which the respondent No. 1 had ordered a history-sheet of the petitioner to be opened and directed the petitioner to be placed under. I surveillance. It is significant that none of rthe respondents against whom allegations of mala fides were made by the petitioner have chosen to file a counter-affidavit, even though 5 the petition was duly supported by an affida-jvit of the petitioner based on personal knowledge. The only affidavit of respondent No. 1 filed on behalf of the respondents did not controvert from personal knowledge any personal allegations made in the petition. In these circumstances the allegations of mala fides made against the respondent police officers by the petitioner must be accepted and this ground alone is sufficient to vitiate the impugned action of respondent No. 1.
9. During the course of arguments it was stated by Shri Dabir that several prosecutions launched by the police officers in the court at Chhatarpur have by now terminated by their dismissal. This if act is not controverted by the other side.
10. Annexures R-2 to R-18 are copies of reports in the general diary of police station Kotwali, Chhatarpur, which are filed in support of the action taken against the petitioner. Nothing particular has been shown to us from any of the documents 'filed by the respondents to suggest the existence of circumstances justifying a reason to suspect that the petitioner is a satoria, as alleged by the respondents. These docu- ments only contain vague allegations, the effect of which is further weakened by the dismissal of several cases put up in the court at Chhatarpur.
11. In these circumstances, we are of the view that the respondents have been unable to prove the existence of circumstances which would suggest that there was any reason to suspect the petitioner of being a satorki, as alleged. Accordingly, the impugned action was wholly unwarranted and it is liable to be set aside being an arbitrary exercise of power. It was also vitiated by mala fides, as alleged by the petitioner.
12. Accordingly, we allow this petition and quash the order of respondent No. 1 directing the opening of a history-sheet of Ihe petitioner and placing him under surveillance. We further direct the respondents to refrain from taking any action which may be a consequence upon the opening of such a history-sheet and directing the petitioner to be placed under surveillance. The petitioner shall get the costs of this petition from the respondents. Counsel's fee Rupees 100/-, if certified. The outstanding amount of security deposited by the petitioner be refunded to him.