V.D. Gyani, J.
1. The petitioner, who is a resident of village Noghani, tahsil Sitamau, district Mandsaur, and an ex-Sarpanch of the Gram Panchayat by this petition challenges the order dated 22-2-1983 (Annexure-1), passed by the respondent No. 2 the Superintendent of Police, Mandsaur, ordering open surveillance against the petitioner. The respondents have not disputed the order passed, but unfortunately have not chosen to place the same before this Court.
2. The petitioner's contention is that the action of the respondents in placing, the petitioner under surveillance, taking of his photographs and finger-prints by the police officials is not merely against law but a violation of his fundamental rights, inasmuch as it places restrictions on the petitioner's freedom of movement guaranteed under the Constitution. The petitioner also contends that as a result of the surveillance order passed by the respondents the petitioner has to report his movements to the police station and attend and explain his absence in case he is not found at home during the domiciliary visits by the police officials. It is an encroachment on the freedom and privacy of life.
3. Shri Joshi, learned Counsel appearing for the petitioner submits that the order is passed without any application of mind and also contravenes the Police Regulation Nos. 853 to 857. Learned Government Advocate, appearing for the respondents contends that the order has been passed in pursuance to the Police Regulations and the rules framed under Section 46(2) of the Police Act and has sought to justify the surveillance order in view of the Regulation No. 855 of the Police Regulations. It is contended by him that irrespective of the fact that the petitioner is not a previous convict yet he could be placed under surveillance if the Superintendent of Police of the district is satisfied that the man proposed to be placed under surveillance has shown a determination to lead a life of crime or is believed to be a really dangerous criminal. It is contended that during the period 1-10-1981 to 30-4-1983 a large number of thefts of electric motors were reported and after the petitioner was brought under surveillance it is submitted that such thefts were brought to zero. The respondents have also placed Annexure-R/1, which is nothing but a report dated 30-12-1982 by Circle Inspector entered at Sana No. 1183 in the General Diary of the police station Sitamau. This is the only material, which has been placed for justifying the surveillance order passed against the petitioner. Suffice it to say that such material, as Annexure-R/1, can hardly justify the passing of a surveillance order against a citizen, even if the Police Regulations so provide. Keeping aside for a while the question of actual compliance of the procedural safeguards provided under the Police Regulations before placing a person under surveillance the respondents do not even aver in their return that the same have in fact been complied with. On the other hand what has been contended by the respondents in their return to justify the order is that offences of theft in the rural areas were reduced to zero after placing the petitioner under surveillance and that there was general information with the police that the petitioner was having a hand in the crimes of electric motor thefts, but because of his influence and intelligence the hands of law could not reach him. No such general information has either been placed on record nor such information can be a ground for putting a man under surveillance. It is further contended that the restrictions put on the petitioner are for the benevolence of the society (para 9 of the return). We fail to see as to what benevolence can be brought to the society by infringing the fundamental rights of a citizen.
4. The respondents while admitting taking of photographs and finger-prints have added that it was not meant for being displayed or circulated, but have been maintained in the official records. As for the domiciliary visits, the respondents maintained that it is being done with due regard to decency and convenience. Such visits at odd hours do bring a man in disrepute. Although the respondents have contended in their return that the petitioner is nowhere defamed or mentally tortured, the Constitution guarantees a right not merely to live but living a dignified life and also a right of privacy, which cannot be allowed to be interfered with by an illegal order. Shri Joshi contends that the surveillance order directly interferes with the privacy and infringes the fundamental rights of the petitioner.
5. Regulation 855, in our opinion, empowers surveillance only on persons against whom reasonable material exists to induce the opinion of the authority concerned that they show a determination to lead the life of crime and as observed by the Supreme Court in Govind v. State of M.P. : 1975CriLJ1111 , 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 imperils safety of society can be regarded as warranting surveillance under this Regulations. Let it be made clear here that we are not deciding the constitutional validity of M.P. Police Regulation No. 855, regarding surveillance.
6. In this view of the matter, this petition succeeds and is allowed. The order dated 22-2-1983 (Annexure-1), passed by the Superintendent of Police Mandsaur, is liable to be quashed and is accordingly quashed. The photographs and fingerprints obtained from the petitioner are directed to be returned to the petitioner.
7. Supreme Court in the aforesaid judgment has observed that the Regulations empowering surveillance are verging perilously near unconstitutionality. It is to be regretted that the advice given and the fond hope expressed by the Supreme Court almost decades back in the case of Govind v. State of M.P. (1975 Cri U 1111) (supra) should have so far gone unheeded and the Police Regulations should remain as they were.
This Court only hopes that at least now they shall be brought in consonance with the spirit of the Constitution before it is too late. In the circumstances, there shall be no order as to costs/The outstanding amount of the security deposit, after verification, be refunded to the petitioner.