- (1.) S. S. Ahmad J. By means of this petition filed under Article 226 of the Constitution the petitioner has prayed that the opposite parties may be directed to restore his personal liberty and not to keep him in Police surveillance.
(2.) FROM the facts set out in the petition, it appears that the petitioner was involved in a case under Section 302, I. P. C. (Crime Case No. 2194 of 1974) of Police Station Qaiser Bagh, Lucknow as a result of which he was prosecuted in S. T. No. 109-A of '75 and was acquitted on 19-7-76 by II Additional Sessions Judge, Lucknow. The petitioner was also proceeded against under the pro visions of the Goonda Act but judgment and order, dated 21-1 1978 passed by Additional District Magistrate (City), Lucknow the proceedings were dropped. The petitioner was involved in another case under Section 302, I. P. C. and Section 25 of the Arms Act which ended in acquittal on 12-5-1978. Proceedings under Rule 37/169 of the Defence of India Rules were also initiated against the petitioner on the basis of which Criminal Case No. 287 of 1976 was registered against him but these proceeding were withdrawn cm 18-11-77. The petitioner was also involved in Crime Case No. 1945 of 1976 of Police Station Hasaratganj, Lucknow under Rule 43 (5) read with Rule 37 of the Defence of India Rules but this case was also withdrawn. Other relevant facts have been set out in Paragraphs 7, 8, and 9 of the petition which era reproduced below : "7. That the petitioner's house required substantial repairs und for that purpose the petitioner came from Kanpur on 7-6-86. On 8-6-86 at about 10. 30 p. m. Bhanu Pratap Singh, Sub-Inspector of Police of P. S. Qaiserbagh, Lucknow came to the petitioner's house along with constable Shiv Prasad and Brijesh. The petitioner who was wearing a lungi only was going to buy a match, boll when he was stopped and taken to Out Post Khandhari Bazar despite protest by the mohalla people where he was beaten by the said Sub-Inspector and constables and was sent to P. S. Qaiserbagh, Luckaow At P. S. Qaiserbagh, Lucknow the petitioner was tortured for 2 days and was ultimately sent to the court on 10-6-86 falsely impli cating him under Section 4/25 Arms Act. 8. That the petitioner's wife sent a telegram at about 12 in the night on 8-6-86 to the Station Officer, P. S. Qaiserbagh, Lucknow about his wrongful arrest and distention. The petitioner's wife has also tiled a complaint against Sub-Inspector Bhanu Pratab Singh and constable Brijesh Singh and Shiv Prasad for offences under Section 323/325/342/211, I. P. C. which is still pending. A copy of the telegram, dated 8- 6-86 is Annexure No. 3 and a true copy of the complaint is Annexure No. 4. The petitioner was released on bail on 11-6-86. 9. That, thereafter, the petitioner again went to Kanpur due to fear of being implicated in any false case. The police of P. S. Qaiserbagh started visiting the petitioner's house almost daily and in the month of November, 1987, the petitioner's family was constantly harassed and the petitioner's wife moved an application in the court of Judicial Magistrate, Lucknow on 22-11-1987 praying that a report from the police station be sent for with respect to the allegations against the petitioner. The police of P. S. Qaiserbagh submitted a report on 2-12-87 stating that the petitioner was under police surveillance as a history-sheet has been opened at P. S. Qaiserbagh, Lucknow and that policemen visit his house accordingly to mark his movement. A true copy of the application, dated 23-11-87 is Annexure No. 5 and a true copy of the police report, dated 2-12-87 Annexure No. 6. " Under these circumstances the petitioner challenged the police surveil lance and opening of the history-sheet at Police Station Qaiserbagh, Lucknow on the ground that fundamental right guaranteed to him under Article 21 of the Constitution was violated.
(3.) COUNTER affidavit of S. I. Bhanu Pratap Singh regarding whom allegations have made in Paragraphs 7 and 8 of the writ potion, has been filed, in which it has been stated as under : "3. That it is submitted that allegations as alleged in Paragraph 7 of the petition against the deponent are totally false and incorrect hence denied. It is submitted that the petitioner was arrested by Sub- Inspector Chavi Narain Singh under Section 4/2 Arum Act at about 3. 30 p. m. and a case on Crime No. 424/86 was registered against him. A photo copy of the F. 1. R. of Case Crime No. 424/86 under Section 4/25 Arms Act, is enclosed as Annexure MCA-1 to this counter-affidavit. 4. That in reply to the contents of Paragraph 8 of the petition it is submitted that the deponent has got no concerned so far a serial of telegram is concerned. Regarding tiling of the complaint against the deponent and two other constables, the deponent has no know ledge of the same for the reason that up till date the deponent has not received any notice from the court concerned. " No other counter-affidavit has been filed on behalf of the opposite parties and the fact that the petitioner is under police surveillance and that a history-sheet has been opened against him at P. S. Quisherbagh, has jot b-sea denied by the opposite parties.;