Patna High Court - Orders
Sanoj Yadav vs The State Of Bihar & Ors on 17 June, 2014
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.415 of 2014
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1. Sanoj Yadav S/o Kamla Yadav, Resident of Village Shankarpur, Police
Station Muffasil, District Munger.
.... .... Petitioner
Versus
1. The State of Bihar.
2. District Magistrate, Munger.
3. Superintendent of Police, Munger.
.... .... Respondents
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Appearance:
For the Petitioner : Mr. Praveen Kumar and Sanjiv Kr. Singh
For the Respondents : Mr. Mrigendra Kumar, A.C. to G.A.11
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
3 17-06-2014By a notice, dated 19.3.2014, issued, in exercise of power under Section 3 of Bihar Control of Crimes Act, 1981, by respondent No.2, namely, the District Magistrate, Munger, the present petitioner was directed to show cause, if any, as to why an order of externment be not passed against him on the ground that he (petitioner) was involved in a number of criminal activities, which made him an anti- social element.
2. In response to the notice so issued, the petitioner submitted his representation. This representation was followed by an order, passed, on 01.04.2014, in Case No. 04 of 2013-14, by respondent No. 2, namely, District Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 2 Magistrate, Munger, expressing his satisfaction that the present petitioner‟s externment was necessary and, therefore, directed that the petitioner shall not enter into the district of Munger for a period of six months with effect from 01.04.2014.
3. Aggrieved by the order of externment, dated 01.04.2014, aforementioned, this writ petition has been made by the petitioner seeking to get set aside and quashed, inter alia, the order of externment, dated 1.4.2014, aforementioned.
4. We have heard Mr. Praveen Kumar, learned counsel for the petitioner, and Mr. Mrigendra Kumar, learned Assistant Counsel to Government Advocate No. 11, appearing for the State.
5. Resisting the writ petition at its very threshold, it has been submitted by Mr. Mrigendra Kumar, learned Government counsel, that this writ petition is not maintainable inasmuch as there is an alternative and efficacious remedy available, in the form of appeal, against the impugned order of externment as provided by Section 6 of Bihar Control of Crimes Act, 1981.
6. The above contention of the State has been opposed by the learned counsel for the petitioner on the ground, inter alia, that though the petitioner had made a Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 3 representation in response to the notice of externment issued against him under Section 3 of Bihar Control of Crimes Act, 1981, the submissions made by the petitioner, in his said representation, were not considered by respondent No. 2, namely, District Magistrate, Munger, while making the impugned order of externment.
7. Thus, according to learned counsel for the petitioner, the impugned order of externment suffers from denial of the principles of natural justice inasmuch as the petitioner has not been given any effective opportunity of having his say in the matter, when his submissions, made as against the proposed order of externment, were not taken into account, while passing the impugned order of externment.
8. Moreover, it is submitted, on behalf of the petitioner, that the impugned order of externment is a nullity in the eyes of law inasmuch as respondent No. 2, namely, District Magistrate, Munger could not have exercised his jurisdiction under Section 3 of Bihar Control of Crimes Act, 1981, directing externment of petitioner from the district of Munger, when the petitioner, even according to the order of externment, could not be said to have fallen within the definition of anti-social element as described by Section 2(d) of Bihar Control of Crimes Act, 1981. Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 4
9. The rival submissions made before us brings to the definition of anti-social element as contained in Section 2(d) of the Bihar Crime Control Act, 1981, which reads as under:
"2(d) "Anti-Social element" means a
person, who-
(i) either by himself or as a member of
or leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code; or
(ii) habitually commits or abets the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act, 1956;
(iii) who by words or otherwise promotes or attempts to promote, on grounds of religion, race, language, caste or community or other grounds whatsoever, feelings of enmity or hatred between different religions, racial or language, groups or castes or communities; or
(iv) has been found habitually passing indecent remarks to, or teasing women or girls; or
(v) who has been convicted of an offence under sections 25, 26, 27, 28 or 29 of the Arms Act, 1959."
10. A close reading of sub-section (1) of Section 3 Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 5 of Bihar Control of Crimes Act, 1981, reads thus:
"3. Externment, etc., of anti-social elements:-
(1) Where it appears to the District
Magistrate that-
(a) any person is an anti-social element, and
(b) (i) that his movements or acts in the district or any part thereof are causing or calculated to cause alarm, danger or harm to persons or property; or
(ii) that there are reasonable grounds for believing that he is engaged or about to engage, in the district or any part thereof, in the commission of any offence punishable under Chapter XVI or Chapter XVII of the Indian Penal Code, or under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or abetement of such offence;
the District Magistrate shall by notice in writing inform him of the general nature of the material allegation against him in respect of clauses (a) and (b) and shall give him a reasonable opportunity of tendering an explanation regarding them."
11. From a bare reading of sub-section (1) of Section 3 of Bihar Control of Crimes Act, 1981, it becomes abundantly clear that a person has to be an anti-social element within the meaning of Section 2(d) of Bihar Control Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 6 of Crimes Act, 1981, in order to bring him within the ambit of Section 3 of Bihar Control of Crimes Act, 1981, so that an order of externment can be made against him. Considered in this light, it becomes crystal clear that unless a person is an ante-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981, a District Magistrate does not derive the jurisdiction, power or authority to make an order of externment by taking recourse to Section 3 of Bihar Control of Crimes Act, 1981.
12. To put it a little differently, a person cannot be externed by taking recourse to Section 3 of Bihar Control of Crimes Act, 1981, unless he can be described as an anti- social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981. One of the condition precedents for making an order of externment, under Section 3 of Bihar Control of Crimes Act, 1981, is that the person, sought to be externed, must be an anti-social element as envisaged in Bihar Control of Crimes Act, 1981.
13. The question, therefore, is: whether in the facts and circumstances of the present case, the impugned order of externment make out the petitioner an anti-social element as defined by Section 2(d) of Bihar Control of Crimes Act, 1981?
14. It is of great relevance to note that in his Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 7 order, dated 01.04.2014, passed in Case No. 04 of 2013- 2014, respondent No. 2, namely, District Magistrate, Munger, has taken into account three cases, which have been registered against the petitioner in order to treat the petitioner an anti-social element. These three cases, with the relevant penal provisions, are re-produced below:
1. Mufassil P.S. Case No. 305/2009, dated 09.12.2009, under, Sections 25(1-A)/ 25 (1-AA)/25(1- B)AC/26(1)(2)(3)/35 of the Arms Act, 1959.
2. Mufassil P.S. Case No. 52/09, dated 5.3.2009, under Sections 25(1-A)/25(1-AA)/25 (1-B)AC/ 26(i)(ii)(iii)/35 of the Arms Act, 1959.
3. Mufassil P.S. Case No. 118/09, dated 08.05.2009, under Sections 324/307/34 of the Indian Penal Code read with Section 27 of the Arms Act, 1959.
15. From what have been re-produced above, it can be easily gathered that within the three cases, which became the foundation for the impugned order of externment, two cases were registered under the Arms Act, 1959, and the solitary case, under the Indian Penal Code, read with Section 27 of the Arms Act, 1959, was Mufassil Police Station Case No. 118 of 2009.
16. From the definition of anti-social element, which we have depicted above, it can be easily noticed that a person would be regarded as an anti-social element Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 8 within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981, if he has been convicted of an offence under Sections 25, 26, 27, 28 or 29 of the Arms Act, 1959. In none of the two cases, which have been registered under the Arms Act, 1959, the petitioner has yet been, admittedly, convicted.
17. The question, therefore of applying sub-clause
(v) of Section 2(d) of Bihar Control of Crimes Act, 1981, does not arise at all.
18. As far as the third case against the petitioner, namely, Mufassil Police Station Case No. 118 of 2009, is concerned, the same has been registered not only under Sections 324 and 307/34 of the Indian Penal Code, but also under Section 27 of the Arms Act, 1959.
19. Sub-clause (i) of Section 2(d) of Bihar Control of Crimes Act, 1981, shows that a person, who either by himself or as a member of, or leader of, a gang, habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code would be regarded as an anti-social element.
20. If, therefore, a person is not shown to be habitually committing, or attempting to commit, or abetting commission of, offence punishable either by Chapter XVI of Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 9 the Indian Penal Code, which relates to offences affecting the human body or offences affecting life, or by Chapter XVII of the Indian Penal Code, which relates to offences against property, he would not be regarded as an anti- social element within the meaning of Section 2 (d) (i) of Bihar Control of Crimes Act, 1981.
21. We may pause, at this stage, to point out that in Vijay Narain Singh v. State of Bihar [(1984) 3 SCC 14], the Supreme Court has clearly laid down that The expression "habitually" means "repeatedly" or "persistently". It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. This appears to be clear from the use of the word "habitually" separately in sub-clause
(i), sub-clause (ii) and sub-clause (iv) of Section 2(d) of Bihar Control of Crimes Act, 1981, and not in sub-clauses
(iii) and (v) of Section 2(d) of Bihar Control of Crimes Act, 1981. If the State Legislature had intended that a commission of two or more acts or omissions referred to in any of the sub-clauses (i) to (v) of Section 2(d) of Bihar Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 10 Control of Crimes Act, 1981, was sufficient to make a person an "anti-social element", the definition would have run as "Anti-social element" means "a person who habitually is .......". As Section 2(d) of Bihar Control of Crimes Act, 1981, now stands, whereas under sub-clause
(iii) or sub-clause (v) of Section 2(d) of Bihar Control of Crimes Act, 1981, a single act or omission referred to in them may be enough to treat the person concerned as an „antisocial element‟, in the case of sub-clause (i), sub- clause (ii) or sub-clause (iv), there should be a repetition of facts or omissions of the same kind referred to in sub- clause (i), sub-clause (ii) or in sub-clause (iv) by the person concerned to treat him as an "anti-social element". Commission of an act or omission referred to in one of the sub-clauses (i), (ii) and (iv) and of another act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an "anti-social element". A single act or omission falling under sub-clause (i) and a single act or omission falling under sub-clause (iv) of Section 2(d) of Bihar Control of Crimes Act, 1981, cannot, therefore, be characterized as a habitual act or omission referred to in either of them. Because the idea of "habit" involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 11 the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them they cannot be treated as habitual ones. (See also (1990) 4 Supreme Court Cases 552 (Ayub alias Pappukhan Nawabkhan Pathan Vs. S. N. Sinha and Another)
22. In the present case, since the petitioner is alleged to be involved in the commission of the offences under Section 324 and 307 read with Section 34 of the Indian Penal Code in Mufassil Police Station Case No. 118 of 2009 aforementioned, this solitary case could not have made the petitioner a person, who can be said to have been „habitually' committing offences under Chapter XVI or Chapter XVII of the Indian Penal Code, and would not, therefore, bring the petitioner within the four corners of the definition of anti-social element as defined by Section 2(d)(i) of Bihar Control of Crimes Act, 1981, when no other sub-clause of clause (d) of Section 2 of Bihar Control of Crimes Act, 1981, is, admittedly, attracted to the case at hand.
23. More-over, even Mufassil Police Station Case No. 118 of 2009 allegedly involves commission of offence under Section 27 of the Arms Act, 1959. In such circumstances, without conviction of the petitioner under Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 12 any of the penal provisions of the Arms Act, 1959, it was impossible to bring him within the ambit of anti-social element as defined by Section 2(d) of Bihar Control of Crimes Act, 1981.
24. What follows from the above discussion is that in the case at hand, the District Magistrate has relied upon three cases to treat the petitioner as an anti-social element, but none of the cases, so relied upon, make the petitioner an anti-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981.
25. Coupled with the above, the cases, which have been referred to, and relied upon, by the District Magistrate, Munger, are of the year 2009. How the cases of the year 2009 could become relevant, in the year 2014, for the purpose of passing an order of externment, has not been explained or mentioned in the impugned order of externment nor is there any explanation discernible, in this regard, from the materials on record.
26. In Shiv Prasad Bhatnagar v. State of M.P., reported in (1981) 2 SCC 456, the order of preventive detention was challenged on several grounds, the primary challenge being, however, on the ground that the grounds of detention suffer from the vice of either vagueness or staleness. Addressing the primary submission so made, the Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 13 Supreme Court pointed out, in Shiv Prasad Bhatnagar (supra), that the first ground, embodied in the grounds of detention, mentioned that the detenu, along with his friends, in the second week of November, 1980, had indulged in filthy abuse of Muslims, threatened their lives and performed „mar pit‟ and details of the incidents were given to substantiate the ground and that as many as six incidents were mentioned and in every one of them, it was mentioned that the detenu, along with his associates, had indulged in this or that violent action, but no mention was made of the name of even a single associate. The argument was that the reference to „associates‟ without naming even one rendered the ground vague and, therefore, vitiated it. Similarly, it was said that the second ground also referred to the detenu and his associates without naming even a single associate and for that reason, the second ground also was vague. The further submission was that the incidents enumerated, in second ground were of the years 1974, 1975, 1977 and 1978 and could, by no means, be said to be proximate enough to sustain an order of preventive detention. The second ground was to the effect that the detenu and his associates had terrorized the common man in the Vidisha area by their various criminal acts, which caused disturbance to public peace and public Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 14 safety. Several incidents were narrated to substantiate this ground. The first incident was of the year 1974, the second incident was of the year 1975, the next three incidents were of the year 1977 and the rest of the incidents barring the last one were of the year 1978. A perusal of the incidents enumerated to substantiate the second ground showed, according to the Supreme Court, that the order of detention suffered from the vice of staleness. The Supreme Court also pointed out, in Shiv Prasad Bhatnagar (supra), that the incidents appear to bear a striking resemblance to the grounds of detention, which were considered in Sushanta Goswami (1969) 1 SCC 272, particularly, in the cases of Debendra Nath Das, Abdul Waheb, Anil Das, Dilip Kumar Chakraborty and Ashoka Kumar Mukherjee and that „it is, now, well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are such vices that any single one of them is sufficient to vitiate a ground of detention. The relevant observations, appearing in Shiv Prasad Bhatnagar (supra), read as under:
"It is now well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 15 vagueness are vices any single one of which is sufficient to vitiate a ground of detention."
(Emphasis is supplied)
27. Considering the fact that out of the three cases, which have been relied upon, only one case is under the Indian Penal Code coupled with Arms Act, 1959, the petitioner cannot be described as an anti-social element, when he cannot be said to have been habitually or repeatedly or persistently committing or attempting to commit or abetting the commission of offences punishable under Chapter XVI of the Indian Penal Code, which deals with offences affecting human body, or Chapter XVII of the Indian Penal Code, which deals with offences against the property.
28. What crystallizes from the above discussions is that in the facts and attending circumstances of the present case, the petitioner could not have been regarded as an anti-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981, and no order of his externment could have, therefore, been passed by invoking Section 3 of Bihar Control of Crimes Act, 1981, when an order of externment can be passed under Section 3 of Bihar Control of Crimes Act, 1981, only against an anti-social element. Further-more Mr. Praveen Kumar, learned counsel Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 16 for the petitioner, has considerable force, when he points out, with great justification, that though the petitioner, in response to the notice of the show cause, had submitted his representation, the contents of his representation were not considered at all, while making the impugned order of externment.
29. It needs to be borne in mind that the requirement of giving notice of show cause to a person, who is sought to be externed, is not a mere formality and, therefore, the reply, given by such a person to the notice of show cause, needs to be taken into account and considered appropriately. In this regard, the impugned order of externment shows that the contents of the petitioner‟s representation were not at all considered. Thus, denial of principle of natural justice, while making an order of externment, is palpable and cannot be ignored.
30. Viewed, thus, from any angle, it becomes abundantly clear that the petitioner cannot be made to fall within the definition anti-social element as given by Section 2(d) of Bihar Control of Crimes Act, 1981, and when he could not have been regarded as anti-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981, the power of directing petitioner‟s externment by invoking Section 3 of Bihar Control of Crimes Act, 1981, Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 17 could not have been arisen.
31. In short, the conditions precedent for invoking a District Magistrate‟s jurisdiction under Section 3 of Bihar Control of Crimes Act, 1981, having not been satisfied in the present case, no order of externment could have been passed against the present petitioner.
32. The learned counsel for the petitioner is, therefore, not incorrect, when he submits that the impugned order of externment is a nullity in the eyes of law and the provisions of appeal, made under Section 6 of Bihar Control of Crimes Act, 1981, would not debar a person, such as the petitioner, from invoking this Court‟s extra- ordinary jurisdiction under Article 226 of the Constitution of India.
33. Because of what has been discussed and pointed out above, we find that the impugned order of externment is not sustainable and, therefore, warrants interference.
34. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order, dated 19.03.2014, passed by respondent No. 2, namely, the District Magistrate, Munger, which stands impugned in the present writ petition, is hereby set aside and quashed.
35. In terms of the above observations and Patna High Court Cr. WJC No.415 of 2014 (3) dt.17-06-2014 18 directions, this writ petition stands disposed of.
(I. A. Ansari, J.)
(Anjana Mishra, J.)
A.I./NAFR
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