Jharkhand High Court
Jasbir Singh vs The State Of Jharkhand And Ors on 16 February, 2017
Equivalent citations: 2017 (2) AJR 656
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No.373 of 2016
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Jasbir Singh, son of Baldev Singh, R/o Bhusan Colony, Baridih, P.O.
P.S.-Sidhgora, Town-Jamshedpur, District-East Singhbhum
... ... Petitioner
Versus
1.The State of Jharkhand
2.The District Magistrate cum Deputy Commissioner, Singhbhum East,
Jamshedpur, P.O. and P.S. Sakchi, Jamshedpur, East Singhbhum
3.Senior Superintendent of Police, Singhbhum East, Jamshedpur,P.O.
and P.S. Sakchi, Jamshedpur, East Singhbhum
4.Superintendent of Police, Singhbhum East, Jamshedpur, P.O. and
P.S. Sakchi, Jamshedpur, East Singhbhum
... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Amit Kumar Das, Advocate
For the State : Mr. Vijayant Verma, J.C. to G.P II.
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07/16.02.2017Heard Mr. Amit Kumar Das, learned counsel for the petitioner and Mr. Vijayant Verma, learned J.C. to G.P. II appearing on behalf of the State.
In this writ application the petitioner has prayed for quashing the order dated 23.08.2016 passed by the learned District Magistrate cum Deputy Commissioner, Singhbhum at Jamshedpur in C.C.A. Case No.17/16-17 whereby and whereunder in exercise of powers under section 3(3)(a) of Jharkhand Crime Control Act, the petitioner has been directed to remove himself from the District of Singhbhum East at Jamshedpur for a period of six months from 06.09.2016 to 05.03.2017 after executing a bond of Rs.25,000/- with two sureties.
It has been stated by the learned counsel for the petitioner that the impugned order dated 23.08.2016 is bad in the eye of law in view of the fact that only one case has been instituted against the petitioner prior to his order of externment. It has further been stated that the petitioner cannot be said to be an anti-social element so as to attract section 3 of the Jharkhand Control of Crimes Act in view of the fact that the petitioner admittedly is not a habitual offender. Learned counsel, therefore, submits that the order of externment being not in consonance with the Jharkhand Control of Crimes Act deserves to be quashed and set aside.
-2-At this, Mr. Vijayant Verma, learned J.C. to G.P II. has stated that the petitioner has an alternative remedy of preferring an appeal under section 6 of the Jharkhand Control of Crimes Act against the order of externment passed against him. It has also been stated that merely because one case is pending against the petitioner cannot preclude the District Administration from debarring the petitioner from entering into the District of East Singhbhum at Jamshedpur as the petitioner seems to be involved in various criminal acts. It has thus been stated that impugned order dated 23.08.2016 deserves to be affirmed and if at all the petitioner is aggrieved he may prefer an appeal under section 6 of the Jharkhand Control of Crimes Act The primary consideration which is to be made in this case is whether the petitioner can be said to be an anti-social element so as to attract section 2(d) and section 3(3)a of the Jharkhand Control of Crimes Act. It is an admitted fact that the petitioner is an accused is only a solitary case being Sidhgora P.S. Case No.03 of 2016 which was registered for the offences punishable under sections 25(1-b)
(a)/26 of the Arms Act. The counter affidavit also does not disclose any further case which has been instituted against the petitioner prior to the order of externment passed against the petitioner.
In order to appreciate the rival contention, it would be necessary to refer to the various provisions of the Jharkhand Control of Crimes Act (hereinafter referred to as the 'Act').
Section 3 deals with externment etc. of anti-social element and is reads as under:-
"(I) Where it appears to the District Magistrate that-
(a) any person is an anti-social element, and
(b)(i) that his movement 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 abetment of such offence;-3-
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.
(2) The person against whom an order under this section is proposed to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires and also of examining any other witnesses that he may wish to produce in support of his explanation, unless for reasons to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay.
(3) The District Magistrate on being satisfied that the conditions specified in clauses (a) and (b) of sub-section (1) exist, may by order in writing-
(a) direct him to remove himself outside the district or part thereof, as the case may be, by such route, if any, and within such time as may be specified in the order and to resist from entering the district or the specified part thereof, until, the expiry of such period, not exceeding six months as may be specified in the order;
(b)(i) require such person to notify his movement, or to report himself, or to do both, in such manner, at such time and to such authority or person as may be specified in the order;
(ii) prohibit or restrict possession or use by him of such article as may be specified in the order;
(iii) direct him otherwise to conduct himself in such manner as may be specified in the order;
until the expiry of such period, not exceeding six months, as may be specified in the order".
The Term "anti-social element" has been defined under section 2(d) of the act which reads as under-
(d) 'Anti-social element' means a person who:
-4-(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 was been convicted of an offence under sections 25, 26, 27, 28 or 29 of the Arms Act of 1959.
A perusal of the definition of the anti-social element as has been enumerated under section 2(d) of the Act would reveals that anti-social element is a person who habitually commits or abets the commission of offence or by words or otherwise promotes or attempts to promote, enmity or hatred between different religions, racial or language groups or castes, habitually passing indecent remarks to, or teasing women or girls or who has been convicted of an offence under sections 25, 26, 27, 28 and 29 of the Arms Act of 1959.
None of the sub-clauses to section 2(d) of the Act would include the petitioner as it cannot be said that the petitioner is a habitual offender, since only one case has been instituted against the petitioner prior to his order of externment. Other provisions with respect to section 2(d) of promoting of feelings of enmity or hatred or passing indecent remarks to, or being convicted for various sections of the Arms Act admittedly does not include the petitioner. Only if the petitioner was found to have been habitually committing or abetting or attempting to commit any offence as has been mentioned in section 2d(i) and (ii) of the Act would a person come within the purview of section 3 of the Act giving the authority to the District Magistrate to pass an order of externment against such persons.
-5-The question which has been raised by the learned counsel for the petitioner has been considered in the case of Bouwa Singh @ Babua Singh Vs. State of Bihar and Ors in Cr.W.J.C. No.100 of 1995, it was held as follows-
"(4) From a plain reading of the aforesaid provisions, it I manifest that for initiation of a proceeding under section 3 of the Act, the requirement is that the person must be an anti-social element as enumerated in Section 3(1)
(a) of the Act and also satisfies the other requirements, which have been enumerated in Section 3(1)(b)(i)(ii) of the Act, 'Anti-social element' has been defined in Section 2(d) of the Act. Section 2(d)(i) of the Act says that anti-social element means 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 and XVII of the Indian Penal Code. In Section 2(d) of the Act, the other ingredients of anti-social elements have also been enumerated in sub-clauses (ii) to (v) thereof, but there is nothing in the notice (Annexure-2) to show that the case in hand is covered under the provision of section 2(d)(ii) to (v) of the Act. It is pertinent to mention herein that section 3(i)(a) of the Act is not an independent clause as at the end the word 'and' has been mentioned. The language of section 3 is in unambiguous term, and hence there is no scope of confusion. For initiation of proceeding the first requirement is that a man must be anti-social element and thereafter it must fulfill the other requirements as enumerated in section 3(1)(b)(i) and (ii) of the Act. On a single instance of the occurrence, a man cannot be branded as an anti-social element in view of the provisions as contained in section 2(d)(i) of the Act, and if a man cannot be branded on a single instance of the occurrence as an anti-social element, a proceeding under section 3 of the Act cannot be initiated. The view expressed, as aforesaid, is also supported by a Division -6- Bench decision in Naresh Singh Vs. The State of Bihar, 1980 B.L.J.R. 164. In the instant case only on a single instance of the occurrence, the proceeding under section 3 of the Act has been initiated and hence in view of the discussions made above it cannot be held to be legal".
A conjoint reading of section 2(d) and section 3(i)(a) of the Act, would definitely lead to a conclusion that for a solitary incident of the petitioner being an accused in a criminal case cannot brand him as an anti-social element as the basic necessity of branding a person as anti- social element is of being a habitual offender which admittedly the petitioner is not.
Although, the petitioner has an alternative remedy for preferring an appeal under section 6 of the Act but in view of the apparent illegality which has been committed by the District Magistrate cum Deputy Commissioner, East Singhbhum at Jamshedpur in the impugned order dated 23.08.2016, this court is constrained to interfere with the said impugned order.
Accordingly, in view of what has been stated above, the impugned order dated 23.08.2016 passed by the District Magistrate cum Deputy Commissioner, East Singhbhum at Jamshedpur in C.C.A. Case No.17/16-17 is hereby quashed and set aside.
This application is allowed.
(Rongon Mukhopadhyay, J) Rohit/