Rajasthan High Court - Jaipur
Devendra Jain vs State Of Rajasthan And Anr. on 6 December, 2001
Equivalent citations: 2002CRILJ1655, 2002(1)WLC540
JUDGMENT Sharma, J.
1. Instant writ petitions have been filed challenging the vires of Sections 3, 4,5 6 and 9 of the Rajasthan Control of Goondas Act 1975 (for short the Act). Ancillary reliefs seeking quashing of the orders of the courts below have also been sought.
2. The Additional District Magistrate Kota under Section 3 of the Act ordered for externment for a period of six months of the petitioners Devendra Jain from Kota to Sawai Madhopur and Satya Narain @ Sattu from Kota to Bundi.
3. We have heard the rival submissions and scanned are relevant statutory provisions.
4. The contentions urged on behalf of the petitioners are as under.
(i) In view of Sub-section (4) of Section 3 of Cr.P.C. the Legislature is not having any such power to enact the Act which grant power to the Executive Magistrate to award punishment for the reason that by the amendment of the Cr.P.C. 1973 the power of the Executive Magistrate and Judicial Magistrate were bifurcated and it was also stipulated in explicit terms that what would be the functions of the Executive Magistrate and Judicial Magistrate and it is also settled that the action initiated under Section 3, 4 & 5 of the Act falls within the definition of 'punishment'. The definition of 'punishment' given under Section 53 of the Indian Penal Code is not exhaustive and it applies only to the provisions of Indian Penal Code, therefore, the act is unconstitutional being contravention of the Code of Criminal Procedure 1973.
(ii) The order passed under Sections 3, 4, and 5 of the Act falls within the definition of punishment for the reason that such order takes away not only the liberty of the person but also his resources of employment, his duties towards his family members and also put an immediate problem of shelter on his head i.e. boarding and lodging etc. in other words, it can be described as an economical death and it would not be hyperbole to state, that the effect of such orders are more higher than the regular imprisonment of preventive detentions.
5. The respondent State in its reply filed only in writ petition No. 5715/2000 contested the writ petition and submitted that the impugned Act is just and proper and has legislative competence and it not unconstitutional.
6. The relevant provisions of the Act may be briefly set out. The Act received the assent of the President on March 26, 1975 and it was published in Rajasthan Gazette Part IV Extraordinary on the same date. The Act was promulgated for the control and suppression of Goondas with a view to the maintenance of public order. Sections 3, 4, 5, 6, 9 and 10 of the Act provide as under :
"3. Exlernment etc. of Goondas -(1) Where it appears to the District Magistrate:
(a) that any person is a goonda; and
(b) (i) that his movements or acts in the district or any part thereof are causing or are 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 or abatement of any offence or act specified in Sub-clauses (i) to (viii) of Clause (b) of Section 21 and
(c) that witnesses are not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or properly;
the District Magistrate shall by notice in writing inform him of the general nature of the material allegations against him in respect of above Clauses (a), (b) and (c) and 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 or to produce and relevant document 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) Thereupon the District Magistrate on being satisfied that the conditions specified in Clause (a) (b) and (c) of Sub- section 1 exist, may by order in writing.
(a) direct him to remove himself outside the district, or part, as the case may be, by such route, if any, and within such lime as may be specified in the order, and to desist 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 movements, 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 any 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 expiration of such period, not exceeding six months as may be specified in the order.
4. Permission to return temporarily- The district Magistrate may, by an order, permit any person in respect of whom an order has been made under Clause (a) of Sub-section (3) of Section 3 to enter or return, for a temporary period, into or to the area from which he was directed to remove himself, subject to such conditions as the District Magistrate may specify and may at any time rescind any such permission.
5. Extension of period of order - The District Magistrate may after giving, except where for reasons to be recorded in writing he is satisfied that it is impracticable so to do, to the person concerned an opportunity of making a representation in that behalf, extend from time to time in the interest of the general public the period specified in the order made under Section 3, but the period so extended shall in no case exceed two years in the aggregate.
6. Appeal- (1) Any person aggrieved by an order made under Section 3, Section 4 on Section 5 may appeal to the Tribunal within fifteen days from the date of such order.
(2) The appellant or his counsel shall not be entitled to inspector to be informed of any record which was not disclosed to him at the inquiry, if any, held under Section 3.
(3) The Tribunal may either confirm the order, with or without modification or set it aside, any may, pending disposal of the appeal, stay the operation of the order subject to such terms, if any, as he thinks fit.
9. Rescission of order- The District Magistrate or the Tribunal may at any time rescind an order made under Section 3, whether or not such order was confirmed on appeal under Section 6.
10. Punishment for contravention of orders under Sections 3 to 6-whoever contravenes any, order made under Section 3, Section 4, Section 5 or Section 6 shall be punishable with rigorous imprisonment for a term which may extend to three years but shall not be less than six months, and shall also be liable to fine."
7. We shall now advert to the first contention of the learned counsel for the petitioners in regard to interpretation of Section 3(4)(a) of Cr.P.C. which provides that the executive Magistrate can not exercise such function which exposes a person to any punishment or penalty.
In order to appreciate this submission it will be relevant to refer to Article 19(1) (d) and (e) of the Constitution of India which provide that all citizens shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India but Article 19(5) mandates that nothing in Sub-clause (d) and (e) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said clause either in the interest of general public or for the protection of the interests of any Scheduled Tribe. It is thus evident that the State can enact law and impose reasonable restrictions.
Section 5 Cr.P.C. that deals with saving clause reads as under-
"Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred or any special form of procedure prescribed, by any other law for the time being in force."
Division Bench of this Court in Ram Pratap v. State of Rajasthan and Ors. (1), had occasion to interprete Section 5 Cr.P.C. and it was observed that "Section 5 Cr.P.C. enacts that nothing contained in the Code shall, in the absence of a special provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The anatomy of this section is simple, yet subtle. Broadly speaking, there are three components to be separated. Firstly, the Code generally governs matters covered by it. Secondly, if a special or local law exists, covering the same area, this latter law will be saved and wilt prevail. The short sentencing measures and remission schemes promulgated by the various States are special and local laws and must override. Now comes the third component, which may be clinching. If there, is specific provision to the contrary in the Cr.P.C. then it will override the special or local law. Reading Sections 4 and 5 together, the conclusion is irresistible that if there exists any special law or if any special jurisdiction or power is conferred upon the court or if any form of procedure is prescribed in the special law, then, the provisions of the special law would override the provisions of the general law of procedure. This section in our view vehemently provides that nothing contained in the Cr.P.C. in the absence of specific provision to the contrary, affect any special or local law for the time being in force."
8.. The Act which is a special law and promulgated with a view to the maintenance of public order and the provisions contained in the Act, in our opinion, override the provisions enumerated in Section 3(4)(a) of Cr.P.C. The District Magistrate being the Chief Executive Administrator of the district, enjoys all executive powers including those for preservation of law and order. In view of this we find no merit in the first contention of the learned counsel.
9. That takes us to the second contention advanced on behalf of the petitioners in regard to 'economic death' of the petitioners in the event of their externment pursuant to the impugned orders of the Additional District Magistrate.
10. Under Sub-section (3) of Section 3 of, the Act the District Magistrate is authorised to order a person directing him to remove himself out side the district or part and to desist from entering the district or the specified part until the expiry of such period not exceeding six months. The person may be required to notify his movements or to report himself or to both in such manner, at such time and to such authority as may be specified in the order. The person may be prohibited from possessing or using any article and directed to conduct himself in such manner as may be specified in the order, If the person so ordered fails to carry out the direction, he is liable to be punished with rigorous imprisonment for a minimum term of six months which may be extended to three years. The Act, to may be noticed, before the place outside the district, is selected where the person has to remove himself and reside, does not give any opportunity to him of being heard. The place selected by the District Magistrate may be one in which the person concerned may have no residential accommodation and no means of subsistence. It may not be possible for the person concerned to honestly secure the means of subsistence in the place selected. Section 3(3) of the Act nowhere provides that the person directed to be removed shall be provided that any residence, maintenance or means of livelihood in the place selected. It is thus violative of right to life guaranteed under Article 21 of the Constitution of India.
11. A close look at the scheme of the Act demonstrates that a person who is a 'Goonda' as defined under Section 2(b) of the Act comparatively is in a worst situation, than that of a prisoner. A 'Goonda' has no residential facility after externment whereas according to Section 4 of the Prisons Act 1894 the State Government has to provide accommodation in prison to a prisoner. The State Government has the obligation to bear the expenses needed for providing food and clothes and other amenities to every prisoner.
12. Their Lordships of the Supreme Court in Chamelisingh v. State of U.P. (2), while dealing with Article 21 of the Constitution of India have held that the need for a decent and civilized life include the right to food, water and a decent environment. It was indicated as under-
"In any organised society, right to live as a human being is not ensured by meeting only the animal needs of men. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this subject. Right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration on Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights."
13. It is evident from a bare perusal of Article 19 of the Constitution of India that none of the fundamental rights under this Article is an absolute right. Each of the Sub-clauses (a) to (g) in Clause (1) is saddled with a restrictive provision enacted in Clause (2) to (6) of the Article. Hence in determining the extent of a right guaranteed under any of the sub-clauses of Clause (1), the particular sub-clause must be taken along with the corresponding provision in Clause (2) to (6) of the article. Where a statute is impugned on the ground that it adversely affects rights guaranteed by Article 19 of the Constitution, the Court should first has to ascertain whether the right claimed is one of the rights guaranteed by the Constitution and secondly whether the right is affected in a manner warranted by the Constitution. The general principles as to the tests of reasonableness are fairly well established. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1) and the social control permitted by Clause (2) to (6) of Article 19, it must be held to be wanting in that quality. Where the plea as to denial of equality before the law is based on the ground that the power vested in an administrative authority, to affect rights guaranteed to a citizen is arbitrary being unguided or uncanalised, the vesting of such arbitrary power would amount to the imposition of an unreasonable restriction on the exercise of the right guaranteed under Article 19. In the case of externment or internment orders the citizen's freedom of movement under Clause (d) of Articles 19 is curtailed and therefore unless such curtailment is justifiable under Clause (5) it is ultravires.
14. Keeping the above principles in mind if we examine Sub-section (3) of Section 3 of the Act we find that it gives arbitrary powers to the District Magistrate to remove a person from one district to another. The place selected by the District Magistrate may be one in which the person concerned may have no residential accommodation and no means of subsistence. It may not be possible for the person concerned to honestly secure the means of subsistence in the place selected. Sub-section (3) of Section 3 of the Act no where provides that the person directed to be removed shall be provided with any residence, maintenance or means of livelihood in the place selected. In the circumstances we are of the view that Sub-section (3) of Section 3 of the Act authorises the imposition of unreasonable restrictions in so far as it requires any person to reside or remain in such places selected by the District Magistrate. Article 19(1)(d) and (e) of the Constitution provide that all citizens shall have the right to move freely and to reside and settle throughout the territory of India but article 19(5) mandates that nothing in Sub-clauses (d) and (e) shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said Clause either in the interest of general public or for the protection of the interests of any Scheduled Tribe. The State is undoubtedly empowered to enact the law in the interest of general public by imposing reasonable restrictions restricting the right of citizen provided under article 19(1)(d) and (e) of the Constitution and the Act was also promulgated for the control and suppression of Goondas with a view to the maintenance of public order but it imposes unreasonable restrictions which are not justifiable under Clause (5) of article 19 of the Constitution and thus Sub-section (3) of Section 3 of the Act of the Act is ultravires. Constitution Bench of Hon'ble Supreme Court in State of M.P. v. Thakur Bharat Singh (3), propounded that imposition of restrictions requiring person to reside in such place without providing residence, maintenance or means of livelihood, would be unreasonable. The State or its officers in exercise of executive authority can not infringe rights of citizens merely because Legislature of State has power to legislate in regard to subject on which executive order is passed. (15). Mr. S.M. Mehta, learned Advocate General urged that suitable directions may be issued to the State to redraft the provisions contained In Sub-section (3) of Section 3 of the Act but we are unable to accept this request as it is not the function of this court to advise the State as to how the law may be redrafted so as to avoid conflict with the Constitution.
16. For the foregoing reasons we hold that Sub-section (3) of Section 3 of the Act is ultravires being violative of Article 19(1)(d) and (e) and Article 21 of the Constitution of India. We therefore, strike down Sub-section (3) of Section 3 of the Act.
17. As a consequence of striking down Sub-section (3) of Section 3 of the Act, the impugned orders of externment of the petitioners Devendra Jain from Kota to Sawai Madhopur and Satya Narain @ Sattu from Kota to Bundl shall stand set aside.
18. The writ petitions stand allowed as indicated hereinabove without any order as to costs.