Rajasthan High Court - Jaipur
Ram Singh Choudhary vs State Of Rajasthan And Ors on 15 December, 2017
Author: G.R. Moolchandani
Bench: G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Writ No. 359 / 2016
Ram Singh Choudhary son of Shri Hari Ram @ Sriram, aged 33
years, Caste - Jat, Ex-Sarpanch Gram Panchayat - Borada &
resident of Village-Srirampura, Police Station - Borada, Tehsil
Sarwar, District Ajmer
----Petitioner
Versus
1. State Of Rajasthan through the Principal Secretary,
Department of Home, Secretariat, Jaipur And Ors
2. The District Magistrate and Collector, Ajmer
3. The Superintendent of Police, Ajmer
4. The Station House Officer (SHO), Police Station Boranda,
District Ajmer
----Respondent
Reserved on : 11th December, 2017 Pronounced on : 15th December, 2017
_____________________________________________________ For Petitioner(s) : Mr. S.K. Saksena For Respondent(s) : Ms. Meenakshi Pareek _____________________________________________________ HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Judgment Present petition has been filed by petitioner Ram Singh Choudhary son of Shri Hari Ram @ Sriram, against the State of Rajasthan under the provisions of Article 226 of the Constitution for quashing proceedings pertaining to opening of History-Sheet (H.S.) under the provisions of the Rajasthan Habitual Offenders Act, 1953 coupled with Rajasthan Police Rules, 1965.
Learned counsel for the petitioner has contended that according to sec. 2(a) of the Rajasthan Habitual Offenders Act, 1953, it is essential that conviction on three occasions must have been penned down, only then, proceedings in connection with initiation and opening of History-Sheet could be resorted to but no such factual mandate is there and has further added that the impugned notice dated 14.7.2015, which was earlier issued u/s 113 of CrPC in connection with similar kind of proceedings, was a subject matter of S.B. Criminal Misc. Petition No.3773/2015, preferred under the provisions of Section 482 of CrPC by the present petitioner against the State of Rajasthan and Hon'ble Rajasthan High Court, while deciding the said petition No.3773/2015 Ram Singh Choudhary Vs. State of Rajasthan and others on 27.1.2016, has quashed and set aside the said notice and Sub-Divisional Magistrate, Sarwar, Ajmer, was duly intimated in respect of the said order of the court, in addition, the present petitioner also served a notice, Annexure-2, upon Sub-Divisional Magistrate, Sarwar, District Ajmer to this effect, but the respondents in derogation to the said command, has acted upon impugned notice dated 14.7.2015 and has entered the name of petitioner in the said History-Sheet maintained under the provisions of Rajasthan Habitual offenders Act 1953 coupled with the provisions of Rule 4.4 in Surveillance Register No.8 of the Rajasthan Police Rules 1965, since impugned notice dated 14.7.2015 has already been quashed by this court earlier, so any act in furtherance of the said notice, is non est and deserves to be set aside. In support of his contentions, learned counsel has relied upon the judgment passed by a Co-ordinate Bench of this Court at Jodhpur in Shankar Lal v. The State of Rajasthan 2016 (4) R.Cr.D. 108 (Raj.).
(3 of 8) [CRLW-359/2016] Per contra, learned Public Prosecutor has contended that the petitioner has got a long list of heinous offences lodged against him and he has become a persistent thorn of discomfort for the society at large and proceedings initiated does not suffer from any infirmity, so the present petition be dismissed and the entry made be maintained.
To deal with the lis involved, traces in respect of term 'habitual offender', are to be examined.
It is not in dispute that the term 'habitual offender' is not defined under Cr.P.C., and the law governing the province for surveillance and control of habitual offenders in the State is envisaged under the Act of 1953. Therefore, for treating someone as habitual offender to execute a bond of good behaviour, an Executive Magistrate is required to record its satisfaction in terms of Section 2(a) of the Act of 1953 and not otherwise.
It would be appropriate to examine the definition of 'habitual offencer' envisgaged under sec. 2(a) of the Rajasthan Habitual Offenders Act, 1953, which reads as under :-
'Habitual offender' means a person who, during any continuous period of five years, whether before or after the 15 th day of September, 1952 or partly before and partly after the said date, has been sentenced on conviction on not less than three occasions since he attained the age of eighteen years to a substantive terms of imprisonment for any one or more of the scheduled offences committed on different occasions and not so connected together as to form parts of the same transaction, such sentence not having been reversed in appeal or revision.
Provided that in computing the continuous period of five years referred to above any period spent in jail either under a sentence of imprisonment or under detention shall not be taken into account.
Maxim Expressio Unius est exclusio alterius, i.e., "Express mention of one thing, implies the exclusion of another in its fullest application. Reliance on this settled legal proposition can be profitably made to a very old decision in (4 of 8) [CRLW-359/2016] Taylor vs. Taylor, (1875) LR 1 Ch D 426, which was further followed by Lord Roche in Nazir Ahmed vs. King Emperor, (AIR 1936 PC 253). Supreme Court in a recent judgment, Mackinon Mackenzie Ltd vs. Mackinnon Employees Union, (2015) 4 SCC 544, while relying on the decisions in Taylor & Nazir Ahmed (supra) as well as in its later judgments has recognized this rule as a statutory principle of administrative law and has held:
42. Apart from the said decisions, this Court has followed the Privy Council of 1939 and Chancellor's decisions right from the year 1875 which legal principle has been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh and the same has been followed until now, holding that if a statutory provision prescribes a particular procedure to be followed by the authority to do an act, it should be done in that particular manner only. If such procedure is not followed in the prescribed manner as provided under the statutory provision, then such act of the authority is held to be null and void ab initio in law. In the present case, undisputedly, the statutory provisions of Section 25FFA of the ID Act have not been complied with and therefore, consequent action of the appellant Company will be in violation of the statutory provisions of Section 25-FFA of the ID Act and therefore, the action of the Company in retrenching the workmen concerned will amount to void ab initio in law as the same is inchoate and invalid in law.
43. ..where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
The list of cases, which has been appended by the petitioner, lays down details of following cases :-
Jh jkeflag iq= Jh gfjjke mQZ Jhjke mez 34 lky tkfr tkV fuoklh Jhjkeiqjk ¼ykiMk½ Fkkuk cksjkMk ftyk vtesj ¼jkt-½ ds fo:) ntZ izdj.kksa dh lwfp %& Ø0 eq0u0 /kkjk uke Fkkuk urhtk U;k;ky; dk fu.kZ; fooj.k la0 pktZ'khV uke U;k;ky;
1 245/2002 341] 323] 34 Hkk-n-l- Fkkuk ljokM 139/02 ,e-ts-,e- jkthukek
ljokM
29.11.02 10-8-05
2 51/2003 341]323]332]353 Hkk-n- Fkkuk ljokM 50/03 ,e-ts-,e- iS- dksVZ
l- ljokM
31.3.03
3 78/2003 341]323]504 Hkk-n-l- Fkkuk ljokM 53/03 ,e-ts-,e- iS- dksVZ
ljokM
13.10.03
4 202/2004 341]353]332 Hkk-n-l- Fkkuk ljokM 150/04 ,e-ts-,e- iS- dksVZ
ljokM
31.12.04
5 92/2005 447 Hkk-n-l- Fkkuk ljokM 92/05 ,e-ts-,e- ltk
(5 of 8)
[CRLW-359/2016]
27.4.05 ljokM 28-2-06
6 44/2006 341]323]143 Hkk-n-l- Fkkuk ljokM 30/06 ,e-ts-,e- jkthukek
ljokM
30.6.06 8-5-14
7 85/2006 341]323]143 Hkk-n-l- Fkkuk ljokM 50/06 ,e-ts-,e- iS- dksVZ
ljokM
28.1.11
8 45/2010 332]353 Hkk-n-l- Fkkuk ljokM 22/11 ,e-ts-,e- iS- dksVZ
ljokM
31.1.11
9 50/2010 187]406]420]467]468] Fkkuk ljokM 188/10 ,e-ts-,e- iS- dksVZ ljdkjh
471]37 Hkk-n-l- ljokM jkf'k dk
30.7.10 xcu o
nq:i;ksx
10 84/2010 143]341]384 Hkk-n-l-] Fkkuk ljokM 332/10 ,e-ts-,e- iS- dksVZ
3@25 vkElZ ,DV ljokM
31.12.10
11 34/13 332]353]143]147]148] Fkkuk cksjkMk 40/14 ,e-ts-,e- iS- dksVZ fo-l- pquko
189]171 Hkknl o 127 ljokM ds nkSjku
24.5.14 iz'kklfud
yksd izfr- vf/k-
vf/kdkjh ls
ekjihV
12 100/14 384]447]427 Hkknl Fkkuk cksjkMk ,Q vkj v-o- 0 0
>wB
13 12/15 341]323]392 Hkknl Fkkuk cksjkMk 25/15 ,e-ts-,e- iS- dksVZ vke
ljokM ukxjhd ds
23.4.15 lkFk
ekjihV o
ywVikV
djuk
14 69/15 143]341]323 Hkknl Fkkuk cksjkMk 111/15 ,e-ts-,e- iS- dksVZ
ljokM
20.12.15
15 79/15 143]332]353]458]336] Fkkuk cksjkMk 119/15 ,e-ts-,e- iS- dksVZ ljdkjh
427]504 Hkknl ljokM deZpkjh
31.12.15 iwoZ
,l,pvks
cksjkMk ds
lkFk
ekjihV
djuk
ojktdk;Z
esa ck/kk
igqpkuk
o ?kj o
dkj ds
lkFk
rksMQksM
djuk
(6 of 8)
[CRLW-359/2016]
16 100/15 3@25 vkElZ ,DV Fkkuk Jhuxj ,-lh-ts-,e- iS- dksVZ voS/k
ulhjkckn gfFk;kj
j[kuk
and respondent State has also annexed similar kind of details of the cases alongwith its reply, which contains fifteen following cases detailed beneath :-
dk;kZy; Fkkukf/kdkjh iqfyl Fkkuk cksjkMk ftyk vtesj uksV %& eqdnek gktk ds eqyfteku dk vkijkf/kd o ltk;kch fjdkMZ layXu gSA 1- jkeflag pkS/kjh firk Jhjke mQZ gfjjke tkV fu0 Jhjkeiqjk Fkkuk cksjkMk vtesj ds fo:) ntZ izdj.kksa dh lwfp %& Ø-l- eq0u0 /kkjk lh,l@,Qvkj fo-fo-
1 245/02 341]323]34 Hkk-n-l- 139/02 29.11.02 jkftukek 10-8-05 ¼cjh½ 2 51/2003 341]323]332]353 Hkk-n-l- 50/03 31.3.03 QSlyk 25-9-09 ¼cjh½ 3 78/2003 341]323]504 Hkk-n-l- 53/03 13.10.03 iS- dksVZ 4 202/2004 341]353]332 Hkk-n-l- 150/04 31.12.04 TqkekZuk ¼cjh½ 28-02- 06 5 92/2005 447 Hkk-n-l- 92/05 27.4.05 ltk 28-2-06 6 44/2006 341]323]143 Hkk-n-l- 30/06 30.6.06 jkthukek 8-5-14 7 85/2006 341]323]143 Hkk-n-l- 50/06 9.6.06 QSlyk 21-4-10 ¼cjh½ 8 45/2010 332]353 Hkk-n-l- 22/11 31.1.11 iS- dksVZ 9 50/2010 187]406]420]467]468] 471]37 Hkk-n-l- 188/10 30.7.10 iS- dksVZ 10 84/2010 143]341]384 Hkk-n-l-] 3@25 vkElZ ,DV 328/10 31.12.10 iS- dksVZ 11 34/13 332]353]143]147]148] 189]171 Hkknl o 40/14 24.5.14 iS- dksVZ 127 yks0iz0v0 12 100/14 384]447]427 Hkknl 08@15 28-02-15 0 ,Q-vkj- ¼cjh½ 13 12/15 341]323]392 Hkknl 25/15 23.4.15 iS- dksVZ jkthukek ¼cjh½ 14 69/15 143]341]323 Hkknl iS- iqfyl iS- dksVZ (7 of 8) [CRLW-359/2016] 15 79/15 143]332]353]458]336] 427]504 Hkknl iS- iqfyl iS- dksVZ vkpj.k vPNk gS rFkk vkijkf/kd izo`fRr lafdr ugh gS] pfj= mRre gSA gLrk{kj izekf.kr tsyj dsUnzh; dkjkx`g] vtesj This court earlier, while deciding S.B. Criminal Misc.
Petition No. 3773/2015 Ram Singh Choudhary v. State of Rajasthan, by which validity of notice issued by Sub-Divisional Magistrate, Sarwar, Ajmer, u/s 113 of CrPC dt 14.7.2015 was assailed, had quashed and set aside Exhibit-1, the notice impugned. Astonishingly, acting upon the spirit of said notice dt 14.7.2015, impugned History-Sheet of the petitioner has been opened and his name has got entered in Surveillance Register No.8 of the Rajasthan Police Rules, terming him a 'habitual offender' under Rajasthan Habitual Offenders Act, 1953, which is obviously untenable and deserves to be quashed.
According to sec. 2(a) of the Rajasthan Habitual Offenders Act, 1953, petitioner has not been subjected to three consecutive conviction within the period stipulated under the Act of Rajasthan Habitual Offenders Act, 1953, since description of cases has got only single case appearing at page no.1 being case no.92/2005 u/s 447 of IPC, which has gone and adjudicated in conviction.
From this point of view, petitioner cannot be termed to be a 'habitual offender' in view of sec. 2(a) of the Rajasthan Habitual Offenders Act, 1953. As such, his name can not be entered in the Surveillance Register.
(8 of 8) [CRLW-359/2016] Taking into consideration the entire material, it appears that Sub-Divisional Magistrate, Sarwar, Ajmer, has acted in blatant violation of the authority, since notice issued by Sub- Divisional Magistrate, Sarwar, Ajmer, dt 14.7.2015 has already been quashed and petitioner has also not been convicted in terms of sec. 2(a) of the Rajasthan Habitual Offenders Act, 1953.
In entirety of the afore-delineated facts, in my considered opinion, initiation of any act under the impugned notice dt 14.7.2015 is non est. Therefore, the present petition is allowed with directions to the respondents that name and description of the petitioner be removed from Surveillance Register No.8 maintained under the Rajasthan Police Rules, 1965 forthwith and all proceedings initiated and executed in furtherance of the impugned notice dt 14.7.2015, are quashed and set aside.
(G.R. MOOLCHANDANI) J.
db 61