Patna High Court - Orders
Binod Yadav vs The State Of Bihar & Ors on 8 August, 2014
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.628 of 2014
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BINOD YADAV, SON OF LATE MANCH LAL YADAV, RESIDENT
OF VILLAGE RASALPUR, POLICE STATION NAUGACHAI,
DISTRICT BHAGALPUR
.... .... PETITIONER
VERSUS
1. THE STATE OF BIHAR
2. THE HOME SECRETARY, GOVERNMENT OF BIHAR, PATNA
3. THE COMMISSIONER, BHAGALPUR DIVISION, BHAGALPUR
4. THE DISTRICT MAGISTRATE, BHAGALPUR
5. THE SUPERINTENDENT OF POLICE, BHAGALPUR
6. THE DEPUTY SUPERINTENDENT OF POLICE, NAUGHCHAI,
BHAGALPUR
7. THE S.H.O., NAGUCHIA POLICE STATION, BHAGALPUR
.... .... RESPONDENTS
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Appearance :
For the Petitioner : Mr. Ajay Kumar Thakur, Advocate
Mr. Ranjan Kumar Jha, Advocate
Mr. Mritunjay Kumar Mishra, Advocate
For the Respondents : Mr. Ajay Behari Singh, SC 19
Mr. Neeraj Raj, AC to SC 19
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE JUSTICE SMT. ANJANA MISHRA
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
3 08-08-2014By a notice, dated 14.3.2014, issued, in exercise of power under Section 3 of Bihar Control of Crimes Act, 1981, by respondent No. 4, namely, the District Magistrate, Bhagalpur, the present petitioner was directed to show cause, if any, as to why an order of externment be not passed against him, under Section 3 (3) of the Bihar Control of Crimes Act, 1981, 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 Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 2 petitioner submitted his representation. This representation was followed by an order, passed, on 21.03.2014, in Case No. 02 of 2013-14, by respondent No. 4, namely, District Magistrate, Bhagalpur, expressing his satisfaction that the present petitioner‟s externment was necessary and, therefore, directed that (i) the petitioner shall mark his presence daily in Kahalgaon Police Station and the Officer- in-Charge, Kahalgaon Police Station, shall make available the weekly report to the District Magistrate, Bhagalpur; (ii) the petitioner will inform the Officer-in-Charge, Naugachia Police Station and Kahalgaon Police Station about his movement; and (iii) the petitioner will not involve in any activities which would be prejudicial to maintenance of public order.
3. Aggrieved by the order of externment, dated 21.03.2014, aforementioned, this writ petition has been made by the petitioner seeking to get set aside and quashed, inter alia, the order of externment, dated 21.03.2014, aforementioned.
4. We have heard Mr. Ajay Kumar Thakur, learned counsel for the petitioner, and Mr. Ajay Behari Sinha, learned Standing Counsel No. 19, appearing for the State.
5. Resisting the writ petition at its very threshold, it has been submitted by Mr. Ajay Behari Sinha, learned Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 3 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. While considering the present writ petition, which has been resisted at its very threshold, on behalf of the State, by contending that since Bihar Control of Crimes Act, 1981, has provided right to appeal under Section 6 thereof, the petitioner could not have filed the present writ petition challenging the order of externment by taking recourse to Article 226 of the Constitution of India, it needs to be noted that exhaustion of alternative remedy is not an inflexible principle for maintaining a writ petition under Article 226 of the Constitution of India.
7. There are, at least, in the light of the decision, in Whirlpool Corporation v. Registrar of Trade Marks, reported in (1998) 8 SCC 1, three indisputable circumstances, whereunder a writ petition would be maintainable even if there be an alternative remedy available. Firstly, if the action of the respondent is illegal and without jurisdiction; secondly, if the principles of natural justice have been violated; and, thirdly, if the appellant‟s fundamental rights have been violated. Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 4
8. Though the Whirlpool Corporation's case (supra) arises out of a contractual matter, the norms remain the same that when the principles of natural justice are violated or the order is without jurisdiction or if a person‟s fundamental rights have been violated or infringed, there is no impediment in taking recourse to Article 226 of the Constitution of India for the purpose of enforcing such a person‟s rights even if there is an alternative remedy available to the aggrieved party.
9. In the case at hand, since it is the petitioner‟s liberty, which has been, according to the petitioner, infringed, this writ petition is maintainable even though there is provision for appeal under Section 6 of Bihar Control of Crimes Act, 1981.
10. 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. 4, namely, District Magistrate, Bhagalpur, could not have exercised his jurisdiction under Section 3 of Bihar Control of Crimes Act, 1981, directing externment of petitioner from the district of Bhagalpur, when the petitioner, even in the light of the order of externment, cannot be said to have fallen or, could not have been said to have fallen, within the definition of anti-social element as described by Section Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 5 2(d) of Bihar Control of Crimes Act, 1981.
11. 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."
Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 6
12. A close reading of sub-section (1) of Section 3 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."
13. 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.628 of 2014 (3) dt.08-08-2014 7 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 anti-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.
14. 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.
15. 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?
16. It is of great relevance to note that in his Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 8 order, dated 21.03.2014, passed in Case No. 02 of 2013- 2014, respondent No. 4, namely, District Magistrate, Bhagalpur, has taken into account 16 (sixteen) cases, which have been registered against the petitioner, in order to treat the petitioner an anti-social element. These 16 (sixteen) cases, with the relevant penal provisions, are re- produced below:
1. Bihpur Police Station Case No. 217 of 1989, dated 30.12.1989, under Sections 25 (1-B) A)/ 26 of the Arms Act, 1959.
2. Naugachai Police Station Case No. 193 of 1993, dated 08.06.1993, under Sections 399/402/307 of the Indian Penal Code and Sections 25(1-B)A/26/27/35 of the Arms Act, 1959.
3. Naugachai Police Station Case No. 29 of 1998, dated 10.02.1998, under Sections 341/323/ 379/504/34 of the Indian Penal Code.
4. Naugachai Police Station Case No. 213 of 1998, dated 11.09.1998, under Sections 341/323/379/504/34 of the Indian Penal Code.
5. Naugachai Police Station Case No. 254 of 1998, dated 09.11.1998, under Sections 341/323/353/427/385/504 of the Indian Penal Code.
6. Naugachai Police Station Case No. 93 of 2003, dated 29.04.2003, under Sections 366A of the Indian Penal Code.
7. Naugachai Police Station Case No. 245 of Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 9 2002, dated 11.10.2002, under Sections 384/386/34 of the Indian Penal Code.
8. Naugachai Police Station Case No. 253 of 2006, dated 24.07.2006, under Sections 147/148/149/323/447/387 of the Indian Penal Code.
9. Naugachai Police Station Case No. 365 of 2006, dated 28.10.2006, under Sections 147/ 149/341/323/354/352/511/384 of the Indian Penal Code.
10. Naugachai Police Station Case No. 152 of 2007, dated 19.05.2007, under Sections 171(E)/171(F) of the Indian Penal Code and Section 496/502 of the Bihar Municipal Act.
11. Naugachai Police Station Case No. 111 of 2008, dated 03.04.2008, under Sections 302/201/34 of the Indian Penal Code.
12. Naugachai Police Station Case No. 122 of 2008, dated 14.04.2008, under Sections 386/387/406/420/424/447/506/484/487/506 of the Indian Penal Code.
13. Naugachai Police Station Case No. 152 of 2009, dated 27.02.2009, under Sections 365/120B of the Indian Penal Code.
14. Naugachai Police Station Case No. 225 of 2008, dated 25.04.2008, under Sections 341/447/384/504/506/34 of the Indian Penal Code.
15. Naugachai Police Station Case No. 128 of 2010, dated 31.07.2010, under Sections 25(1-B) A/26/35 of the Arms Act, 1959.
16. Naugachai Police Station Case No. 129 of 2010, dated 31.07.2010, under Sections Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 10 406/409/420/467/468/471/120B of the Indian Penal Code and Section 7 of the Essential Commodities Act.
17. From what have been re-produced above, it can be easily gathered that within the sixteen cases, which became the foundation for the impugned order of externment, only two cases was registered under the Arms Act, 1959, thirteen cases were registered under the provisions of the Indian Penal Code and rest one case was registered under the Indian Penal Code and also under the Arms Act, 1959.
18. 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 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.
19. The question, therefore of applying sub-clause
(v) of Section 2(d) of Bihar Control of Crimes Act, 1981, does not arise at all.
20. Sub-clause (i) of Section 2(d) of Bihar Control of Crimes Act, 1981, shows that a person, who either by Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 11 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.
21. 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 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.
22. 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 Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 12 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 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 Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 13 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 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).
23. In the cases at serial Nos. 3 to 14 and 16, the petitioner is alleged to be involved in the commission of, amongst others, the offences under Sections 307, 323, 325, 353, 385, 379 and also under Section 302 read with Section 34 of the Indian Penal Code. All the penal provisions aforementioned relate to the offences affecting human body or the offences affecting life and the offence under Section 379 of the Indian Penal Code falls within Chapter XVII of the Indian Penal Code. Thus, the petitioner can be said to have been „habitually' committing offences Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 14 under Chapter XVI and XVII of the Indian Penal Code, and, therefore, petitioner‟s alleged conduct makes him fall within the four corners of the expression „anti-social element' as defined by Section 2(d)(i) of Bihar Control of Crimes Act, 1981, even though the petitioner, as observed in the order of externment, had been acquitted in as many as nine cases, because of some legal lacuna.
24. What follows from the above discussion is that in the case at hand, the District Magistrate has relied upon sixteen cases to treat the petitioner as an anti-social element, which, in our view, does not need interference inasmuch as thirteen of the cases, so relied upon, make the petitioner an anti-social element within the meaning of Section 2(d)(i) of Bihar Control of Crimes Act, 1981.
25. What is, now, of immense importance to note is that an order of externment cannot be made merely because a person is anti-social element unless the conditions mentioned in Section 3 of the Bihar Control of Crimes Act, 1981, are satisfied.
26. The conditions aforementioned require that the cases, which are relied upon for making an order of externment, must have some nexus with the date of the order of externment. Necessary, therefore, a person‟s act or omission of the past, which may have become stale Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 15 cannot establish a live link between the offence and the order of externment.
27. Let us, therefore, examine if the impugned order of externment could establish a live-link or nexus between the date of the offences, which the petitioner has allegedly committed, and the date of the impugned order of externment.
28. With regard to the above, it is noteworthy that the cases, which have been referred to, and relied upon, by the District Magistrate, Bhagalpur, are between the period 1989 and 2010. 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.
29. 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 Supreme Court pointed out, in Shiv Prasad Bhatnagar (supra), that the first ground, embodied in the grounds of Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 16 detention, mentioned that the detenue, 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 detenue, 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 detenue 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 detenue 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 safety. Several incidents were narrated to substantiate this ground. The first incident was of the year 1974, the second Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 17 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 vagueness are vices any Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 18 single one of which is sufficient to vitiate a ground of detention."
(Emphasis is supplied)
30. In the backdrop of the law discussed above, though the cases were registered during the period 1989 and 2010, the fact remains that the last of these cases was lodged as far back as on 31.07.2010; whereas the order of externment has been made by respondent No. 4, namely, District Magistrate, Bhagalpur, on 21.03.2014, i.e., after lapse of three-and-a-half years.
31. Since no offence is alleged to have been committed by the petitioner between the year 2010 and 2013, it was for the respondents to show as to how the alleged commission of offences by the petitioner, in the year 2010, would have any bearing in the year 2014. In the absence of any reasons having been assigned, in this regard, by the State, one cannot help, but hold, and we do hold, that there was no proximity of time between the alleged commission of the offences by the petitioner, on one hand, and the impugned order of externment, on the other hand.
32. 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 Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 19 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. Ajay Kumar Thakur, learned counsel 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.
33. 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.
34. 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- Patna High Court Cr. WJC No.628 of 2014 (3) dt.08-08-2014 20
ordinary jurisdiction under Article 226 of the Constitution of India.
35. 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.
36. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order, dated 21.03.2014, passed by respondent No. 4, namely, the District Magistrate, Bhagalpur, which stands impugned in the present writ petition, is hereby set aside and quashed.
37. In terms of the above observations and directions, this writ petition stands disposed of.
(I. A. Ansari, J.)
Anjana Mishra, J.: I agree
(Anjana Mishra, J.)
Prabhakar Anand/
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