Patna High Court - Orders
Bala Choubey @ Amarendra Kumar Choubey vs The State Of Bihar Through Home ... on 16 September, 2014
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.814 of 2014
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BALA CHOUBEY @ AMARENDRA KUMAR CHOUBEY, SON OF
RAM BACHAN CHOUBEY, RESIDENT OF VILLAGE RAWAN,
POLICE STATION SONHAN, DISTRICT KAIMUR AT BHABHUA
.... .... PETITIONER
VERSUS
1. THE STATE OF BIHAR THROUGH HOME SECRETARY,
BIHAR , PATNA
2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA
3. THE COLLECTOR -CUM- DISTRICT MAGISTRATE,
KAIMUR (BHABHUA)
4. THE SUPERINTENDENT OF POLICE, KAIMUR (BHABHUA)
5. THE SUB-DIVISIONAL POLICE OFFICER, KAIMUR AT
BHABHUA
6. THE STATION HOUSE OFFICER, POLICE STATION
SONHAN, DISTRICT KAIMUR
7. KAMALESHWAR MISHRA, S.H.O., POLICE STATION
SONHAN, DISTRICT KAIMUR
8. THE STATION HOUSE OFFICER, POLICE STATION
KARAMCHAT, DISTRICT KAIMUR
.... .... RESPONDENTS
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Appearance :
For the Petitioner : Mr. Rajesh Kumar Pathak, Advocate
Mr. Sanjay Kumar Tiwary, Advocate
For the Respondent/s : Mr. Nasim Yahya, G. P. 13
Mr. J. P. Kishore, AC to GP 13
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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)
5 16-09-2014By a notice, dated 21.03.2014, issued, in Case No. 24 of 2013-14, respondent No. 3, namely, the District Magistrate, Kaimur (Bhabhua), directed, in exercise of power under Section 3 of Bihar Control of Crimes Act, 1981, the present petitioner to appear, in person, in Case No. 24 of 2013-14, on 28.03.2014 and show cause, if any, Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 2/15 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.
2. In response to the notice, so issued, the petitioner submitted his representation, on 28.03.2014; but when the matter was called by respondent No. 3, namely, District Magistrate, Bhabhua, the petitioner was found absent. On having found the petitioner absent, respondent No. 3 passed an order, on 28.03.2014, directing issuance of warrant of arrest against the present petitioner.
3. Aggrieved by the orders, dated 21.03.2014 and 28.03.2014, aforementioned, this writ petition has been made by the petitioner seeking to get quashed the entire proceedings covered by Case No. 24 of 2013-14 of Bihar Control of Crimes Act, 1981.
4. We have heard Mr. Rajesh Kumar Pathak, learned counsel for the petitioner, and Mr. Nasim Yahya, Government Advocate No. 13, appearing for the State.
5. Resisting the writ petition at its very threshold, it has been submitted by Mr. Nasim Yahya, 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 Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 3/15 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 very initiation of the Case No. 24 of 2013-14 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.
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 Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 4/15 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, according to the petitioner, is likely to be infringed, this writ petition is maintainable even though there is provision for appeal under Section 6 of Bihar Control of Crimes Act, 1981.
10. It is submitted, on behalf of the petitioner, that the impugned orders are nullity in the eyes of law inasmuch as respondent No. 3, namely, District Magistrate, Kaimur (Bhabhua) could not have exercised his jurisdiction under Section 3 of Bihar Control of Crimes Act, 1981, directing issuance of warrant of arrest against the petitioner, when the petitioner 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.
11. The submission, 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:
Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-20145/15
"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."
12. On the heels of Section 2 (d) of Bihar Control of Crimes Act, 1981, sub-section (1) of Section 3 of Bihar Control of Crimes Act, 1981, wherein the power has been exercised, reads thus:
"3. Externment, etc., of anti-social elements:-Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 6/15
(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 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. Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 7/15 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 conditions precedent 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 petitioner is 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 the order, dated 21.03.2014, passed in Case No. 24 of 2013- 2014, respondent No. 3, namely, District Magistrate, Kaimur (Bhabhua), has taken into account two cases and one sanha (General Diary) entry in order to treat the Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 8/15 petitioner an anti-social element.
17. The two cases aforementioned, with the relevant penal provisions, are re-produced below:
(i) Bhabhua (Sonhan) Police Station Case No. 241 of 2012, dated 05.07.2012, under Sections 414 read with Section 34 of the Indian Penal Code and Sections 25(1-
B)A/26/35 of the Arms Act, 1959.
(ii) Bhabhua (Sonhan) Police Station Case No. 316 of 1999, dated 11.12.1999, under Section 364(A)/34 of the Indian Penal Code.
18. From what have been re-produced above, it can be easily gathered that out of the cases aforementioned, which became the foundation for the passing of impugned order, dated 21.03.2014, while one case was registered under Section 364(A) read with Section 34 of the Indian Penal Code, the other case was registered under Section 414 read with Section 34 of the Indian Penal Code and Sections 25(1-B)A/26/35 of the Arms Act, 1959. The third one was a general diary entry made, on 12.03.2014, wherein it was alleged, we notice, that the petitioner had been intimidating the votes.
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 Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 9/15 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 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 Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 10/15
(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 be sufficient to treat a person as an "anti-social element". A single act or omission falling under sub-clause (i) and a Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 11/15 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)
22. Learned Counsel for the petitioner submits that in Bhabhua (Sonhan) Police Station Case No. 316 of 1999, the charge sheet was submitted on 16.08.2000, but the petitioner was, eventually, acquitted in the year 2007. The second case, namely, Bhabhua (Sonhan) Police Station Case No. 242 of 2012, was the solitary case, which stood formally registered against the petitioner, could not have, therefore, been made a ground to allege that the petitioner has been „habitually' committing offences under Chapter XVI or Chapter XVII of the Indian Penal Code, this assertion is not in dispute, more particularly, when no case has been formally registered against the petitioner with regard to the Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 12/15 allegation that he had been intimidating voters.
23. It, therefore, becomes clear that the petitioner cannot be said to have fallen 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; more particularly, when we notice that as far as Bhabhua (Sonhan) Police Station Sanha Entry No. 212 of 2014 is concerned, the same has not proceeded beyond making of the said entry and such an entry cannot be basis for holding a person an anti-social element.
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. Considering the fact that out of the three cases, which have been relied upon, only one case is pending against the petitioner and, hence, 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 Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 13/15 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.
26. 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.
27. Further-more, Mr. Rajesh Kumar Pathak, 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, dated 28.03.2014, issuing warrant of arrest.
28. It needs to be borne in mind that the Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 14/15 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, dated 28.03.2014, issuing warrant of arrest shows that the contents of the petitioner‟s representation were not at all considered. Thus, denial of principle of natural justice, while making such an order, is palpably illegal and cannot be ignored.
29. 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, could not have been arisen.
30. 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, the impugned order, dated 28.03.2014, could not have been passed against the present petitioner. Patna High Court Cr. WJC No.814 of 2014 (5) dt.16-09-2014 15/15
31. The learned counsel for the petitioner is, therefore, not incorrect, when he submits that the impugned order 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.
32. Because of what has been discussed and pointed out above, we find that the impugned orders, dated 21.03.2014 and 28.03.2014, are not sustainable and, therefore, warrant interference.
33. In the result and for the reasons discussed above, this writ petition succeeds. The entire proceedings of Bihar Control of Crimes Act Case No. 24 of 2013-14 is hereby set aside and quashed. Consequently, the impugned orders, dated 21.03.2014 and 28.03.2014, stand quashed.
34. In terms of the above observations and directions, this writ petition stands disposed of.
(I. A. Ansari, J.) Anjana Mishra, J.: I agree.
Prabhakar Anand/- (Anjana Mishra, J.) U √ T X