Rajasthan High Court - Jodhpur
Hari Prakash vs State on 16 December, 2016
Author: P.K. Lohra
Bench: P.K. Lohra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
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CRIMINAL MISC. (PET.)(CRLMP) NO.2681/2014
Hari Prakash S/o Shri Rameshwar Lal, By Caste Jangid,
Resident of Bagawas, Tehsil Merta, District Nagaur
....Petitioner
VERSUS
The State of Rajasthan through Station House Officer,
Merta City.
...Respondent
__________________________________________
For Petitioners : Mr. Vishal Sharma.
For Respondents : Mr. M.S. Panwar, Public Prosecutor.
__________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
ORDER
16/12/2016 By the instant misc. petition under Section 482 Cr.P.C., petitioner has challenged the history sheet opened in his name at Police Station, Merta City and for seeking deletion of requisite entry from Surveillance Register maintained at the said police station. Petitioner has also craved for annulment of entire criminal proceedings under Section 110 Cr.P.C. in Criminal Case No.290/2014 - State Vs. Hari Prakash, pending before ( 2 of 11 ) [CRLMP-2681/2014] learned Sub Divisional Magistrate, Merta, District Nagaur (for short, 'learned Executive Magistrate') and order dated 28.08.2014 passed in the case by learned Executive Magistrate.
Succinctly stated, the facts of the case are that SHO, Police Station, Merta City submitted a complaint dated 27th of August 2014 before learned Executive Magistrate under Section 110 Cr.P.C. stating, inter-alia, therein that petitioner is a notorious person in habit of committing offences and his criminal activities are increasing day by day as such for public safety and to curb his illegal activities it is necessary to restrain him. The complaint also mentions the details of criminal cases launched against the petitioner including details the two cases in which he is acquitted and one pending case before ACJM Court, Merta. Highlighting the criminal activities of the petitioner, it is pleaded in the complaint that it is desirable to bound the petitioner by directing him to execute heavy bond and sureties for maintaining peace and good behaviour. Taking cognizance of the complaint, learned Executive Magistrate issued bailable warrant in the sum of Rs.10,000/- against the petitioner for maintaining peace and tranquility for a period of one ( 3 of 11 ) [CRLMP-2681/2014] year and thereupon, the petitioner has approached this Court by invoking inherent powers of this Court.
For impugning action of the respondent, essentially, the petitioner has pleaded that initiation of proceeding against him is a glaring example of abuse of process of the Court, inasmuch as, the complaint is not satisfying the requirements envisaged under Section 2(a) of the Rajasthan Habitual Offenders Act, 1953 (for short, 'Act of 1953'). It is also urged in the petition that the Executive Magistrate has acted mechanically without examining the materials available on record and recorded its satisfaction about fulfillment of the requirements for initiation of proceeding under Section 110 Cr.P.C.
On behalf of State, reply to the petition is filed reiterating the contents/insinuations of the complaint for justifying the proceedings under Section 110 Cr.P.C. In the return, respondent has asserted with full emphasis that the SHO concerned while laying complaint before the learned Executive Magistrate produced umpteen material to highlight the conduct of petitioner and his alleged criminal activities so as to brand him a habitual offender.
( 4 of 11 ) [CRLMP-2681/2014] The details about the cases registered against the petitioner and the outcome/status of these cases as incorporated in the complaint dated 27.08.2014 reads as under:-
Øa l eqdnek u0 rkjh[k vijk/k /kkjk Fkkuk urhtk iqfyl urhtk U;k;ky;
1 180@8&9&1996 448] 323@34 Hkknl esM+rkflVh pktZ 'khV u0 ts,Q u0 122@96
92@27&9&1996 ,e ts,e dksVZ
/kkjk 448] 323@34 esM+rkflVh ds
Hkknl vuqlkj fnukad
29&10&98 dks cjh
fd;k x;k
2 181@8&9&1996 448] 323@34 Hkknl esM+rkflVh pktZ 'khV u0 ts,Q u0
93@27&9&1996 57@96 ,e ts,e
/kkjk 448] 323@34 dksVZ esM+rkflVh ds Hkknl vuqlkj fnukad 448] 323@34 Hkknl 21&1&99 dks cjh fd;k x;k 3 181@7&7&2011 203 u0 ik0 ,DV o esM+rkflVh pktZ 'khV u0 ts0 u0 3 ih Mh ih ,DV 224@21&12&2011 50@2012 ,lh ts ,e dksVZ esa tSj Vªk;y I have heard learned counsel for the petitioner as well as learned Public Prosecutor and perused the materials available on record.
Before adverting to examine the afflictions of petitioner, it would be just and appropriate to examine the definition of habitual offender envisaged under Section 2(a) of the Act of 1953. The definition reads as under:-
( 5 of 11 ) [CRLMP-2681/2014]
2. (a) 'habitual offender' means a person who, during any continuous period of five years, whether before or after the 15th 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.
If the term 'habitual offender', as defined under Section 2(a) of the Act of 1953, is examined on the touchstone of the complaint submitted by the S.H.O concerned as well as reply of the State, then it would ipso facto reveal that the complaint itself is not satisfying the requirements for declaring the petitioner habitual offender. Admittedly, in the earlier two old cases of the year 1996 in connection with FIR No.180/96 and 181/96, petitioner was acquitted by the judgment dated 29.10.1998 and 29.09.1999 respectively. Thus, only one criminal case is pending against the petitioner which by ( 6 of 11 ) [CRLMP-2681/2014] no stretch of imagination can be relied upon to treat him habitual offender within the meaning of Section 2(a) of the Act of 1953. This sort of situation clearly and unequivocally renders the impugned proceedings against the petitioner vulnerable. It is needless to observe here that criminal case pending against the petitioner cannot be taken into consideration for the purpose of treating him proven offender much less habitual offenders as the verdict is yet to be pronounced by the Court of competent jurisdiction.
In totality, I am at loss to say that petitioner cannot be treated as habitual offender or a person having tendency of recidivism within the four corners of Section 2(a) of the Act of 1953 which is pre-requisite for initiation of proceeding under Section 110 Cr.P.C. In common parlance, asking someone to furnish a bond of good behaviour appears to be innocuous, but one cannot forget its overall impact on the personality of an individual inasmuch as it causes a social stigma. In a democratic republic, a citizen cannot be asked to furnish bond of good behaviour without any justifiable cause or ground because it obviously affects his liberty and his social status in clear negation of Art. 21 of the Constitution, i.e., ( 7 of 11 ) [CRLMP-2681/2014] fundamental right of life and liberty. The concept of right to life and liberty, as enshrined under Art. 21 of the Constitution of India, being a guaranteed fundamental right, undoubtedly, very wide in its scope and applicability, and with the advent of the modern strides in jurisprudence with revolutionary pronouncements by the Apex Court in umpteen number of judgments over the past more than two decades has assumed wider connotations and amplifications.
It is also 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. Maxim Expressio Unius est exclusio alterius, i.e., "Express mention of one thing implies the exclusion of another" has its fullest application in the backdrop of facts of the instant case. Reliance on this settled legal proposition can be profitably made to a very old decision in Taylor Vs. Taylor (1875) LR 1 Ch D 426. It was further ( 8 of 11 ) [CRLMP-2681/2014] 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 its latter judgments 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 25-FFA 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. It would be appropriate for us to refer to the decision of this Court in Babu Verghese v.
Bar Council of Kerala, to show that if the manner of doing a particular act is prescribed ( 9 of 11 ) [CRLMP-2681/2014] under any statute, and the same is not followed, then the action suffers from nullity in the eye of the law, the relevant paragraphs of the abovesaid case are extracted hereunder:
(SCC pp. 432-33, paras 31-32) "31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: (Nazir Ahmad case, IA pp. 381-82) '... 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.'
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v.
State of Vindhya Pradesh and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
(emphasis supplied) My this view is also fortified by a judgment of this Court in Dhan Raj Vs. State of Rajasthan passed in S.B. Criminal Misc. Petition No.422/2003, decided on 16 th October, 2006: 2007(1) CJ (Raj.) Cr.48, wherein Court has held:
"3. It is contended by the learned counsel for the petitioner that petitioner has not been convicted in any of the cases instituted against him; however, learned counsel submits that in Crime Reports No.192/2002 and 49/2002, the petitioner has been acquitted on 25.03.2003 ( 10 of 11 ) [CRLMP-2681/2014] and 15.02.2003 respectively. Learned counsel submits that the petitioner cannot be said to be a "habitual offender" as defined under the Rajasthan Habitual Offenders Act, 1953 (for short, 'the Act' hereinafter).
4. Section 2 of the Act provides that "habitual offender" means a person who, during any continuous period of five years, whether before or after the 15th 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.
5. In the instant case, from the material on record, it appears that the Executive Magistrate directed the petitioner to be bound down under Section 110 of the Code, more particularly under Section 110(e) of the Code, which provides that when a person habitually commits, or attempts to commit, or abets the commission of offence, involving a breach of the peace.
6. From the number of cases, the list of which has been filed by the learned counsel for the petitioner and the fact that the petitioner has not been convicted in any of the cases; the matter is of the year 2003 and the period of one year has by now elapsed, in my view no useful purpose would be served in allowing the proceeding to continue, particularly when the period as directed by the Executive Magistrate has also expired."
This Court in a recent judgment in S.B. Cr. Misc. Petition No.3308/2015 - Shankar Lal Vs. State of Rajasthan, decided on August 30, 2016, in an identical ( 11 of 11 ) [CRLMP-2681/2014] situation, has quashed the entire proceedings under Section 110 Cr.P.C. and the order passed by Executive Magistrate in criminal case.
Therefore, viewed from any angle, initiation of proceeding under Section 110 Cr.P.C., for opening history sheet as well as entire proceedings subsequent thereto against the petitioner, are glaring example of sheer abuse of the process of the Court and not sustainable.
Accordingly, the petition is allowed and entire criminal proceedings initiated against petitioner under Section 110 Cr.P.C. in Criminal Case No.290/2014 - State Vs. Hari Prakash, pending before learned Executive Magistrate, as well as order dated 28.08.2014 passed by learned Executive Magistrate are quashed and set aside. It is also directed that the petitioner's name be removed/deleted from the Surveillance Register with all other consequential actions undertaken by the S.H.O concerned in this behalf, forthwith.
(P.K. LOHRA)J. arora/