Patna High Court
Bouwa Singh @ Babua Singh vs State Of Bihar And Ors. on 26 April, 1995
Equivalent citations: 1995(2)BLJR1133
JUDGMENT R.N. Prasad, J.
1. The petitioner in this application was noticed, vide Annexure '2' to this petition, to explain as to why an order under Section 3(3) of the Bihar Control of Crimes Act, 1981, hereinafter referred to as (the Act) be not passed. The present petition has been filed for quashing of the initiation of the proceeding in C.C.A. Case No. 6 of 1994 under the Act.
2. The facts leading to the initiation of the proceeding, as mentioned in Annexure '2', was that on 1.11.1994 the petitioner and 3-4 other anti-social elements went to Nandani Oil Depot, Dhamsaha, district Purnea and demanded Rs. 10,000/- on which the incident of assault took place.
3. The grievance of the petitioner is that the initiation of the proceeding under Section 3 of the Act on a single instance is unwarranted and against the mandate of the provisions contained in the Act. The relevant portion of Section 3 of the Act reads as follows :
Externment, etc. of anti-social element.--(I) Where it appears to the District Magistrate that-
(a) any person is an anti-social element, and
(b) (i) that his movement 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 abetment 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.
4. From a plain reading of the aforesaid provisions, it is manifest that for initiation of a proceeding under Section 3 of the Act, the requirement is that the person must be an anti-social element as enumerated in Section 3(1) (a) of the Act and also satisfies the other requirements, which have been enumerated in Section 3(1)(b)(i)(ii) of the Act. 'Anti-social element' has been defined in Section 2(d) of the Act. Section 2(d) (i) of the Act says that anti-social element means 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 offences punishable under Chapter XVI and XVII of the Indian Penal Code. In Section 2(d) of the Act, the other ingredients of anti-social elements have also been enumerated in Sub-clauses (ii) to (v) thereof, but there is nothing in the notice (Annexure-2) to show that the case in hand is covered under the provision of Section 2(d) (ii) to (v) of the Act. It is pertinent to mention herein that Section 3(i) (a) of the Act is not an independent clause as at the end the word 'and' has been mentioned. The language of Section 3 is in unambiguous term, and hence there is no scope of confusion. For initiation of proceeding the first requirement is that a man must be anti-social element and thereafter it must fulful the other requirements as enumerated in Section 3(1)(b)(i) and (ii) of the Act. On a single instance of the occurrence, a man cannot be branded as an anti-social element in view of the provisions as contained in Section 2(d)(i) of the Act, and if a man cannot be branded on a single instance of the occurrence as an anti-social element, a proceeding under Section 3 of the Act cannot be initiated. The view expressed, as aforesaid, is also supported by a Division Bench decision in Naresh Singh v. The State of Bihar 1980 B.L.J.R. 164. In the instant case only on a single instance of the occurrence, the proceeding under Section 3 of the Act has been initiated and hence in view of the discussions made above it cannot be held to be legal.
5. Learned Counsel for the respondents however relied upon a decision in Sudhir Sharma v. The State of Bihar and Ors. 1989 PLJR 908 to show that a single instance of the occurrence is sufficient for initiation of a proceeding under Section 3 of the Act. The decision relied upon by the learned Counsel for the respondents has no application on the facts and circumstance of the case. The aforesaid decision is with regard to a case under Section 12 of the Act. Besides, in the aforesaid case several cases were mentioned with regard to the antecedent of the detenu and the court after considering the entire facts and circumstances of the case held that the background facts (antecedent) may be taken to be the ground for detention after furnishing a copy of the First Information Report of the previous cases to the detenu. There was no consideration with regard to Section 3 of the Act.
6. In the instant case, no case with regard to the antecedent of the petitioner has been mentioned in the notice contained in Annexure-2 to this petition. Furthermore, there is a great difference between Section 3 and Section 12 of the Act, which is apparent from a plain reading of the aforesaid sections. In the case of Lalal Singh v. The State of Bihar 1988 PLJR 64, a Full Bench of this Court has considered in detail the scope of Sections 3 and 12 of the Act and held that both in substance and in procedure externments are altogether different and distinct from the grounds of preventive detention. Thus, on a consideration of the entire facts and circumstances of the case. I find no substance in the submission of the learned Counsel for the respondents. Accordingly, this application is allowed and the entire proceeding of CCA. No. 6 of 1994, including the notice as contained in Annexure '2' is hereby quashed.
Loknath Prasad, J.
7. I agree.