JUDGMENT Birendra Prasad Sinha. J. This is an application under Articles 226 and 227 of the Constitution of India for the issuance of a writ of certiorari quashing the notice under section 3(1) of the Bihar Control of Crimes Ordinance, 1979 (hereinafter referred to as the Ordinance), contained in Annexure 1 to the application. 2. Petitioner Mahabir Prasad Akela claims to be a member of the Communist Party of India and one of its important functionaries being a member of the State Executive of the Party and Secretary of the Aurangabad District Committee. He was also a member of the Bihar Legislative Assembly from Nabinagar constituency in the year 1969-72. 2. Petitioner Mahabir Prasad Akela claims to be a member of the Communist Party of India and one of its important functionaries being a member of the State Executive of the Party and Secretary of the Aurangabad District Committee. He was also a member of the Bihar Legislative Assembly from Nabinagar constituency in the year 1969-72. The relevant portion of the notice which is in Hindi, reads as under: ¼d½ Jh egkohj izlkn vdsyk vkRet Jh lhrkjke vxzoky lkekU;r% vŒ uohuxj ¼vkSjaxkckn½ es fuokl djrs gS] vlkekftd rRo gS vFkkZ~r gS vFkkZr os Loa; rFkk fxjksg ds lnL; ds :i es Hkkjrh; n.M lfgrk ds v/;k; 16 ,oa 17 ds v/khu vH;klr% n.Muh; vijk/k djrs Fks rFkk iz;Ru djrs gS rFkk izfrosnu ds vuqlkj vk;qDr vf/kfu;e 1959 dh /kkjk 27 ds varxZr vijk/kh gSA ¼[k½ vkSjaxkckn ftykUrxZr uohuxj Fkkus es vkidh xfrfof/k ;k dk;Z ls O;fDr ;k lEifr dks Mj] [krjk] uqdlku igqpk gS rFkk igqpkus okyk ds ftls fo’okl djus ds] leqfpr izfrosnu ds vk/kkj ij fo|eku gS tks Hkkjrh; n.M lafgrk ds v/;k; 16 ,oa 17 ds v/khu n.Muh; vijk/k gSA ¼x½ lk{khx.k viuh tku ;k lEifr ds lEcU/k es vka’kdk ds dkj.k vkids fo:) lk{; nsus dks rS;kj ugh gSA mi;qDr [k.M ¼d½A ¼Xk½ ds lEcU/k es vkids fo:) lkjoku vkjksi fuEufyf[kr lkekU; izd`fr ds gSA ¼1½ izfrosnu ds vuqlkj vki vlkekftd rRo gSA Loa; rFkk fxjksg ds lnL; ds :i es Hkkjrh; n.M lafgrk ds v/;k; 16 ,oa 17 ds v/khu n.Muh; vijk/k gS rFkk vk;qDr vf/kfu;e 1959 dh /kkjk 27 ds vUrZxr vkids chp fo:) eqdnek ntZ fd;k x;k gS ¼2½ uohuxj Fkkus es vkids xfrfof/k rFkk dk;Z ls O;fDr lEifr dks Mj] [krjk ,oa uqdlku igq¡pk gS rFkk Ikgqpus okyk gS tks Hkkjrh; n.M lafgrk 16 ,oa 17 ds vUrZxr n.Muh; vijk/k gSA ¼3½ lk{khx.k tku ,oa lEifr ds lEcU/k es vk’kadk ,oa vkids vkrad ds dkj.k vkids fo:+) lk{; nsus dks rS;kj ugh gSA dkj.k vkids fo:) lk{; nsus dk rS;kj ugh gSA fuEufyf[kr eqdnek vkids fo:) uohuxj Fkkus es ntZ fd;k x;k gS ftlds vkjksi i= lefiZr fd;k tk jgk gS%& ¼1½ uohuxj Fkkuk dk.M la[;k&1¼3½ 72 /kkjk 3 v.Mj lsD’ku foLQVd inkFkZ dkuwu 304 ¼2½ Hkkjrh; n.M lafgrk ds vUrZxr vki vfHk;qDr gS rFkk vkids fo:) vkjksi i= lefiZr fd;k x;k gSA ¼2½ uohuxj Fkkuk dk.M la[;k 9¼6½ 72 /kkjk 302] 120ch,] 123 vkbZŒihŒlhŒ ,oa vkeZl ,DV 27 vUrZxr vki vfHk;qDr gS ,oa vkids funs’kkuqlkj ¼bUosLVhxs’ku½ nks O;fDr;ks dh gR;k dh xbZ gSA uohuxj Fkkuk dk.M la[;k 13@79] 18@79 /kkjk 107 ,oa 116 lhŒ vkjŒ ihŒ lhŒ ds vUrZxr vkids fo:) fjiksVZ ntZ fd;k x;k gSA By the notice, he was asked by the District Magistrate. Aurangabad, to appear before him to tender a written explanation regarding the allegations mentioned above and to show cause as to why an order under section 3 (3) of the Ordinance should not be passed against him. 3. This ordinance makes special provisions for the control and suppression of antisocial elements with a view to maintenance of the public order. Section 2 (c) of the Ordinance defines "anti-social element", which 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 or offences, punishable under Chapter XVI or Chapter XVII of the Indian Penal Code; (ii) habitually commits or abets the commission of offences, under the suppression of Immoral Traffic in women and Girls Act, 56, or (iii) who by words or otherwise promotes or attempts to promote, on grounds of religion race, language, caste or community or any 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 of 1966. 4. Section 3 of the ordinance empowers the District Magistrate to issue a notice writing informing the person concerned of the general nature of material allegations against him and to give him a reasonable opportunity or tendering an explanation regarding them. Section 3 (1) reads as under :- (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 are 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 any such offence. 1956, or abetment of any 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.” If the District Magistrate is satisfied that the conditions specified in clauses (a) and (b) or the Sub-Section exist, he may by an order in writing direct the person concerned to remove himself outside the district or pass such other order or orders as specified in sub-section (3) of section 3 of the Ordinance. 5. Shri Braj Kishore Prasad II, learned counsel appearing on behalf of the petitioner, in the, beginning, submitted that the authority cannot take recourse to two parallel and simultaneous proceedings on the self same ground, viz to make an order of externment under the Ordinance and also to prosecute the person concerned in a criminal case. In other words, the authority cannot take recourse to a ground which is the subject matter of a criminal trial for passing an order under this Ordinance. He relied upon a Division Bench decision of the Supreme Court in Biram Chand Vrs. State of Utter Pradesh. This point can be immediately answered as the decision in the case of Biram Chand (supra) was not relied upon in a later decision of the Supreme Court by a Bench of five Judges in Haradhan Saha Vrs. The State of West Bengal. It was held that the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. The order of detention is a precautionary measure and based on reasonable prognosis of the future behaviour of a person based on his past conduct in the light of surrounding circumstances. It was stated by the Supreme Court that merely because a detenue was liable to be tried in a Criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences, would not by Itself debar the Government from taking action for his detention. 6. It was stated by the Supreme Court that merely because a detenue was liable to be tried in a Criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences, would not by Itself debar the Government from taking action for his detention. 6. Shri Prasad next contended that the instance No. 3 in the notice relating to a case under section 107 and 116 of the Code of Criminal Procedure is irrelevant and not available under the Ordinance for making an order of externment and therefore the impugned notice is illegal and without jurisdiction. The argument seems to be misconceived. In preventive detention laws, the decision of the authority is a subjective one, and if one of the grounds for the order is non-existent or irrelevant or is not available under the law, the entire detention order fails since it is not possible to predicate as to whether the detaining authority would have made an order for detention even in the absence of a non-existent or irrelevant ground. This is so because the decision of the authority is subjective and the order of detention is made without affording any opportunity to the detenue for tendering any explanation. The present Ordinance provides that a notice under section 3 (1) will be given to the person concerned informing him of the general nature of the material allegations against him and giving him a reasonable opportunity of tendering an explanation regarding them, Section 3 (2) further provides that the person against whom an order under this section is proposed to be made shall have a right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires, and also of examining any other witness that he may wish to produce in support of his explanation. As to whether or not an order under section 3 (3) shall be made will depend upon the objective satisfaction of the District Magistrate that the conditions specified in clauses (a) and (b) of subsection (1) exist. Such a satisfaction will naturally be the result of judicial application of mind by the District Magistrate after perusing the explanation tendered by the person concerned and the statement of witnesses, if any, examined on his behalf. Such a satisfaction will naturally be the result of judicial application of mind by the District Magistrate after perusing the explanation tendered by the person concerned and the statement of witnesses, if any, examined on his behalf. If therefore such an irrelevant or non-existent ground is mentioned, it shall he always open to the person to whom a notice has been issued to point out to the District Magistrate that such grounds are not available for his externment. The order sought to be passed under section 3 (3) of the Ordinance is not based on the subjective satisfaction of the authority. It is always expected that if such grounds are mentioned in the notice which are non-existent or irrelevant or not available under the Ordinance, the authority concerned will take note of it while passing the final order under the Ordinance. 7. Shri Prasad then submitted that the instances of the “movements or acts” contemplated under section 3 (1) (b) (i) of the Ordinance must be given in the notice so as to afford a reasonable opportunity to the person concerned to give an explanation and file his show cause, he submitted that in the absence of the instances of "movements or acts", the opportunity provided under the Ordinance for tendering an explanation regarding them is only superfluous and farcical. According to learned counsel, this goes to the root of the jurisdiction of the authority in the matter of issuance of notice under section 3 (1) of the Ordinance. 8. For the issuance of a notice under section 3, it is not sufficient only to give instances of the commission of offences which a person might have committed or attempted to commit to bring him within the mischief of section 2 (c). That will be covered only by section 3 (1) (a). It is also necessary to give instances of his "movements or acts" causing or calculating to cause alarm, danger or harm to persons property or grounds for believing that he is engaged or about to engage in the commission of any offence punishable under Chapter XVI or XVII of the Indian Penal Code, etc., covered by section 3 (l) (b) (i) (ii) of the Ordinance. The notice given to the person concerned has to contain the material allegations against him so that he may reasonably tender an explanation regarding them. The notice given to the person concerned has to contain the material allegations against him so that he may reasonably tender an explanation regarding them. If the material allegations as regards the "movements or acts" or “reasonable grounds” contemplated in section 3 (1) (1) (b) are not mentioned in the notice, it is difficult to comprehend what explanation be shall tender before the District Magistrate. A person who is called upon to give any explanation must know what are the charges or allegations against him. If only the words mentioned in section 3 (1) (b) are reproduced in the notice, what is there to answer except to deny it in general terms. The instances of the "movements or acts" or the grounds must be stated clearly and definitely to make an effective representation to induce the authority to take a view in favour of the person making an explanation mentioned in sub-section (1) has to be real and effective opportunity. If it is not so, it will be meaningless to say that a reasonable opportunity has been given to the person concerned. It is true that the District Magistrate is required to inform the person concerned of the "general nature of the material allegations" against him, since the action to be taken is of a preventive nature. The District Magistrate may not be required to disclose all the materials or evidence on which be relies as the satisfaction for taking such a preventive action may be based on suspicion and not on proof. All the same, he is required to disclose the material allegations, though in general terms, He cannot merely reproduce section 3 (1) (b) of the Ordinance and ask him to tender an explanation. If the material allegations are not furnished, the person concerned would be deprived of the reasonable opportunity of tendering an explanation to which he is entitled. Since he cannot give a proper explanation he would also be deprived of the reasonable opportunity of producing his evidence in support of his explanation. A notice under section 3 (1) of the Ordinance, therefore, which does not contain the general nature of the material allegations in respect of clause (a) and (b), has got to be struck down. Since he cannot give a proper explanation he would also be deprived of the reasonable opportunity of producing his evidence in support of his explanation. A notice under section 3 (1) of the Ordinance, therefore, which does not contain the general nature of the material allegations in respect of clause (a) and (b), has got to be struck down. Where a statute permits an executive authority to impose restrictions on the fundamental rights guaranteed by Article 19 of the Constitution, the orders can be passed only after strictly complying with the provisions of the statute. 9. So far as the instant case is concerned, section 3 (1) (b) (i) & (ii) has been virtually quoted in paragraph Kh of the notice. Paragraph K of the notice sets out the commission of offences under Chapters XVI and XVII of the Indian Penal Code, the instances where of have been given later on hi the notice As regards paragraph Kh no instance has been given. It shall be only an empty formality to ask the petitioner to tender any explanation with respect to what has been stated in paragraph Kh of the notice. In my opinion, the notice (Annexure 'I') does not strictly comply with the provisions contained in section 3 (1) of the Ordinance. It must, there fore, be quashed. 10. This application is, accordingly, allowed and the notice contained In Annexure 1' is quashed. It shall, however, be open to the authority concerned to serve a fresh notice upon the petitioner, if necessary after strictly complying with the provisions of the Ordinance. S. Shamsul Hasan, J. I am in complete agreement with my learned Brother, B. P. Sinha, J. but I wish to add a few words of my own. Item no. (3) of the notice served on the petitioner relates to : ^^¼3½ uohuxj Fkkuk dk.M laŒ 13@76] 18@76 /kkjk 107 ,oa 116 lhŒvkjŒihŒlhŒ ds vUrxZr vkids fo:) fjiksVZ gS ntZ fd;k x;k gS A^^ Undoubtedly, involvement in a proceeding under section 107 of the Code of Criminal Procedure does not bring a person within the definition of 'anti-social element'. Inclusion of that ground, therefore, cannot be said to be justified in law and for the District Magistrate to base his decision on such involvement would undoubtedly hit his action by lack of jurisdiction. Inclusion of that ground, therefore, cannot be said to be justified in law and for the District Magistrate to base his decision on such involvement would undoubtedly hit his action by lack of jurisdiction. The matter, however, can be looked into by the District Magistrate when a person shows cause. In such an event it will be incumbent upon the District Magistrate to remove this ground from the notice and also to test its retraction on the validity of the rest of the grounds. It will be advisable for the District Magistrate to refrain from including such grounds in the notice that arc not covered by section 2 (c) of section 3 of the Ordinance. Inclusion of such ground smacks of lack of sufficient attention on the part of the authority concerned and in certain cases could be criticized as a mechanical and arbitrary addition of a ground to aggravate deliberately the case against a person. My intention in saying all this is to draw the attention of the authority to exercise proper care in application of the provisions of the Act or Ordinance concerned. 12. In order to apply section 3 of the Ordinance it is essential that all the ingredients required in that section are fulfilled. That can only be done, in my view, if the details of all such activities are incorporated in the notice. Merely quoting the section will not satisfy the provisions of law. It is also necessary to examine the justifiability of the action of the District Magistrate if a Court is called upon to do so. If no details are given, it will be impossible for the recipient of a notice to show cause against it and it will also be impossible for the court to judge whether a particular allegation comes within the ambit of sections 2 and 3 of the Ordinance. The authority invariably resorts to quoting the section itself without furnishing any details or any fact in regard to the conduct of the person receiving the notice. This is in clear violation of the law in my view. 13. Section 3, which has been set out in the judgment of my learned Brother, provides for a procedure of externment and the arrest as well as issuance of notice to show cause, appearance of the recipient of the notice through a lawyer, etc. This is in clear violation of the law in my view. 13. Section 3, which has been set out in the judgment of my learned Brother, provides for a procedure of externment and the arrest as well as issuance of notice to show cause, appearance of the recipient of the notice through a lawyer, etc. In order to apply section 3 (1) of the Ordinance it has been laid down firstly that a person must be anti-social element, which has been defined in section 2 (c) and it is also essential that the provisions of section 3 (1) (b) (i) or (ii) of the Ordinance, along with the requirements of section 3 (1) (a) thereof, also become applicable, which mean that his movements and acts etc. should be calculated to cause alarm, danger or harm to persons or property, or in accordance with section 3 (1) (b) (ii) there should be reasonable ground for believing that he is engaged or is about to be engaged in the commission of any offence punishable under Chapter XVI or Chapter XVII of the Penal Code etc. It is essential for initiation of a proceeding under section 3 of the Ordinance that the person concerned must be anti-social element and he must come within the purview of section 3 (1) (b) (i) or (ii) of the Ordinance. In this view of the matter this application has to be allowed as held by my learned Brother. Application allowed.