Research › Browse › Judgment

Patna High Court · body

1979 DIGILAW 262 (PAT)

Naresh Singh v. State of Bihar

1979-11-23

B.P.SINHA, R.P.MANDAL

body1979
JUDGMENT Birendra Pd. Sinha, J. Both these applications were heard together and are being decided by a common judgment. The petitioners have challenged the notice issued to them under section 3 (1) of the Bihar Control of Crimes Ordinance, 1979 contained in Annexure 1 of their respective applications. It appears that Naresh Singh, petitioner in Cr.W.J.C. No. 134 of 1979, surrendered in the court of the Chief Judicial Magistrate, Nawadah on 7.7.79 in Kowakole P.S. case No. 12 (6) 79, under section 323, 147 and 448 of the Indian Penal Code (subsequently converted into section 307 of the Indian Penal Code) and was remanded to jail custody. Petitioner Suresh Singh (petitioner in Cr.W.J.C. No. 135 of 1979) was arrested and was remanded to Jail custody by the Chief Judicial Magistrate, Nawadah, on 4.4.79 in the same case. These cases have been initiated on the basis of an information lodged by one Kanhai Manjhi. The petitioners were ordered to be enlarged on bail in the said case by the Sessions Judge, Gaya, on 14.7.79. They furnished bail bonds and the release order was issued from the court of the Chief Judicial Magistrate, Nawadah, on 16.7.79. They were, however, not released by the Jail authorities because, in the meanwhile, a custody warrant had been issued by the respondent Dist. Magistrate, Nawadah on 13.7.79 in case no. 6 (Crimes) 1979 and case No. 7 (Crimes) 1979, under the Bihar Control of Crimes Ordinance, 1979, against the two petitioners, respectively. The petitioners learnt that a proceeding under section 3 (1) of the said Ordinance had been initiated against them and they were called upon to appear before the respondent Dist. Magistrate on 26.7.79 at 10.30 A.M. to tender an explanation regarding the material allegations alleged in the notice. That notice, as stated earlier, is contained in Annexure 1 of the two applications and is dated 17.7.79. Copies of the said notice were also forwarded to the Jailor of Nawadah Jail for service on the petitioners and they were served upon them while in custody. A counter affidavit on behalf of the respondents and reply to the said counter affidavit has been filed in both the cases, which shall be referred to later on. 2. Shri Balbhadra Pd. A counter affidavit on behalf of the respondents and reply to the said counter affidavit has been filed in both the cases, which shall be referred to later on. 2. Shri Balbhadra Pd. Singh, learned counsel appearing on behalf of the petitioners in both these writ applications, made the following submissions: (i) The proceedings initiated against the petitioners are ultra vires the powers of the respondent Dist. Magistrate. (ii) The notices issued to the petitioners are based on false premises and are mala fide in nature. (iii) The respondent Distt. Magistrate, in abuse of his powers, falsely imprisoned the petitioners from 14.7.79 to 30.7.79, the date on which they were released on bail by the order of the High Court. 3. The relevant portion of the notice (Annexure 1) in Cr.W.J.C. No. 134 of 1979 reads thus : Form 1. (See Rule 4). Whereas it appears to me on the basis of information laid before me that Sri Naresh Singh son of Shri Bishun Singh of village Telarli, P. S. Kauakole dist. Nawadah is an anti-social clement, that is to say that he indulges in promoting caste feelings between member of forward castes and other weaker section of the society (Harijans) and committing atrocities on them in various ways. (b) His movements or acts in Telari area are causing or calculated to cause alarm, danger or harm to person or property of the Harijans and other peace loving citizens and thereby he is likely to engage himself in the commission of the offence punishable under the I.P.C. He is pressurizing the Harijans to withdraw case which has been instituted against him for assaulting the members of the Harijan Community. And where as the material allegations against him in respect of the aforesaid clauses (a) (b) are of the following nature: 1. That he has been made accused in the Kawakole P.S. case No. 12 (6) 79 u/s 147/323/448/I.P.C. for committing assault to Harijans of village Telari for refusing to work unless, they get proper labour cost (minimum wages). This was done to coerce them to work by force which militates against the code of social justice. 2. That he has been made accused in the Kawakole P.S. case No. 12 (6) 79 u/s 147/323/448/I.P.C. for committing assault to Harijans of village Telari for refusing to work unless, they get proper labour cost (minimum wages). This was done to coerce them to work by force which militates against the code of social justice. 2. That on 2.7.79 all the Harijans with their women and children and with bag and baggages deserted the hearth and homes out of fear and apprehension of being murdered and came down to Collectorate for shetter and then returned only when the Sub-divisional Officer went to rehabilitate them. A case u/s 107, 116 (3) of the Cr.P.C. has bees instituted against him in this connection." Similar is the notice in the case of petitioner Suresh Singh of Cr.W.J.C. No. 135 of 1979. 4. Paragraphs (a) and (b) of this notice are the reproduction or section 3 (1) (a) (b) of the Ordinance. The material allegations have thereafter been given in paragraph 1 and 2. The material allegations 10 paragraph 1 relate to section 3 (1) (8) and arc intended to show that the petitioners are anti social elements as defined in section 2 (c) of the Ordinance. It was urged by learned standing counsel III that the allegations made in paragraph 2 relate to section 3 (1) (b) (i) of the Ordinance. 5. This ordinance makes a special provision for the control and suppression of anti-social elements with a view to maintenance of the public order. It was urged by learned standing counsel III that the allegations made in paragraph 2 relate to section 3 (1) (b) (i) of the Ordinance. 5. This ordinance makes a special provision for the control and suppression of anti-social elements with a view to maintenance of the public order. "Anti social element" is defined in section 2 (c) which means (i) 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 X, VI 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 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 fruad 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 1959. If a Dist. Magistrate is satisfied that the conditions specified in clauses (a) and (b) of sub section (i) of section 3 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, for a period not exceeding six months. The order sought to be passed under section 3 (3) appears to be in the nature of externment from the district or prohibitory. The ordinance does not contemplate that a person shall be detained in Jail by a final order passed under section 3 (3) of the Ordinance. In the case of Mahabir Pd. The order sought to be passed under section 3 (3) appears to be in the nature of externment from the district or prohibitory. The ordinance does not contemplate that a person shall be detained in Jail by a final order passed under section 3 (3) of the Ordinance. In the case of Mahabir Pd. Akela vs. The State of Bihar, a Bench of this court of which I was also a member, held that for the issuance of a notice under section 3 (1) it was not only sufficient to give the instances of the material allegations covered by section 3 (1) (a) i.e. the instances of the commission of offences which a person might have committed or attempts to commit, to bring him within the mischief of section 2 (c) but it was also necessary to give the Instances of movements or acts, causing or calculating to cause alarm, danger or harm to person or property or grounds for believing that he was engaged or about to engage in the commission of any offence punishable under chapter XVI or Chapter XVII of the Indian Penal Code. This is necessary because in the absence thereof it would be difficult to tender any explanation and make an effective representation to induce the authorities to cake a view in favour of the person making the representation. The reasonable opportunity of tendering an explanation mentioned to sub-section (i) of section 3 has to be a real and effective opportunity. The Dist. Magistrate may not be required to disclose all the materials or evidence on which he relies, as the satisfaction for taking such a preventive action may be based on suspicion and not on proof. But all the same, he is required to disclose it though in general terms it would not be sufficient merely to reproduce the section. In the case of Mahabir Pd. Akela (supra) it was held that a notice under section 3 (1) of the Ordinance which does not contain the general nature of the material allegations, both in respect of clauses (a) and (b), has got to be struck down. 6. From the notice (Annexure. 1) quoted above, it would appear that one instance of the material allegation in respect of section 3 (1) (a) has been given in paragraph one. 6. From the notice (Annexure. 1) quoted above, it would appear that one instance of the material allegation in respect of section 3 (1) (a) has been given in paragraph one. The allegation contained in paragraph 2 thereof cannot relate to section 3 (1) (a) as the same is not covered by section 2 (c). Learned standing counsel III very fairly conceded to this position but stated that paragraph 2 of the material allegations of the notice relates to section 3 (1) (b) (i). I do not think that the learned standing counsel is correct in this regard since the nature of the "Movements or acts" contemplated under section 3 (1) (b) (i) must be of a different nature other than a proceeding under section 107 of the Code of Criminal Procedure. Even assuming that the allegations made in paragraph 2 of the notice satisfied the requirements of section 3 (1) (b) (i), the question would still arise whether a single instance of the material allegations concerning clauses (a) and (b) would be sufficient for empowering the Dist. Magistrate to issue a notice under section 3 (1) of the Ordinance. As has been seen above, one instance has been given in relation to section 3 (1) (a) and another instance has been given in relation to section 3 (1) (b) (i) in the notice. The question is whether on the basis of a single instance it can be said that the person noticed is guilty of habitually committing or attempting to commit or abetting the commission of offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code. The dictionary meaning of the word habitual is as follows—Usual, frequent customary, of the nature of habit, (of persons) acting by habit addicted to a specified practice, committing practising or acting in some manner by force of habit, constant, continual, given to (specified) habit, as a habitual drunkard. "The word "habitually" connotes some degree of frequency and continuity. It is obvious, therefore, that a single Act, cannot be said to be forming the habit of a person. The Act, must be repeated more than once and be inherent in his nature. The Prevention of Crime Act, 1908 provided for the reformation of young offenders and the prolonged detention of habitual criminals. It is obvious, therefore, that a single Act, cannot be said to be forming the habit of a person. The Act, must be repeated more than once and be inherent in his nature. The Prevention of Crime Act, 1908 provided for the reformation of young offenders and the prolonged detention of habitual criminals. According to section 10 or the said Act, a person could not be found to be a habitual criminal unless it was found that he had at least three times previous to the crime charged been convicted of a crime. Likewise, the words movements or acts occurring in section 3 (b) (i) or reasonable grounds occurring in section 3 (1) (b) (ii) mean that there should be more than one instance. There words have been used in plural number. It is apparent, therefore that a since instance in respect of section 3 (i) (a) and or in respect of section 3 (i) (b) (1) will not be sufficient for the purpose of issuance of a notice under section 3 (i) of the Ordinance. In the circumstances, in these cases, it must be held that the Dist Magistrate issued notice to the petitioners under section 3 (i) of the ordinance disregarding the mandate of law and in abuse of his authority. The proceedings initiated by the Dist Magistrate in the facts and circumstances of these cases are ultra vires his powers. 7. Now coming to the next point, it was pointed out that the petitioner's bail applications filed before the Sessions Judge, Gaya, were fixed for bearing on 14.7.79 on which date they were beard and the petitioners were ordered to be enlarged on bail. Meanwhile, the proceedings under the Ordinance were started on 13.7.79 in a slap dash manner. In the counter affidavit filed on behalf of the respondents it is stated that the order initiating the proceedings was passed on 13.7.79 and the Dist. Magistrate directed to issue notices to the petitioners and on that very date, an order for their immediate arrest was also passed in view of the report of the Sub-divisional Officer, Nawadah. That report is contained in Annexure. A to the counter affidavit. It is stated in Annexure. A which is dated the 11th of July, 1979 that petitioners Suresh Singh and Naresh Singh were in jail in connection with Kawakole P.S. case No. 12 dated 26.6.79. That report is contained in Annexure. A to the counter affidavit. It is stated in Annexure. A which is dated the 11th of July, 1979 that petitioners Suresh Singh and Naresh Singh were in jail in connection with Kawakole P.S. case No. 12 dated 26.6.79. It further states." ijarq gks ldrk gS fd tYnh gh os NwV tk;s vkSj iqu% xkao esa tkdj gfjtuksa dks Mjk;sa /kedk;sa vkSj muds Åij vR;kpkj djsaA This letter was addressed by the Sub-divisional Officer to the Dist. Magistrate requesting him to issue a warrant of arrest against the petitioners under section 3 (4) of the Ordinance. It may be relevant here to state the proceedings had not yet been started on the 11th of July, 1979. Section 3 (4) of the Ordinance empowers the Dist. Magistrate to issue a warrant of arrest pending an enquiry under section 3 (2). A warrant of arrest under Section 3 (4), therefore, cannot be issued unless a proceeding has been started. The request, by the Sub-divisional Officer in his letter dated the 11th of July, 1979, for the Issuance of a warrant of arrest under section 3 (4) of the Ordinance was obviously, not in good faith. The Dist. Magistrate Initiated the proceeding on 13.7.79 on the basis of another report or the Sub-divisional Officer, dated the 5th July 1979 under section 3 of the Ordinance. In that report it was stated that the petitioners were bent upon creating caste hatred between the forward castes and the Harijans. He ordered for the issue of a notice under section 3 (1) and by the same order issued a warrant of arrest under section 3 (4) directing that the petitioners should be produced before him on 26.7.79. The order sheet was signed. Later, the Dist. Magistrate passed the following order : "Later it bas been reported that he is detained in jail in another case. Issue intermediate custody warrant for his detention and produce before me on the date find." Shri Singh submitted that there is no provision in the Ordinance for the issue of a custody warrant. According to learned counsel, the letter of the Sub-divisions Officer (Annexure-A) as well as the later order passed by the Dist. Magistrate directing issue of the intermediate custody warrant were only deliberate acts to Interdict the release of the petitioners on bail was clearly malafide. 8. According to learned counsel, the letter of the Sub-divisions Officer (Annexure-A) as well as the later order passed by the Dist. Magistrate directing issue of the intermediate custody warrant were only deliberate acts to Interdict the release of the petitioners on bail was clearly malafide. 8. I have stated above that this Ordinance makes special provisions for the control and suppression of anti social elements with a view to maintenance of public order. Under section 3 (1), the Dist. Magistrate is empowered to issue a notice in writing informing the person concerned of the general nature of the material allegations against him giving him a reasonable opportunity of tendering an explanation regarding them. The person against whom an order is proposed to be made has a right to consult and be defended by a counsel and has to be given a reasonable opportunity of examining himself and any other witness that he may wish to produce in support of his explanation. The final order is passed under section 3 (3) which reads as under: "(3) The Dist. Magistrate on being satisfied that the conditions specified in clauses (a) and (b) of sub section (1) exist, may by order in writing: (a) direct him to remove himself outside the Dist. or part thereof, as the case may be, by such route if any and within such time as may be specified in the order and to resist from entering the dist. or the specified part thereof until the expiry of such period, not exceeding six months, as may be specified in the order: (b) (i) require such person to notify his movements, or to report himself, or to do both, in such manner, at such time and to such authority or person as may be specified in the order: (ii) prohibit or restrict possession or use by him of any such article as may be specified in the order: (iii) direct him otherwise to conduct himself in such manner as may be specified in the order: until the expiry of such period, not exceeding six months, as may be specified in the order." This shows that it is not the intention of law to detain a person in jail, Section 3 (4) only provides that pending an enquiry a warrant for arrest may be issued and a person may be detained in custody until the enquiry is concluded. While interpreting section 3 (4) of the Ordinance, a division Bench of this court has held in Cr.W.J.C. No. 55 of 1979 (and analogous cases) decided on the 30th of August, 1979 that if the person concerned is prepared to execute bond with or without surety, he shall be released but if he is not prepared to execute bond, he may be detained in custody until the enquiry is concluded. In the instant cases not only a composite order was passed on 13.7.79 under Sections 3 (1) and 3 (4) of the Ordinance but, later on the same date, an intermediate custody warrant for the detention of the petitioners was also ordered to be issued by the Dist. Magistrate. The source of information on the basis of which the order for issue of intermediate custody warrant was passed on the same date is, however, not disclosed in the order, but it is plain that the Dist. Magistrate was anxious that the petitioners may not be released on bail on the next day following. Before the petitioners could be released on bail by the Sessions Judge on 14.7.79, the Dist. Magistrate on bail. Thus the Sub-divisional Officer and the respondent Dist. Magistrate tried to overreach the process of the court and force stall its order by issuing a custody warrant the day before, i.e. on 13.7.79. There does not appear to be any provision in the Ordinance for the issue of an intermediate custody warrant. The petitioners were asked by the notice to show cause bid this opportunity was sought to be frustrated by detaining them in Jail. All these indicate that the proceedings in both the cases were initiated in a most casual and cavalier manner without any heed to the provisions of the law or the facts of the case. No person can be allowed to play with tile liberty of a citizen in this manner. 9. If any order is passed wrongfully and illegally and without reasonable grounds of suspicion, it is mala fide. Malice, in fact, need not be proved by the pursuer, Viscount Haldane described malice in law in Shearer Vs. Sheilds as follows: "A person who inflicts an injury upon another person in contradiction of the law is not allowed to say that he did so with an innocent mind, be is taken to know the law and he must Act, within the law. Sheilds as follows: "A person who inflicts an injury upon another person in contradiction of the law is not allowed to say that he did so with an innocent mind, be is taken to know the law and he must Act, within the law. He may, therefore, be guilty of malice in jaw although, so far the state of his mind is concerned, be acts ignorantly and in that sense innocently." In Smt. S. K. Venkataraman v. Union of India, Singhal, J. observed that malice in its legal sense mean malice such as may be assumed from the doing of a wrongful Act, intentionally but without just cause or excuse, or for want or reasonable or probable cause. So far as the instant cases are concerned, it is apparent that the Dist. Magistrate acted wrongfully and in bad faith in issuing the notices under section 3 (1) of the ordinance without there being any basis for doing so and intentionally issued an intermediate custody warrant in order to interdict the release of the petitioners on bail. In that view of the matter, it must be held that his action was not in accordance with law. 10. In view of the findings given above, it is not necessary for me to decide point No. (III) urged by learned counsel. 11. Both these applications, therefore, succeed and are allowed. The notices contained in Annexure. 1 of the two applications and toe proceedings started by the respondent Dist. Magistrate under the provisions of the Ordinance against the petitioners are quashed. R.P. Mandal, J. I agree. Applications allowed.