Birendra Kumar Singh v. State of Bihar — 1979 DIGILAW 281 (PAT)

JUDGMENT : Nagendra Prasad Singh, J. 1. The petitioner in this wilt application has questioned the legality of a notice issued to him by the respondent District Magistrate in purported exercise of the powers conferred on him by Sub-section (1) of Section 3 of the Bihar Control of Crimea Ordinance, 1979 (Ordinance No. 99 of 1979) (hereinafter to be referred to as 'the Ordinance'). A copy of the said notice dated 18.8.1979 is annexure-1 to the writ application. According to the petitioner, the said notice has been issued in contravention of the requirements of the said Ordinance. The object as mentioned in the said Ordinance is to make special provisions for the control and suppression of anti-social elements with a view to maintenance of public ORDER :. For achieving that object, certain extraordinary powers have been vested in the District Magistrate of the district. If it appears to the District Magistrate of any district that (a) any person is an antisocial element, and (b) 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 there are reasonable grounds for believing that he is engaged or about to engage in commission of any offence punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or under certain other Acts mentioned therein, then he shall be noticed in writing "inform him of the general nature of material allegation against him in respect of clauses (a) and (b)" and, "shall give him a reasonable opportunity of tendering an explanation regarding them". Thereafter, in view of Sub-section (2) of Section 3 of the said Ordinance the person concerned can examine witnesses and appear through counsel. If the District Magistrate, on hearing the person concerned and on materials on record, is satisfied that the condition specified in clause (a) and (b) of Sub-section (1) of Section 3 exists, then he may pass an ORDER :of externment against such person for a period not exceeding six months or he may require him to notify his movements etc. 2. 2. According to the petitioner, the notice, which has been issued to him, is absolutely vague without furnishing any material allegation against the petitioner, as such, the said notice has been issued not only against the requirements of Sub-section (1) of Section 3, but also violates the principles of natural justice. In the schedule of the Bihar Control of Crimes Rules, 1978 (hereinafter to be referred to as the Rules) form of the notice has been prescribed. Rule 4 of the Rules says that notice under Sub-section (1) of Section 3 of the Ordinance shall as far as may be conform to Form I. There is a note below that form saying that portions thereof should be deleted which are not applicable to any particular case. It also provides space for furnishing material allegation against the person concerned in respect of aforesaid Clauses (a) and (b) of Sub-section (1) of Section 3. Learned counsel appearing on behalf of the petitioner pointed out that the notice which has been issued to the petitioner simply reproduces the three paragraphs of the form of the notice aforesaid and then states as follows: Thereafter, the notice says that the petitioner should appear before the District Magistrate concerned on 5.9.1979 and can file his explanation against the aforesaid allegations failing which it will be presumed that he has nothing to say against them. According to the petitioner, in the facts and circumstances of the present case the notice neither states the material allegation in respect of Clause (a) of Sub-section (1) of Section 3, i.e.; regarding the petitioner being an anti social element, nor it fulfils Clause (b) which requires material allegation in respect of the movements and acts of the petitioner calculated to cause alarm, danger or harm. 3. In the case of (1) Gaya Rai Vs. State of Bihar and others (Cr. W.J.C. no. 55 of 1979, disposed of on 30-8-1979) the vires of the provisions of the Ordinance were examined and a Bench of this Court, to which I was also a party, while upholding the said provisions, observed that ample safeguards have been provided therein so that a person against whom notice is issued can submit his explanation and challenge the allegation levelled against him. It was also pointed out that the said Ordinance contains certain extraordinary provisions because, the object is to meet extraordinary situation, but while doing so, the persons who have to administer such law have to be very careful because they affect fundamental rights of the citizens to a great extent. Again thereafter, another Bench of this Court in the case of (2) Mahabir Prasad Akela V. State of Bihar and another (Cr. W.J.C. No. 147 of 1979, disposed of on 6-11-1979), on which reliance has been placed on behalf of the petitioner, quashed a notice under Sub-section (1) of Section 3 on the ground that it did not fulfil the requirements of Clauses (a) and (b) of Sub-section (1) of Section 3 of the Ordinance. 4. Learned counsel appearing for the petitioner urged that merely by giving reference of 5 criminal cases, the details whereof having not been mentioned, it cannot be held that the material allegation in respect of Clauses (a) and (b) of Sub-section (1) of Section 3 have been furnished to the petitioner. The expression "antisocial element" has been defined in clause (c) of Section 2, which apart from others is to mean 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 or Chapter XVII of the Indian Penal Code. There cannot be any doubt that if a person commits one or other offence mentioned in those two Chapters repeatedly then he can be branded as a habitual criminal and; as such, anti-social element. If the petitioner has committed one or the other offence under those two Chapters within a period of three years five times, he can certainly be held to be an anti-social element within the meaning of Section 2 (c). If the petitioner has committed one or the other offence under those two Chapters within a period of three years five times, he can certainly be held to be an anti-social element within the meaning of Section 2 (c). But, the question is as to whether the requirement of clause (b) of Sub-section (1) of Section 3 has been compiled with which requires that the person concerned should also be informed regarding the general nature of material allegation against him in respect of his movement or acts in the district which are causing of are calculated to cause alarm, danger or harm to persons or property or as to whether he is engaged or about to engage in the district in commission of any offence punishable under Chapter XVI or Chapter XVII of the Indian Penal Code and certain other Acts. I must point out at the outset that the expressions "general nature of material allegation" have to be read as different form "particulars of material allegations". In other words, when the section requires "general nature of material allegation" it cannot be urged that all details of the allegations against the person concerned should be given in the notice; but, at the same time; it cannot be read to mean only vague allegation which, in substance, inform nothing to the person concerned. Sub-section (1) itself says that material allegations in respect of clauses (a) and (b) have to be furnished. There may be cases where same set of allegations can be material allegations for both the clauses. This can be appreciated by an illustration. If a person is committing one or the other offences mentioned in the aforesaid two Chapters of the Indian Penal Code in quick succession and details of those activities are furnished to the petitioner, then on the basis of the details of those cases it may appear to the District Magistrate that not only the person concerned is an anti-social element, but his movements or acts are calculated to cause alarm, danger or harm to the person or property. Similarly, if a person has been branded as an anti-social element because he has been found habitual passing indecent remarks to or teasing women or girls [Section 2(c)(iv)], then what material allegation about his future movement in this respect can be given by the District Magistrate. Similarly, if a person has been branded as an anti-social element because he has been found habitual passing indecent remarks to or teasing women or girls [Section 2(c)(iv)], then what material allegation about his future movement in this respect can be given by the District Magistrate. He has to form opinion on the oasis of repeated indecent conduct of such a person because it is not known as to whom in future he is going to tease or to pass indecent remarks. The matter will be different if some old instances are furnished for the purpose of branding the person concerned as anti-social element, then, some further allegations have to be before the District Magistrate on the basis of which it appeared to him that conditions of clause (b) exists so that a notice can be given to such persons. In such case, he has to give material allegations about the past activities as well as his present movements on the basis of which it appeared to him that action under Section 3 of the Ordinance is necessary. 5. The case with which we are concerned, no doubt, the offences are alleged to have been committed in quick succession, but the defect is that except mentioning the case numbers and sections, no details whatsoever have been mentioned in the said notice. It has been pointed out by this Court in the case of Gaya Rai (supra) that the Ordinance contains provisions which are in the nature of exceptions to the procedural law and law of evidence. The person to whom a notice is issued has to examine himself or any other witness whom he desires to be examined in support of his explanation. No witness is to be examined to prove the material allegations levelled against the person concerned. In such a situation, it is only just and proper that within the limitation prescribed by aforesaid Sub-section (1) of Section 3, general nature of material allegations must be furnished to such a person so that he can submit his explanation regarding them. The respondent District Magistrate, while giving details of the criminal cases should have mentioned as to in substance what are the allegations against the petitioner in those criminal cases it is surprising that the notice even does not say that the petitioner was accused in those cases. The respondent District Magistrate, while giving details of the criminal cases should have mentioned as to in substance what are the allegations against the petitioner in those criminal cases it is surprising that the notice even does not say that the petitioner was accused in those cases. It has only to be inferred in the context in which reference has been given in those cases. In such a situation, it is difficult to hold that the notice conforms to the requirement of Sub-section (1) of Section 3 of the Ordinance. 6. Learned standing counsel appearing for the State has drawn our attention to the JUDGMENT : of the Supreme Court in the case of (3) Hari Khemu Gawall V. Deputy Commissioner of Police, Bombay and another (A.I.R. 1956 SC 559). In that case the Supreme Court had to consider the provisions of Bombay Police Act, 1961 which contained the provisions similar to the provisions of the Ordinance authorising the Police Commissioner to pass externment ORDER :. Section 59 of that Act required "general nature of material allegations" to be served on the person concerned. It was urged that because Section 59 required the Police Commissioner to inform only the general nature of the material allegations, it affected the fight of the person concerned. In that context it was observed as follows:-- In this connection it was urged on behalf of the petitioner that Section 59 only required the general nature of the material allegations against the person externed to be disclosed and that, as it did not further provide for particulars to be supplied to such a person, it would be very difficult for him to avail of at least the second ground on which Section 61 permits him to get the matter judicially examined. But in the very nature of things it could not have been otherwise, The grounds available to an externee had necessarily to be very limited in their scope, because of evidence were available which could be adduced in public, such a person could be dealt with under the preventive sections of the Code of Criminal Procedure, for example, under Section 107 or Section 110. It is true that while informing general nature of material allegation; the District Magistrate is not required to give full particulars as well as evidence in support of those allegations, but certainly he must state the allegations in such a manner so that the person concerned can submit his explanation. Certainly the expressions cannot be interpreted to mean furnishing the number of cases only. If the allegations given in the notice are held to have not furnished the general nature of material allegation, as required by Sub-section (1) of Section 3, then it has to be held that there has been non-compliance of Sub-section (1) of Section 3, rendering the notice invalid. 7. Accordingly; I allow this writ application and quash the notice impugned. The District Magistrate shall be at liberty to issue a fresh nonce in the light of the observations made above and then he shall proceed in accordance with law. Shivanugrah Narain, J. 8. I entirety agree, but in view of the nebulous nature of the expression "general nature of material allegations" occurring in Section 3 of the Bihar Control of Crimes Ordinance, 1979, I wish to add a few words of mine. 9. It is not easy to define or to lay down the exact connotation of the expression "general nature of material allegations". The question whether the notice does or does not contain the general nature of material allegations against the person sought to be proceeded against has to be decided with reference to the facts of each case. As my learned brother has pointed out, what is required to be disclosed in the notice is the general nature of the allegations and not of the evidence against the person concerned. Again, as my learned brother has pointed out, the nature of the allegations alone and not the detailed particulars of the allegations are required to be disclosed, and this is further emphasised by the use of the expression 'general' which qualifies the expression 'nature'. It must, however; be remembered that the expression 'general nature of material allegation' is used in juxtaposition of the statutory provision imposing upon the District Magistrate a duty to give 'reasonable opportunity of tendering any explanation' regarding the general nature of material allegations against the person sought to be proceeded against The nature of the allegations must, therefore, be disclosed. It must, however; be remembered that the expression 'general nature of material allegation' is used in juxtaposition of the statutory provision imposing upon the District Magistrate a duty to give 'reasonable opportunity of tendering any explanation' regarding the general nature of material allegations against the person sought to be proceeded against The nature of the allegations must, therefore, be disclosed. Now, in the present case, the nature of the material allegations has not been disclosed. When we allege that A gave ORDER :s to kill B, we are not making the same nature of allegation against A as when we allege that a shot B dead. The nature of the two allegations, in one the person being an abettor and in the other the person being the actual perpetrator of the crime, are different. Then again, it is one thing to say that a person was a member of an unlawful assembly the common object of which was to commit murder of X and another thing to say that he was the assailant, the injuries inflicted by whom caused the death of X. The nature of allegation are materially different, for nature means the essential quality or qualities of a thing. 10. Now, in the present case when we examine the allegations that have been disclosed, we find that what has been mentioned is the police case number of five cases against the petitioner, all arising in Begusarai police station and the sections of the offences, which in each of the five case are mere than one in number, in three of the cases offences under Sections 147, 148 are also mentioned. In my opinion, giving a list of the offences with which a particular person is concerned is not, disclosing even the general nature of the material allegation against a person who may be accused in that case. It is not necessary that a person accused in a case involving various sections of Penal Code must be accused under all the sections. For example, in case no. 2 mentioned in the notice, a person may be an accused only of an offence under Section 147 or Section 148 and not of the offence under Section 302, I.P.C. The mention simpliciter of the various offences does not, in my opinion, amount to disclosure of the general nature of the material allegation. For example, in case no. 2 mentioned in the notice, a person may be an accused only of an offence under Section 147 or Section 148 and not of the offence under Section 302, I.P.C. The mention simpliciter of the various offences does not, in my opinion, amount to disclosure of the general nature of the material allegation. I may further mention that in the notice itself it is not even specifically stated that the petitioner is accused in those cases. Even that is left to inference and deduction. 11. It is, however, urged on behalf of the State that as police case numbers have been given, it must be held that the general nature of the material allegations has been disclosed in the notice. The person, the argument runs; can obtain a certified copy of the first information report in those cases and learn the material allegations therein. In my opinion; however; what Section 3 requires is that the District Magistrate should "by notice in writing inform him of the general nature of the material allegations against him." and not that he should furnish him some information by perusing which he can come to know the nature of the material allegations against him. When the case numbers of certain police cases are furnished to a person, he is given some infarction or some material on the basis of which, after making diligent enquiry, he can come to know the nature of the material allegations against him. The disclosure of the police case numbers does not inform him of the nature of those allegations. It was argued that the person sought to be proceeded against can ask the District Magistrate to furnish relevant particulars and, therefore, the petitioner would suffer no hardship or prejudice by reason of the fact that necessary allegations have not been disclosed in the notice sent to him. A similar argument was addressed in a case under the Preventive Detention Act: (4) Dr. Ram Krishan Bhardwaj V. The State of Delhi and others (A.I.R. 1953 S.C. 318): Where the ORDER :of detention was challenged on the basis that the grounds furnished were vague. A similar argument was addressed in a case under the Preventive Detention Act: (4) Dr. Ram Krishan Bhardwaj V. The State of Delhi and others (A.I.R. 1953 S.C. 318): Where the ORDER :of detention was challenged on the basis that the grounds furnished were vague. The contention was repelled by Patanjali Sastri, C.J. speaking for the Supreme Court in these words:-- The question, however, is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed. Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. Externment from the district is also a serious invasion though it may not be as serious as preventive detention of personal liberty and the safeguards provided in the Act against the improper exercise of the power must also be jealously watched and enforced by the court. It is not disputed that the provision of Section 3 requiring the District Magistrate to inform the person proceeded against of the general nature of the material allegations is of a mandatory nature and it must be strictly complied with. Those provisions requiring him to inform the person proceeded against of the general nature of the material allegations against him have not been complied with in this case. The decision in the case of Hari Khemu Gawall V. Deputy Commissioner of Police, Bombay and another (A.I.R. 1956 S.C. 559) relied on by the learned Advocate for the State is of no assistance. That case did not interpret the meaning of the expression 'general nature of the material allegations.' it repelled the argument that the fact that only general nature of the material allegations had to be disclosed made the right under Section 61 of the Bombay Act to convince the court that there was no material before the court concerned upon which it could have passed its ORDER :illusory and, the provisions regarding externment placed an unreasonable restriction on the personal liberty of the individual citizen.