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2014 DIGILAW 838 (PAT)

Prabhash Kumar Jha v. State of Bihar

2014-08-04

ANJANA MISHRA, I.A.ANSARI

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ORDER I. A. ANSARI, J. By a notice, dated 10.04.2014, issued, in exercise of power under Section 3 of Bihar Control of Crimes Act, 1981, by respondent No.3, namely, the District Magistrate, Darbhanga, the present petitioner was directed to show cause, if any, as to why an order of externment be not passed against him on the ground that he (petitioner) was involved in a number of criminal activities, which made him an anti-social element. 2. In response to the notice so issued, the petitioner submitted his representation. This representation was followed by an order, passed, on 24.04.2014, in Case No. 81 of 2014, by respondent No. 3, namely, District Magistrate, Darbhanga, expressing his satisfaction that the present petitioner’s externment was necessary and, therefore, directed that the petitioner’s externment from the district of Darbhanga, till the completion of Lok Sabha Election-2014 (i.e., till 28.05.2014) with effect from 01.04.2014. 3. Aggrieved by the order of externment, dated 24.04.2014, aforementioned, this writ petition has been made by the petitioner seeking to get set aside and quashed, inter alia, the order of externment, dated 24.04.2014, aforementioned. 4. We have heard Mr. Pramod Kumar Singh, learned Counsel for the petitioner, and Mr. S. A. Alam, learned Standing Counsel No. 3, appearing for the State. 5. Resisting the writ petition at its very threshold, it has been submitted by Mr. S. A. Alam, learned Government Counsel, that this writ petition is not maintainable inasmuch as there is an alternative and efficacious remedy available, in the form of appeal, against the impugned order of externment as provided by Section 6 of Bihar Control of Crimes Act, 1981. 6. While considering the present writ petition, which has been resisted at its very threshold, on behalf of the State, by contending that the since Bihar Control of Crimes Act, 1981, has provided right to appeal under Section 6 thereof, the petitioner could not have filed the present writ petition challenging the order of externment by taking recourse to Article 226 of the Constitution of India, it needs to be noted that exhaustion of alternative remedy is not an inflexible principle for maintaining a writ petition under Article 226 of the Constitution of India. 7. 7. There are, at least, in the light of the decision, in Whirlpool Corporation v. Registrar of Trade Marks, reported in (1998) 8 SCC 1 , three indisputable circumstances, whereunder a writ petition would be maintainable even if there be an alternative remedy available. Firstly, if the action of the respondent is illegal and without jurisdiction; secondly, if the principles of natural justice have been violated; and, thirdly, if the appellant’s fundamental rights have been violated. 8. Though the Whirlpool Corporation’s case (supra) arises out of a contractual matter, the norms remain the same that when the principles of natural justice are violated or the order is without jurisdiction or if a person’s fundamental rights have been violated or infringed, there is no impediment in taking recourse to Article 226 of the Constitution of India for the purpose of enforcing such a person’s rights even if there is an alternative remedy available to the aggrieved party. 9. In the case at hand, since it is the petitioner’s liberty, which has been, according to the petitioner, infringed, this writ petition is maintainable even though there is provision for appeal under Section 6 of Bihar Control of Crimes Act, 1981. 10. Moreover, it is submitted, on behalf of the petitioner, that the impugned order of externment is a nullity in the eyes of law inasmuch as respondent No. 3, namely, District Magistrate, Darbhanga, could not have exercised his jurisdiction under Section 3 of Bihar Control of Crimes Act, 1981, directing externment of petitioner from the district of Darbhanga, when the petitioner, even in the light of the order of externment, cannot be said to have fallen or, could not have been said to have fallen, within the definition of anti-social element as described by Section 2(d) of Bihar Control of Crimes Act, 1981. 11. 11. The rival submissions made before us brings to the definition of anti-social element as contained in Section 2(d) of the Bihar Crime Control Act, 1981, which reads as under: “2(d) “Anti-Social element” 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 of offences punishable under Chapter XVI 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; (iii) who by words or otherwise promotes or attempts to promote, on grounds of religion, race, language, caste or community or 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, 1959.” 12. On the heels of the definition of anti-social element, as embodied in Section 2 (d) of the Bihar Control of Crimes Act, 1981, sub-section (1) of Section 3 of Bihar Control of Crimes Act, 1981, reads thus: “3. Externment, etc., of antisocial elements:- (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 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.” 13. From a bare reading of sub-section (1) of Section 3 of Bihar Control of Crimes Act, 1981, it becomes abundantly clear that a person has to be an anti-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981, in order to bring him within the ambit of Section 3 of Bihar Control of Crimes Act, 1981, so that an order of externment can be made against him. Considered in this light, it becomes crystal clear that unless a person is an anti-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981, a District Magistrate does not derive the jurisdiction, power or authority to make an order of externment by taking recourse to Section 3 of Bihar Control of Crimes Act, 1981. 14. To put it a little differently, a person cannot be externed by taking recourse to Section 3 of Bihar Control of Crimes Act, 1981, unless he can be described as an antisocial element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981. One of the condition precedents for making an order of externment, under Section 3 of Bihar Control of Crimes Act, 1981, is that the person, sought to be externed, must be an anti-social element as envisaged in Bihar Control of Crimes Act, 1981. 15. The question, therefore, is: whether in the facts and circumstances of the present case, the impugned order of externment make out the petitioner an anti-social element as defined by Section 2(d) of Bihar Control of Crimes Act, 1981? 16. It is of great relevance to note that in his order, dated 24.04.2014, passed in Case No. 81 of 2014, respondent No. 2, namely, District Magistrate, Darbhanga, has taken into account three cases, which have been registered against the petitioner in order to treat the petitioner as an anti-social element. These three cases, with the relevant penal provisions, are re-produced below: 1. Singhwara Police Station Case No. 172 of 2010, dated 24.10.2010, registered under Section 130(2) of the R.P. Act. 2. Singhwara Police Station Case No. 174 of 2010, dated 24.10.2010, registered under Section 224 of the Indian Penal Code. 3. Singhwara Police Station Case No. 113 of 2008, dated 25.08.2008, registered under Sections 302/34 of the Indian Penal Code. 17. Singhwara Police Station Case No. 172 of 2010, dated 24.10.2010, registered under Section 130(2) of the R.P. Act. 2. Singhwara Police Station Case No. 174 of 2010, dated 24.10.2010, registered under Section 224 of the Indian Penal Code. 3. Singhwara Police Station Case No. 113 of 2008, dated 25.08.2008, registered under Sections 302/34 of the Indian Penal Code. 17. From what have been re-produced above, it can be easily gathered that within the three cases, which became the foundation for the impugned order of externment, only one case was registered under Section 302/34 of the Indian Penal Code, and though the case was instituted on 25.08.2008, till date no charge sheet has been submitted; whereas the rest two cases are related to each other, the first case being registered under Section 130(2) of the R. P. Act. 18. From the definition of anti-social element, which we have depicted above, it can be easily noticed that the cases, at serial nos. 1 and 2, do not relate to the commission of offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code and, thus, the solitary case, at serial no. 3, being Singhwara Police Station Case No. 113 of 2008, remains. 19. The question, therefore, of applying sub-clause (i) of Section 2(d) of Bihar Control of Crimes Act, 1981, does not arise at all. 20. We may, now, pause and point out that sub clause (i) of Section 2(d) of Bihar Control of Crimes Act, 1981, shows that 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 would be regarded as an anti-social element. 21. If, therefore, a person is not shown to be habitually committing, or attempting to commit, or abetting commission of, offence punishable either by Chapter XVI of the Indian Penal Code, which relates to offences, affecting the human body or offences affecting life, by Chapter XVII of the Indian Penal Code, which relates to offences against property, he would not be regarded as an anti-social element within the meaning of Section 2 (d) (i) of Bihar Control of Crimes Act, 1981. 22. 22. We may pause, at this stage, to point out that in Vijay Narain Singh v. State of Bihar [ (1984) 3 SCC 14 ], the Supreme Court has clearly laid down that the expression “habitually” means “repeatedly” or “persistently”. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. This appears to be clear from the use of the word “habitually” separately in sub-clause (i), sub-clause (ii) and sub-clause (iv) of Section 2(d) of Bihar Control of Crimes Act, 1981, and not in sub-clauses (iii) and (v) of Section 2(d) of Bihar Control of Crimes Act, 1981. If the State Legislature had intended that a commission of two or more acts or omissions referred to in any of the sub-clauses (i) to (v) of Section 2(d) of Bihar Control of Crimes Act, 1981, was sufficient to make a person an “anti-social element”, the definition would have run as “anti-social element” means “a person who habitually is …….”. As Section 2(d) of Bihar Control of Crimes Act, 1981, now stands, whereas under sub-clause (iii) or sub-clause (v) of Section 2(d) of Bihar Control of Crimes Act, 1981, a single act or omission referred to in them may be enough to treat the person concerned as an „anti-social element’, in the case of sub-clause (i), subclause (ii) or sub-clause (iv), there should be a repetition of facts or omissions of the same kind referred to in subclause (i), sub-clause (ii) or in sub-clause (iv) by the person concerned to treat him as an “anti-social element”. Commission of an act or omission referred to in one of the sub-clauses (i), (ii) and (iv) and of another act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an “anti-social element”. A single act or omission falling under sub-clause (i) and a single act or omission falling under sub-clause (iv) of Section 2(d) of Bihar Control of Crimes Act, 1981, cannot, therefore, be characterized as a habitual act or omission referred to in either of them. A single act or omission falling under sub-clause (i) and a single act or omission falling under sub-clause (iv) of Section 2(d) of Bihar Control of Crimes Act, 1981, cannot, therefore, be characterized as a habitual act or omission referred to in either of them. Because the idea of “habit” involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them they cannot be treated as habitual ones. (See also (1990) 4 Supreme Court Cases 552 (Ayub alias Pappukhan Nawabkhan Pathan Vs. S. N. Sinha and Another) 23. In the present case, since the petitioner is alleged to be involved in the commission of the offences under Section 302 read with Section 34 of the Indian Penal Code in Singhwara Police Station Case No. 113 of 2008 aforementioned, this solitary case could not have made the petitioner a person, who can be said to have been „habitually’ committing offences under Chapter XVI or Chapter XVII of the Indian Penal Code, and would not, therefore, bring the petitioner within the four corners of the definition of anti-social element as defined by Section 2(d)(i) of Bihar Control of Crimes Act, 1981, when no other sub-clause of clause (d) of Section 2 of Bihar Control of Crimes Act, 1981, is, admittedly, attracted to the case at hand. 24. What follows from the above discussion is that in the case at hand, the District Magistrate has relied upon three cases to treat the petitioner as an anti-social element, but none of the cases, so relied upon, make the petitioner an anti-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981. 25. What is, now, of immense importance to note is that an order of externment cannot be made merely because a person is anti-social element unless the conditions mentioned in Section 3 of the Bihar Control of Crimes Act, 1981, are satisfied. 26. 25. What is, now, of immense importance to note is that an order of externment cannot be made merely because a person is anti-social element unless the conditions mentioned in Section 3 of the Bihar Control of Crimes Act, 1981, are satisfied. 26. From a close reading of Section 3 of the Bihar Control of Crimes Act, 1981, it becomes transparent that besides being an anti-social element, it must ‘appear’ to the District Magistrate that the movement or acts, in the district, or any part thereof of the person, against whom externment order is likely to be passed, are causing or calculated to cause alarm, danger or harm to persons or property, and/or there are reasonable ground for believing that the person concerned is engaged or about to engage, in the district or any part thereof, in the commission of any offence punishable under Chapters XVI and XVII of the Indian Penal Code, or under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or abetment of such offence. 27. Situated thus, it becomes clear that on the date of making of the order of externment, there has to be materials available that the movement of the person, sought to be externed, or acts of the person, ought to be externed, are causing or calculated to cause alarm, danger or harm to persons or property, and/or there are reasonable ground for believing that the person concerned is engaged or about to engage, in the district or any part thereof, in the commission of any offence punishable under Chapters XVI and XVII of the Indian Penal Code, or under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or abetment of such offence. 28. The conditions aforementioned require that the cases, which are relied upon for making an order of externment, must have some nexus with the date of the order of externment. Necessary, therefore, a person’s act or omission of the past, which may have become stale, cannot establish a live link between the offence and the order of externment. 29. Let us, therefore, examine if the impugned order of externment could establish a live-link or nexus between the date of the offences, which the petitioner has allegedly committed, and the date of the impugned order of externment. 30. 29. Let us, therefore, examine if the impugned order of externment could establish a live-link or nexus between the date of the offences, which the petitioner has allegedly committed, and the date of the impugned order of externment. 30. With regard to the above, it is noteworthy that the cases, which have been referred to, and relied upon, by the District Magistrate, Darbhanga, are of the year 2010. How the cases of the year 2010 could become relevant, in the year 2014, for the purpose of passing an order of externment, has not been explained or mentioned in the impugned order of externment nor is there any explanation discernible, in this regard, from the materials on record. 31. In Shiv Prasad Bhatnagar v. State of M.P., reported in (1981) 2 SCC 456 , the order of preventive detention was challenged on several grounds, the primary challenge being, however, on the ground that the grounds of detention suffer from the vice of either vagueness or staleness. Addressing the primary submission so made, the Supreme Court pointed out, in Shiv Prasad Bhatnagar (supra), that the first ground, embodied in the grounds of detention, mentioned that the detenue, along with his friends, in the second week of November, 1980, had indulged in filthy abuse of Muslims, threatened their lives and performed „mar pit? and details of the incidents were given to substantiate the ground and that as many as six incidents were mentioned and in every one of them, it was mentioned that the detenue, along with his associates, had indulged in this or that violent action, but no mention was made of the name of even a single associate. The argument was that the reference to „associates? without naming even one rendered the ground vague and, therefore, vitiated it. Similarly, it was said that the second ground also referred to the detenue and his associates without naming even a single associate and for that reason, the second ground also was vague. The further submission was that the incidents enumerated, in second ground were of the years 1974, 1975, 1977 and 1978 and could, by no means, be said to be proximate enough to sustain an order of preventive detention. The further submission was that the incidents enumerated, in second ground were of the years 1974, 1975, 1977 and 1978 and could, by no means, be said to be proximate enough to sustain an order of preventive detention. The second ground was to the effect that the detenue and his associates had terrorized the common man in the Vidisha area by their various criminal acts, which caused disturbance to public peace and public safety. Several incidents were narrated to substantiate this ground. The first incident was of the year 1974, the second incident was of the year 1975, the next three incidents were of the year 1977 and the rest of the incidents barring the last one were of the year 1978. A perusal of the incidents enumerated to substantiate the second ground showed, according to the Supreme Court, that the order of detention suffered from the vice of staleness. The Supreme Court also pointed out, in Shiv Prasad Bhatnagar (supra), that the incidents appear to bear a striking resemblance to the grounds of detention, which were considered in Sushanta Goswami (1969) 1 SCC 272, particularly, in the cases of Debendra Nath Das, Abdul Waheb, Anil Das, Dilip Kumar Chakraborty and Ashoka Kumar Mukherjee and that ‘it is, now, well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are such vices that any single one of them is sufficient to vitiate a ground of detention. The relevant observations, appearing in Shiv Prasad Bhatnagar (supra), read as under: “It is now well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are vices any single one of which is sufficient to vitiate a ground of detention.” (Emphasis is supplied) 32. In the backdrop of the law discussed above, though the case under Section 302/34 of the Indian Penal Code is of the year 2008 and the rest two cases are of the year 2010 and 2008, the fact remains that the last of these cases was lodged as far back as on 24.10.2010; whereas the order of externment has been made by respondent No. 3, namely, District Magistrate, Darbhanga, on 24.04.2014, i.e., after lapse of three and a half years. 33. 33. Since no offence is alleged to have been committed by the petitioner between the 24.10.2010 and 24.04.2014, it was for the authority to show as to how the alleged commission of offences by the petitioner, in the year 2010, would have any bearing in the year 2014. In the absence of any reasons having been assigned, in this regard, by the State, one cannot help, but hold, and we do hold, that there was no proximity of time between the alleged commission of the offences by the petitioner, on one hand, and the impugned order of externment, on the other hand. 34. What crystallizes from the above discussions is that in the facts and attending circumstances of the present case, though the petitioner could have been regarded as an anti-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981, no order of his externment could have been passed by invoking Section 3 of Bihar Control of Crimes Act, 1981, because of the fact that the cases, which have been referred to, and relied upon, by the District Magistrate, for the purpose of making the impugned order of externment, were stale and on the ground of staleness alone, as has been observed in Shiv Prasad Bhatnagar (supra), the impugned order of externment necessitates interference. 35. In short, all the conditions precedent, for invoking a District Magistrate’s jurisdiction under Section 3 of Bihar Control of Crimes Act, 1981, having not been satisfied in the present case, no order of externment could have been passed against the present petitioner. 36. The learned Counsel for the petitioner is, therefore, not incorrect, when he submits that the impugned order of externment is a nullity in the eyes of law and the provisions of appeal, made under Section 6 of Bihar Control of Crimes Act, 1981, would not debar a person, such as the petitioner, from invoking this Court’s extraordinary jurisdiction under Article 226 of the Constitution of India. 37. Because of what have been discussed and pointed out above, we find that the impugned order of externment is not sustainable and, therefore, warrants interference. 38. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order of externment, dated 24.04.2014, passed by respondent No. 3, namely, the District Magistrate, Darbhanga, which stands impugned in the present writ petition, is hereby set aside and quashed. 38. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order of externment, dated 24.04.2014, passed by respondent No. 3, namely, the District Magistrate, Darbhanga, which stands impugned in the present writ petition, is hereby set aside and quashed. 39. In terms of the above observations and directions, this writ petition stands disposed of. 40. No order as to costs. Anjana Mishra, J. - I agree.