Research › Search › Judgment

Jharkhand High Court · body

2025 DIGILAW 837 (JHR)

Rajesh Yadav v. State of Jharkhand

2025-03-10

ANIL KUMAR CHOUDHARY

body2025
JUDGMENT : ANIL KUMAR CHOUDHARY, J. Heard the parties. 2. This Writ Petition (Cr.) under Article 226 of the Constitution of India has been filed with a prayer for quashing of the notice dated 02.04.2024 contained in Memo No.681/Legal (the copy of which has been kept at Annexure-1) issued under the signature of Incharge Officer, Legal Branch, Koderma, directing the petitioner to appear on 05.04.2024 in the court of Deputy Commissioner, Koderma personally or through the advocate at 3 p.m. in connection with C.C.A. Case No.28 of 2024 and to submit his reply, as to why not an order under Section 3 of the Jharkhand Control of Crimes Act, 2002 for externment of the petitioner, be passed. 3. Learned counsel for the petitioner draws the attention of this Court to Section 3 of the Jharkhand Control of Crimes Act, 2002 and submits that under Section 3 (1), the District Magistrate is to issue notice in writing and also is required to inform the person to whom such notice is issued, of the general nature of the material allegations against him in respect of the Section 3 (1) (a)and (b) of the said Act. 4. Learned counsel for the petitioner submits that Section 2 (b) of the said Act provides that, District Magistrate includes an Additional District Magistrate or the Sub Divisional Officer, specially empowered by the State Government, who may act as District Magistrate but under no circumstance, the Incharge Officer of the Legal Branch; is empowered to exercise the power vested upon the District Magistrate under Section 3 of the Jharkhand Control of Crimes Act, 2002. Hence, the notice kept at Annexure-1 is not sustainable in law. 5. Hence, the notice kept at Annexure-1 is not sustainable in law. 5. Learned counsel for the petitioner, in support of his contention, relies upon the judgment of a Division Bench of this Court in the case of Nishant Singh @ Kumar Nishant vs. The State of Jharkhand & Others passed in W.P. (Cr.) (D.B.) No.551 of 2023 dated 08.11.2023 and submits that in the facts of that case when pendency of two criminal cases against the petitioner of that case was mentioned, still the Division Bench of this Court held that the pendency of two criminal cases against the petitioner of that case does not amount to general nature of material allegations against the petitioner of that case but in this case there is not even reference of any criminal case against the petitioner, let alone, any other material. Hence, it is submitted that the prayer of the petitioner, as prayed for in the instant Writ Petition (Cr.), be allowed. 6. Learned counsel for the respondent- State on the other hand submits that the petitioner is an anti-social element but the essential ingredient has inadvertently been left out in the notice issued to him. It is further submitted that the Incharge, Legal Branch, Koderma has been duly authorized by the District Magistrate, Koderma. Hence, it is submitted that this Writ Petition (Cr.), being without any merit, be dismissed. 7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to refer Section 3 of the Jharkhand Control of Crimes Act, 2002 which reads as under:- 3. Externment etc. of anti-social elements. 7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to refer Section 3 of the Jharkhand Control of Crimes Act, 2002 which reads as under:- 3. Externment etc. of anti-social 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; (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. (Emphasis supplied) A plain reading of Section 3 (1) of the Jharkhand Control of Crimes Act, 2002 makes it abundantly clear, that the sine qua non for passing an order of externment by the District Magistrate, is that, the District Magistrate shall by notice in writing inform the person to be externed, of the general nature of material allegations against him, in respect of Section 3 (1) (a) and 3 (1)(b) of the said act. 8. Now, coming to the facts of the case, undisputedly the notice (copy of which has been kept at Annexure-1) has not been issued by the District Magistrate. Section 2 (b) of the Jharkhand Control of Crimes Act, 2002 which reads as under:- 2. Definition . 8. Now, coming to the facts of the case, undisputedly the notice (copy of which has been kept at Annexure-1) has not been issued by the District Magistrate. Section 2 (b) of the Jharkhand Control of Crimes Act, 2002 which reads as under:- 2. Definition . - In this Act, unless the context otherwise requires- (a) "Xxxx; (b) "District Magistrate" includes an Additional District Magistrate or Sub-Divisional Officer specially empowered by the State Government in this behalf; empowers only Additional District Magistrate or the Sub Divisional Officer, that too, specially empowered by the State Government in this behalf; to act as District Magistrate so far as the powers vested upon the District Magistrate under the provisions of the Jharkhand Control of Crimes Act, 2002 are concerned but the District Magistrate has not been vested with any power to delegate his power to anyone else, of either issuing notice to the person proposed to be externed or passing the order of externment. 9. In respect of the contention of the respondent that the District Magistrate has authorized the In-charge, Legal Branch, Koderma to exercise the power under Section 3 (1) (b) (ii) of the Jharkhand Control of Crimes Act, 2002, learned counsel for the respondent- State drew the attention of this Court towards Annexure-B. It is pertinent to mention here that Annexure-B goes to show that one Abhinash Purnendu, who was posted as District Supply Officer has been given the additional charge of In-charge Officer, Legal Branch, Koderma but there is not even any whisper about any express authority conferred by the District Magistrate upon the In-charge, Legal Branch, Koderma, to exercise any power under Section 3 (1) (b) (ii) of the Jharkhand Control of Crimes Act, 2002. It is needless to mention that, without there, being any power conferred by the concerned statue upon the District Magistrate to delegate his power, vested upon him by Jharkhand Control of Crimes Act, 2002, there is no way, the District Magistrate could have validly delegated such power to someone of his choice. 10. It is needless to mention that, without there, being any power conferred by the concerned statue upon the District Magistrate to delegate his power, vested upon him by Jharkhand Control of Crimes Act, 2002, there is no way, the District Magistrate could have validly delegated such power to someone of his choice. 10. Thus, this Court is of the considered view that in the absence of any express provision empowering the District Magistrate to delegate the power of issuing notice to someone else in the said act or otherwise and in the absence of any document showing the District Magistrate authorizing anyone to exercise the power under Section 3 (1) (b) (ii) of the Jharkhand Control of Crimes Act, 2002 and as the impugned notice do not contain the general nature of material allegation mentioned against the petitioner, this Court has no hesitation in holding that the impugned notice, the copy of which has been kept at Annexure-1 of this Writ Petition (Cr.), is not sustainable in law and is liable to be quashed. 11. Accordingly, the notice dated 02.04.2024 contained in Memo No.681/Legal (the copy of which has been kept at Annexure-1) issued under the signature of In-charge Officer, Legal Branch, Koderma, is quashed and set aside. 12. In the result, this Writ Petition (Cr.) stands allowed. 13. In view of disposal of the instant Writ Petition (Cr.), the interim order granted vide order dated 25.04.2024, is vacated.