Amar Nath Singh vs The State Of Jharkhand
2021 Latest Caselaw 4001 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W.P.(Cr.) No. 59 of 2021

Amar Nath Singh, aged about 36 years, son of Rajeshwar Singh, resident of
Krishna Nagar, Gour Basti, P.O. and P.S. Mango, Town-Jamshedpur, District-
East Singhbhum (Jharkhand).
                                                    ...... Petitioner
                          Versus
                         ...............

1.The State of Jharkhand

2.District Magistrate, East Singhbhum at Jamshedpur

3. Senior Superintendent of Police, East Singhbhum at Jamshedpur

4. Dy. Superintendent of Police (Headquarter-1), East Singhbhum at Jamshedpur ...... Respondents

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CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. A.K. Kashyap, Sr. Advocate Mr. Suraj Kishore Prasad, Advocate For the State : Mr. Kaushik Sarkhel, G.A.-V : Mr. Abhishek Singh, Advocate

C.A.V. On:-18/10/2021 Pronounced on:- 26/10/2021 Heard Mr. A.K. Kashyap, learned senior counsel for the petitioner

and Mr. Kaushik Sarkhel, learned counsel for the State.

2. The present petition has been filed for quashing of order

dated 05.01.2021 passed by the District Magistrate, East Singhbhum at

Jamshedpur in CCA Case No. 16/2020-21 under section 3(3)(a) of the

Jharkhand Control of Crimes Act, 2002 whereby the externment order has

been passed for a period of three months against the petitioner directing

him to remove himself outside the District and not to enter in the District till

10.04.2021 and also to furnish a bond of Rs. 25,000/- with two sureties

under section 7(1) (b) of the Jharkhand Control of Crimes Act (hereinafter

referred to Act).

3. Mr. A.K. Kashyap, learned senior counsel for the petitioner

submitted that proposal of externment of the petitioner from the District-

East Singhbhum was sent by the Sr. Superintendent of Police (Respondent

No. 3) to the respondent no. 2, the District Magistrate, East Singhbhum, vide

Memo No. 735/DCB, dated 30.06.2020 under section 3 of the Jharkhand

Control of Crimes Act, 2002. The Dy. Superintendent of Police had sent a

recommendation to the Sr. Superintendent of Police vide Memo No. 758/HQ

dated 14.06.2020 by giving reference of three cases i.e. Mango P.S. Case

No. 330/2005, Mango P.S. Case No. 213/2009 and Mango P.S. Case No.

27/2010 and some Sanhas. He submitted that on the ground of those

cases, externment order has been passed. He further submitted that in all

three cases, petitioner has been acquitted by the learned Trial Court.

According to him Sanhas recorded by the police is vague and do not show

commission of any cognizable offence. He submitted that on receipt of the

proposal the respondent no. 2 -District Magistrate has issued notice to the

petitioner on 27.10.2020 under section 3 (3) (a) of the Jharkhand Control of

Crimes Act, 2002. The said notice is annexed as Annexure-1 to the petition.

He submitted that the petitioner appeared before the District Magistrate and

filed show-cause on 24.11.2020 and has explained his innocence relating to

the cases. He submitted that the petitioner has stated before the authority

concerned that he has been acquitted from the cases mentioned in the First

Information Report. It was disclosed by the petitioner that there is no

movement or act committed by him which had caused a harm, danger or

harm to any person or any property. By referring to supplementary affidavit,

learned counsel for the petitioner submitted that during pendency of this

petition the externment of the petitioner has been extended twice. Firstly it

was extended from 11.04.2021 to 10.07.2021 and secondly it was extended

from 11.07.2021 to 10.10.2021. He assailed the impugned order on the

ground that in view of section 2(d) of the Act, criteria prescribed therein is

required to be fulfilled. He submitted that none of the criteria prescribed in

section 2(d) of the Act in the case of the petitioner has been fulfilled and in

that view of the matter impugned order is bad in law.

4. Learned senior counsel for the petitioner referred to section 3 of

the Act and submitted that District Magistrate was required to pass order

wherein conditions mentioned under section 3(1)(b) is fulfilled. He

submitted that these conditions are not disclosed in the case of the

petitioner and thus the impugned order is bad in law. Referring Rule-11 of

the Bihar Control of Crimes Rules, 1978 (hereinafter referred to Rules), he

submitted that power is there to the Magistrate to extend externment order

on the condition precedent therein. He submitted that there was no fresh

material and nothing concrete on the conduct of the petitioner and inspite

of that externment order has been passed.

5. Mr. A. K. Kashyap, learned senior counsel for the petitioner

relied on judgment in the case of "Anant Sakharam Raut Vs. State of

Maharashtra & Another" reported in (1986) 4 SCC 771 wherein para 5

& 8 the Hon'ble Supreme Court has held as under:-

"5. We do not think it necessary to go into all the grounds urged before us by the petitioner's counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner's counsel is that the detaining authority was not made aware at the time the detention order was made that the detenu had moved applications for bail in the three pending cases and that he was enlarged on bail on January 13, 1986, January 14, 1986 and January 15, 1985. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an undertrial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention. ..................................................................................................................

8. We hold that there was clear non-application of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith. The appeal and the writ petition are allowed without any order as to costs."

6. Relying on the aforesaid judgment, learned senior counsel for

the petitioner submitted that material disclosed in the case of the petitioner

is similar in nature and thus this judgment is helping the petitioner.

7. Learned senior counsel for the petitioner further relied on

judgment in the case of "Ram Niwas Yadav @ Pagla Yadav" Vs. The State

of Jharkhand order dated 14.02.2011 passed in ( W.P. (H.B.) (Cr.) No.

495 of 2010 and submitted that in that case preventive detention order has been

quashed by this Court.

8. Learned senior counsel for the petitioner further relied on judgment in

the case of "Bouwa Singh @ Babua Singh Vs. State of Bihar" reported in

1995 (2) PLJR 142 (D.B.) wherein para 4 it has been held as under:-

"4 From a plain reading of the aforesaid provisions, it is manifest that for initiation of a proceeding under Section 3 of the Act, the requirement is that the person must be an anti-social element as enumerated in Section 3(I)(a) of the Act and also satisfies the other requirements, which have been enumerated in Section 3(l)(b)(i),(ii) of the Act. Anti-social element has been defined in Section 2(d) of the Act. Section 2(d)(i) of the Act says that anti-social element means 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 offence punishable under Chapter XVI and XVII of the Indian Penal Code. In Section 2(d) of the Act, the other ingredients of anti-social elements have also been enumerated in sub-clauses (ii) to (v) thereof, but there is nothing in the notice (Annexure-2) to show that the case in hand is covered under the provisions of Section 2(d)(ii) to (v) of the Act. It is pertinent to mention herein that Section 3(i)(a) of the Act is not an independent clause as at the end of the word and has been mentioned. The language of Section 3 is in unambiguous term and hence there is no scope of confusion. For initiation of a proceeding, the first requirement is that a man must be an anti-social element and thereafter it must fulfil the other requirements as enumerated in Section 3(i)(b)(i) and (ii) of the Act. On a single instance of the occurrence, a man cannot be branded as an anti social element in view of the provisions contained in Section 2(d)(i) of the Act, and if a man cannot be branded on a single instance of the occurrence as an anti- social element, a proceeding under Section 3 of the Act cannot be ink ted. The view expressed, as aforesaid, is also supported by a Division Bench decision in Naresh Singh V/s. The State of Bihar, 1980 BLJR 164. In the instant case only on a single instance of the occurrence, the proceeding under Section 3 of the Act has been initiated and hence in view of the discussions made above it cannot be held to be legal"

9. Relying on the aforesaid judgment, learned senior counsel for

the petitioner submitted that Section 3 and 2(d) of the Act was considered

by the Hon'ble Patna High Court and it has been held that order passed in

absence of ingredients of those sections cannot be said to be legal. On these

grounds, he submitted that this writ petition is fit to be allowed.

10. Per contra, Mr. Kaushik Sarkhel, learned counsel for the

respondent-State submitted that the District Magistrate has rightly invoked

section 3 by which he has got power to issue such order. He submitted that

earlier externment order has been passed for three months from 11.01.2021

till 10.04.2021 and later on the period has been extended from 11.04.2021

to 10.07.2021 and again extended from 11.07.2021 to 10.10.2021. He

submitted that during this externment order, it has been found that

petitioner's gang members have restrained themselves in committing crime

feeling demoralized. There has been decline in their criminal activities. The

externment period has been extended time to time since it was

apprehended that his return to this District will increase the crime graph

which will adversely affect public order and tranquility. He further submitted

that apart from earlier case one Mango P.S. Case No. 287 of 2019 under

section 188 of the I.P.C. and under section 25 of Jharkhand Control of

Crimes Act, 2002, the petitioner has been chargesheeted. The petitioner was

found residing in the district inspite of being externed. According to him,

Sanhas are also there against the petitioner based on substantial evidence.

He submitted that before passing order, the petitioner was noticed and

thereafter, learned District Magistrate has passed order. By way of referring

Section 2(d) of the Act, he submitted that the case of the petitioner is fully

covered in view of ingredients made therein.

11. Learned counsel for the respondent-State relied on judgment in

the case of 'Vijay Narain Singh Vs. State of Bihar & Others" reported in

(1984) 3 SCC 14 wherein paras 8, 9, 10, 11, 12, 13 and 18 the Hon'ble

Supreme Court has held as under:-

" 8. Inasmuch as the District Magistrate has chosen to take recourse to Section 12(2) of the Act which is designed to make special provisions for control and suppression of anti- social elements with a view to maintenance of public order, the question at once arises: Whether the petitioner answers the description of an "anti-social element" as defined in Section 2(d) of the Act. "Anti-social element" as defined in Section 2(d) means--

"2(d) 'Anti-social element' means a person who is--

(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; 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 of 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."

9. There is no reasonable doubt that on the facts set out in the grounds of detention the petitioner answers the description of an anti-social element; but the suggestion is that he is not to be treated as one under Section 12(2) of the Act because the definition of "anti-social element" in Section 2(d) of the Act is too narrow to include it. The word "habitually" connotes some degree of frequency and continuity. "Habitually" requires a continuance and permanence of some tendency, something that has developed into a propensity, that is, present from day- to-day; Stroud's Judicial Dictionary, Fourth Edn., Vol. 2, p. 1204.

10. My learned brother Venkataramiah, J. is inclined to give a restricted meaning to the word "habitually" as denoting "repetitive" and he is of the view that no order of detention under Section 12(2) of the Act could be made on the basis of a "single instance", as a single act cannot be said to be forming the habit of the person. That is to say, the act complained of must be repeated more than once and be inherent in his nature. Further, he is inclined to think that action under Section 12(2) of the Act can only be taken in respect of persons against whom there are verdicts of guilt after the conclusion of trials. According to him, merely on the basis of institution of criminal cases a person cannot be labelled as an anti-social element. I find considerable difficulty in subscribing to either of his views.

11. According to its ordinary meaning, the word "habitual" as given in Shorter Oxford English Dictionary, Vol. 1, p. 910 is: "A. adj. (1) Belonging to the habit or inward disposition; inherent or latent in the mental constitution; (2) of the nature of a habit; fixed by habit; constantly repeated, customary.

B. A habitual criminal, drunkard, etc."

12. A person is a habitual criminal who by force of habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime. It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to the society in general. In simple language, the word "habitually" means "by force of habit". The Act appears to be based on Prevention of Crime Act, 1908 (c-59). By Prevention of Crime Act, as amended by the Indictments Act, 1915, a person after three previous convictions, after attaining sixteen years of age could, with the consent of the Director of Public Prosecutions, in certain cases, be charged with being a habitual criminal and, if the charge was established, he could, in addition to a punishment of penal servitude, in respect of crime for which he has been so convicted, receive a further sentence of not less than five years or more than ten years, called a sentence of preventive detention. Upon this question of a man's leading persistently a dishonest or criminal life, where there has been a considerable lapse of time between a man's last conviction and the commission of the offence which forms the subject of the primary indictment at the trial, notice containing particulars must have been given and proved of the facts upon which the prosecution relied for saying that the offender is leading such a life. If, on the other hand, the time between a man's discharge from prison and the commission of the next offence is a very short one, it may be open to the jury to find that he is leading persistently a dishonest or criminal life by reason of the mere fact that he has again committed an offence so soon after his discharge from a previous one, provided the notice has stated this as a ground. This essentially is a question of fact. The scheme under the English Act is entirely different where a person has to be charged at the trial of being a habitual criminal. Therefore, the considerations which govern the matter do not arise in case of preventive detention under Section 12(2) of the Act.

13. I find it difficult to share the view that whereas under sub- clause (iii) or sub-clause (v) of Section 2(d) 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), sub-clause (ii) or sub-clause (iv) because of the word "habitually" there should be a repetition of same class of acts or omissions referred to in sub-clause (i), sub-clause (ii) or in sub- clause (iv) by the person concerned to treat him as an "anti- social element".

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18. Turning to the merits of the contentions raised, I am quite satisfied that the impugned order is not vitiated because some of the grounds were non-existent or irrelevant or were too remote in point of time to furnish a rational nexus for the subjective satisfaction of the detaining authority. The two decisions of Shibban Lal Saksena3 and Kamlakar Prasad Chaturvedi1 are clearly distinguishable on facts. In Shibban Lal Saksena case3, the detenu had been supplied with two grounds for his detention. Subsequently, the detaining authority revoked one of the grounds communicated to him earlier. It was contended on his behalf that in such circumstances the detention was illegal and he was entitled to be released. The contention on behalf of the State was that although one of the

grounds upon which the original order of detention was based was unsubstantial or non-existent and could not be made a ground of detention, nonetheless the remaining ground was sufficient to sustain the detention order. The Court rejected this contention and held that it was stated that the sufficiency of the grounds upon which the subjective satisfaction of the detaining authority is based, provided they have a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in the Court except on the ground of mala fides. It was observed:

"A Court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under Section 7 of the Act. What has happened, however, in this case is somewhat peculiar. The Government itself, in its communication dated March 13, 1953, has plainly admitted that one of the grounds upon which the original order of detention was passed is unsubstantial or non-existent and cannot be made a ground of detention. The question is, whether in such circumstances the original order made under Section 3(1)(a) of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative."

The question was whether in such circumstances the original order made under Section 3(1)(a) of the Preventive Detention Act, 1950 could be allowed to stand. The Court laid down that if one of the two grounds was irrelevant for the purpose of the Act or was wholly illusory, this would vitiate the 'detention order as a whole. That is a principle well-settled since the well- known case of Keshav Talpade v. The King Emperor 5. The Court reiterated the principle and said that it was not for the Court to examine whether the two grounds upon which the detention order was based were good or bad nor could it attempt to assess in what manner and to what extent each of the grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was based. It then added: "To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole".

12. On these grounds, learned counsel for the State submitted that

there is no merit in the writ petition and the same is fit to be dismissed.

13. In the light of the above submissions of the learned counsel for

the parties, the Court has examined materials on record.

14. The petitioner was acquitted in Mango P.S. Case No. 330/2005,

Mango P.S. Case No. 213/2009 and Mango P.S. Case No. 27/2010 by

judgment annexed with Annexure 2, 2/1 and 2/2 respectively to the writ

petition. There are Sanhas against the petitioner which suggest that the

petitioner was involved in criminal activities. Anti-social elements in Clause-

(d) of Section 2 of the Act has been defined in which there are 5 sub

clauses. Sub-clause (ii) provides that habitually commits or abets the

commission of offences and sub-clause (iii) provides that who by words or

otherwise promotes or attempts to promote on grounds of religion, race,

language, caste or community or to other grounds whatsoever feelings of

enmity or hatred between different religions, racial or language groups or

castes or communities. This discernment order is covering with the these

sub-clauses. Sanhas and Mango P.S. Case No. 287 of 2019 suggest that the

petitioner is habitual offender and habitual offences comes within the

meaning of anti-social element under section 2 (d) of the Act However, in

terms of that section merely registration of police cases making a person an

accused is not enough. There is no dispute with regard to satisfaction of the

learned District Magistrate for applying section 3. He passed order on the

grounds that there is allegation against the petitioner for creating danger

which meant of any acts of particular person. Section 5 of the Act read with

Rule 11 of the Rules provide the power to the District Magistrate for passing

an order of extension of the period of specified in the order made under

section 3. In the said Act order passed under sections 3, 4 and 5 are

appealable to commissioner. The limitation for filing appeal is within 15

days from the date of order. Commissioner has powers to confirm order,

modify order and to set aside order. Such power has been provided to the

commissioner under section 6 of the Act which is quoted herein below:-

"6. Appeal-(1) Any person aggrieved by an order made under sections 3, 4 or 5 may appeal to the Commissioner within fifteen days from the date of such order.

(2) The Commissioner may either confirm the order with or without modification or set it aside and may pending

disposal of the appeal , stay the operation of the order subject to such terms, if any as he thinks fit."

15. The Court finds that there is alternative remedy available to the

petitioner. The petitioner without availing alternative remedy has invoked

jurisdiction of the Court under Article 226 of the Constitution of India.

16. The Commissioner has been given wider power of appealable

jurisdiction against the order passed under section 3. In this regard

reference may be made to the judgment in the case of "Sakiri Vasu v. State

of U.P." reported in (2008) 2 SCC 409 wherein para 28 the Hon'ble Supreme

Court has held as under:-

"28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere."

17. There is no allegation of malice against the District Magistrate.

Reference may be made to the judgment in the case of " Lt. Governor,

NCT and others Vs. Ved Prakash @ Vedu" reported in (2006) 5 SCC

228 wherein para 21 the Hon'ble Supreme Court has held as under:-

"21. An order of externment must always be restricted to the area of illegal activities of the externee. The executive order must demonstrate due application of mind on the part of the statutory authority. When the validity of an order is questioned, what would be seen is the material on which the satisfaction of the authority is based. The satisfaction of the authority although primarily subjective, should be based on objectivity. But sufficiency of material as such may not be gone into by the writ court unless it is found that in passing the impugned order the authority has failed to take into consideration the relevant facts or had based its decision on irrelevant factors not germane therefor. Mere possibility of another view may not be a ground for interference. It is not a case where malice was alleged against the third appellant."

18. If some materials are there that is sufficient for passing order of

externment. Reference may be made to the judgment in the case of " State

of NCT of Delhi & Another Vs. Sanjeev @ Bitoo" reported in (2005) 5

SCC 181 wherein para 24 the Hon'ble Supreme Court has held as under:-

"24. It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary the order directing externment should show existence of some material warranting an order of externment. While dealing with the question mere repetition of the provision would not be sufficient. Reference is to be made to some material on record and if that is done, the requirements of law are met. As noted above, it is not the sufficiency of material but the existence of material which is sine qua non."

19. In view of the alternative remedy, the Court is not inclined to

exercise its power under Article 226 of the Constitution of India. The

petitioner is having the efficacious remedy under section 6 of the Act.

Accordingly, this writ petition is dismissed. I.A., if any, stands disposed of.

Petitioner, if so advised, may avail the said remedy available under the Act

and on such petition, if any, the pendency of this petition for the purpose of

limitation shall be counted.

(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi Dated 26th of October, 2021 Satyarthi/- N.A,F.R