Nirendra Gope vs State Of Jharkhand Through ...
2022 Latest Caselaw 3296 Jhar

                             -1-             W.P.(Cr.) No. 197 of 2022


IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(Cr.) No. 197 of 2022
Nirendra Gope, aged about 58 years, son of Late Nag Narayan
Yadav, resident of Village- Gari, Hanuman Nagar, P.O.-Sadar, P.S.-
Sadar, District-Ranchi, Jharkhand.
                                                   ..... ... Petitioner
                          Versus
1.State of Jharkhand through Director General of Police,
  Ranchi, having its office at Dhurwa, P.O.-Dhurwa,
  P.S.-Jagannathpur, District-Ranchi.
2.The Divisional Commissioner,
  South Chotanagpur Division, Ranchi,
  P.O.-G.P.O., P.S.-Kotwali, District-Ranchi.
3.The Deputy Commissioner-cum-District Magistrate,
  Ranchi, P.O.-G.P.O., P.S.-Kotwali, District-Ranchi.
4.Senior Superintendent of Police, Ranchi,
  P.O.-G.P.O., P.S.-Kotwali, District-Ranchi.
5.Deputy Superintendent of Police, Sadar Ranchi,
  P.O.-G.P.O., P.S.-Kotwali, District-Ranchi.
                                             ...... ... Respondents.
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Jay Shankar Tiwary, Advocate. For the State : Mr. Devesh Krishna, S.C. (Mines)-III.

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C.A.V. on 05.08.2022 Pronounced on 22.08.2022.

Heard Mr. Jay Shankar Tiwary, learned counsel for the petitioner and Mr. Devesh Krishna, learned S.C. (Mines)-III for the State.

2. This petition has been filed for quashing of the order dated 21.04.2022, passed by the respondent No. 2 (Divisional Commissioner, South Chotanagpur Division, Ranchi) in C.C.A. Appeal No. 15 of 2022, whereby, the appeal preferred against the order dated 28.02.2022 of respondent No. 3 (Deputy Commissioner-cum-District Magistrate, Ranchi) in C.C.A. Case No. 01 of 2021-22, wherein an externment order for a period of six months has been passed against the petitioner has been dismissed. Further prayer has been made to quash the order dated 28.02.2022, passed by the respondent No. 3 (Deputy Commissioner-cum-District Magistrate, Ranchi) in C.C.A. Case No. 01 of 2021-22.

3. Mr. Jay Shankar Tiwary, learned counsel appearing for the petitioner has submitted that the Deputy Superintendent of Police, Sadar, Ranchi, vide letter dated 25.10.2021 informed about the criminal cases registered against the petitioner and made recommendation to the Senior Superintendent of Police, Ranchi for externment of petitioner from the

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District of Ranchi, in terms of Jharkhand Crime Control Act, 2002 (hereinafter referred to as the Act), as the petitioner is threat to the society. He Submitted that the Senior Superintendent of Police, Ranchi, vide letter dated 01.11.2021 made a recommendation to the Deputy Commissioner- cum-District Magistrate, Ranchi to take appropriate action for externment of the petitioner, in terms of Section 3(A)(B)(i)(ii) of the Act. He further submitted that pursuant to the said letter, the Deputy Commissioner-cum- District Magistrate, Ranchi, vide letter dated 18.11.2021 directed the petitioner to appear on 10.12.2021 before the concerned authority and file a show cause, as to why not an appropriate order be passed in terms of Section 3(A)(B)(i)(ii) of the Act. He further submitted that the petitioner appeared before the Court of Deputy Commissioner-cum-District Magistrate, Ranchi and filed his detailed show cause, wherein he has disclosed that the petitioner is not a notorious person or no case has been filed against the petitioner, which reflects that the petitioner is harmful or dangerous for the society. Learned counsel further submits that Section 3 of the Act provides for externment of anti-social element and that order can be passed if the conditions prescribed therein, is fulfilled. He further submitted that the petitioner is not a criminal, rather he is a land broker and the entire letter is written on the basis of presumption. He submitted that Sadar P.S. Case No. 107 of 2014 has been amicably settled and disposed of in Lok Adalat by the learned court of Judicial Magistrate, 1st Class, Ranchi. He further submitted that another case, being Sadar P.S. Case No. 15 of 2021, arising out of a development agreement and the case has been lodged under Sections 420, 467, 468 and 471 of the Indian Penal Code, wherein the petitioner returned the entire amount to the informant and in the light of settlement arrived at before the Mediation Centre, Ranchi, the petitioner has been granted anticipatory bail by the learned Judicial Commissioner, Ranchi in A.B.P. No. 431 of 2021. He further submitted that the third antecedent was mentioned as Sadar P.S. Case No. 101 of 2021 and the same has been disposed of in view of the fact that the informant has subsequently filed a petition before the learned court of Additional Judicial Commissioner-XX, Ranchi, wherein it has been accepted that by misrepresentation and on the wrong advice of some scrupulous persons, she lodged the FIR against the petitioner and on the basis of that anticipatory bail was granted to the petitioner. He also submitted that fourth antecedent of the petitioner is Khelgaon P.S. case No. 90 of 2020, which was lodged by one Pawan Kumar Gope against the cousin brother of the petitioner, wherein the name of the

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petitioner was also mentioned, in which, only the petitioner has been granted anticipatory bail. Learned counsel further submitted that the fifth case is Khelgaon P.S. Case No. 115 of 2020, lodged by the Circle Officer, Bargaon Anchal against the petitioner, on the allegation that the petitioner in connivance with NIC, entered the name of his grandfather in Online Register-II and Online Khatiyan, but the informant did not show or file any chit of paper or document in the FIR and even nothing was found against the petitioner and the petitioner was granted anticipatory bail.

4. By referring the aforesaid cases, learned counsel for the petitioner has submitted that the externment order is bad in law, as no cogent reason has been assigned in passing that order. He submitted that the learned Deputy Commissioner-cum-District Magistrate, Ranchi has erroneously passed the order of externment and the petitioner preferred an appeal, wherein also the learned Divisional Commissioner, Ranchi has also affirmed the order of the Deputy Commissioner-cum-District Magistrate, Ranchi by dismissing the appeal, filed by the petitioner. He further submitted that none of the ingredients of Section 3 of the Act is made out and only on the basis of presumption and assumption, the cases have been lodged against the petitioner. Learned counsel further submitted that the right of the petitioner guaranteed under Articles 19(1)(d) and 19(1)(e) of the Constitution of India has been violated.

5. Learned counsel has relied in the case of Rahmat Khan @ Rammu Bismillah Versus Deputy Commissioner of Police, reported in (2021) 8 SCC 362, wherein the Hon'ble Supreme Court in paras-26, 30, 31 and 32 held as follows:-

"26. In Gazi Saduddin v. State of Maharashtra reported in (2003) 7 SCC 330, also cited by Mr. Patil, this Court held that in passing an order of externment, the authority passing the order must be satisfied of the expediency of passing the order. If the satisfaction recorded by the authority is objective and is based on material on record then the Court would not interfere with the order passed by the authority, only because another view can possibly be taken. However, the satisfaction of the authority can be interfered with if the satisfaction recorded is demonstrably perverse, based on no evidence, misleading evidence or no reasonable person could have, on the basis of the materials on record, been satisfied of the expediency/necessity of passing an order of externment.

30. From the judgments cited on behalf of the State, it is patently clear that Sections 56 to 59 of the Act

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are intended to prevent lawlessness and deal with a class of lawless elements in society who cannot be brought to book by established methods of penal action, upon judicial trial.

31. An externment order may sometimes be necessary for maintenance of law and order.

However the drastic action of externment should only be taken in exceptional cases, to maintain law and order in a locality and/or prevent breach of public tranquility and peace. In this case, it is patently clear that the impugned externment order was an outcome of the complaints lodged by the Appellant against government officials, some Madrasas and persons connected with such Madarasas who later lodged FIRs against the Appellant. The FIRs are clearly vindictive, retaliatory and aimed to teach a lesson to the Appellant and stifle his voice.

32. In the facts and circumstances of this case, the notices of externment and the impugned externment order based on Crime Nos 344 of 2017, 352 of 2017 registered with Nagpuri Gate Police Station and Crime No.501 of 2017 registered with the Kotwali Police Station in Amravati City are patently arbitrary, mala fide, unsustainable in law and liable to be set aside."

6. He further relied in the case of Shaik Nazneen Versus The State of Telangana & Ors. in Criminal Appeal No. 908 of 2022 [arising out of SLP (Crl.) No. 4260 of 2022], wherein the Hon'ble Supreme Court in para- 15 held as follows:-

"15. Having heard the learned counsel for the petitioner and learned counsel for the State of Telangana, we are of the considered view that in the present case invocation of the Preventive Detention Law against the petitioner was not justified. The powers to be exercised under the Preventive Detention Law are exceptional powers which have been given to the Government for its exercise in an exceptional situation as it strikes hard on the freedom and liberty of an individual, and thus cannot be exercised in a routine manner. The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions.

In the case of Ram Manohar Lohia Vs. State of Bihar, it has been held as under:

51. "We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad

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spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order" take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

52. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules."

7. On these grounds, learned counsel for the petitioner submitted that both the orders are bad in law and this Court may quash the entire proceedings including the impugned orders.

8. Per contra, Mr. Devesh Krishna, learned S.C. (Mines)-III,

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appearing for the respondent-State submitted that considering the illegal activities of the petitioner, the Deputy Superintendent of Police, Sadar, Ranchi has recommended to the Senior Superintendent of Police, Ranchi for externment of the petitioner and on the basis of the recommendations of the Deputy Superintendent of Police, Sadar, Ranchi, the Senior Superintendent of Police, Ranchi has requested the Deputy Commissioner, Ranchi for passing the order for externment of the petitioner, in terms of Section 3(A)(B)(i)(ii) of the Act. He submitted that the Deputy Commissioner, Ranchi directed the petitioner to appear on 10.12.2021 and show cause was asked from the petitioner. He further submitted that the petitioner has appeared and filed his detailed show cause and the Deputy Commissioner after considering the said show cause, has passed the reasoned order. He further submitted that there is no illegality in the impugned order. He further submitted that the petitioner, thereafter, preferred an appeal under Section 6 of the Act, which was numbered as CCA Appeal No. 15 of 2022 and the Divisional Commissioner, South Chotanagpur Division, Ranchi, has also examined the aforesaid facts and order of the Deputy Commissioner and thereafter dismissed the appeal. He submitted that the Senior Superintendent of Police, Ranchi has made a recommendation to the Deputy Commissioner-cum-District Magistrate, Ranchi stating therein that the petitioner is a land broker and woks in connivance with the veteran criminals in grabbing the land of Scheduled Tribes and others and threatens them through his criminal associates. He further submitted that the petitioner intentionally raises dispute in relation to the lands, which have already been sold and for resolving the same, make threatening. He further submitted that the petitioner has been found to be involved in attack, which is fatal for the society and he is also involved in threatening the witnesses and due to such activities, the public in general are living in a state of fear, as no one comes forward against him. He further submitted that the petitioner is involved in selling the gair-majarua lands after manipulating the documents relating to those lands.

9. In view of the above, learned counsel for the State submitted that the entire procedure has been followed and thereafter the order of externment has been passed and the same has been affirmed by the learned appellate authority. He submitted that there is no illegality in both the impugned orders. By way of referring to Section 2(d)(i), the cases alleged against the petitioner coming under Chapter-XVI and XVII of the Indian Penal Code, are coming under the Act. He further submitted that in view of

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Section 3(b)(ii), the act of the petitioner is coming under the ingredients of this Section. On these grounds, learned counsel for the State submitted that there is no merit in this petition and the same is fit to be dismissed.

10. In view of the submissions of learned counsel for the parties, the Court has gone through the materials available on record and find that the Deputy Superintendent of Police, Sadar, Ranchi, vide letter dated 25.10.2021 informed about the criminal cases, registered against the petitioner and made recommendation to the Senior Superintendent of Police, Ranchi for externment of petitioner from the District of Ranchi in terms of Act. Looking into the letter dated 25.10.2021 of the Deputy Superintendent of Police, Sadar, Ranchi, it appears that following cases against the petitioner have been filed, which are as under:-

(i) Sadar P.S. Case No. 107 of 2014 for the offence under Sections 406/420/34 of the Indian Penal Code.

(ii) Sadar P.S. Case No. 15 of 2021 for the offence under Sections 420/467/468/471 of the Indian Penal Code.

(iii) Sadar P.S. Case No. 101 of 2021 for the offence under Sections 406/420/467/468/471/34 of the Indian Penal Code.

(iv) Khelgaon P.S. Case No. 90 of 2020 for the offence under Sections 147/323/341/307/354/387/120(B) of the Indian Penal Code.

(v) Khelgaon P.S. Case No. 115 of 2020 for the offence under Sections 419/420/467/468/471/120(B) of the Indian Penal Code.

11. The above cases clearly suggests that the petitioner is involved in the cases, relating to lands and he also used to threaten the witnesses and the entire cases suggest that the petitioner is a land mafia. Considering these aspect of the matter, the Senior Superintendent of Police, Ranchi, vide letter dated 01.11.2021 requested the Deputy Commissioner-cum-District Magistrate, Ranchi for externment of the petitioner. In view of such request / recommendation of the Senior Superintendent of Police, Ranchi, the Deputy Commissioner-cum-District Magistrate, Ranchi called upon the petitioner to file the reply to the show cause of the Deputy Commissioner, Ranchi. The petitioner appeared before the Deputy Commissioner, Ranchi and submitted his reply to the show cause, which was not found to the satisfaction of the Deputy Commissioner, Ranchi and thereafter passed the order dated 28.02.2022, by which, the petitioner was directed to keep

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himself out of the district of Ranchi for six months commencing from 04.03.2022 till 03.09.2022. By the said order, the petitioner was also directed to furnish bond till 10.03.2022, under Section 7(1)(b) of the Act of Rs. 10,000/- (Rupees Ten Thousand) with two sureties with the undertaking therein to keep himself out of the district of Ranchi for six months from 04.03.2022 till 03.09.2022 to maintain good behavior in the society, failing which, appropriate action under Section 7(2)(b) of the Act shall be taken against him.

12. However, the said order was challenged in Appeal before the Divisional Commissioner, South Chotanagpur Division, Ranchi in C.C.A. Appeal No. 15 of 2022, wherein the Divisional Commissioner after considering the order of the Deputy Commissioner and the cases, filed against the petitioner, dismissed the appeal and affirmed the order of the Deputy Commissioner. Admittedly, the petitioner is involved in land cases and subsequently he got the cases closed either on compromise or lack of evidence, which itself suggests that the allegation against the petitioner cannot be ruled out.

13. Section 2(d)(i) of the Act speaks as under:-

(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

14. Looking into the provision of Section 2(d)(1) of the Act, it is crystal clear that the offence, punishable under Chapter-XVI and XVII of the Indian Penal Code are also coming under the definition of the Act. Under Chapter-XVI of the Indian Penal Code, Sections 299 to 377 are coming and in Chapter-XVII of the Indian Penal Code, Sections 378 to 462 are coming. Thus, almost all the Sections, on which, the petitioner has been charged in the cases are coming under the definition of the Act.

15. Sections 3(b)(ii) of the Act speaks as under:-

"(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;"

16. Thus, the cases, filed against the petitioner are coming under Chapters-XVI and XVII of the Indian Penal Code.

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17. The case, relied by the learned counsel for the petitioner in the case of Rahmat Khan @ Rammu Bismillah (Supra), the fact of that case was that the impugned externment was the outcome of complaint, lodged by the appellant/petitioner of that case against the Government official, some Madarsas and person connected with such Madarsas, who later lodged FIRs against the appellant. The FIRs are clearly vindictive, retaliatory and aimed to teach a lesson to the appellant and stifle his voice and that's why externment punishment was set aside by the Hon'ble Supreme Court. In the background of these facts, the said order of externment was passed and the facts of the case in hand are that there are allegations against the petitioner of grabbing the lands of SC/ST as well as threatening the witnesses, which is a serious crime upon the society.

18. In the case of Shaik Nazneen (Supra), the husband of the petitioner of that case was a gold snatcher. The Preventive Detention Law has been discussed in para-5 of the said judgment, in which, goonda has been defined under Section 2(g) of the Act and the petitioner of that case was involved in four cases of chain snatching and the case was filed by the wife of the petitioner of that case. The detention order was passed in the light of that, however the Hon'ble Supreme Court has set aside the said detention order, as such that order is not helping the petitioner.

19. The entire community is aggrieved if the economic offenders, who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.

20. In deciding the cases for externment, passed under the Act only thing is required to be looked into by the Court ,as to whether the exercise of that power is reasonable or not. The order of exterment must always be restricted to the area of illegal activities of the externee. In the case of Lt. Governor, NCT & Ors. Versus Ved Prakash @ Vedu, reported in (2006) 5 SCC 228, the criteria of passing such order has been considered at para-18, which is quoted hereinbelow:-

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"18. The law operating in the field is no longer res integra which may hereinafter be noticed:

(i) In a proceeding under the Act all statutory and constitutional requirements must be fulfilled.

(ii) An externment proceeding having regard to the purport and object thereof, cannot be equated with a preventive detention matter.

(iii) Before an order of externment is passed, the proceedee is entitled to an opportunity of hearing.

(iv) The test of procedural safeguards contained in the Act must be scrupulously complied with.

(v) The satisfaction of the authority must be based on objective criteria.

(vi) A proceeding under Section 47 of the Delhi Police Act stands on a different footing than the ordinary proceeding in the sense that whereas in the latter the details of the evidence are required to be disclosed and, thus, giving an opportunity to the proceedee to deal with them, in the former, general allegations would serve the purpose."

21. In view of the above, it appears that in passing the order by the Deputy Commissioner-cum-District Magistrate, Ranchi as well as the Appellate Court, these guidelines have been taken care of. The orders are satisfying these guidelines and primarily the satisfaction of the authority is subjective, which is based on the objectivity. The rights under Articles 19 and 21 of the Constitution of India are provided to the citizens. While interpreting the provisions of statute like present one and in view of the precedents operating in the field, the court is required to examine the records itself so as to satisfy the conscience.

22. As a cumulative effect of the above discussions, reasons and analysis, no case of interference is made out. Accordingly, this petition is dismissed. Pending interlocutory application, if any, stands dismissed.

(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi.

Dated the 22nd August, 2022.

NAFR/ Amitesh/-