Nishi Pandey @ Nishee Pandey vs The State Of Jharkhand
2023 Latest Caselaw 3406 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          (Criminal Writ Jurisdiction)
                      W.P. (Cr.) (D.B.) No. 542 of 2023

Nishi Pandey @ Nishee Pandey, aged about 37 years, W/o Late Raj Kishore
Pandey, Resident of Village - Patratu Basti, P.O. & P.S. - Patratu, District -
Ramgarh, Jharkhand                                          ..... Petitioner
                                      Versus
1. The State of Jharkhand
2. District Magistrate Cum Deputy Commissioner, Ramgarh having its office
   at Ramgarh, P.O. & P.S. Ramgarh, District Ramgarh
3. Superintendent of Police, Ramgarh having its office at Ramgarh, P.O. &
   P.S. Ramgarh, District Ramgarh
4. Sub Divisional Police Officer, Patratu, having its office at Patratu, P.O. &
   P.S. Patratu, District Ramgarh                          ..... Respondents
                                ---------------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
        HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Petitioner              : Mr. Jitendra S. Singh, Advocate
                                  Mr. Vishal Kumar Trivedi, Advocate
                                  Mr. Randhir Kumar, Advocate
                                  Mr. Jai Mohan Mishra, Advocate
For the Respondents             : Mr. Ashok Kumar Yadav, Sr. SC-I
                                ---------------

                                                    Order No. 05
                                             Dated: 8th September 2023

Per, Shree Chandrashekhar, J.

This writ petition challenges the order dated 21st July 2023 passed in CCA Case No. 22 of 2023.

2. The order dated 21st July 2023 passed under section 3(A)(B)(i)(ii) of the Jharkhand Crimes Control Act, 2002 (in short 'Crimes Control Act') requires the petitioner to mark her attendance every day before the officer-in- charge of Patratu PS at 10:00 AM; with a further direction to surrender her licensed arm, if any, and not to keep any arm with her.

3. At the outset, we may indicate that there is no such provision in the Crimes Control Act as is mentioned in the impugned order dated 21 st July 2023 in exercise of which the said order has been passed and we would proceed to examine legality of the said order as if passed under section 3(1)(a)(b)(i)&(ii) of the Crimes Control Act - appears to be a typographical error which a negligent Deputy Commissioner has ignored or overlooked.

2 W.P. (Cr.) (D.B.) No. 542 of 2023

4. The order dated 21st July 2023 which has been passed for a duration of six months is challenged on the ground that it is beyond the powers under section 3 of the Crimes Control Act, arbitrary and illegal.

5. Mr. Jitendra S. Singh, the learned counsel for the petitioner would submit that the grounds on which the order dated 21st July 2023 has been passed against the petitioner do not confer jurisdiction upon the Deputy Commissioner and the satisfaction of the Deputy Commissioner is based on extraneous considerations not germane to passing an order under section 3(1)(a)(b)(i)&(ii) of the Crimes Control Act.

6. Section 3 of the Jharkhand Control of Crimes Act is quoted 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; 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.

(2) The person against whom an order under this section is proposed to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires and also of examining any other witnesses that he may wish to produce in support of his explanation, unless for reasons to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay. (3) The District Magistrate on being satisfied that the conditions specified in clauses (a) and (b) of sub-section (1) exist, may by order in writing-

(a) direct him to remove himself outside the district or part thereof, as the case may be, by such route, if any, and within such time as may be specified in the order and to resist from entering the district or the specified part thereof, until, the expiry of such period, not exceeding six months as may be specified in the order;

(b) (i) require such person to notify his movement, or to report himself, or to do both, in such manner, at such time and to such authority or person, as may be specified in the order;

(ii) prohibit or restrict possession or use by him of such article as may be specified in the order;

(iii) direct him otherwise to conduct himself in such manner as may be specified in the order;

until the expiry of such period, not exceeding six months, as may be specified in the order."

7. For passing an order under section 3 of the Crimes Control Act, this 3 W.P. (Cr.) (D.B.) No. 542 of 2023

must appear from the records that the person is an anti-social element. Sub-section (d) to section 2 of the Crimes Control Act reads as under:

"(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 of 1959."

8. As the allegations against the petitioner would refer, we are not concerned with other provisions except under clause (i) of section 2 (d). The expression 'habitually' has been explained by the Hon'ble Supreme Court in Vijay Narayan Singh v. State of Bihar reported in (1984) 3 SCC 14 to mean a thread of continuity stringing together several repetitive acts and not some isolated, individual and "dissimilar" acts. "Vijay Narayan Singh" is a case under the Bihar Crime Control Act, 1981 which has been adopted by the State of Jharkhand vide Notification No. 1019/2001-5511 dated 14th November 2002.

9. In "Vijay Narayan Singh" the Hon'ble Supreme Court has held as under:

"31. It is seen from Section 12 of the Act that it makes provision for the detention of an anti-social element. If a person is not an anti-social element, he cannot be detained under the Act. The detaining authority should, therefore, be satisfied that the person against whom an order is made under Section 12 of the Act is an anti-social element as defined in Section 2(d) of the Act. Sub-clauses (ii), (iii) and (v) of Section 2(d) of the Act which are not quite relevant for the purposes of this case may be omitted from consideration for the present. The two other sub-clauses which need to be examined closely are sub- clauses (i) and (iv) of Section 2(d). Under sub-clause (i) of Section 2(d) of the Act, 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 dealing with offences affecting the human body or Chapter XVII dealing with offences against property, of the Penal Code, 1860 is considered to be an anti-social element. Under sub-clause (iv) of Section 2(d) of the Act, a person who has been habitually passing indecent remarks to, or teasing women or girls, is an anti-social element. In both these sub- clauses, the word "habitually" is used. 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 4 W.P. (Cr.) (D.B.) No. 542 of 2023

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) and not in sub- clauses (iii) and (v) of Section 2(d). 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) 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 the Act now stands, 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 'antisocial element', in the case of sub-clause (i), sub-clause (ii) or sub-clause

(iv), there should be a repetition of acts or omissions of the same kind 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". 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) cannot, therefore, be characterised 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."

10. Mr. Jitendra S. Singh, the learned counsel for the petitioner refers to various provisions under the Crimes Control Act and the allegations in the aforementioned criminal cases to submit that without there being the foundational facts to confer jurisdiction under section 3(1)(a)(b)(i)&(ii) of the Crimes Control Act, the order dated 21st July 2023 has been passed against the petitioner. It is stated that except in Patratu P.S. Case No. 198 of 2019 in which a charge-sheet was laid on 01.02.2019 involving the petitioner in the said case, charge-sheets in other three criminal cases have been filed after a notice in Case No. 22 of 2023 was issued to her. It is submitted that in Patratu P.S. Case No. 142 of 2018 arms were recovered and suspects were named in the First Information Report but for the reasons best known to the prosecution, a charge-sheet has been laid under the provisions of the Arms Act only against the petitioner. It is further submitted that the allegation against the petitioner that she is a coordinator of the "Pandey Gang" which is active in the area is not supported by any material and, in fact, the husband of the petitioner died in the year 2014 and thereafter the petitioner involved herself in public cause.

11. On the other hand, Mr. Ashok Kumar Yadav, the learned Senior SC-I would refer to the stand of the State taken in the counter-affidavit dated 5 W.P. (Cr.) (D.B.) No. 542 of 2023

6th September 2023 to support the order dated 21st July 2023. The learned Senior SC-I contended that on the basis of local inputs and intelligence sharing the involvement of the petitioner in the incidents of threatening and intimidating businessmen, traders, contractors etc. has surfaced and such acts of the petitioner created fear and panic among the general people. The learned Senior SC-I has also taken to the statements made in the counter-affidavit to press hard upon the Court that the order dated 21 st July 2023 is based on the subjective satisfaction of the Deputy Commissioner and, therefore, this Court may not interfere with such an order.

12. On the basis of a report from the Superintendent of Police at Ramgarh through Memo No. 133/D.C.B. dated 28th March 2023, a proceeding vide Case No. 22 of 2023 captioned "State v. Nishi Pandey" was registered against the petitioner. In the aforesaid report dated 28th March 2023, the Superintendent of Police at Ramgarh referred a proposal whereunder it was recommended that the petitioner is required to mark her attendance every day at the police station. Pursuant to a notice issued to her, the petitioner appeared before the Deputy Commissioner and put up her written defence vide Annexure-2 to the present writ petition.

13. In the order dated 21st July 2023, the Deputy Commissioner-cum- District Magistrate at Ramgarh referred to four criminal cases in which complicity of the petitioner appeared during the investigation and now charge-sheet has been laid in all four cases against her. In view of the lodging of Patratu P.S. Case No. 76 of 2022 dated 04.05.2022, Patratu P.S. Case No. 142 of 2018 dated 14.05.2018, Patratu P.S. Case No. 328 of 2018 dated 31.10.2018 and Patratu (Bhurkunda) P.S. Case No. 198 of 2019 dated 28.07.2019, the Deputy Commissioner came to a conclusion that the petitioner who is the coordinator of "Pandey Gang" required to be restrained from her activities and to achieve this object an order under section 3(1)(a)(b)(i)&(ii) of the Crimes Control Act has been passed against her.

14. The provisions made under the preventive detention laws which directly impinge upon the right to life and liberty of a citizen must be construed strictly. The provisions under section 3 of the Crimes Control Act provide that the District Magistrate (in this case, the Deputy Commissioner) can pass an order of externment or any other order in the nature of requiring the person to notify his movement, prohibit or restrict possession or use of 6 W.P. (Cr.) (D.B.) No. 542 of 2023

such article which may be specified in the order or to direct him to conduct himself in the manner as may be specified in the order passed against him. In the first place, we need to indicate that the order dated 21st July 2023 has been passed for a maximum period of six months and no special reason has been recorded for passing of the said order for the maximum period at one go. Secondly, the provisions under clause (b) to sub-section (3) of section 3 of the Crimes Control Act indicate that the Deputy Commissioner has three options under clause (b); either (i) to require the person to notify his movement; or (ii) to prohibit or restrict possession of any article; or (iii) to direct him to conduct himself in a particular manner. The fact that an order under clause (a) to sub-section (3) of section 3 which requires a person to remove himself outside the District or a part thereof has not been passed against the petitioner is quite relevant in the sense that the Deputy Commissioner in passing the order dated 21st July 2023 seems to have accepted the position that the presence of the petitioner within the District of Ramgarh is not prejudicial to public order. The counter-affidavit dated 6th September 2023 refers to as many as six Station Diary Entries which according to the Deputy Commissioner have been lodged on the basis of local inputs and intelligence reports, but, these all have been lodged within a span of ten days starting from 12 th March 2023 to 21st March 2023. Mr. Jitendra S. Singh, the learned counsel for the petitioner would submit that it was the incident of a demonstration before the office of the Deputy Commissioner at Ramgarh which triggered the passing of the impugned order to wreck vengeance on the petitioner. The learned counsel submits that in the proceeding of A.B.A. No. 5005 of 2022, the petitioner has been granted the privilege under section 438 of the Code of Criminal Procedure in connection to Patratu P.S. Case No. 328 of 2018 and there is no allegation that she has not been complying with the conditions mentioned in the order dated 10th August 2022.

15. "Kharak Singh v. State of U.P. & Others" 1962 SCC OnLine SC 10 did not approve visiting of the police in the night at the house of the "history sheeter" but 6-Judges Constitution Bench of the Hon'ble Supreme Court held that right to privacy is not a facet of the Constitutional Rights. This judgment in "Kharak Singh" was not approved by a 9-Judges Bench in "Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors." (2017) 10 SCC 1 wherein the Hon'ble Supreme Court held that right to privacy is implicit in 7 W.P. (Cr.) (D.B.) No. 542 of 2023

the guarantee under Article 21 of the Constitution of India.

16. Having regard to the facts and circumstances and the grounds on which the order dated 21st July 2023 has been passed, we are of the opinion that the impugned order does not satisfy the requirements in law. A power under clause (b) to sub-section (1) of section 3 which provides that the Deputy Commissioner may make an order against an "anti-social" element cannot be stretched to absurdity. Notwithstanding the powers conferred upon the Deputy Commissioner under clause (b) (i)&(ii) of sub-section (1) to section 3 of the Crimes Control Act, a condition requiring the petitioner to report to the police station and mark her attendance every day before the officer-in-charge of Patratu PS at 10:00 AM is arbitrary and illegal. Every executive decision even where it is made in the exercise of statutory power must be in consonance with the Constitutional guarantee. The direction under the order dated 21st July 2023 is definitely impinging upon the rights of the petitioner as guaranteed under Article 21 of the Constitution of India and, therefore, the order dated 21st July 2023 cannot be countenance in law and is, accordingly, quashed.

17. The present writ petition stands allowed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Binit/Mukul