Nishant Singh @ Kumar Nishant v. The State of Jharkhand

Judgment

--- Mr. Vishal Kumar Trivedi, Adv. Mr. Jai Mohan Mishra, Adv. Mr. Raj Shekhar Jha, Adv. Mrs. Vandana Singh, Sr. SC-III 03/16.05.2024 The counter affidavit filed by the learned counsel for the State is kept on record.

Heard Mr. Vishal Kumar Trivedi, learned counsel appearing for the petitioner and Mrs. Vandana Singh, learned Sr. SC-III.

3. This writ application has been preferred by the petitioner for quashing of the order dated 19.04.2024 passed in CCA (Jila Badar) Case No. 23/2024 by the District Magistrate-cum-Deputy Commissioner, Ramgarh (respondent No. 02), whereby and whereunder an order of externment has been passed against the petitioner in terms of Section 3(3) of the Jharkhand Control of Crimes Act, 2002 for a period of three months or till the end of Model Code of Conduct, whichever is earlier with a further direction to the petitioner to deposit his licensed arms, if any, and not to keep any arms with him.

4. The factual aspects of this case reveal that the petitioner is alleged to be involved in two criminal cases : a. Patratu P.S Case No. 76/2022 registered for the offences punishable under Sections 342, 171(E), 171(F), 504, 506 and 120B of the Indian Penal code and Section 68(A) of Panchayati Raj Act, 2001-123 Part (i) and (ii) of the Representation of People Act, 1951. b. Patratu P.S. Case No. 70/2022 registered for the offences punishable under Sections 385, 387 and 435 of the Indian Penal Code and Section 27 of the Arms Act.

5. On 01.04.2023, a show cause notice was issued to the petitioner as to why an order under Section 3(A)(B)(i)(ii) of the Jharkhand Control of Crimes Act, 2002 be not made against the petitioner with respect to the cases which are pending against him. On receiving such notice, the petitioner had appeared and filed a detailed show cause before the respondent no. 2 on

14.07.2023. The respondent no. 2 thereafter had passed an order dated

21.07.2023 under Section 3(A)(B)(i)(ii) of the Jharkhand Control of Crimes Act, 2002 passed in CCA Case No. 23/2023 in which the petitioner had been directed to mark his attendance every day at 10:00 AM before the Officer-in- Charge of the Police Station for a period of six months and he was further directed to deposit his licensed arms and not to keep any arms with him.

6. Being aggrieved by the order passed by the respondent no. 2, the petitioner had preferred W.P. (Cr.) (DB) No. 551 of 2023 which was allowed vide order dated 08.11.2023 and the order dated 21.07.2023 was quashed and set aside.

7. It appears that once again a notice under Section 3 of the Jharkhand Control of Crimes Act was issued to the petitioner dated 27.03.2024 giving reference to the two criminal cases which have been instituted against him and which was the subject matter of the earlier notice issued by the respondent no. 2 to the petitioner. Pursuant to the notice dated 27.03.2024, the petitioner had appeared and filed a detailed show cause before the respondent no. 2 on 19.04.2024. However, vide impugned order dated

19.04.2024 passed in CCA (Jila Badar) Case No. 23/2024, the respondent no. 2 had externed the petitioner for a period of three months or till the end of Model Code of Conduct, whichever is earlier with a further direction to deposit his licensed arms, if any, and not to keep any arms with him. - 2 -

8. It has been submitted by Mr. Vishal Kumar Trivedi, learned counsel appearing for the petitioner that the earlier show cause notice had also referred to Patratu P.S. Case No. 76/2022 and Patratu P.S Case No. 70/2022 as a subject matter for externment and consequent to the same having been issued subsequent to the show cause, the impugned order dated

19.04.2024 passed by the respondent no. 2 appears to be primarily on the basis of the said two cases pending against the petitioner.

9. Learned counsel has referred to Section 3 of the Bihar Control of Crimes Act which deals with externment of anti-social elements and has thereafter drawn our attention to Section 2(d) which defines an anti-social element and it has been submitted that none of the ingredients constituting an anti-social element is prevalent so far as the case of the petitioner is concerned. Mr. Trivedi, has primarily harped upon the word ‘habitual’ as mentioned in Section 2(d)(i) while submitting that in no circumstance it can be said that the petitioner is a habitual offender or frequently commits an offence as enumerated under Chapter XVI and Chapter XVII of the Indian Penal Code. It has been submitted that merely on account of the fact that the petitioner is involved in two criminal cases, it cannot be said that the petitioner is a habitual offender and this fact has been misinterpreted in the impugned order dated 19.04.2024 passed by the respondent no. 2.

10. Learned counsel has also drawn our attention to the impugned order dated 19.04.2024, wherein the respondent no. 2 has stated about the custody of the petitioner while submitting that in one of the cases instituted against the petitioner where the offences were bailable and he was released immediately on surrender while in the other case, the petitioner was granted anticipatory bail. He, in view of the submissions noted above, has therefore prayed that the impugned order dated 19.4.2024 passed by the respondent no. 2 in CCA (Jila Badar) Case No. 23/2024 be quashed and set aside.

11. Mrs. Vandana Singh, learned Sr. SC-III has opposed the prayer made by the petitioner and has submitted that the petitioner has an alternative remedy of preferring an appeal in terms of Section 6 of the Jharkhand Control of Crimes Act before the Commissioner. It has been submitted that apart from two cases instituted against the petitioner, there - 3 - are number of Sanhas lodged which clearly indicate that the petitioner is an anti-social element and if the impugned order of externment is set aside, the same would create a law and order problem on account of the ongoing election process which has also been noted in the impugned order. Learned counsel has also referred to Section 2(d) of the Jharkhand Control of Crimes Act; while submitting that some of the offences alleged against the petitioner does come within Chapter XVI or Chapter XVII of the Indian Penal Code and therefore it can safely be concluded that the petitioner is indeed an anti-social element and therefore the respondent no. 2 had rightly passed the impugned order dated 19.04.2024. Mrs. Singh has also submitted that the order passed in W.P. (Cr.)(DB) No. 551 of 2023 which was with respect to the petitioner being directed by the respondent no. 2 to mark his attendance everyday before the Police Station at 10:00 AM, could not be of much assistance to the petitioner as the same was in a different context and the present case relates to culmination of the issuance of notice to the petitioner and his consequent externment from the district.

13. We have heard the learned counsel for the respective parties. The factual aspects which we have noted above would clearly indicate that a show cause notice was issued to the petitioner to which a reply was duly submitted and consequent to the same the impugned order dated

19.04.2024 was passed by the respondent no. 2, wherein the petitioner was externed from the district for a period of three months or till the end of Model Code of Conduct, whichever is earlier. We may, at this juncture, refer to the order passed by a Co-ordinate Bench of this Court in W.P. (Cr.) (DB) No. 551 of 2023 dated 08.11.2023 wherein the earlier order passed by the respondent no. 2 directing the attendance of the petitioner in Police Station everyday had been quashed and set aside. The order dated 08.11.2023 has also taken into consideration about the pendency of two criminal cases and the satisfaction of the District Magistrate being based on the same. We may refer to the following paragraph of the said judgment : “11. In the show-cause notice (Annexure 1), there is no whisper about “general nature of the material allegations” except pendency of two criminal cases against the petitioner. In the impugned order - 4 - also (Annexure 3) the satisfaction of District Magistrate is based upon only above two cases. There is no statement of facts showing that the petitioner is a member of any gang and his movements in the locality is causing disturbance to the peace and public order. In Patratu P.S. Case No. 76/2022, the petitioner is on bail and charge sheet has been submitted. In Patratu P.S. Case No. 70/2022 petitioner is not named in the FIR which is lodged against unknown miscreants and there is no direct allegation against him for commission of any crime. There is no material placed on record that the petitioner is not abiding the terms and conditions of bail bond or not co-operating in the investigation of the case.”

14. Section 3 of the Jharkhand Control of Crimes Act reads as follows: “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 - 5 - 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) prohibit or restrict possession or use by him of (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) such article as may be specified in the order; (iii) 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.” direct him otherwise to conduct himself in such

15. What could be discerned from Section 3 of the Jharkhand Control of Crimes Act is that the pre-condition which requires the District Magistrate to pass an order of externment is that:

1. The person must be an anti-social element.

2. That his movement or acts in the district may cause alarm, danger or harm to persons and property or.

3. That there are reasonable grounds to believe that the said person is engaged or is about to engage in the district or in part thereof in the commission of an 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 abatement of such offence.

16. The pre-condition with respect to externment flows from paragraph 2(d) of the Jharkhand Control of Crimes Act which defines an anti- social element and which reads as follows: “(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 habitually commits or abets the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act, 1956; (ii) - 6 - (iii) (iv) 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 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.”

17. So far as the present petitioner is concerned, none of the provisions of Section 2(d) will be applicable save and except Section 2(d)(i) which reveals that an anti-social element shall be a person either by himself or as a member of or leader of a gang, habitually committing or attempting to commit or abetting the commission of offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code.

18. While considering passing of an order of externment, Section 2(d)(i) has to be read in consonance with Section 3(1)(b)(iii) which indicates that there has to be a reasonable ground for believing that such a person is engaged or is about to be engaged in the district or a part thereof in the commission of any offence punishable under Chapter XVI or XVII of the Indian Penal Code.

19. The primary element with respect to Section 2(d)(i) seems to be the word “habitual”. It would thus mean that a person who is frequently engaged in committing or attempting or abating commission of an offence in terms of Chapter XVI or Chapter XVII of the Indian Penal Code would be an anti-social element. In this context, we may refer to the case of Vijay Narayan Singh Vs. State of Bihar reported in (1984) 3 SCC 14 wherein the word “habitually” has been sought to be enumerated in the following manner: “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 antisocial 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 W.P.(Cr.) (D.B.) No.551 of 2023 9 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 - 7 - 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 subclause (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 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 subclause (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), subclause (ii) or in sub-clause (iv) by the person concerned to treat him W.P.(Cr.) (D.B.) No.551 of 2023 10 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 subclause (i) and a single act or omission falling under sub-clause (iv) of Section 2(d) 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 - 8 - committed with a long interval of time between them they cannot be treated as habitual ones.”

20. So far as the present case is concerned, as noted above, the petitioner is involved in two cases being Patratu P.S. case No. 76/2022 and Patratu (Bhurkunda) P.S Case No. 70/2022. The impugned order also reveals about two Sanhas having been lodged by the Police being Patratu Thana Sanha No. 16/2024 and Patratu Thana Sanha No. 30/2024. The cases instituted against the petitioner cannot be connoted to mean that the petitioner is a habitual offender or is habitually involved or attempting or abating the commission of offence punishable under Chapter XVI and Chapter XVII of the Indian Penal Code. This pre-dominant feature of Section 2(d)(i) seems to have not been properly considered or deliberated upon by the respondent no. 2 while passing an order of externment against the petitioner on 19.04.2024.

21. We may also take into consideration the objection made by the learned Senior Standing Counsel-III with respect to the alternative remedy available to the petitioner in terms of Section 6 of Jharkhand Control of Crimes Act which gives an opportunity to the petitioner to prefer an appeal before the Commissioner within 15 days from the date of order of externment. In fact, this question was raised before the Co-ordinate Bench of this Court in W.P. (Cr.)(DB) No. 551 of 2023 and it was dealt with in the following manner : “14. Taking into notice the overall facts and circumstances of the case, we are of the opinion that the very foundational facts for initiation of proceeding under Section 3 are lacking in this case; impugned order has been passed Notwithstanding that, the directing the petitioner to mark his attendance before the officer-in- charge of Patratu Police Station at 10 A.M. daily, does not satisfy the requirements of law and violative of right of the petitioner as guaranteed under Article 21 of the Constitution of India. Here, it is also pointed out that an “alternate remedy” by itself does not divest the High Court of its power under Article 226 of the Constitution in an appropriate case, though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.” - 9 -

22. In this context, we may also refer to the case of Godrej Sara Lee Ltd. Vs. Excise & Taxation Officer cum Assessing Authority & Ors. reported in 2023 SCC Online (SC) 95 wherein with respect to an alternative remedy, it has been held at paragraph-4 as follows: “4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by article 226 of the Constitution having come across certain orders passed by the High Courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable in this regard may be made to article 329 and reference ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the High Courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under article 226 that has evolved through judicial precedents is that the High Courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under article 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition "not maintainable". In a long line of decisions, this court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. - 10 - Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the High Courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a High Court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a High Court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.”

23. The other feature which has constrained us to address the merits of the case without letting the petitioner avail of the alternative remedy in terms of Section 6 of Jharkhand Control of Crimes Act is the curtailment of the personal liberty granted to the petitioner which is violative of Article 21 of the Constitution of India.

24. We, therefore, on an overall conspectus of the case and on the basis of the discussions made hereinabove, quash and set aside the impugned order dated 19.04.2024 passed by the respondent no. 2 in CCA (Jila Badar) Case No. 23/2024.

25. This criminal writ application stands allowed. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) Shamim-Preet/ - 11 -