In Manoj Kumar Paswan v. State of Bihar (2024), Patna High Court's bench of Justices P. B. Bajanthria and Alok Kumar Pandey set aside the order dated October 18, 023 passed the District Magistrate, Madhepura. The Court was convinced with the submission of the petitioner's counsel who had submitted that impugned order of externment is a nullity in the eyes of law. It observed, "We find that impugned order of externment is not sustainable and therefore, warrants interference." It found the contention of respondent's counsel untenable. It further observed that " the denial of principle of natural justice, while making an order of externment, is palpable and cannot be ignored."
The Court concluded that the petitioner cannot be made to fall within the definition of anti-social element as given by Section 2(d) of the Bihar Control of Crimes Act (BCCA), 1981, the power of directing petitioner's externment by invoking Section 3 of the law, could not have arisen. The conditions precedent for invoking a District Magistrate's jurisdiction under Section 3 of the law, having not been satisfied in the present case, no order of externment could have been passed against the present petitioner.
The case arose out of PS. Case No.-28 of 2003 Thana- Singheshwar, Madhepura. The criminal writ petition was filed by the petitioner against the order of externment dated October 18, 2023 passed by the the District Magistrate, Madhepura in B.C.C.A. Case No. 59 of 2023 (wrongly mentioned as 60/2023 in impugned order dated 18.10.2023). The petitioner had sought issuance of a writ in the nature of Certiorari thereby quashing the order dated October 18.10.2023 passed by the District Magistrate, Madhepura.
By notice dated October 13, 2023, issued by the District Magistrate, Madhepura in the exercise of power under Section 3(3) of Bihar Control of Crimes Act, 1981, the petitioner was directed to show cause as to why an order of externment be not passed against him on the ground that the petitioner was involved in a number of criminal activities, which made him an anti-social element. In response to notice, no one appeared on behalf of petitioner and the District Magistrate, Madhepura proceeded for ex party hearing. Expressing his satisfaction that the petitioner's externment was necessary, he directed that petitioner shall not enter into the district of Madhepura for the period of six months with effect from October 18, 2023. The petitioner's counsel submitted that the impugned order of externment suffers from denial of the principle of natural justice as petitioner did not receive any notice of externment and he was being denied of his basic rights of hearing and the order of externment passed by District Magistrate, Madhepura is a nullity in the eyes of law as petitioner is being deprived of having say before passing final order of externment. He also submitted that the cases registered in the year 2003, 2008, 2010, 2021 and 2022 are not relevant for passing the order of externment or for any of nexus between date of offence, which the petitioner has allegedly committed and the date of order of externment. He further submitted that the order does not assigned any reasons for satisfaction of District Magistrate, Madhepura. He pointed out that not even single case is/was registered in the year 2023 which may establish link for passing the order but he abruptly came to the conclusion without quoting any particular circumstance that the petitioner being anti-social element satisfying the ingredients of statutory provision in order to reach out the conclusion of order of externment.
The Court's order records that "the impugned order is perverse, illegal, improper, baseless, arbitrary and with ulterior motive". The petitioner's counsel submitted that the six cases registered against the petitioner at a longer and varying interval of a particular year does not satisfy the test as defined in Section 2(d) of Bihar Control of Crimes Act, 1981. For the purpose of taking decision either in executive side or quasi judicial side, the decision must be supported by the reason and cardinal principle of natural justice cannot be ignored. The order lacks reasoned decision along with cardinal principle of natural justice.
The definition of anti-social element as contained in Section 2(d) of the Bihar Control of Crimes Act, 1981, which reads: "2(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."
A close reading of sub-section (1) of Section 3 of Bihar Control of Crimes Act, 1981, reads: "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.
From a bare reading of sub-section (i) of Section 3 of Bihar Control of Crimes Act, 1981, it becomes abundantly clear that a person has to be an anti-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981, in order to bring him within the ambit of Section 3 of Bihar Control of Crimes Act, 1981, so that an order of externment can be made against him. Considered in this light, it becomes crystal clear that unless a person is an anti-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981, a District Magistrate does not derive the jurisdiction, power or authority to make an order of externment by taking recourse to Section 3 of Bihar Control of Crimes Act, 1981.
The Court observed: "a person cannot be externed by taking recourse to Section 3 of Bihar Control of Crimes Act, 1981, unless he can be described as an anti-social element within the meaning of Section 2(d) of Bihar Control of Crimes Act, 1981. One of the condition precedents for making an order of externment, under Section 3 of Bihar Control of Crimes Act, 1981, is that the person, sought to be externed, must be an anti-social element as envisaged in Bihar Control of Crimes Act, 1981." It further observed that " the petitioner cannot be put into category of habitual offender when six cases are said to have registered against him in different years with long and varying interval.
The Court pointed out that "It needs to be borne in mind that requirement of giving notice of show cause to a person, who is sought to be externed, is not a mere formality." It relied on the judgment of Mohinder Singh Gill v. The Chief Election Commissioner (1978) wherein it has been discussed by the Supreme Court that the rules of natural justice are rooted in all legal systems and there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him. There might be exceptional cases where to decide a case ex parte would be unfair and it would be the duty of the Tribunal to take appropriate steps to eliminate unfairness. Even so no doctrinaire approach is desirable but the court must be anxious to salvage the cardinal rule to the extent permissible in a given case. If the rule is sound and not negatived by statute, we should not devalue it nor hesitate to hold every functionary who effects others' right to it. The audi alteram partem rule has a few facets two of which are (a) notice of the case to be met; and (b) opportunity to explain. Let us study how far the situation on hand can co-exist with canons of natural justice. When natural justice is universally respected, the standards vary with situations, contracting into a brief, even post-decisional opportunity, or expanding into trial-type trappings.
Drawing on the judgement in D.K. Yadav v. J.M.A. Industries Ltd. (1993), the bench led by Justice Bajanthria stated that there can be no distinction between quasi judicial function and an administrative function for the purpose of natural justice and the aim of both administrative inquiry as well as quasi judicial inquiry is the same i.e. to arrive at a just decision and if natural justice is calculated to secure justice or put it negatively to prevent miscarriage of justice. It is difficult to see what it should only apply to quasi judicial inquiry and not to administrative inquiry. It must logically apply to both and principle of natural justice are part of Article 14 of Constitution of India and procedure prescribed by law must be just fair and reasonable. The judgement was authored by Justice Bajanthria.
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