In Girdhari Yadav vs. The State of Bihar through Principal Secretary, Department of Home (Police), Government of Bihar & Ors. (2026), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Sunil Dutta Mishra delivered a 25-page long judgement dated September 11, 2026, wherein, it concluded:"30. In result, we are of the considered opinion that the impugned order of externment of the petitioner in the manner ordered by the District Magistrate, Nalanda would not sustain the test of law. It is hereby set aside. 31. We find that the fundamental right of the petitioner embodied under Article 21 of the Constitution has been infringed without following the established procedure of law. Therefore, we award a compensation of Rs. 1,00,000/- (Rupees One Lakh) to the petitioner together with a cost of Rs. 10,000/- (Rupees Ten Thousand) which will be payable by the State within a period of one month from today. The cost and compensation shall be realised from the erring officials in the light of the judgment of this court in the case of K.K. Pathak @ Keshav Kumar Pathak vs. Ravi Shankar Prasad & Other reported in (2019) 1 PLJR 1051 wherein it has been held that whenever the State is saddled with cost and compensation for the misuse of power by an executive of the State, it is required to be recovered from the erring officials. 32. This Court, therefore, directs the State Government to realise the cost and compensation amount payable to the petitioner from the erring officials within a period of six months in accordance with law. 33. In result, this criminal writ application succeeds. The impugned order dated 08.09.2025 (Annexure ‘3’) passed by the District Magistrate, Banka, is hereby set aside. 34. The criminal writ application, thus, stands allowed."
The hearing in this case was concluded on July 13, 2026 and the judgment was reserved.
Earlier, the High Court's Division Bench of Justice Prasad and Sourendra Pandey had passed an order dated November 11, 2025, wherein, it had concluded: 2. We have perused the order as contained in Memo
No. 1532 dated 08.09.2025 passed by the District Magistrate, Banka. Prima-facie, it appears to have been passed in haste and the condition imposed is not commensurate to the requirement of the provisions of the Act. 3. We, therefore, stay the operation of the order dated 08.09.2025 as contained in Memo No. 1532 forthwith. 4. It is stated that the petitioner has been kept confined in the police station from the morning even though he is required to cast his vote today itself which is going on. 5. We direct that the petitioner shall be set at free and will be allowed to go to the polling booth for casting his vote....6. The order be communicated also through FAX to the office of the District Magistrate, Banka."
In his judgment dated September 11, 2026, Justice Prasad observed:"22. On a bare reading of the Sanha Diary entry, it would appear that the police officer, Arvind Kumar Rai, has lodged two Sanhas at an interval of only four minutes, and both the Sanhas are recorded in similar words. The Sanha entry is said to be made based on the information received from some reliable sources, but who are those reliable sources are not known. Who are the persons of suspicious characters with whom the petitioner was holding meeting is not mentioned and on what basis the police officer has an apprehension that in the coming festival or the election, the petitioner may commit any occurrence which may cause disturbance to the public order. In the Sanha entry, it is stated that all the officers were directed to keep vigil over such people and collect information, but no information has been collected in respect of the petitioner. No mobile call details showing that the petitioner was talking to person of suspicious character was produced before the S.P. or D.M. No particular place where meeting, if any, was held by the petitioner has been mentioned. In the present digital/mobile era, the police could have at least shown the tower location. No verifiable material has been collected by police from which it may be even prima-facie found that the petitioner was acting in a manner prejudicial to the public peace and order as defined under Clause (a) of Section 2 of the BCC Act. 'Sanha' alone has no 'probative value'. 23. While it is true that a police officer is given the responsibility to ensure that there should not be any breach of the public peace and order in the hand of the miscreants, they are expected to proceed against a person under the BCC Act only after collecting reliable materials after due verification which may have some probative value. A mere suspicion without any reference to the name of any person who is of suspicious character, without referring to a single meeting with date and venue at which such meeting was held, a mere bald statement and suspicion expressed by a police officer in the Sanha that a person is likely to commit an occurrence and breach the public peace and order cannot form basis of forming an opinion that the movement of such person is likely to cause breach of peace and public order. This kind of unbridled and uncanalised power cannot be exercised by police."
Justice Prasad observed: "An executive order interfering with the fundamental right of a person cannot be exercised in such unbridled and uncanalized form of discretion on the part of the police officer. It is required to be noticed that the petitioner was granted bail by this Court on 26.03.2025. For a period of almost five months, no act or omission on the part of the petitioner has been noticed by the police officer. The police officer did not file any application for cancellation of bail of the petitioner on any ground whatsoever. 25. In such circumstance, this Court is of the considered opinion that the condition under Clause (b) of sub-section (1) of Section 3 read with Section 5 of the BCC Act are not satisfied in this case. The District Magistrate, Banka could not have exercised his power under sub-section (3) of Section 3 of the BCC Act. 26. Having said so, this Court further finds that under Rule '6' of the BCC Rules, the District Magistrate could have directed the petitioner at best to mark his attendance once in a day in the nearest police station from his residence, but he did not follow the rules. He directed the petitioner to not only mark his attendance in a police station at a distance of 40 kilometers from his house, but also to remain present in the police station from 10:00 AM to 5:00 PM every day. This action of the District Magistrate is
in breach of the rules, which has further resulted in causing hardship to the petitioner. He was rendered unemployed during this period."
The judgement relied on the judgment of the Supreme Court in Arjun vs. The State of Maharashtra and Ors. reported in 2024 INSC 968, wherein the appellant before the Supreme Court was sought to be proceeded under Section 3(2) of the The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981. The appellant was detained for a period of twelve months so as to prevent him from indulging in the activities of bootlegging thereby preventing the maintenance of peace. For this purpose, the detaining authority had basically relied on the six cases registered against the said appellant by the State Excise Department. The Supreme Court took note of the six cases pending against the appellant alleging illicit manufacture of handmade liquor, these cases were registered during the period January 29 2023 to October 18, 2023, but in none of these cases, the authorities had found it necessary to arrest the appellant. The Supreme Court relied upon the observations of Hon’ble Justice Hidayatullah in Ram Manohar Lohia vs. State of Bihar and Another reported in (1966) 1 SCR 709 and also in Ameena Begum vs. State of Telangana and Others reported in (2023) 9 SCC 587.
Paragraph ‘12’, ‘13’ and ‘14’, of the judgment rendered in the case of Arjun (supra) was cited.
The writ application was preferred for setting aside the show cause notice dated August 26, 2025, passed by the District Magistrate, Banka in Bihar Crime Control Case No. 14/2025-26. The petitioner had also prayed for setting aside the order dated September 8, 2025 (Annexure 3) passed by the District Magistrate, Banka. By the impugned order, the District Magistrate, Banka had in exercise of his power under Section 3 (3) of the Bihar Crime Control Act, 2024 (BCC Act) rejected the show-cause/explanation submitted by the petitioner and directed him to mark his attendance every day from 10:00 AM to 5:00 PM in Barahat Police Station.
The counsel for the petitioner submitted that the District Magistrate, Banka recorded at the end of the order by pen that the order shall be applicable till completion of the election. The submission was that since the assembly election in the State of Bihar was over on November 14, 2025, the petitioner had to mark his attendance till such time but by virtue of the order dated November 11, 2025, as the impugned order was stayed by the High Court, the petitioner suffered the hardship for a period of two months from the date of passing of the impugned order. He submitted that on a bare perusal of the impugned order, it would appear that without there being any material to show that the petitioner was indulging in, or was likely to indulge in, any act to disturb public peace and order, simply on a mere asking by the police authorities, the impugned order had been passed. It was submitted that the petitioner was accused in two cases. The first case, Katoria P.S. Case No. 178 of 2024, was registered by one Ranjan Kumar due to village politics, and in this case, the petitioner was granted bail by the High Court on March 19, 2025 in Criminal Appeal (SJ) No. 187 of 2025. The another case being Katoria P.S. Case No. 165 of 2024 was registered under Section 103 of the Bharatiya Nyaya Sanhita (BNS). In the said case, the name of the petitioner transpired in the confessional statement of a co-accused. The petitioner had been granted bail in the said case by the High Court in Criminal Miscellaneous No. 9778 of 2025 on March 26, 2025. The counsel submitted that on a bare perusal of the definition of the cluster of words “anti-social element” as it is provided under Section 2 (b) of the BCC Act read with Clause (f) and (g) of Section 2, it would appear that the petitioner would not fall in the category of an anti-social element. It was also submitted that Section 3 (3) of the BCC Act confers drastic power on the District Magistrate, therefore, such power is to be exercised sparingly with all circumspection and care. In order to exercise the power under Section 3 (3), the District Magistrate has to form a subjective satisfaction/opinion that the twin conditions mentioned under Section 3(1)(a) and (b) are duly satisfied. In this case, neither of the two conditions was satisfied.
It was pointed out that in a very casual manner, the District Magistrate, Banka, declared the petitioner an anti-social element, causing damage to the reputation of the petitioner and thereafter directed him to mark his attendance in Barahat Police Station, where he was required to stay right from morning 1 AM to evening 5 PM every day. Thus, for a period of two months, the petitioner was not left in a position to work for his livelihood as he was required to go at least 40 kilometers from one side from his house to attend the police station. It was submitted that as per the Bihar Crime Control Rules, 1978 (BCC Rules), the District Magistrate, while exercising his power under Section 3 (3), would be obliged to direct a person to mark his attendance once in a day in the nearest police station but in this case, the District Magistrate ordered that the petitioner shall remain in the Police Station, Barahat, from 10 AM to 5 PM every day. The petitioner is a resident of Katoria Police Station, but he was ordered to go to Barahat Police Station covering a distance of 40 kilometers from one side, thus leaving his house in the early morning and returning home after sunset. This was in complete violation of law and result of an arbitrary exercise of power. The counsel submission was that for such misuse of power by the District Magistrate, which interfered with the fundamental right of the petitioner under Article 21 of the Constitution of India, besides setting aside the impugned order, expunging the tag of 'anti-social element', the petitioner be awarded appropriate cost and compensation.
The counsel relied on the judgment of the Supreme Court in Subramanian Swamy vs. Union of India reported in (2016) 7 SCC 221 and the State of Bihar vs. Lal Krishna Advani reported in (2003) 8 SCC 361, to submit that right to reputation is an integral part of life and personal liberty under Article 21 of the Constitution of India. It was submitted that for infringement of such rights of the petitioner, the State is liable to compensate the petitioner.
Justice Prasad observed:"28. On a bare perusal of the aforementioned judgments of the Hon’ble Supreme Court, it would be evident that for an act to qualify as a disturbance to public order, the specific activity must have an impact on a broader community or general public, invoking feelings of fear, panic or insecurity. No such act or deed of the petitioner has been pointed out in the show cause notice. 29. The views of the Hon’ble Constitution Bench of the Supreme Court that every breach of peace does not lead to public disorder is to be understood in its terms and spirit. The Hon’ble Supreme Court has been pleased to hold that when a person can be dealt in exercise of power to maintain the law and order, unless the acts of the proposed detainees are the ones which have the tendency of disturbing the public order, a resort to preventive detention, which is a hardship measure, would not be permissible. The same reasoning and rationale is to be applied while exercising the power under sub-section (3) of Section 3 of the BCC Act. Drastic powers are to be exercised with circumspection and care." The judgment referred to the judgment of the Supreme Court in the case of Kuso Sah vs. The State of Bihar reported in (1974) 1 SCC 195.
The judgement recorded that Section 8 of the BCC Act states that for purpose of satisfying himself as to whether the condition necessary for the making or confirmation of an order under Section 3 or 5 exists or not take into consideration any evidence which he considers to have probative value but the provisions of the Evidence Act shall not apply thereto. The judgement reads: "It is evident that Section 8 of the BCC Act casts a duty upon the District Magistrate to satisfy himself with some tangible material having probative value....19. By virtue of Section 27 of the Bihar and Orrisa General Clauses Act, 1917, the Rules of 1978 shall still survive. No rule has been framed so far under BCC Act 2024, as informed to this Court."
