Judgement of Chief Judicial Magistrate, Nalanda and Additional Sessions Judge, Fast Track Courts 1st, Nalanda quashed and set aside: Patna High Court

Statement under Section 164 of the Cr.P.C. is not a substantive piece of evidence but only corroborative in nature

In Sahdeo Gupta and Naresh Kumar Gupta v. State of Bihar and Kanhaiya Lal (2024), Patna High Court's Justice Bibek Chaudhuri quashed and set aside the judgement and order of conviction and sentence passed in Trial No. 82 of 2008, arising out of Nawada P. S. Case No. 231 of 1994, corresponding to G. R. Case No. 1543 of 1994, by the Chief Judicial Magistrate, Nalanda at Biharsharif and affirmed by the Additional Sessions Judge, Fast Track Courts 1st, Nalanda at Biharsharif in Criminal Appeal No. 39 of 2008.

The criminal revision petition was directed against an order, dated May 30, 2018, passed in Criminal Appeal No. 39 of 2008, by the learned Additional Sessions Judge, Fast Track Courts, 1st, Nalanda at Biharsharif, whereby the Court of Appeal upheld the order, dated March 12, 2008, passed in Trial No. 82 of 2008, arising out of Nawada P. S. Case No. 231 of 1994, corresponding to G. R. Case No. 1543 of 1994, by the Chief Judicial Magistrate, Nalanda at Biharsharif, convicting and sentencing the petitioners to suffer rigorous imprisonment for one year each for the offence punishable under Section 498A of the Indian Penal Code and rigorous imprisonment of six months with fine of Rs. 1,000/- each for the offence punishable under Section 4 of the Dowry Prohibition Act, 1961. Both the sentences were directed to be run concurrently.

Kanhaiya Lal had filed complaint case before the Chief Judicial Magistrate, Nawada against the Petitioners and their family members, alleging that on March 1, 1993, the daughter of the Informant, namely, Jyoti Gupta was married with Naresh Gupta. After marriage, she went to her matrimonial home and she was subjected to physical and mental torture for one Maruti Car. The wife of Naresh Gupta expressed her inability to provide a Maruti Car to the petitioners. She was brutally assaulted by them. The Informant made all other allegations, implicating the Petitioners of dowry related harassment and cruelty towards his daughter.

The counsel for the petitioners submitted that both the Trial Court and the first Appellate Court did not visualize the lack of specificity in the allegation against the petitioners. He pointed out that the de facto complainant claimed that his daughter was brutally tortured but she was never medically treated for such torture allegedly perpetrated upon her by the petitioners. 

The Court agreed with the counsel of the petitioners that both the Courts below relied on the statement of the wife Naresh Gupta recorded under Section 164 of the Cr.P.C. as substantive piece of evidence. But they failed to consider that a statement under Section 164 of the Cr.P.C. is not a substantive piece of evidence but only corroborative in nature, when it corroborates the statement made by the de facto complainant in the petition of complaint, the statement under Section 164 of the Cr.P.C. can be relied on as a corroborative piece of evidence. It found that the statement under Section 164 Cr.P.C. is exaggerated. 

Notably, the Court underlined that "neither the Trial Court nor the Court of Appeal consider that all the witnesses examined on behalf of the prosecution were either the family members or co-villagers of the Informant. They are interested witnesses and their evidences should not be considered as a gospel truth without proper scrutiny."

The High Court observed that "the case under 498 A of the Indian Penal Code is the outcome of personal grudge and differences between both the parties.

The Court relied on the decision of the Supreme Court in Arnesh Kumar v. State of Bihar (2014) wherein it was observed that“4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-AIPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-AIPC is a cognizable and non- bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In quite a number of cases, bedridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested.”

It cited the judgement of the Supreme Court in Preeti Gupta v. State of Jharkhand (2010). It observed by the Apex Court that: “32. It is a matter of common experience that most of these complaints under Section 498-AIPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.” 

Justice Chaudhury concluded that it is revealed that omnibus allegation was made against the petitioners. The complainant alleged that all the accused persons harassed her and brutally tortured her on demand of a Maruti Car. However, no specific distinct allegation have been made against either of the Petitioners herein, i.e., none of the petitioners have been attributed any specific role in furtherance of general allegations made against them. This simply led to a suggestion wherein one fails to ascertain the role played by each accused in furtherance to the offence. His order reads: "In view of such circumstances, this Court is not in a position to concur with the concurrent finding of both the Courts below. Accordingly, the instant revision is allowed on contest."

Cognizance order of Judicial Magistrate 1st Class, Patna quashed: Patna High Court

Relying on the decision of the Supreme Court in Gian Singh v. State of Punjab (2012), Patna High Court's Justice Prabhat Kumar Singh concluded that "the continuance of criminal proceeding after compromise between the parties would amount to an abuse of the process of the court, hence the impugned cognizance order dated 19.12.2022, passed in Complaint Case No. 3309C/2018 stands quashed with respect to these petitioners" in Modi-Mundipharma Beauty Products Pvt. Ltd v. State of Bihar and Om Raj Enterprises (2024). The petitioners were Modi-Mundipharma Beauty Products Pvt. Ltd, Umesh Kumar Modi, Chairman, Modi Mundipharma Beauty Products Pvt. Ltd and Sanjay Kumar Garg.

The petitioners' counsel submitted that Umesh Kumar Modi, petitioner no.2 and Sanjay Kumar Garg, petitioner 3 are respectively Chairman and Director of the Company. They were not directly involved with the day to day affairs of the Company. The allegations made by the complainant are related with settlement of accounts and are out and out a civil dispute and no criminal case is made out in the transaction in question.

It was jointly prayed by the parties that though the offences for which cognizance has been taken are not compoundable, however, good sense has prevailed and dispute has amicably been settled between the parties. The parties have voluntarily and willingly settled the dispute and a joint compromise agreement dated March 15, 2024 has been executed between them. They submit that considering the private and trivial nature of dispute and compromise between the parties, continuation of the criminal proceeding would amount to an abuse of the process of the court. 

They drew on Supreme Court's decision in Naresh Kumar v. State of Karnataka (2024) to state that even in that case was of non- compoundable offences. In view of the compromise arrived at between the parties, they prayed for the quashing of the proceeding by the High Court in exercise of power under Section 482 of Code of Criminal Procedure, 1973. Section 482 reads: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." Section 482 does not grant new powers to the High Court but rather preserves its inherent powers to prevent abuse of court processes and ensure justice. Section 482 can be used to quash even non-compoundable offences.

The application was filed for quashing order dated December 19, 2022, passed by the Judicial Magistrate 1st class, Patna in Complaint Case No. 3309C/2018 by which cognizance has been taken for the offence punishable under sections 418, 468, 471 and 120B of the Indian Penal Code (IPC) against these petitioners as well as for setting aside the entire criminal proceedings.

Patna High Court sets aside judgment and order of Additional Sessions Judge, FTC No.II, Rohtas, appellants acquitted

In Manoj Singh v. State of Bihar and Satyendra Singh v. State f Bihar, Patna High Court's Justice Sunil Kumar Panwar observed: "in my view, non-examination of Investigation officer in the present case is a serious infirmity resulting prejudice being caused to the appellants, therefore, conviction of the appellants cannot be sustained on this score." Drawing on the facts and circumstances of the case as well as evidence available on record, he concluded: "I am of the considered view that prosecution has failed to prove the charges leveled against the accused-appellants beyond reasonable doubts. The impugned judgment of conviction and order of sentence is hereby set aside. The appellants are acquitted by giving benefits of doubt and they are discharged from the liabilities of the bail bonds."

These appeals have been preferred by the appellants being aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by Additional Sessions Judge, FTC No.II, Rohtas at Sasaram, dated January 10, 2006 in Sessions Trial No. 409/1988, whereby and whereunder all the appellants/convicts including Manoj Singh were convicted under Sections 448, 342, 143 of the Indian Penal Code (IPC). The appellants Kamo Singh, Krishna Singh, Baban Singh and Chandrama Singh were found guilty under Sections 323 of the IPC and the accused-appellant Manoj Singh was found guilty also under Section 436 of the IPC. The appellant/convict Manoj Singh was sentenced to undergo rigorous imprisonment for six years under Section 436 of the IPC. Appellants/convicts appellants Kamo Singh, Krishna Singh, Baban Singh and Chandrama Singh were sentenced to undergo rigorous imprisonment for one year under Section 323 of the IPC. All the appellants including Manoj Singh were sentenced to undergo rigorous imprisonment for one year under Section of IPC one year under Section 342 of the IPC and also, they were sentenced for six months under section 143 of the IPC. All the sentences were directed to run concurrently.

The prosecution case was according to the F.I.R. is that on November 6, 1986 while the P.W.-5 (informant) was at his door, the appellants Kameshwar Singh, Krishna Singh, Baban Singh and Chandrama Singh came at the house of informant and demanded cock but the informant denied to give the same upon which, the above-named accused/appellants assaulted him by leg, fists and slaps. When the brother of the informant tried to save him, the accused persons also assaulted him. Again at 5-6 P.M., the named accused along with other accused Manoj Singh, Ranjan Singh, Chhotelal Singh, Satendra Singh, Dhirendra Singh, Sudama Singh came and entered the house of the informant after breaking lock of door. The informant fled away but his brother Murari Ram and nephew Basishta were present. The appellant Manoj Singh lit fire by match due to which thatched of his brother Nandu Ram burnt at some extent. In the meantime, villagers came and extinguished the fire and all the accused persons fled away. In the alleged occurrence, the informant and his brother sustained injuries on their bodies.

On the basis of aforesaid written application of the informant, police registered a formal FIR on November 6, 1986 as Harijan Dehri P.S. Case No. 45 of 1986. After completion of investigation, investigating officer submitted charge sheet against the appellants/convicts. On the basis of charge sheet and materials available on record, cognizance for the offence was taken and the case was committed to the court of Sessions for its disposal. The defense of the appellants/convicts totally denied from the charges leveled against them and pleaded for their innocence.

The Court examined whether the prosecution has been able to convict the appellants/accused persons beyond the shadow of reasonable doubt or not. It went through the entire prosecution evidence and other materials available on record. It concluded that "The right of bringing the record of contradictions in the statement of witnesses made before I.O. is a very valuable right of the accused and by showing that the witness has made improvements or has given evidence, which contradicts his earlier statement, the accused is able to satisfy the Court that the witnesses are not reliable witness."

SIT probe by Economic Offences Unit ordered in Gaya land case: Patna High Court

In Cleartech Farming Private Limited v. State of Bihar, Patna High Court has passed a judgement directing the D.G.P., Bihar to get P.S. Case No. 144 of 2023, Amas Thana, Gaya investigated through a SIT headed by an officer of repute in the Economic Offences Unit. It underlined that investigation required into the role of various officials of the State involved in the Consolidation Office, Circle Office, Aamas and Office of the Sub-Registrar, Aamas, in the District of Gaya. The D.G.P., Bihar has been made the competent authority to pass such other order/orders as may be required to unveil the truth.

The petitioner is a private limited company represented through its Director, Shyam Kishore Prasad. The petitioner purchased 23 acres 6 decimal lands by a registered sale deed dated July 25, 2017 from one Khuaza Iradat Jan and his family members.  The petitioner has alleges that on January, 2023 when Shyam Kishore Prasad was getting the land leveled through his contractor, some antisocial elements armed with deadly weapons came to the land of the petitioner and threatened the Director by saying that the land belonged to them, he must leave it otherwise he will be killed. The efforts taken by the Director to convince them that the land belong to the petitioner-company and it has been purchased through registered sale deed went in vain. The specific case of the petitioner is that the Director of the Company was threatened by Jacky Yadav of Gaya along with his associates who were armed with deadly weapons. The petitioner visited Aamas police station on February 6, 2023 and handed over a written application for lodging of the FIR. The FIR was not registered at that time. It was registered on April 19, 2023 but the investigating agency did not take any action to remove them from the site. It is a case of forceful dispossession of the petitioner from the land in question by use of unlawful means taking the law unto his hands. 

The petitioner's counsel submitted that it is the duty of the State to protect the life and property of its citizen. The life of the Director of the petitioner-company and the property of the petitioner are under grave threat and despite complaints lodged with the police, the administration has not taken appropriate steps to dispossess the illegal occupants who have forcibly come on the land of the petitioner. Relying on the judgment of the High Court in the case of Harrison Continental Pvt. Ltd. v. the State of Bihar (2022), he submitted that in this case the Court drew from several judgments of the Supreme Court to hold that the illegal occupants should not have been allowed to stay in the premises and had to be removed by the police as it was a brazen act of lawlessness. The accused has forcibly invaded the premises of the petitioner and has thrown the petitioner in the said case out of the property.

With regard to the issue of title and possession of the land in question, the Court observed that the parties be left free to seek their remedies before appropriate court. It recorded that the manner in which revised khatiyan has been prepared showing Case No. 39 of 1990 but a bare order sheet of Case No. 43 of 1990 has been produced before this Court without there being any record to support the basis of the initiation of the proceeding, smacks of forgery and fabrication of the records. Involvement of the officials engaged in the work of consolidation, preparation of khatiyan and revised khatiyan are required to be enquired into. It asked, "How two mutation cases were opened and the competent authority in the Circle Office allowed mutation in favour of both the parties are prima-facie some of the questions which are to be resolved after conducting appropriate enquiry/investigation." It was submitted that it is a case of forgery and fabrication of records in the Office of Sub-Registrar, Aamas. It was stated that the sale deed mentions payment of a consideration amount of Rs. 1,26,80,000/- vide different cheques but this also seems to be highly suspicious and requires verification because the PAN number of the so-called persons who are said to have been paid are missing and there is no mention of deduction of one percent income tax at source on the sale consideration.

Justice Rajeev Ranjan Prasad of Patna High Court observed that "It is well settled that in an appropriate case a civil as well as criminal proceeding can go together." He drew the judgment of the Supreme Court in the case of Rajesh Bajaj Vs. State NCT of Delhi (1999) in this regard. The Senior Superintendent of Police, Gaya has been directed to maintain law and order on the spot/land in question and unless and until an order of adjudication as to right, title and possession or an appropriate order is passed by a court of competent jurisdiction/competent authority in accordance with law neither party shall be allowed to go on the land in question.

Patna High Court sets aside order of Bihar State Sentence Remission Board for non-compliance with Supreme Court's judgements

Patna High Court's Justice Rajeev Ranjan Prasad has set aside the order of Bihar State Sentence Remission Board for non-compliance with Supreme Court's judgement on March 20, 2024 in Md Azimuddin v. State of Bihar and others. The nine other respondents  included the State Sentence Remission Board, Joint Secretary Cum director (Admin.), Home Department (Prison), Bihar, Secretary , Law Department. Bihar, the Additional director General of police, Criminal Investigation Department, Bihar, the Inspector General Jail and Reforms Services, Bihar, Assistant Inspector General , Jail and Reforms Services, Bihar, the Principal Probation Officer, Supaul, the Superintendent of Police, Supaul and the Jail Superintendent Supaul. 

The Court concluded that "this Court is of the considered opinion that the case of the petitioner for grant of premature release is required to be considered afresh by applying the parameters which have been pointed out by the Hon’ble Supreme Court in the case of Rajo alias Rajwa alias Rajendra Mandal and Ram Chander (Supra). The reports of the authorities which are on the record seem to be stereotype reports for purpose of denying the benefit of remission. Even though the petitioner has remained in incarceration for about twenty-two years, the competent authority has not considered the potential of the petitioner to commit crimes in future, his age, state of health, familial relationships and the possibility of reintegration. The competent authority has not taken into consideration as to whether while in custody the petitioner hasengaged in any socially aimed or productive activity and what has been his overall development as a human being. The Hon’ble Supreme Court has observed that the Board should not entirely rely either on the learned Presiding Judge or the report prepared by the police and benefit of a report contemporaneously prepared by a qualified psychiatrist after interacting or interviewing the convict would serve the ends of justice. In this case, this Court finds that no effort has been made to consider the aforesaid aspects of the matter. The directions of the Hon’ble Supreme Court that the appropriate government may have the benefit of a report of a qualified psychiatrist has not at all been complied with."

Justice Prasad observed that the Board has passed the order in a routine and mechanical manner by just referring to the reports of the Superintendent of Police and the Presiding Officer of the court which is not in consonance with the judgment of the Supreme Court.The matter is remitted to the competent authority for a fresh consideration of the application seeking premature release.

This writ application was filed seeking quashing of the order dated August 27, 2021 passed by the Bihar State Sentence Remission Board rejecting the premature release application of Md Azimuddin, the petitioner on the ground of adverse report of the Sub-Divisional Probation Officer, the Superintendent of Police, Supaul and the Presiding Officer of the trial court.

The petitioner convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and was sentenced to death by the Additional Sessions Judge-cum-Fast Track Court No.1, Supaul by judgment dated November 18, 2006 passed in Session Trial No.165 of 1996. The case  arose out of Raghopur P.S. Case No.101 of 1995. The petitioner's sentence was commuted/converted into a life imprisonment by High Court at Patna in Criminal Appeal (DB) No.1225 of 2006. 

The petitioner's counsel submitted that the petitioner is in custody since July 31, 2001 i.e. more than 22 years. His case is covered by Section 433-A of the Code of Criminal Procedure and considering the object of the premature release, he deserves proper consideration of his application for premature release. A proposal for his premature release was submitted before the Superintendent, Divisional Jail, Supaul who vide his letter no.46/Jail dated January 11, 2020 forwarded the application to the Bihar State Sentence Remission Board. The petitioner had filed a Criminal Writ Application being Cr.WJC No.324 of 2020 in which a coordinate Bench of the High Court vide order dated November 22, 2021 granted liberty to the petitioner to challenge the order dated August 27, 2021 passed by the Board during pendency of the writ application by which the application of the petitioner for premature release was rejected. Hence, the present application has been filed.

The order dated August 27, 2021 passed by the Board was based the reports of the Superintendent of Police and Presiding Officer of the Court. The reports were found to be adverse. As a consequence, the petitioner's application was rejected. The counsel for the petitioner submitted that the report of the Probation Officer is completely general in terms and the other reports such as report of the Superintendent of Police, Supaul and the report of the learned Presiding Officer are not in consonance with the decision of the Supreme Court in the case of Rajo @ Rajwa @ Rajendra Mandal v. State of Bihar (2023) and in the case of Ram Chander v. State of Chhattisgarh (2022). 

The High Court examined as to whether the reports submitted by the Superintendent of Police and the Presiding Officer of the court are in consonance with the views expressed by the Supreme Court.

In the case of Rajo alias Rajwa alias Rajendra Mandal case, the Supreme Court has held that "19. In this court's considered view, overemphasis on the presiding judge's opinion and complete disregard of comments of other authorities, while arriving at its conclusion, would render the appropriate government's decision on a remission application, unsustainable. The discretion that the executive is empowered with in executing a sentence, would be denuded of its content, if the presiding judge's view - which is formed in all likelihood, largely (if not solely) on the basis of the judicial record - is mechanically followed by the concerned authority. Such an approach has the potential to strikes at the heart, and subvert the concept of remission - as a reward and incentive encouraging actions and behaviour geared towards reformation - in a modern legal system."

The Court observed: "20. All this is not to say that the presiding judge's view is only one of the factors that has no real weight; but instead that if the presiding judge's report is only reflective of the facts and circumstances that led to the conclusion of the convict's guilt, and is merely a reiteration of those circumstances available to the judge at the time of sentencing (some 14 or more years earlier, as the case may be), then the appropriate government should attach weight to this finding, accordingly. Such a report, cannot be relied on as carrying predominance, if it focusses on the crime, with little or no attention to the criminal. The appropriate government, should take a holistic view of all the opinions received (in terms of the relevant rules), including the judicial view of the presiding judge of the concerned court, keeping in mind the purpose and objective, of remission."

In the case of Ram Chander v. State of Chhattisgarh, the Court observed that in  Union of India v. V. Sriharan, (2016), "a Constitution Bench of this Court held that the procedure stipulated in Section 432(2) is mandatory. The Court did not specifically hold that the opinion of the Presiding Judge would be binding, but it held that the decision of the Government on remission should be guided by the opinion of the Presiding Officer of the court  concerned." The Court had framed the following question: “143. … Question (vi) : Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme of the section, if yes, whether the procedure prescribed in sub-section (2) of the same section is mandatory or not? 22. Answering the above question, the Court held: “148. Keeping the above principles in mind, when we analyse Section 432(1)CrPC, it must be held that the power to suspend or remit any sentence will have to be considered and ordered with much more care and caution, in particular  he interest of the public at large. In this background, when we analyse Section 432(1)CrPC, we find that it only refers to the nature of power available to the appropriate Government as regards the suspension of sentence or remission to be granted at any length. Extent of power is one thing and the procedure to be followed for the exercise of the power is different thing. There is no indication in Section 432(1) that such power can be exercised based on any application. What is not prescribed in the statute cannot be imagined or inferred. Therefore, when there is no reference to any application being made by the offender, that cannot be taken to mean that such power can be exercised by the authority concerned on its own. More so, when a detailed procedure to be followed is clearly set out in Section 432(2). It is not as if by exercising such power under Section 432(1), the appropriate Government will be involving itself in any great welfare measures to the public or the society at large. It can never be held that such power being exercised suo motu any great development act would be the result. After all, such exercise of power of suspension or remission is only going to grant some relief to the offender who has been found to have committed either a heinous crime or at least a crime affecting the society at large. Therefore, when in the course of exercise of larger constitutional powers of similar kind under Articles 72 and 161 of the Constitution it has been opined by this Court to be exercised with great care and caution, the one exercisable under a statute, namely, under Section 432(1)CrPC which is lesser in degree should necessarily be held to be exercisable in tune with the adjunct provision contained in the same section. Viewed in that respect, we find that the procedure to be followed whenever any application for remission is moved, the safeguard provided under Section 432(2)CrPC should be the sine qua non for the ultimate power to be exercised under Section 432(1)CrPC."

It further observed: "149. By following the said procedure prescribed under Section 432(2), the action of the appropriate Government is bound to survive and stand the scrutiny of all concerned, including the judicial forum. It must be remembered, barring minor offences, in cases involving heinous crimes like, murder, kidnapping, rape, robbery, dacoity, etc. and such other offences of such magnitude, the verdict of the trial court is invariably dealt with and considered by the High Court and in many cases by the Supreme Court. Thus, having regard to the nature of opinion to be rendered by the Presiding Officer of the court concerned will throw much light on the nature of crime committed, the record of the convict himself, his background and other relevant factors which will enable the appropriate Government to take the right decision as to whether or not suspension or remission of sentence should be granted. It must also be borne in mind that while for the exercise of the constitutional power under Articles 72 and 161, the Executive Head will have the benefit of act and advice of the Council of Ministers, for the exercise of power under Section 432(1)CrPC, the appropriate Government will get the valuable opinion of the judicial forum, which will definitely throw much light on the issue relating to grant of suspension or remission." 

It concluded: "150. Therefore, it can safely be held that the exercise of power under Section 432(1) should always be based on an application of the person concerned as provided under Section 432(2) and after duly following the procedure prescribed under Section 432(2). We, therefore, fully approve the declaration of law made by this Court in Sangeet v. State of Haryana, (2013) in para 61 that the power of appropriate Government under Section 432(1) of the Criminal Procedure Code cannot be suo motu for the simple reason that this section is only an enabling provision. We also hold that such a procedure to be followed under Section 432(2) is mandatory. The manner in which the opinion is to be rendered by the Presiding Officer can always be regulated and settled by the High Court concerned and the Supreme Court by stipulating the required procedure to be followed as and when any such application is forwarded by the appropriate Government. We, therefore, answer the said question to the effect that the suo motu power of remission cannot be exercised under Section 432(1), that it can only be initiated based on an application of the persons convicted as provided under Section 432(2) and that ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the court concerned.”

Justice Rajeev Ranjan Prasad drew on these decisions of the Supreme Court. He cited the provisions under Rule 478 and Rule 481 of the Bihar Prison Manual. It reads: “478. While considering the case of premature release of a particular prisoner the Board shall keep in view the general principles of remission of sentences, as laid down by the State Government or by the courts, as also the earlier precedents in the matter. The paramount consideration before the Board being the welfare of the society at large. The Board shall not ordinarily decline a premature release of a prisoner merely on the ground that the police have not recommended his/her release. The Board shall take into account the circumstances in which the offence was committed by the prisoner; whether he/she has the propensity to commit similar or other offences again; socio-economic condition of the convict's family and possibility of further violence or offence on his/her release, progress in victim reconciliation programmes and chances of reclaiming the convict as a useful member of the society.” 

It further reads: “481. The following categories of prisoners shall be eligible to be considered for a review of sentences and premature release by the Board:
i. Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of Section 433A CrPC shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment i.e. without the remissions. 2 [The following categories of convicted prisoner covered under Section 433A Cr.P.C. undergoing life sentence would not be entitled to be considered for premature release even after undergoing imprisonment for 20 years including remission:] [(a) Such convicts who have been imprisoned for life for rape, rape with murder, dacoity with murder, murder involving offence under the Protection of Civil Rights Act, 1955, murder for dowry, murder of a child below 14 years of age, multiple murder, murder committed after conviction while inside the prison, murder during parole, murder in terrorist incident, murder in smuggling operation, (b) Gangsters, contract killers, smugglers, drug traffickers,racketeers awarded life imprisonment for committing murders as also the perpetrators of murder committed with pre-meditation and with exceptional violence or perversity. c) Convicts whose death sentence has been commuted to life imprisonment.
ii. All other convicted male prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment shall be considered for premature release after they have served at least 14 years of imprisonment inclusive of remission but only after completion of 10 years actual imprisonment i.e. without remissions.
iii. The female prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment shall be considered for premature release after they have served at least 10 years of imprisonment inclusive of remissions but only after completion of 7 years actual imprisonment i.e. without remissions.[(iv) In such cases in which life sentence has been awarded by specifying that the convict shall undergo life sentence till the end of his life without remission or commutation, benefit of remission or commutation shall not be given to convict.]

(v) In such cases in which life sentence has been awarded by specifying that the convict shall not be released by granting remission or commutation till he completes a fixed term of 20 years or 25 years or like, remission or commutation shall not be granted to a convict until he completes the fixed term as prescribed in the sentence.]”

In this background, the High Court's judgement inferred that "On a bare perusal of the aforementioned rules, it would appear that while considering an application for premature release, the Board has to keep in mind the general principles of remission of sentences as laid down by the State Government or by the Courts, as also the precedence in the matter."

The High Court has directed that "The Board shall obtain fresh report from the S.D.P.O./Superintendent of Police, Supaul and the learned Presiding Officer of the court on all the parameters which have been recorded by the Hon’ble Supreme Court in the case of Rajo alias Rajwa alias Rajendra Mandal (Supra) and Ram Chander (Supra). The Board shall also obtain report of a psychiatrist who may conduct an interview of the petitioner."

It has instructed that such reports must be obtained within a period of three months from the date of receipt/production of a copy of the order and thereafter appropriate decision be taken in accordance with law/policy decision/Prison Manual within a period of one month. A reasoned order which must reflect independent exercise of mind by the Board shall be communicated to the petitioner within an overall period of four months from the date of receipt/communication of a copy of this order.

Externment Order of District Magistrate, Madhepura set aside: Patna High Court

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.

Order of Sub-Judge, II, Dalsinghsarai quashed: Patna High Court

Patna High Court's bench Justice Sandeep Kumar quashed the order of  Sub-Judge, II, Dalsinghsarai, Samastipur in Bimal Kumar Dutta v. Dilip Kumar Chowdhary and others. This application was filed by the petitioner for quashing the order dated September 12, 2012 passed by the ub-Judge, II, Dalsinghsarai in Title Suit No. 93 of 2003 by which the Sub-Judge had allowed the amendment petition filed by the defendant under Order 6 Rule 17 read with Order 8 Rule 6(A) and Section 151 of the Code of Civil Procedure (CPC).

The Title Suit No. 93 of 2003 was filed by the plaintiff for correction of the mistake in the revisional survey. The defendants have appeared and filed their written statement and denied the claim of the plaintiff.On on July 17, 2009, the plaintiff had filed an amendment petition under Order 6 Rule 17 of the CPC for amendment of the plaint and it was submitted that due to typing error, some details have been left out to be typed in the plaint and the Court below by the impugned order had allowed the amendment.Following which the defendant No. 2, one of the ten defendants had filed an application for amendment in his written statement and he made a counter claim and to this claim, the defendant no. 2 wants the sale deed dated September 17, 1952 to be declared forged, fabricated and illegal and not binding upon the defendant and also prayed for eviction of the plaintiff from the Suit land and for recovery of possession.

The plaintiff filed a rejoinder and denied the claim of the defendant and it was contended by the plaintiff that if the proposed amendment is allowed then the nature of the suit will be changed and the defendant will have no right to raise his counter claim. Notably, the plaintiff pointed-out that except for defendant no. 2, no other defendant has raised any counter claim. The Court below allowed the application filed by the defendant no. 2 and thus, allowed the amendment as prayed for. 

The petitioner's counsel submitted that the amendments as prayed for by the defendant no. 2 should not have been allowed as the same changes the nature of the suit and the admissions made by the defendant no. 2 in his written statement are being withdrawn by the amendments.The counsel of defendant no. 2 supported the impugned order and has submitted that the amendments do not change the nature of the suit and the admissions are not being withdrawn but are being explained by the defendant no. 2. The defendant no. 2 has proposed the amendments in Paragraph No. 8, 10, 14, 15, 16, 19, 20, 22, 28, 30, 33, 36, 37, 38 of the written statements.  

The Court observed: "From the reading of the amendments proposed by the defendant no. 2, it appears that the admissions are being withdrawn by the defendant no. 2 and he is now making out a new case which in view of the law laid down by the Hon'ble Supreme Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited reported in AIR 2022 SC 4256 is not permissible. The amendments are not explanatory but the defendant no. 2 is making out a new case for withdrawing its earlier admissions which is not permissible in law."