Jharkhand High Court
Nageshwar Singh @ Bittu Singh vs The State Of Jharkhand Through Chief … on 29 November, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 833 of 2024
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Nageshwar Singh @ Bittu Singh, S/o Late Harendra Singh, R/o
Station Road, Naya Bazar, Chakulia, PO PS Chakulia, District East
Singhbhum, Jharkhand.
... Petitioner
-versus-
1. The State of Jharkhand through Chief Secretary, Government of
Jharkhand, having Office at Project Building, Dhurwa, Ranchi.
2. Additional Secretary, Department of Home, Prisons and Disaster
Management, Government of Jharkhand, having Office at Project
Building, Dhurwa, Ranchi.
3. District Magistrate cum Deputy Commissioner, East Singhbhum,
having Office at Jamshedpur, District East Singhbhum.
4. Superintendent of Police, East Singhbhum, having Office at
Jamshedpur, District East Singhbhum.
5. Sub Divisional Police Officer, Ghatshila, having Office at Ghatshila,
District East Singhbhum.
... Respondents
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For the Petitioner : Mr. Vishal Kumar Trivedi, Advocate
Mr. Jai Mohan Mishra, Advocate
For the Respondents: Mr. Manoj Kumar, G.A. III
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
----
ORDER
RESERVED ON 26.11.2024 PRONOUNCED ON 29/11/2024
Per Ananda Sen, J. In this writ petition, filed under Article 226 of the
Constitution of India, petitioner has prayed for a writ of certiorari to quash the
order dated 04.09.2024 passed by the District Magistrate-cum-Deputy
Commissioner, Jamshedpur, East Singhbhum whereby an order under
Section 12 of the Jharkhand Control of Crimes Act, 2002, and order of
preventive detention has been passed against the petitioner for three
months till 03.12.2024. Further, the petitioner has also challenged the order
dated 13.09.2024, whereby the order passed under Section 12 of the
Jharkhand Control of Crimes Act dated 04.09.2024 has been confirmed.
By way of amendment, the order dated 21.10.2024 of the
Government of Jharkhand has been challenged whereby the Government of
Jharkhand has confirmed the order after consultation with the Advisory
Board.
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2. Learned counsel for the petitioner contended that there are no
materials to detain the petitioner under the Jharkhand Control of Crimes Act.
He submitted that the preventive detention is bad and is without application
of mind. He argued that mere pendency of criminal cases, that too involving
offence which are not heinous in nature, cannot be a ground to detain this
petitioner. As per the petitioner, he is not an anti-social element as defined
under the Jharkhand Control of Crimes Act. Taking a plea of maintenance of
law and order or on the ground of controlling criminal activities or illegal
activities, a person cannot be detained.
3. Learned counsel appearing on behalf of the State-respondents
contended that there are sufficient number of cases pending against the
petitioner and the cases pending against the petitioner are under Chapter
XVI and Chapter XVII of the Indian Penal Code, thus, this petitioner has
been rightly detained in terms of Section 12 of the Jharkhand Control of
Crimes Act. He argued that since the Advisory Board has given opinion that
there are sufficient grounds for detention of the petitioner, petitioner’s
detention was accordingly confirmed. He submitted that the order was
passed after application of mind. It has also been mentioned that there are 9
(nine) criminal cases pending against the petitioner and two Station Diary
Entries were made and all the offences are heinous in nature. It is submitted
by the State-respondents that the petitioner is a threat to the society as also
to the public order and if the petitioner comes out of jail, he will be a threat to
common person. Thus, the order of detention needs to be confirmed.
4. After considering the submissions and arguments of the parties
and from perusal of the records, it transpired that the order of detention has
been passed in terms of Section 12 of the Jharkhand Control of Crimes Act,
2002. This is a case of preventive detention.
5. Right to life and personal liberty is placed on the highest
pedestal by our Constitution, which the Courts have also recognised. Any
deprivation of the aforesaid right must strictly be in accordance with a law
and the Court has to be satisfied that the authority has acted in accordance
with law while depriving a person of his right to life and personal liberty.
6. Article 22 of the Constitution guarantees a person, protection of
his liberty as it provides that any person, who is arrested, shall not be
detained in custody without being informed the grounds of his arrest and
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shall not be denied right to consultation or defend himself through a legal
practitioner. Further, as per Article 22(2) of the Constitution of India, a
person so arrested and detained, shall be produced before the Magistrate
within a period of 24 hours of such arrest and he cannot be detained beyond
the said period without the authority of the Magistrate. This protection
granted under Article 22(2) of the Constitution of India has an exception. The
exception lies under Article 22(3) of the Constitution, which provides that
Articles 22(1) and 22(2) are not applicable to a person, who is arrested or
detained under any law, providing for preventive detention. This sub-Article
(3) also provides that Sub Articles (1) and (2) are not applicable to any
person, who is an enemy alien.
7. Section 12 of the Jharkhand Control of Crimes Act gives power
to the State Government to detain certain persons. The Government can
detain a person with a view to prevent him from acting in any manner, which
is prejudicial to maintaining public order and there is reason to fear that his
anti-social activities cannot be prevented otherwise than by immediate
arrest. There has to be satisfaction on the part of the State that the person,
who is supposed to be detained is an anti-social element and his act is
prejudicial in maintaining public order and if he is not detained, his anti-social
activities cannot be prevented. It is necessary to quote Section 12 of the
Jharkhand Control of Crimes Act, which reads as under: –
“12. Power to make orders detaining certain persons.- The
State Government may.-(1) If satisfied with respect to any
person that with a view to preventing him from acting in any
manner prejudicial to the maintenance of public order and
there is reason to fear that the activities of anti-social elements
cannot be prevented otherwise than by the immediate arrest of
such person, make an order directing that such anti-social
element be detained.”
8. The phrase “anti-social element” has been defined under the
Jharkhand Control of Crimes Act, 2002 at Section 2(d) thereof. Section 2(d)
of the Act reads as under: –
“2. Definition.- In this Act, unless the context otherwise
requires-
2(a) …
2(b) …
2(c) …
2(d) “Anti-social Elements” means a person who-
2d(i) either by himself or as a member of or leader of a gang3
W.P.(Cr.) No. 833 of 2024
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
2d(ii) habitually commits or abets the commission of offences
under the Suppression of Immoral Traffic in Women and Girls
Act, 1956;
or
2d(iii) who by words or otherwise promotes or attempts to
promote on grounds of religion, race, language, caste or
community or any other grounds whatsoever, feelings of
enmity or hatred between different religions, racial or language
groups or castes or communities; or
2d(iv) has been found habitually passing indecent remarks to,
or teasing women or girls; or
2d(v) who has been convicted of an offence under sections 25,
26, 27, 28 or 29 of the Arms Act of 1959.”
9. As per the aforesaid definition, a person, who is sought to be
detained, must commit or attempt to commit or abets commission of offence
punishable under Chapter XVI or Chapter XVII of the Indian Penal Code,
either by himself or as a member of or leader of a gang or that person
habitually commits and abets offences under the Suppression of Immoral
Trafficking of Women and Girls Act, 1956. Further a person, who by his
words or otherwise promotes or attempts to promote enmity or hatred
between different religions, racial or language group or castes or
communities, will also be termed as “anti-social Element”.
10. In the case of Haradhan Saha versus State of West Bengal
reported in (1975) 3 SCC 198, the Hon’ble Supreme Court has held that the
purpose of preventive detention is to prevent the greater evil of elements
imperiling the security and safety of a State, and the welfare of the Nation.
11. Section 12 of the Jharkhand Control of Crimes Act, 2002
provides for detention of a person, if in any manner he is prejudicial to
maintenance of public order. There is a difference between “public order”
and “law and order”. The Hon’ble Supreme Court, in the case of Ameena
Begum versus State of Telangana and Others reported in (2023) 9 SCC
587, while referring to various earlier judgments of the Hon’ble Supreme
Court, has distinguished between disturbances relatable to law and order
and disturbances caused to public order. At paragraph 37 to 40 thereof, the
Hon’ble Supreme Court has distinguished between the phrases “public
order” and “law and order”. Paragraphs 37 to 40 of the aforesaid judgment4
W.P.(Cr.) No. 833 of 2024
reads as under: –
“37. We may refer to the decision of the Constitution Bench of
this Court in Ram Manohar Lohia v. State of Bihar, where the
difference between “law and order” and “public order” was
lucidly expressed by Hon’ble M. Hidayatullah, J. (as the Chief
Justice then was) in the following words: (SCR pp. 745-46,
paras 54-55)
“54. … Public order if disturbed, must lead to public
disorder. Every breach of the peace does not lead to
public disorder. When two drunkards quarrel and
fight there is disorder but not public disorder. They
can be dealt with under the powers to maintain law
and order but cannot be detained on the ground that
they were disturbing public order. Suppose that the
two fighters were of rival communities and one of
them tried to raise communal passions. The problem
is still one of law and order but it raises the
apprehension of public disorder. Other examples
can be imagined. The contravention of law always
affects order but before it can be said to affect public
order, it must affect the community or the public at
large. A mere disturbance of law and order leading to
disorder is thus not necessarily sufficient for action
under the Defence of India Act but disturbances
which subvert the public order are. …
55. It will thus appear that just as “public order” in
the rulings of this Court (earlier cited) was said to
comprehend disorders of less gravity than those
affecting “security of State”, “law and order” also
comprehends disorders of less gravity than those
affecting “public order”. One has to imagine three
concentric circles. Law and order represents the
largest circle within which is the next circle
representing public order and the smallest circle
represents security of State. It is then easy to see
that an act may affect law and order but not public
order just as an act may affect public order but not
security of the State.”
(emphasis supplied)
38. For an act to qualify as a disturbance to public order, the
specific activity must have an impact on the broader
community or the general public, evoking feelings of fear,
panic, or insecurity. Not every case of a general disturbance to
public tranquility affects the public order and the question to
be asked, as articulated by Hon’ble M. Hidayatullah, C.J. in
Arun Ghosh v. State of W.B., is this: (SCC p. 100, para 3)
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W.P.(Cr.) No. 833 of 2024
“3. … Does it [the offending act] lead to disturbance
of the current of life of the community so as to
amount a disturbance of the public order or does it
affect merely an individual leaving the tranquility of
the society undisturbed?”
39. In Arun Ghosh case, the petitioning detenu was detained by
an order of a District Magistrate since he had been indulging in
teasing, harassing and molesting young girls and assaults on
individuals of a locality. While holding that the conduct of the
petitioning detenu could be reprehensible, it was further held
that it (read: the offending act) “does not add up to the
situation where it may be said that the community at large was
being disturbed or in other words there was a breach of public
order or likelihood of a breach of public order. (Arun Ghosh
case, SCC p. 101, para 5)”
40. In the process of quashing the impugned order, the
Hidayatullah, C.J. while referring to the decision in Ram
Manohar Lohia also ruled: (Arun Ghosh case, SCC pp. 99-100,
para 3)
“3. … Public order was said to embrace more of the
community than law and order. Public order is the
even tempo of the life of the community taking the
country as a whole or even a specified locality.
Disturbance of public order is to be distinguished
from acts directed against individuals which do not
disturb the society to the extent of causing a general
disturbance of public tranquility. It is the degree of
disturbance and its effect upon the life of the
community in a locality which determines whether
the disturbance amounts only to a breach of law and
order. … It is always a question of degree of the
harm and its effect upon the community. … This
question has to be faced in every case on facts.
There is no formula by which one case can be
distinguished from another.”
12. Considering these provisions of law and settled principles, I
have gone through the order of detention.
13. In the impugned order, it has been mentioned that because of
activities of the petitioner, like offences related to women, Arms Act and
manufacture, storage and selling of illegal foreign liquor, there is a sense of
fear and threat amongst the local people and it has become the passion of
the petitioner of creating threat amongst the local people. Due to the activity
of the petitioner, entire locality and the area lives under fear. To inspire
confidence amongst the people of the locality and to maintain peace, it is
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W.P.(Cr.) No. 833 of 2024
necessary to detain the petitioner. It has also been mentioned that if the
petitioner is kept in custody, the crime rate of the area will decrease.
14. In the impugned order, there is reference of 9 (nine) criminal
cases and 2 (two) Station Diary Entries. Out of these 9 (nine) criminal cases,
Chakulia Police Station Case No.28 of 2017 is under Sections 143, 147,
149, 504, 506, 34 of the Indian Penal Code, which admittedly does not fall
either under Chapter XVI or Chapter XVII of the Indian Penal Code.
Out of the aforesaid cases, I find that 4 (four) cases being
Chakulia Police Station Case No.25 of 2020, Chakulia Police Station Case
No.60 of 2020, Chakulia Police Station Case No. 47 of 2022 and Chakulia
Police Station Case No.30 of 2024 relates to offences under Section 47(a) of
the Excise Act and its connected offences under the Indian Penal Code. The
allegation against this petitioner in these cases are that he deals and
transports illegal foreign liquor.
In Mosaboni Police Station Case No.35 of 2020, the allegation
against this petitioner is that on the pretext of marriage, he has entered into
sexual relationship with a girl.
In Chakulia Police Station Case No.60 of 2020, the allegation
against this petitioner is when on the allegation that the petitioner is
transporting illegal brewed liquor, the department chased the petitioner, then
he drove the vehicle rashly, which resulted in death of a person. This is a
case of rash driving.
These are sum and substance of the criminal cases and
allegations against this petitioner.
15. All these criminal cases, which have been lodged against the
petitioner, relate to maintenance of law and order. There may be a law and
order problem because of the acts of the petitioner, but, there is nothing in
the entire order to suggest that there is disturbance of public order. Merely,
in the order some paragraphs and few lines have been mentioned that the
entire locality and the area is terrified because of the petitioner and during
the detention of the petitioner, crime rate of the area has decreased, does
not serve the purpose. These superfluous statements are not backed up by
any supporting data or any other material. What is the negative impact of the
petitioner in the entire area, locality or society has also not been mentioned
in the impugned order. Getting implicated in a few criminal acts will not
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automatically mean that the petitioner is a threat to “public order”. The State
cannot brand the petitioner based on few criminal cases that he is a
disturbing element in maintenance of “public order”. From the impugned
order, I find that the State has confused in making distinction between
“public order” and “law and order”.
16. The criminal cases, which are not related to Section 47(a) of the
Excise Act, relates to separate and stray instances affecting private
individuals. These have got nothing to do with disturbance of “public order”.
So far as the reference of cases, which relates to Section 47(a) of the Excise
Act, i.e., transporting, storage and manufacturing of illegal foreign liquor is
concerned, I find that in Chakulia Police Station Case No.25 of 2020 the
allegation against this petitioner is that he was going in a motorcycle when
the police confronted them. This petitioner left the motorcycle and managed
to flee and he escaped. Police seized the motorcycle and from the
motorcycle, in a bag illegal foreign liquor was recovered. In Chakulia Police
Station Case No.60 of 2020, it is stated that the petitioner, while trying to
flee, as he was chased by the police, caused motor accident, resulting in
death of a person. In Dhalbhumgarh Police Station Case No.47 of 2022,
petitioner was caught red handed with illegal foreign liquor. In Chakulia
Police Station Case No.30 of 2024, it has been alleged that the petitioner is
involved in making illegal foreign liquor and had kept, bottles, stickers of
liquors of different brands and was using the same. These all allegations
also cannot be said to attract breach of public order.
17. There are two Station Diary Entries made against the petitioner,
which does not reflect commission of any offence. They are vague and only
mentions that because of this petitioner, there is sense of fear in the locality.
Be it noted that these Station Diary Entries are dated 31.03.2024 and
05.04.2024. There cannot be more vague an entry than this.
18. The reference of the cases, which have been mentioned above,
will also not come within the purview of the definition of the act to declare the
petitioner an “anti-social element” in terms of Section 2(d) of the Jharkhand
Control of Crimes Act, 2002. Section 2(d) of the Jharkhand Control of
Crimes Act, 2002 provides for certain type of offences and the person should
be habituated in committing such offences. The word “habituated” would
mean committing the offence repeatedly in quick succession and there
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W.P.(Cr.) No. 833 of 2024
should be continuity in committing the offences together with similar and
repeated acts. Solitary instances and incidents committed after a long time
gap cannot make the person as habitual in committing “anti-social activities”.
In this case, we find that 9 (nine) cases, which have been referred to is from
the period 2017 to 2024. In the year 2024 there is only one case, i.e.,
Chakulia Police Station Case No.30 of 2024, lodged on 16.04.2024, and rest
two instances referred to by the State in the impugned order are only Station
Diary Entries in 2024, which had not culminated in any criminal proceeding
or First Information Report. These two entries are mere perception of the
police authority. Before that, the case in immediate proximity, which has
been lodged against the petitioner, was lodged on 02.09.2022, that too
under Section 272, 273, 290, 414/34 of the Indian Penal Code and Section
47(a) of the Excise Act.
19. As per the State-respondents, themselves, the petitioner has
committed one offence in September 2022 and thereafter the next offence,
which was committed by him, was in April 2024, i.e. after nearly 1 ½ years.
Before 02.09.2022, the offence, which was committed by the petitioner was
on 03.07.2021 and prior to that in February, 2020; April, 2020 and October,
2020. The immediate proximity of a criminal case of the petitioner vis-à-vis
the impugned order of detention, is Chakulia Police Station Case No.30 of
2024, which is in respect of manufacturing of illegal foreign liquor, wheras
the rest of the activities are of at least two years prior to the impugned order.
Such old cases of 2017 to 2022 cannot also be a ground to issue a detention
order in the month of September, 2024, when admittedly the State did not
chose to pass any order of preventive detention in 2021-22. Thus, it cannot
be said that the petitioner is habitually committing offence to bring him within
the definition of “anti-social element” as per the Jharkhand Control of Crimes
Act, 2002.
20. It is also necessary to note that in Chakulia Police Station Case
No.28 of 2017, petitioner was granted anticipatory bail. In Chakulia Police
Station Case No.51 of 2019 also, petitioner was granted anticipatory bail. In
Police Station Case No.26 of 2021, he is on anticipatory bail. In Chakulia
Police Station Case No.25 of 2020 and Chakulia Police Station Case No.60
of 2020 also he is on bail. In Mosaboni Police Station Case No.35 of 2020,
petitioner has been acquitted. In Chakulia Police Station Case No.30 of 2024
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also he is on bail. It is made clear that the State is not remediless inasmuch
as if any person commits an offence when he is on bail, the State should
move appropriate Court for cancellation of his bail. Preventive detention is
not an appropriate measure/recourse of law.
21. In view of the findings above, I am of the opinion that the State
has failed to make out a case of breach of “public order” in the instant case,
rather at best the material relates to maintenance of “law and order” and not
“public order”. Further, in terms of Section 2(d) of the Jharkhand Control of
Crimes Act, petitioner cannot be said to be an “anti-social element”
committing offences habitually.
22. In view of what has been held above, the impugned order dated
04.09.2024 passed by the District Magistrate-cum-Deputy Commissioner,
Jamshedpur, East Singhbhum is quashed and set aside. Consequently, the
subsequent orders dated 13.09.2024 and 21.10.2024 are also set aside.
23. This Criminal Writ Petition is, accordingly, allowed. Pending
interlocutory applications, if any, stand disposed of.
(Ananda Sen, J.)
Per Gautam Kumar Choudhary, J. – I agree
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 29th November, 2024
NAFR/Kumar/Cp-03
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