Karoo Rana vs The State of Bihar

Satya Brata Sanyal, J.—In these petitions the petitioners seek to quash the grounds for taking action under Bihar Control of Crimes Act, 1981, the order as contained in Annexure 3 and the order in appeal (Annexure 4) refusing to restore the appeal which was dismissed for non-appearance. Learned counsel for the petitioners has raised several points. His first point is that the petitioners are not-social elements because they have not been found to be habitually committing crimes under Chapter XVI or Chapter XVII of the Indian Penal Code. The order passed against the petitioners is both u/s 3(3)(a) and (b) which is per se illegal. The District Magistrate did not apply his judicial mind by passing the order of externment; is violation of the principles of natural justice and the reason assigned for non-restoration of the appeal dismissed for default.

Mr. Kamlapati Singh, Government Pleader No. 5, contended that there is no substance in any one of these contentions. I will consider his submissions while dealing with the points raised on behalf of the petitioners.

Anti-Social element:

The contention of learned counsel is that the words "habitually commits" must mean a case where such a person is convicted of the offences visualised u/s 2(d)(i). Mere pendency of cases under Chapters XVI and XVII of the Indian Penal Code by itself will not make a person anti-social. Mr. Kamlapati Singh, on the other hand, drew my attention to section 2(d)(v) and submitted that wherever the legislators thought that such a situation can only be taken into consideration they have so mentioned as for instance section 2(d)(v).

Having considered the respective submissions of learned counsel and also having perused the judgment in Rameshwar Koeri @ Rameshwar Mahto Vs. State of Bihar and Another, , which has been strongly relied upon by the petitioners'' counsel. I am of the view that habitually commits or attempts to commit or abets the commission of offences punishable under the two Chapters of the Indian Penal Code do not mean that the concerned person should be convicted by a court of law for the offences alleged at the time when the action is sought to be taken against him. The pendency of cases against the petitioners will also, in my opinion suffice. The action is sought to be taken for the prevention of crimes by the concerned person and if the authorities have to wait till an order of conviction attains finality then the very object which the Legislature seeks to achieve will be frustrated. Further even when a criminal case fails against a person that by itself is not very important since the failure of the case may be for variety of reasons-See Golam Hussain alias Gama Vs. The Commissioner of Police Calcutta and Others, and Sadhu Roy Vs. The State of West Bengal, . The allegations and pendency of cases must, however, manifest successive acts which alone will be indicative of habitual commission of offences by a person. The instances cited do show that the petitioners habitually commit and/or attempt to commit offences under Chapters XVI and XVII of the Indian Penal Code. In this connection section 2(d)(v) of the definition under the Act may also be noticed. It is only when a person has been convicted under sections 25, 26, 27, 28 or 29 of the Arms Act of 1959 he will be deemed to be a anti-social element. There is no such requirement so far as section 2(d)(i) is concerned. The case relied upon by learned counsel, namely, Rameshwar Koeri @ Rameshwar Mahto Vs. State of Bihar and Another, is also decision with respect to section 2(d)(v) and, therefore, it is clearly distinguishable. Composite order:

By the impugned order the District Magistrate has required the petitioners to remove themselves from the district of Bhagalpur and report their whereabouts every Monday to the officer-in-charge of Jamui Police Station by 8 a.m. and keep the officer-in-charge at Jamui Police Station informed of their whereabouts and movements. The thrust of the argument of learned counsel for the petitioners is that the District Magistrate red in his jurisdiction in passing an order both for removing themselves from the district as well as giving directions u/s 3(3)(b) to report themselves before a particular authority concerned in another district. The passing of such a composite order both u/s 3(3)(a) and (b) has been held to be illegal and beyond the jurisdiction of the authority in Asok Kumar Singh vs. State of Bihar (1980 B.L.J. 153). In that case this Court was moved against an order made u/s 10 of the Act for violation of a direction passed both u/s 3(3)(a) and (b), that is, a composite order of the kind I am dealing with. In that case it wa3 held that since one part of the order was bad for non-compliance whereof Ashok Kumar Singh was convicted it has to be quashed because the order required to be complied with was illegal and without jurisdiction. Their Lordships did not hold that when an authority passes an order of the said kind, which is both u/s 3(3)(a) and (b), the entire order is illegal and without jurisdictions. On the contrary, the last four lines of paragraph 8 of the said judgment show that challenge laid before their Lordships was to that part which required Asok Kumar Singh to notify his movements to the officer-in-charge of Chaibassa Police Station. Since their Lordships observed "It is this part of the order which has been seriously challenged by the learned counsel", I do agree with the submission of learned counsel that a composite order of that kind cannot be passed in view of the aforesaid judgment in Ashok Kumar Singh''s case (supra).

The question, however, is whether the order in its entirety is bad or the invalid part is severable from the valid part. This takes me to the doctrine of severability. The doctrine of severability has been applied to statutes where the legislation falls in part within the area allotted to it and in part outside it. The invalid part has been permitted to be severed if it is distinct and separate and what remains is in itself a complete code independent of the rest. If the two parts from a single scheme intended to be operative as a whole, in that event the invalidity of a part will result in the failure of the whole-See the case of R.M.D. Chamarbaugwalla Vs. The Union of India (UOI), . The question is whether the said principle can be applied to an order of the kind under consideration.

The only objection laid is whereas the District Magistrate was empowered to pass an order of externment u/s 3(3)(a) as also an Independent order u/s 3(3)(b), he could not have passed a composite order under sections 3(3)(a) and (b). In my opinion, this doctrine is not only applicable to statutes but is equally applicable to order passed under the statute of this kind as learned counsel has not been able to draw my attention to this doctrine not being applicable to an order. The order is in two parts. The first part is an order of externment and the second part requires the petitioners to notify their movements to a particular authority in another district where they have been ordered to remove themselves. The second part can only be fulfilled when the petitioners remove themselves to Jamui in order to carry out the directions about their movements at Jamui. This part is severable. I see no reason why this doctrine cannot be made applicable to an order which is partly valid and partly invalid provided they are distinct from each other and severance of one part does not affect in any manner the valid part of the order. In the instant case it is conceded that the District Magistrate could have passed the order of externment and removal to Jamui. What the District Magistrate could not have done in the same order is to direct the particular authority of another district to keep a watch and control and to direct the petitioners to notify their movements to the said authority outside the jurisdiction of the District Magistrate. This part is independent of the first part and consequential to the first part. This part can be safely severed without in any way affecting the valid part of the order requiring the petitioners to remove themselves from the district of Bhagalpur to Jamui in the district of Munger. I, therefore, do not find any difficulty in severing the second part from the original order as being illegal and beyond jurisdiction in view of the decision in Ashok Kumar Singh''s case (supra). Accordingly I hold that the order removing the petitioners to Jamui subdivision is legal and valid. But I quash Annexure 3 where it requires the petitioners to report their whereabouts every Monday to the officer-in-charge of Jamui Police Station by 8 a.m. and keep the officer-in-charge at Jamui Police Station informed of their whereabouts and movements.

I do not find substance in the argument of learned counsel so far as the other two points are concerned. The District Magistrate has considered the cases pending against the petitioners and the show cause filed by them. The chain of events and the conduct of the petitioners, in my opinion, rightly persuaded the District Magistrate to hold that the petitioners are anti-social elements requiring their removal from Bhagalpur district.

So far as the question of natural justice is concerned, the court of appeal below did not find sufficient cause in setting aside the order. Sufficient cause is always a question of fact. It is not possible for this Court to interfere with the said finding of the authorities below.

I find that the petitioners have been able to delay the execution of the order for a pretty long time and they can not be permitted to do so any more. It is open to the District Magistrate, therefore, to get the petitioners externed from the district of Bhagalpur forthwith. In the result, the two writ petitions are dismissed with the observation that that part of the order contained in Annexure 3 passed u/s 3(3)(b) of the Act is quashed.