AJAY PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The Deputy Superintendent of Police, Muzaffarpur submitted a report dated 4.1.2000 to the District Magistrate, Muzaffarpur for initiating a proceeding under Section 3 of the Bihar Control of Crimes Act, hereinafter to be referred to as the Act. Pursuant to the report the District Magistrate initiated a proceeding le. C.C. Act Case No 8 of 1999- 2000 against the petitioner and directed to issue notice under Section 3(1) of the Act to the petitioner Simultaneously, direction was given to issue warrant of arrest under Section 7(2) of the Act. The petitioner was arrested and brought before the District Magistrate on 8.3.2000 and he was remanded to jail custody fixing 6.4.2000. The petitioner tendered his explanation with regard to initiation of the proceeding, Annexure 3, on 27.6.2000. The explanation is pending and no order has been passed on the said explanation. However, the petitioner is being remanded time to time and is in custody. No final order either on the explanation filed by the petitioner or under Section 3(3) has been passed. Thus, the petitioner has filed this writ petition challenging the action of the District Magistrate, respondent No. 4 and made prayer for his release forthwith.

(2.) A counter-affidavit has been filed on behalf of the Superintendent of Police, respondent No. 5. No counter- affidavit has been filed on behalf of other respondents. In the counter-affidavit the fact with regard to keeping the petitioner in jail has not been denied and in fact it has been admitted that no final order under Section 3(3) of the Act has been passed. The question for determination now is whether the respondent No. 4 is justified in keeping the petitioner in jail without passing any order on the explanation filed by the petitioner or passing any final order under Section 3(3) of the Act.

(3.) Section 3 of the Act deals with externment of anti-social elements. Section 3(1) provides the ground for externment and notice to the person concerned. Section 3(2) provides that the persons concerned has right to defend himself or by engaging counsel. Section 3(3) deals with regard to passing of order of externment. Section 7(1) deals with regard to securing attendance of the person concerned. Section 7(2)(a) deals with power of issuing warrant of arrest of the District Magistrate and Section 7(2)(b) deals with regard to power of the District Magistrate, in case his direction is not obeyed by the person against whom proceeding has been initiated, to detain him in jail custody. Obviously, notice under Section3(1) of the Act was issued to the petitioner. Simultaneously, warrant of arrest under Section 7(2) was issued. Pursuant to the said warrant of arrest the petitioner was arrested on 8.3.2000 and he is being remanded time to time and is in jail till today. Section 7(1) says with regard to attendance of such person and such person can be released on executing bond. There is nothing on the record to show that the petitioner failed to execute bond and, therefore, he has been kept in custody rather learned counsel for the petitioner argued that detention of the petitioner without affording any opportunity to execute bond is illegal and as such the petitioner is entitled to be released. There is also nothing on the record to show that the petitioner violated any order or direction of the District Magistrate rather he is in jail. Since the day of arrest le. about more than eight months and no final order under Section 3(3) of the Act has been passed nor explanation submitted by the petitioner against the initiation of the proceeding has been disposed of. In such a situation, the detention of the petitioner cannot be held to be valid as it is not a criminal proceeding rather it is a special proceeding under the Bihar Control of Crimes Act where order can be passed for externment of such person under Section 3(3) of the Act. Therefore, in any view of the matter keeping the petitioner in jail custody cannot be held to be justified.