Asked to report to police 60 km away from home, man facing case gets Rs 1 lakh compensation from Patna High Court

Case

The petitioner had approached the high court challenging the externment order passed by district magistrate, Saharsa. The counsel for the petitioner had submitted that the district magistrate also ordered the petitioner to physically appear in Basnahi police station every day between 9 am and 11 am besides 5 pm and 8 pm.

It was pointed out that there were two cases against the petitioner. The first case was registered under Sections 420 (cheating), 467 (forgery of security/will), 468 (forgery for cheating), 471 (using forged document) of the Indian Penal Code and Sections 30(a) (unlawful import or export or possession/sale of liquor), 41 (import, export, manufacture, transport, sale or possession by one person on account of another), 47 (allowing usage of premises) of the Bihar Prohibition and Excise Act, in which the high court had granted him anticipatory bail.

The second case was registered under Sections 223 (disobedience to order by public servant), 292 (public nuisance), 296 (obscene acts or songs), 3(5) (common intention) of the Bhartiya Nyay Sanhita alleging that a programme of orchestra was organised in a government school campus.

The counsel for the petitioner submitted that there was no material before the district magistrate to presume that he was causing or was likely to cause any danger or harm to any person or property.

It was further argued that the order was causing immense hardship as he had to travel 60 kilometer daily from his residence. The counsel submitted that the petitioner was not able to run his kirana shop and was rendered helpless in earning a livelihood.

The counsel representing the state, however, contended that the petitioner was engaged in illegal activities and the local people were facing threat.

The court observed that a person would not be able to do any work if a person is asked to make his attendance every day in the police station twice. The court further noted that such orders can virtually interfere with petitioner’s right to life under Article 21.

“We find that the District Magistrate, Saharsa, by passing the impugned order directing the petitioner to mark his attendance every day twice in the police station which was at a distance of 60 kilometers from his residence, has caused immense hardship to him and in the garb of exercise of his power, he may be held liable for misuse of his power or excessive use of power,” the court said.

The court therefore proposed to set aside that part of the order by which the petitioner was asked to mark his attendance twice in the police station, and it also proposed to award cost to the petitioner.

On the next day of hearing i.e., December 3, the court noted that the standing counsel did not dispute that the petitioner was granted anticipatory bail in the first case and thereafter there was no instance of his involvement in any offence of like nature.

The court further noted that the standing counsel had agreed that the second case was not in the nature of causing or likely to cause any danger or harm to the person or property of any person or the state.

It was further admitted that in terms of this Rule 6 of the Bihar Control of Crime Rules 1978, the petitioner could have been asked to mark his attendance in the police station only once in a day.

“The impugned order suffered from the principle of proportionality. It also rendered itself illegal being contrary to the mandate of Rule 6 of the Rules, which specifically said that the person shall not be ordered to make attendance more than once in a day. The negative covenant of Rule 6 could not have been violated by the District Magistrate in exercise of his power under sub-section (3) of Section 3 of the BCC Act,” the court said.

The court also noted that it had come across several such orders wherein persons against whom externment order is passed were directed to mark attendance sometimes at a distance of 100 kilometer from their original place of residence.

“The rule clearly says that such attendance is to be marked in the nearest police station but this rule is being violated with impunity,” the court observed.

Granting the compensation, the court directed the principal secretary, home affairs, Bihar, to bring this judgment to the notice of all the district magistrate in the state.