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2001 Supreme(Raj) 1280
Rajasthan High Court, Jaipur Bench
Honble SHIV KUMAR SHARMA & ANOOP CHAND GOYAL, JJ.
Devendra Jain - Appellant
Versus
State of Rajasthan & Anr. - Respondents
D.B. Criminal Writ Petition No. 5715 of 2000
Decided On : December 06, 2001
Suresh Sahni, for Petitioners S.M. Mehta, Advocate General with Shailesh Prakash Sharma, for the Non-Petitioners
Headnote:(a) Rajasthan Control of Goondas Act, 1975, Sec. 3(3), 3(4), 4 & 5; Cr.P.C., 1973, Sec. 3(4)(a) – Power of the Executive Magistrate to extern the Goondas in view of Section 3(4)(a) of the Cr.P.C. – Held – The provisions of the special law override the provisions of the general law of procedure – The Act is a special law – Promulgated with a view to the maintenance of public order – The provisions of the Act override the provisions of Section 3(4)(a) of Cr.P.C. – The Executive Magistrate enjoys all executive powers including externment and those for preservation of law and order. (Paras 7 & 8)(b) Rajasthan Control of Goondas Act, 1975, Sec. 3(3) and Constitution of India, Art. 19(1)(d) and (e) and Art. 21 – Whether the order of externment passed u/Sec.3(3) of the Act is ultra vires to Art. 19(1)(d) and (e) and Art. 21 – Held – Section 3(3) of the Act gives arbitrary powers to the Executive Magistrate to remove a person to such a place without residence, maintenance etc. depriving him from basic human rights – These are unreasonable restrictions which infringes right of the citizen under Art. 19(1)(d) and (e) and Art. 21 of the Constitution – Being ultra vires and violative of Art. 19(1)(d) and (e) and Article 21, struck down Section 3(3) of the Act – Set aside the order of externment. (Paras 14,16 & 17)
Reading Sections 4 and 5 together, the conclusion is irresistible that if there exists any special law or if any special jurisdiction or power is conferred upon the court or if any form of procedure is prescribed in the special law, then, the provisions of the special law would override the provisions of the general law of procedure. This section in our view vehemently provides that nothing contained in the Cr.P.C. in the absence of specific provision to the contrary, affect any special or local law for the time being in force. (Para 7)
The State is undoubtedly empowered to enact the law in the interest of general public by imposing reasonable restrictions restricting the right of citizen provided u/Art. 19(1) (d) & (e) of the Constitution and the Act was also promulgated for the control and suppression of Goondas with a view to the maintenance of public order but it imposes unreasonable restrictions which are not justifiable under clause (5) of Art.19 of the Constitution and thus sub-sec. (3) of Sec.3 of the Act of the Act is ultravires. (Para 14)
(2). The Additional District Magistrate Kota under Section 3 of the Act ordered for externment for a period of six months of the petitioners Devendra Jain from Kota to Sawai Madhopur and Satya Narain @ Sattu from Kota to Bundi.
(3). We have heard the rival submissions and scanned are relevant statutory provisions.
(4). The contentions urged on behalf of the petitioners are as under.
(i) In view of sub-section (4) of section 3 of Cr.P.C. the Legislature is not having any such power to enact the Act which grant power to the Executive Magistrate to award punishment for the reason that by the amendment of the Cr.P.C. 1973 the power of the Executive Magistrate and Judicial Magistrate were bifurcated and it was also stipulated in explicit terms that what would be the functions of the Executive Magistrate and Judicial Magistrate and it is also settled that the action initiated under Section 3, 4 & 5 of the Act falls within the definition of `punishment. The definition of `punishment given under section 53 of the Indian Penal Code is not exhaustive and it applies only to the provisions of Indian Penal Code, therefore, the act is unconstitutional being contravention of the Code of Criminal Procedure 1973.
(ii) The order passed under Sections 3, 4, and 5 of the Act falls within the definition of punishment for the reason that such order takes away not only the liberty of the person but also his resources of employment, his duties towards his family members and also put an immediate problem of shelter on his head i.e. boarding and lodging etc. in other words, it can be described as an economical death and it would not be hyperbole to state, that the effect of such orders are more higher than the regular imprisonment of preventive detentions.
(5). The respondent State in its reply filed only in writ petition No. 5715/2000 contested the writ petition and submitted that the impugned Act is just and proper and has legislative competence and it not unconstitutional.
(6). The relevant provisions of the Act may be briefly set out. The Act received the assent of the President on March 26, 1975 and it was published in Rajasthan Gazette Part IV Extraordinary on the same date. The Act was promulgated for the control and suppression of Goondas with a view to the maintenance of public order. Sections 3, 4, 5, 6, 9 and 10 of the Act provide as under :
``3. Externment etc. of Goondas -(1) Where it appears to the District Magistrate:
(a) that any person is a goonda; and
(b) (i) that his movements or acts in the district or any part thereof are causing or are 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 or abatement of any offence or act specified in sub-clauses (i) to (viii) of clause (b) of section 2l and
(c) that witnesses are not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or property;
the District Magistrate shall by notice in writing inform him of the general nature of the material allegations against him in respect of above clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them.
(2) The person against whom an order under this section is proposed to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires, and also of examining any other witnesses or to produce and relevant document that he may wish to produce in support of his explanation, unless for reasons to be recorded in writing the Dis
