Rajesh Kumar vs The State of Bihar, through the Principal Secretary, Deptt. of Home Affairs, Bihar, Patna
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1019 of 2026
======================================================
Rajesh Kumar Son of Janardan Prasad Resident of Village- Raitar, P.S.-
Giriyak, District- Nalanda
... ... Petitioner
Versus
1. The State of Bihar, through the Principal Secretary, Deptt. of Home Affairs,
Bihar, Patna Bihar
2. The Principal Secretary, Deptt. of Home Affairs, Bihar, Patna Bihar
3. The Director General of Police, Bihar, Patna Bihar
4. The Inspector General of Police, Central Rage, Bihar, Patna Bihar
5. The District Magistrate, Nalanda, Bihar Bihar
6. The Senior Superintendent of Police, Nalanda, Bihar Bihar
7. The S.H.O. of Giriyak P.S., Nalanda, Bihar Bihar
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Priya Ranjan, Advocate
For the Respondent/s : Mr. Kinkar Kumar, SC-9
Ms. Sushmita Sharma, AC to SC-9
Ms. Vagisha Pragya Vacaknavi, AC to SC-9
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE KUMAR MANISH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE KUMAR MANISH)
Date : 17-07-2026
Heard learned counsel for the petitioner and learned
counsel for the State.
2. The petitioner in the present writ application has
th
assailed the order dated 20 March, 2026 (Annexure ‘1’) passed
by the District Magistrate, Nalanda in BCCA Case No. 06/2026
whereby the petitioner has been asked to put his attendance in
Silao Police Station on every Monday and Friday for a period of
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one month. The counsel for the petitioner also prays for the relief
of directing the respondent authorities not to harass the petitioner
by invoking the provisions of Bihar Control of Crimes Act, 2024
(in short ‘BCC Act’) as the petitioner is a social worker and
branding the petitioner as on anti-social element is curtailing his
fundamental rights.
Submissions on behalf of the petitioner
3. Learned counsel for the petitioner submits that in the
present case a notice dated 27.01.2026 (Annexure ‘2’) was issued
by the District Magistrate, Nalanda wherein it was directed to the
petitioner to appear before the District Magistrate, Nalanda on
06.02.2026 and to show cause as to why an order under Section
3(3) of BCC Act should not be passed against the petitioner in as
much as six criminal cases are pending against him. In the said
notice it was also stated that there is a possibility of
breach/obstruction of law and order by the petitioner. In view of
the aforesaid show cause notice, the petitioner appeared before the
District Magistrate, Nalanda on 06.02.2026 and filed a show
cause.
4. Learned counsel for the petitioner submits that the
grievance of the petitioner is that without considering his reply
dated 06.02.2026 to the show cause notice, the District Magistrate,
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Nalanda proceeded to pass an order contained in Memo No. 862
dated 20.03.2026 wherein the petitioner has been declared to be an
'anti-social element' on account of six pending criminal cases and a
Sanha which are as follows:
(i) Giriyak P.S. Case No. 36/2021 under section 30(a) of
Bihar Prohibition and Excise (Amendment Act), 2018,
(ii) Mufassil P.S. Hajaribag P.S. Case No. 138/2021
under section 379 Indian Penal Code,
(iii) Deep Nagar P.S. Case No. 339/2020 under section
30(a) of the Bihar Prohibition & Excise (Amendment) Act, 2018,
(iv) Akbarpur Nawada P.S. Case No. 154/2019 under
sections 406/420/379/34 of Indian Penal Code,
(v) Giriyak (Pawapuri) P.S. Case No. 05/2016 under
section 7 of E.C. Act,
(vi) Giriyak (Pawapuri) P.S. Case No. 287/2016 under
section 11 of the Gambling Act, and
(vii) Giriyak P.S. Sanha No. 805/2026 dated 19/01/2026.
5. Further in the said order it was directed to the
petitioner that he shall record his attendance before the SHO, Silao
on every Monday and Friday and if for any reason, the petitioner
was required to go outside the jurisdiction of the said Police
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Station, the duration and the purpose for such period shall be
clearly informed to the said Police Station.
6. It is also submitted by learned counsel for the
petitioner that the District Magistrate, Nalanda did not consider the
fact that there is not a single case registered against the petitioner
after 2021 or chargehseeted within 24 months before initiation of a
proceeding under BCC Act, and that he has a clean record for the
last four to five years. The petitioner has not been convicted in any
of the cases which is pending against him. It has also been pointed
out by the counsel for the petitioner that the Silao Police Station is
at a distance of twenty kilometer from the village where he resides
coming under the jurisdiction of Giriyak Police Station.
7. Learned counsel for the petitioner submits that he had
to suffer because of the impugned order which is marked as
Annexure ‘1’ to the writ petition. Therefore, he is entitled for the
quashing of the order as well as compensation.
Submissions on behalf of the State
8. Per contra, learned counsel for the respondents (SC-9)
submits that on the basis of the proposal received from the
Superintendent of Police, Nalanda, a proceeding under Section 3
of the BCC, 2024 was initiated. The aforesaid proposal was based
on the recommendation submitted by the SDPO, Rajgir, in which
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it has been stated that the petitioner is an anti-social and a criminal
minded element.
9. The counsel further submits that the petitioner has
criminal antecedents pertaining to the offences of storage and
transportation of illicit liquor, theft, forgery etc. and has remained
involved in criminal activities for which he is on bail. Due to
apprehension of breach of peace and damage to the communal
harmony, on the eve of Holi and Ramanavami, a verification of the
above-mentioned facts was made and thereafter Giriyak P.S. Sanha
No. 805/2026 dated 19.01.2026 was registered against the
petitioner. It is admitted that there is no verification report on the
record.
10. The counsel for the respondents further submits that
the petitioner had been involved in other six criminal cases and
hence, due to the conduct of the petitioner, there is reasonable
apprehension that the petitioner may cause disruption of law,
order, public peace and tranquillity, on the eve of the upcoming
festivals. In view of the aforesaid, the counsel for respondents
submits that it is expedient that action under Section 3 of the BCC
Act, 2024 against the petitioner is necessary to maintain law and
order, public peace and tranquility.
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11. It has been further submitted that in the light of the
aforesaid proposal made by the S.P., Nalanda, the petitioner was
asked to file his show cause vide Notice No. 16 dated 27.01.2026
(Annexure ‘2’ to the writ petition).
12. The petitioner filed a show cause reply on
06.02.2026 (Annexure ‘3’), but no satisfactory explanation in his
defence was given. Thereafter, considering the proposal as well as
the recommendation of the police authorities, the District
Magistrate, Nalanda, passed the order dated 20.03.2026 with a
direction to the petitioner to mark his attendance at Silao P.S. on
every Monday and Friday for one month. In the said order, the
petitioner was declared to be an anti-social element.
13. Learned counsel for the respondent also submits that
the petitioner was involved in the offences under Sections 379, 406
and 420 of the Indian Penal Code (in short ‘IPC’), under Section 7
of the Essential Commodities Act, Section 11 of the Gambling Act
and Section 30(a) of the Bihar Prohibition and Excise
(Amendment) Act, 2018. Therefore, the offences alleged under
IPC were falling under Chapter-XVII IPC. It is also contended by
the counsel for the respondent, that the externment order passed by
District Magistrate, Nalanda has not been challenged by the
petitioner before the appellate authority and, therefore, without
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availing the alternative remedy, filing of this writ petition is not
proper and justified.
14. The counsel for the respondent also disputes the fact
that Silao P.S. is situated at a distance of twenty kilometer from the
place where the petitioner resides, rather it has been contended that
it is only at a distance of ten to twelve kilometer from the village
of the petitioner. It is further submitted that a period of externment
order has already been completed and the grievance of the
petitioner does not stand presently in any manner whatsoever,
therefore, the externment order does not require any interference.
15. It appears upon perusal of the records that the period
of externment came to an end on 19.04.2026. This writ petition
was filed on 03.04.2026, after the impugned order was passed.
One of the stands, which has been taken on behalf of the
respondents to oppose the maintainability of the present
application is that since the period of externment has already
expired, this writ petition has become infructuous and no useful
purpose would be served by entertaining this writ petition any
more.
Consideration
16. This Court has heard learned counsel for the
petitioner and learned counsel for the State, as also perused the
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pleadings available on the record. In this case, challenge is to the
th
order dated 20 March, 2026 passed by the District Magistrate,
Nalanda, in exercise of his power under sub-section (3) of Section
3 of the BCC Act.
17. A perusal of the impugned order (Annexure ‘1’)
would show that the District Magistrate has taken note of the six
cases registered against the petitioner between the year 2016 and
2021. The cases registered under the provisions of the IPC which
would fall under Chapter XVII of the IPC are Akbarpur Nawada
P.S. Case No. 154 of 2019 dated 05.05.2019 registered under
Section 406/420/379/34 IPC; Muffasil Hazaribagh P.S. Case No.
138 of 2021 dated 27.06.2021 registered under Section 379 IPC, in
which the petitioner has been charge-sheeted under Section
379/411 IPC; and the case registered under the Bihar Prohibition
and Excise Act are Deepnagar P.S. Case No. 339 of 2020 and
Giriyak P.S. Case No. 36 of 2021, which would be covered under
sub-clause (ix) of clause (b) of Section 2 of the BCC Act.
18. At this stage, since I find that the petitioner has been
declared an anti-social element, it would be necessary to take a
glance over the definition of the word “anti-social element” as
occurring under clause (b) of Section 2 of the BCC Act. Clause (b)
is being reproduced hereunder for a ready reference:-
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“b. "Anti-social element" means a person who
(i) commits, or attempts to commit or abets the
commission of any offence punishable under chapter
XVI or Chapter XVII of the Indian Penal Code; or
(ii) commits or abets the commission of, any offence
connected with trafficking in women and children
under the Immoral Traffic (Prevention) Act, 1956; or
(iii) commits or abets the commission of any offence
under the Protection of Children from Sexual
Offences Act, 2012; or
( iv ) 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
( v ) has been found passing indecent remarks to, or
teasing women or girls; or
(vi) has been declared as a Goonda as per provisions
of Bihar Police Manual, 1978; or
( vii ) commits or attempts to commit or abets the
commission of offence of manufacturing or selling or
transporting or transferring or illicit trafficking or
converting or repairing or testing or proving any
firearm or ammunition, or being member of an
organised crime syndicate or any person on its behalf
possesses or carries firearm or firearms or
ammunition in contravention to the provisions of the
Arms Act, 1959.
Explanation—1: For the purpose of this sub-section,
“illicit trafficking” means the acquisition, sale,
delivery, movement or transfer of firearms and
ammunition into, from or within the territory of
India, if the firearms and ammunition are not marked
in accordance with the provisions of the Arms Act,
1959 or are being trafficked in contravention of the
provisions of the said Act including smuggled
firearms of foreign make or prohibited arms and
prohibited ammunition.
Explanation-2: For the purpose of this sub-section,
“organized crime syndicate” means a group of two or
more persons who, acting either singly or
collectively, as a syndicate or gang indulging in
activities of organized crime.
Explanation-3: “Organized crime” means any
continuing unlawful activity by any person, singly or
collectively, either as a member of an organized
crime syndicate or on behalf of such syndicate, by
use of violence or threat of violence or intimidation
or coercion, or other unlawful means, with the
objective of gaining pecuniary benefits, or gaining
undue economic or other advantage for himself or
any person; or
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( viii ) commits or attempts to commit or abets the
commission of any offence in respect of sand,
punishable under the Mines and Minerals
(Development and Regulation) Act, 1957 (Central
Act 67 of 1957) or under the Bihar Minerals
(Concession and Prevention of Illegal Mining,
Transport and Storage) Rules, 2019 or any other law
for the time being in force; or
( ix) distills, manufactures, stores, transports, sells or
distributes any liquor, intoxicating drug or other
intoxicant in contravention of any of the provisions
of the Bihar Excise & Prohibition Act, 2016,
Narcotics Drugs and Psychotropic Substances Act,
1985, as amended from time to time or any other law
prohibiting such activities for the time being in force,
and the rules, notifications and orders made
thereunder, or in contravention of any other law for
the time being in force, or who knowingly expends or
applies any money or supplies any animal, vehicle,
vessel or other conveyance or any receptacle or any
other material whatsoever in furtherance or support
of the doing of any of the above mentioned things by
or through any other person, or who abets in any
other manner the doing of any such thing; or
( x ) commits or attempts to commit or abets the
commission of any offence, punishable under
Chapter XI of the Information Technology Act, 2000
(Central Act 21 of 2000); or
( xi) either by himself or as a member of or leader of a
gang illegally and unauthorisedly, by use of force or
threat or by any other unlawful means, takes
possession or attempts to take possession of any land
or house or any other property whether belonging to
the Government, local authority or any other person.”
19. Clause (f) and clause (g) define the phrase “commits
an offence” and the word “abet” respectively which are being
reproduced hereunder:-
“(f) The phrase “commits an offence” wherever used in
relation to an anti-social element in this Act means a
person, against whom, during twenty-four months
immediately preceding the commencement of any action
under this Act, not less than two cases in which police
report has been filed in the Court of law showing his
involvement in offences referred to in sub-section (b).
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(g) the word “abet” shall have the same meaning as
assigned to it under Section 107 of the Indian Penal
Code, 1861.”
20. Section 3 of the BCC Act reads as under:-
“ 3. Externment, etc., of anti-social elements. –
1. Where it appears to the District Magistrate that-
a. any person is an anti-social element, and
b. (i) that his movements or acts in the district or any
part thereof or in any part of the State are causing or are
calculated to cause alarm, danger or harm to persons or
property; and
(ii) that his activities as mentioned in sub-clause (i)
cannot be prevented without removing him from the
specified place or places.
the District Magistrate shall by notice in writing inform
him of the general nature of the material allegation
against him in respect of clauses (a) and (b) and shall
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
that he may wish to produce in support of his
explanation, unless for reasons to be recorded in writing
the District Magistrate is of opinion that the request is
made for the purpose of vexation or delay.
3. The District Magistrate on being satisfied that the
conditions specified in clauses (a) and (b) of sub-section
(1) exist, may by order in writing-
(a) direct him to remove himself outside the district or
part thereof, or any part of the State as the case may be,
by such route, if any, and within such time as may be
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specified in the order and to resist from entering the
district or the specified part thereof or of the State, until
the expiry of such period, not exceeding six months as
may be specified in the order;
(b) (i) require such person to notify his movements or to
report himself or to do both, in such manner, at such
time and to such authority or person as may be specified
in the order;
(ii) prohibit or restrict possession or use by him of any
such article as may be specified in the order;
(iii) direct him otherwise to conduct himself in such
manner as may be specified in the order; until the expiry
of such period, not exceeding six months as may be
specified in the order.”
21. It is evident on reading of sub-section (3) of Section
3 of the BCC Act that this provision casts a duty upon the District
Magistrate to be satisfied that the conditions specified in clauses
(a) and (b) of sub-section (1) exist. Thus, before passing an order,
the District Magistrate has to take a view whether the person who
is going to be declared an anti-social element is covered by the
definition of the word “anti-social element” as envisaged under
clause (b). I have seen that sub-clause (i) of clause (b) and most of
the other sub-clauses start with the cluster of words “commits, or
attempts to commit or abets the commission of any offence ...”.
So, in order to understand this provision, I have to take aid of sub-
clause (f) and sub-clause (g) of clause (b) under Section 2 of the
BCC Act. When I read these provisions together, it may be easily
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found that there must be at least two cases within a period of 24
months immediately preceding the commencement of any action
under this Act, in which police report has been filed in the court of
law showing the involvement of the person liable to be proceeded
against in offences referred to in sub-section (b) (it seems clause
(b) has been wrongly referred as sub-section (b)). In this case, the
last case registered against the petitioner is that of the year 2021,
therefore, on the date of issuance of notice, i.e. 27.01.2026
(Annexure ‘2’), the case of the petitioner was not covered under
clause (b) of Section 2 of the BCC Act. After 2021, no case was
registered against the petitioner and it is not the stand of the
respondents that during 24 months immediately preceding the
commencement of any action under this Act, in at least two cases,
police report has been filed in the court of law showing his
involvement in the offences referred to in clause (b) of Section 2
of the BCC Act.
22. The District Magistrate has recorded in the
impugned order that the petitioner is charge-sheeted in many
cases, but presently he is on bail. There is no allegation of breach
of conditions of bail. No application for cancellation of bail has
been filed. He has stated in the impugned order that if the
petitioner is allowed to move freely, then there is a strong chance
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of disturbance of law and order, public peace and social tranquility
during the ensuing festivals. He has not mentioned that the
petitioner has ever been involved in creating any disturbance in
public order or social tranquility. No occurrence of recent time is
noticed. In the notice (Annexure ‘2’), it is stated that because of
the free movement of the petitioner, law and order, public peace
and social tranquility may be disturbed in the ensuing Saraswati
Puja, Holi, and Ram Navami, 2026. So far as this ground is
concerned, in order to examine it, this Court would refer the
judgment of the Hon’ble Supreme Court in the case of Arjun vs.
The State of Maharashtra and Ors. reported in 2024 INSC 968 ,
wherein the appellant before the Hon’ble Supreme Court was
sought to be proceeded under Section 3(2) of the The Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers,
Drug-Offenders, Dangerous Persons, Video Pirates, Sand
Smugglers and Persons Engaged in Black-Marketing of Essential
Commodities Act, 1981. The appellant was detained for a period
of twelve months so as to prevent him from indulging in the
activities of bootlegging thereby preventing the maintenance of
peace. For this purpose, the detaining authority had basically relied
on the six cases registered against the said appellant by the State
Excise Department.
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23. The Hon’ble Supreme Court took note of the six
cases pending against the appellant alleging illicit manufacture of
th
handmade liquor, these cases were registered during the period 29
th
January 2023 to 18 October 2023, but in none of these cases, the
authorities had found it necessary to arrest the appellant.
24. The Hon’ble Supreme Court relied upon the
observations of Hon’ble Justice Hidayatullah, J. (as His Lordship
then was) in the case of Ram Manohar Lohia vs. State of Bihar
and Another reported in (1966) 1 SCR 709 and also in the case of
Ameena Begum vs. State of Telangana and Others reported in
(2023) 9 SCC 587 . Paragraph ‘12’, ‘13’ and ‘14’, of the judgment
rendered in the case of Arjun ( supra ) are being reproduced as
under:-
“ 12 . The distinction between a public order and law
and order has been succinctly discussed by
Hidayatullah, J. (as His Lordship then was) in the case
of Ram Manohar Lohia v. State of Bihar and
1
Another :
“ 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
1. (1966) 1 SCR 709 : 1965 INSC 175
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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.”
13 . It could thus be seen that a Constitution Bench of
this Court in unequivocal terms held that every breach
of peace does not lead to public disorder. It has been
held that when a person can be dealt with in exercise
of powers to maintain the law and order, unless the
acts of the proposed detainee are the ones which have
the tendency of disturbing the public order a resort to
preventive detention which is a harsh measure would
not be permissible.
14 . Recently, a Bench of this Court has referred to
various judgments of this Court while following the
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law laid down by this Court in the case of Ram
Manohar Lohia (supra), it will be appropriate to
reproduce the following paragraph from the judgment
of this Court in the case of Ameena Begum v. State of
2
Telangana and Others .
“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
tranquillity 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.
[Arun Ghosh v. State of W.B., (1970) 1 SCC 98 :
1970 SCC (Cri) 67] , is this : (SCC p. 100, para 3)
“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
tranquillity of the society undisturbed?”
39 . In Arun Ghosh case [Arun Ghosh v. State of
W.B., (1970) 1 SCC 98 : 1970 SCC (Cri) 67], 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 [Arun Ghosh v.
2. (2023) 9 SCC 587
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State of W.B., (1970) 1 SCC 98 : 1970 SCC (Cri)
67] , 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 [Ram Manohar
Lohia v. State of Bihar, 1965 SCC OnLine SC 9 :
(1966) 1 SCR 709] also ruled : (Arun Ghosh case
[Arun Ghosh v. State of W.B., (1970) 1 SCC 98 :
1970 SCC (Cri) 67] , 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 tranquillity. 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.”
41 . In Kuso Sah v. State of Bihar [Kuso Sah v.
State of Bihar, (1974) 1 SCC 185 : 1974 SCC (Cri)
84], Hon'ble Y.V. Chandrachud, J. (as the Chief
Justice then was) speaking for the Bench held that :
(SCC pp. 186-87, paras 4 & 6)
“4. … The two concepts have well defined
contours, it being well-established that stray and
unorganised crimes of theft and assault are not
matters of public order since they do not tend to
affect the even flow of public life. Infractions of
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law are bound in some measure to lead to disorder
but every infraction of law does not necessarily
result in public disorder. …
*
6. … The power to detain a person without the
safeguard of a court trial is too drastic to permit a
lenient construction and therefore Courts must be
astute to ensure that the detaining authority does
not transgress the limitations subject to which alone
the power can be exercised.”
(emphasis supplied)”
25. The Hon’ble Supreme Court took note of the fact
that even as six cases were registered, the excise authority did not
find it necessary to arrest the appellant and it was not that the
appellant had been arrested, released on bail and then again the
appellant continued with his activities. The Hon’ble Supreme
Court further observed that the statement of the two unnamed
witnesses making allegations were vague and stereotyped
statements.
26. In the light of above-mentioned judgment, when I
examine the facts of this case giving rise to issuance of
notice to the petitioner on the allegation that his free movement
may cause danger to public peace and social tranquility, it is found
that the District Magistrate has not referred any material at all in
the show-cause notice. On what ground Giriyak P.S. Sanha Case
No. 805 of 2026 was registered on 19.01.2026 and how the
Patna High Court CR. WJC No.1019 of 2026 dt.17-07-2026
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District Magistrate would reach to a subjective satisfaction on the
basis of the Sanha remains a mystery.
27. In the present case, the petitioner cannot be put into
the category of an anti-social element even as six cases are said to
be registered against him in different years with long and varying
interval. The condition under clause (f) of Section 2 is not
satisfied. Further, there has been a categorical statement made in
the writ petition, that in response to the notice dated 27.01.2026,
issued by the District Magistrate, Nalanda, the petitioner had filed
a reply on 06.02.2026, wherein he had stated that he had been
falsely implicated in all cases and has not been convicted till date
in any of the cases. It has been stated that he had been victimized
for political reasons and no case has been instituted against him
after 2021. There is no denial of this fact in the counter affidavit.
28. Be that as it may, this Court is testing the correctness
of the impugned order dated 20.03.2026, based on its own
contents. It is a well settled principle that the correctness or
otherwise, of an order passed by the statutory authority is to be
decided on the basis of the contents of the order itself, which
cannot be improved by filing of an affidavit.
29. Learned counsel for the petitioner appears to be
correct in his submission that the impugned order has been passed
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by the District Magistrate, Nalanda without considering crucial
and significant facts that the petitioner has not been convicted in
any of the offences and that no case has been registered against the
petitioner after 2021. The law stipulated in section 2(b) of the BCC
Act in declaring a person to be an anti-social element has also been
overlooked by the said Authority. The impugned order is silent on
the said explanation and, therefore, suffers from non-application of
mind.
30. It is not out of place to mention the case of Shiv
Prasad Bhatnagar vs State of M.P., and Another reported in
(1981) 2 SCC 456 , while dealing with the legality of an order of
preventive detention the Court has held, in no uncertain terms, that
such order must be proximate and not stale. The Hon’ble Supreme
Court added that staleness and vagueness are the vices, any single
one of which is sufficient to vitiate the ground of detention.
31. However, the satisfaction of the authority can be
interfered with if the satisfaction recorded is demonstrably
perverse, based on no evidence, misleading evidence, or no
reasonable person could have, on the basis of the materials on
record, been satisfied of the expediency/necessity of passing an
order for externment.
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32. In the aforesaid backdrop, it becomes abundantly
clear that the petitioner cannot be made to fall within the definition
of an anti-social element as given by section 2(b) of the Act, the
power of directing the petitioner’s externment by invoking section
3 of BCC Act, 2024 could not have been arisen.
33. This Court being a constitutional court is under
obligation to protect the fundamental rights of the citizens and it
cannot remain silent and a mute spectator where the life and the
liberty of a citizen are curtailed without following the established
procedure of law. Keeping in view all the aspects discussed in
foregoing paragraphs, the conditions precedent for invoking a
District Magistrate’s jurisdiction under Section 3 of the BCC Act,
2024, having been not satisfied in the present case, no order of
externment could have been passed against the present petitioner.
Learned counsel for the petitioner is, therefore, not incorrect, when
he submitted that the impugned order of externment is nullity in
eyes of law and the contention of the counsel for respondent is not
tenable in light of the discussions made hereinabove. This Court
finds that the impugned order of externment dated 20.03.2026, is
not sustainable and therefore, warrants interference.
34. Having noticed that the impugned order has been
passed by the District Magistrate, Nalanda, in complete violation
Patna High Court CR. WJC No.1019 of 2026 dt.17-07-2026
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of the statutory provisions, which has resulted in infringement of
the fundamental rights of the petitioner embodied under Article 21
of the Constitution of India, I am of the opinion that the
petitioner cannot be relegated at this stage to an alternative remedy
of appeal.
35. This Court has noticed that the petitioner was
ordered to mark his attendance every Monday and Friday at Silao
Police Station, whereas he happened to be a resident within the
jurisdiction of Giriyak Police Station. This is another illegality
caused by the District Magistrate, Nalanda. In the case of Rakesh
Kumar Yadav @ Rakesh Yadav vs. The State of Bihar and
Others (Cr.WJC No. 1667 of 2025) reported in 2025 SCC
OnLine Pat 3563 , this Court had occasion to take note of Rule 6
of the Bihar Control of Crime Rules, 1978. Paragraph ‘10’ and ‘11’
of the judgment in the case of Rakesh Kumar Yadav @ Rakesh
Yadav (supra) are being reproduced hereunder:-
“ 10. We appreciate that learned SC-9 has himself
placed before this Court Rule-6 of the Bihar Control
of Crime Rules, 1978, which reads as under:
“6. While making an order under sub-section (3)
of section 3 the District Magistrate may
ordinarily require or direct the person affected by
the order
(a) to notify his movements to Officer-in-charge
of the Police Station (whether in the same district
or any other district within or outside Bihar
Patna High Court CR. WJC No.1019 of 2026 dt.17-07-2026
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State) nearest to his residence for the time being
or to report himself to the said officer at such
time and place as may be directed by such officer
but not more than once in a day;
(b) to observe the prohibition or restriction about
possession or use by him of any Lathi, fire-arm,
sharp-edged weapon, any intoxicant, liquor,
opium, Ganja, Charas or Bhang;
(c) not to be přesent within a specified distance
from any specific educational institution,
religious place, Mela Hat-Bazar, Cinema house
or place of public entertainments such as public
parks, restaurants and hotels, or around any
public office on pay days;
(d) in case the Anti-social element removes
himself outside Bihar also to inform the District
Magistrate who made the order of his address at
fortnightly intervals.”
11. Learned SC-9 has admitted at the bar that in
terms of this Rule-6 the petitioner could have been
asked to mark his attendance in the police station
only once in a day. ”
36. It is evident that the petitioner was asked to go to
mark his attendance at a place away from his place of residence,
leaving aside the jurisdictional police station, which has no
rationale in the facts of this case. Before passing of the impugned
order on 20.03.2026, the festivals like Saraswati Puja and Holi had
already gone. There is nothing on the record that the petitioner had
indulged in doing any act or deed so as to disturb public order of
social tranquility. The District Magistrate remained completely
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unmindful of miscellaneous facts. Thus, because of an illegal,
arbitrary and illogical order, the petitioner’s liberty had been
curtailed for a month. The petitioner has been made to suffer
hardships continuously during this period. Thus, I am of the
considered opinion that the State Government must pay
compensation of Rs. 1,00,000/- to the petitioner, besides the cost
of litigation assessed at Rs. 10,000/-. The entire amount shall be
paid to the petitioner within a period of one month from the date of
production of this order.
37. Before parting with this judgment, it would be
appropriate to record the disappointment of this Court on the
manner in which the power under sub-section (3) under Section 3
of the BCC Act has been exercised by an officer of the State in the
rank of District Magistrate.
38. From the impugned order, this Court has noticed that
the proceeding was initiated on the basis of a letter written by one
Inspector of Police-cum-SHO, Giriyak Police Station, to the
Superintendent of Police, Nawada, in which he only referred the
previous cases against the petitioner and made a vague statement
that the activities of the petitioner is doubtful and in this regard, he
recorded a Sanha. The said letter contained in Memo No. 305/2026
dated 19.01.2026 was submitted to the Superintendent of Police,
Patna High Court CR. WJC No.1019 of 2026 dt.17-07-2026
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Nalanda, through proper channel. The endorsement made thereon
shows that it was forwarded by the Inspector of Police, Giriyak
Circle, Nalanda, who endorsed it, whereafter the Sub-Divisional
Police Officer, Rajgir, wrote Letter No. 164 dated 19.01.2026 to
the District Magistrate, Nalanda, through Superintendent of Police,
Nalanda. He simply reiterated the same and one thing which were
stated by the Police Inspector-cum-SHO, Giriyak Police Station.
On receipt of the forwarding letter from the Sub-Divisional Police
Officer, Rajgir, the Superintendent of Police, Nalanda, did no
better than to simply reiterate the same thing and sent it to the
District Magistrate, Nalanda.
39. Surprisingly, all these actions were taken on the
same and one date, i.e. on 19.01.2026. The speed with which the
report of the Inspector-cum-SHO, Giriyak Police Station, reached
to the Inspector, Giriyak Circle, then the report of the Circle
Inspector reached to the SDPO, Rajgir, the report of the SDPO
reached to the Superintendent of Police, Nalanda and then the
Superintendent of Police, Nalanda, wrote Letter No. 159 dated
19.01.2026 to the District Magistrate, Nalanda, would not inspire
confidence into the efficiency of the entire system. An act done in
haste smacks malafide in law if not in fact.
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40. It is evident from all these correspondences, which
are available on the record with the counter-affidavit, that none of
these authorities have applied their mind, no verification of the
fact has been done by the Circle Inspector, SDPO and also the
Superintendent of Police. There is no mention of any material
except the bald statement of the SHO, Giriyak Police Station that
he has gathered some information in this regard while collecting
information to maintain law and order problem. There is
absolutely no basis and no statement of any person has been
recorded or enclosed with the report of the SHO, Giriyak Police
Station. If the action under the BCC Act may be taken on a mere
desire or wish of a police officer, a citizen is likely to suffer
hardships in his life in the nature of an irreparable loss of
reputation.
41. Keeping in view the judgment of this Court in the
case of K.K. Pathak @ Keshav Kumar Pathak vs. Ravi
Shankar Prasad & Other reported in (2019) 1 PLJR 1051 , if the
State is saddled with cost and compensation due to misuse or
excessive use of power by an executive of the State, it is open to
the State to realise compensation and the cost amount, awarded by
this Court, from the erring officials. The said judgment of this
Court was subject matter of challenge before the Hon’ble Supreme
Patna High Court CR. WJC No.1019 of 2026 dt.17-07-2026
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Court in SLP (Cri) No. 003566 of 2019 , but the said challenge
failed.
42. This Court, therefore, directs the State Government
to realise the cost and compensation amount payable to the
petitioner from the erring officials within a period of six months in
accordance with law and report to this Court.
43. In result, this criminal writ application succeeds. The
impugned order dated 20.03.2026 (Annexure ‘1’) passed by the
District Magistrate, Nalanda, is hereby set aside. Aspersions caste
against the petitioner is expunged. The cost and compensation
shall be paid as per paragraph ‘36’ of this judgment.
44. The criminal writ application thus stands allowed.
(Kumar Manish, J)
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
I have read the erudite judgment of my learned Brother
in draft. I agree with his reasonings and conclusions. Before
parting with this judgment, I wish to add a few words hereinbelow.
2. The object and reasons behind enactment of the BCC
Act is to make special provisions for the control of anti-social
elements acting in any manner prejudicial to the maintenance of
public order and for matters connected therewith. The phrase
“acting in any manner prejudicial to the maintenance of public
Patna High Court CR. WJC No.1019 of 2026 dt.17-07-2026
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order” is defined in clause (a) of Section 2 of the BCC Act which
reads as under:-
2. Definition
a. “acting in any manner prejudicial to the maintenance of public
order" means a person is engaged, or is making preparations for
engaging, in any of his activities as anti-social element, which
affects adversely, or are likely to affect adversely the
maintenance of public order,
Explanation: - For the purpose of this sub-section, public order
shall be deemed to have been affected adversely, or shall be
deemed likely to be affected adversely, inter alia, if any of the
activities of any of the persons referred to in sub-section (b)
directly or indirectly, is causing or calculated to cause any harm,
danger or alarm or a feeling of insecurity, among the general
public or any section thereof or a grave or widespread danger to
life or public health or ecological system or disturb the life of the
community thereby resulting in loss of confidence in
administration.
3. It is in order to deal with such anti-social elements, who
are acting in any manner prejudicial to the maintenance of public
order, the legislatures have conferred some drastic powers upon the
District Magistrate under Section 3 of the BCC Act. The District
Magistrate has been vested with sweeping extraordinary powers
under a legislative scheme which has been structured to bypass
standard procedural delays in controlling organised syndicates. The
administration which has to deal with the maintenance of public
order has been conferred with power to pass order of externment and
banishment. This provision has been made to tackle immediate threat
to public order by an anti-social element. In a catena of judgments,
the Hon’ble Supreme Court has been pleased to hold and declare that
while exercising drastic powers the authorities vested with such
powers have to base their decision on credible information. The
Patna High Court CR. WJC No.1019 of 2026 dt.17-07-2026
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information required to be formed in the cases of the present nature
cannot be formed based on imaginary grounds or wishful thinking.
The District Magistrate must be able to show the materials on the
basis of which the believe is formed. Drastic powers are to be
exercised with all circumspection and care. A bald statement of a
police officer without there being any reason to believe cannot be a
basis to exercise the power conferred upon the District Magistrate
under Section 3 of the BCC Act. The power of the District Magistrate
cannot be left unbridled and uncanalised. It is draconian in nature
because it has an effect immediately curtailing a citizens fundamental
right to life guaranteed by Chapter-III of the Constitution of India.
Exercise of power under this provision is dependent upon the
formation of a subjective opinion by the District Magistrate that it is
necessary so to do for the purpose of maintaining public order.
4. In the case of Kuso Sah vs. The State of Bihar
reported in (1974) 1 SCC 185 speaking for the Bench, the then
Hon’ble Mr. Justice Y.V. Chandrachud held as under:-
“4. * The two concepts have well defined
contours, it being well established that stray and
unorganised crimes of theft and assault are not
matters of public order since they do not tend to
affect the even flow of public life. Infractions of law
are bound in some measure to lead to disorder but
every infraction of law does not necessarily result in
public disorder. *
Patna High Court CR. WJC No.1019 of 2026 dt.17-07-2026
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6. * The power to detain a person without the
safeguard of a court trial is too drastic to permit a
lenient construction and therefore Courts must be
astute to ensure that the detaining authority does not
transgress the limitations subject to which alone the
power can be exercised. *”
5. To declare somebody as anti-social element would
amount to casting legal and social stigma which is likely to affect a
person in many ways even after he gets acquitted with honour in the
criminal cases lodged against him. An executive action declaring a
person anti-social element under the BCC Act can predominantly
tarnish his reputation. Legal measures that inflict public stigma must
meet strict constitutional scrutiny. In the cases of Subramanian
Swamy vs. Union of India reported in (2016) 7 SCC 221, State of
Bihar vs. Lal Krishna Advani reported in (2003) 8 SCC 361 and
Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni
reported in (1983) 1 SCC 124, the Hon’ble Supreme Court has held
that right to reputation is an integral part of life and personal liberty
under Article 21 of the Constitution of India. In such circumstance,
the order of a District Magistrate under the BCC Act must ensure that
he did not act mechanically.
6. In the case of Subramanian Swamy, the Hon’ble
Supreme Court has quoted Lord Denning in paragraph ‘36’ of its
judgment which I reproduce hereunder:-
“ 36. Lord Denning explained the distinction
between character and reputation in Plato Films
Patna High Court CR. WJC No.1019 of 2026 dt.17-07-2026
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15
Ltd. v. Speidel in a succinct manner. We quote :
(AC p. 1138)
“… A man's “character”, it is sometimes said, is
what he in fact is , whereas his “reputation” is what
other people think he is . If this be the sense in
which you are using the words, then a libel action is
concerned only with a man's reputation, that is, with
what people think of him : and it is for damage to
his reputation, that is, to his esteem in the eyes of
others, that he can sue, and not for damage to his
own personality or disposition. That is why Cave, J.
spoke of “reputation” rather than “character”.
The truth is that the word “character” is often used,
and quite properly used, in the same sense as the
word “reputation”. Thus, when I say of a man that
“He has always borne a good character”, I mean
that he has always been thought well of by others :
and when I want to know what his “character” is, I
write, not to him, but to others who know
something about him. In short, his “character” is the
esteem in which he is held by others who know him
and are in a position to judge his worth. A man can
sue for damage to his character in this sense, even
though he is little known to the outside world. If it
were said of Robinson Crusoe that he murdered
Man Friday, he would have a cause of action, even
though no one had ever heard of him before. But a
man's “character”, so understood, may become
known to others beyond his immediate circle.
Insofar as the estimate spreads outwards from those
who know him and circulates among people
generally in an increasing range, it becomes his
“reputation”, which is entitled to the protection of
the law just as much as his character. But here I
speak only of a reputation which is built upon the
estimate of those who know him. No other
reputation is of any worth. The law can take no
notice of a reputation which has no foundation
except the gossip and rumour of busybodies who do
not know the man. Test it this way. Suppose an
honourable man becomes the victim of groundless
rumour. He should be entitled to damages without
having this wounding gossip dragged up against
him. He can call people who know him to give
15. 1961 AC 1090 : (1961) 2 WLR 470 : (1961) 1 All ER 876
Patna High Court CR. WJC No.1019 of 2026 dt.17-07-2026
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evidence of his good character. On the other hand,
suppose a “notorious rogue” manages to conceal his
dishonesty from the world at large. He should not be
entitled to damages on the basis that he is a man of
unblemished reputation. There must, one would
think, be people who know him and can come and
speak to his bad character.”
7. In the present case, I fully agree with the views of my
learned Brother that the manner in which a totally unverified
statement of the SHO of the Giriyak Police Station changed hands
one after another and reached to the table of the District Magistrate
who passed the order impugned in the writ application is an example
of “act in haste”. It has a tendency to cause damage to the reputation
of the petitioner.
8. I, therefore, record my complete agreement with the
judgment of my learned Brother.
(Rajeev Ranjan Prasad, J)
amitkumar /Rishi-
AFR/NAFR AFR
CAV DATE 19.06.2026
Uploading Date 17.07.2026
Transmission Date 17.07.2026