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[Cites 24, Cited by 7]

Madhya Pradesh High Court

Golu Alias Mahendra Singh vs The State Of Madhya Pradesh on 3 March, 2016

Author: S. K. Gangele

Bench: S. K. Gangele

                    HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
                    AT JABALPUR


                      Writ Petition No.9496 of 2015


                      Golu alias Mahendra Singh
                                     Petitioner
                      versus
                      State of Madhya Pradesh and others
                                          Respondents



                    Coram :
                    Hon’ble Shri Justice S.K. Gangele


                    Shri Saurabh Singh, learned counsel for the petitioner.
                    Shri R.N. Yadav, learned Panel Lawyer for the
                    respondents/State.




d on : 01.02.2016
                      ORDER

(Pronounced on 03.03.2016) Per S. K. Gangele J.

Petitioner has filed this petition against the order dated 18.03.2015 (Annexure P-3) passed by the District Magistrate, Damoh in regard to externment of the petitioner for a period of one year. The petitioner has also challenged the order of the Appellate Authority dated 15.06.2015 (Annexure P-5).

2. On 01.12.2014, a show cause notice was issued to the petitioner by the District Magistrate to the effect that why an order of externment be not passed against the petitioner on account of registration of number of criminal cases and the petitioner is a habitual offender. The petitioner submitted a reply. Thereafter, the District Magistrate passed an order of externment against the petitioner on the ground that near about 10 criminal cases were registered against the petitioner from the year of 1999 to 2013. Apart from this under Sections 107, 116-3 and 110 of the Cr.P.C., 15 cases were registered and action was taken against the petitioner. Against the aforesaid order, the petitioner filed an appeal before the Appellate Authority under Section 9 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990. The petitioner pleaded that he was acquitted in all the criminal cases. There is no past criminal history of the petitioner of recent years. The family of the petitioner has a political background. His father was elected as Sarpanch of the Gram Panchayat, Majhgawan. He was also a Member of Janpad Panchayat since 2015. His uncle was a Member of Parliament from the year 2000-2005. Because his father had raised voice against the Station House Officer Incharge, Kumhari, hence, police submitted proposal for taking action against the petitioner.

3. The appeal of the petitioner was dismissed on the ground that number of criminal cases were pending against the petitioner. The petitioner is a habitual criminal. Proper opportunity was given to the petitioner and the District Magistrate had considered all the facts while passing the order. Hence, there is no merit in the appeal.

4. The respondents in the return pleaded that in order to maintain public order and peace, the order of externment has been passed. Number of criminal cases were registered against the petitioner. Looking to the criminal activities of the petitioner, there was danger to public peace. Hence, the order of externment is in accordance with law.

5. As per show cause notice dated 01.12.2014 issued to the petitioner, following criminal cases were registered against the petitioner:

Sr. Crime Section / Adhiniyam Knowledge No. No. of the judgment 1 77/99 456, 354, 325,294, IPC - 2 82/99 294, 323, 506, IPC 3(1-10) -
SCST 3 29/2000 147, 148, 149, 307, 323, IPC - 4 86/2000 324, IPC -
5 32/05 294, 323, 452, 427, 506-B, 34, -
IPC 6 25/08 323, 342, 294, 506-B, 34, IPC - 7 71/08 392, IPC -
8 55/11 147, 148, 149, 427, 327, 323, -
506, IPC 9 24/13 341, 294, 323, 506, 435, 34, -
IPC 10 57/13 451, 294, 195-A, IPC -

Last criminal case was registered in the year of 2013. The externment proceedings were initiated in the month of November, 2014 and order of externment was passed on 18.03.2015 i.e. after a period of near about two years of registration of the last criminal case.

6. This Court in the matter of Ramgopal Raghuvanshi vs. State of M.P. and others reported in 2014 (4) M.P.L.J. page 654 has considered the question of passing externment order on the basis of past criminal cases and held as under:

“9. This Court in the matter of Narish Bilwar vs. State of M.P. and others, reported in (2009) ILR 2173 while considering the earlier judgments on the point has held as under :-
“12. This Court in the matter of Sanju @ Sanjay Ben vs. State of M.P. 2005 (4) MPHT 102, referring to earlier judgments on the point held that:
8. It is also contended by him that old and stale activities cannot be grounds of externment but in the case at hand, such cases have formed the base. Learned has commended me to the decisions rendered in the cases of Premchand vs. Union of India and others, AIR 1981 SC 613, Ayubkhan vs. State of M.P. and another, 1994 (1) Vibh 168, Bala @ Iqbal vs. Additional Collector, Indore, 1995 Cr.L.J. (M.P.) 72, Nyaju @ Niyaz Modh vs. State of M.P. 2000(1) JLJ 321, Jokhu vs. District Magistrate, Ujjain, 2000(1) MPHT 554.
9. In the case of Bala (supra) this Court has laid down as Under:
“12. Perusal of the said provision establishes that activities on the basis of which an order of externment can be made against any person must be those as existing at the time when the order is proposed to be made. The past activities must be related to the situation existing at the moment when the order is to be passed.
13. Though as may as 8 offences are alleged to have been committed by him starting from the period 23-6-1989 to 29-7-1993. The offences alleged to have been committed by him are under Section 151, 107, 116(3), 110, 379 and 324, Indian Penal Code and 25 of the Arms Act. All these are petty offences which are still being investigated. No details of other offences have been given.
14. Thus, in view of this Court the externment order cannot be sustained on account of old and stale activities alleged to have been committed by the petitioner.
15. Since the mandate of the section is that a person must be involved in the activities committed in the present time, in the instant case there are no activities committed either at the time of the issuance of notice or during the enquiry on the basis of which externment order could have been passed. Thus, on this ground alone the petition deserves to be allowed.
16. It may also be pointed out that the respondents have failed to give details of the offences and the stage at which the same are pending against the petitioners.” In the case of Niyaju (supra), it has been observed that all opportunities should be given to person whose liberty is likely to be affected by the State.
13. This Court in the matter of Asaf Ali son of Sheikh Mubarak vs. State of M.P., 2006(3) MPLJ 592, held that:

7. Thus, on the basis of such old and stale offences under the Indian Penal Code in which the petitioner has been acquitted and also the petty offences under Sections 107, 110, 116(3), 151 of the Criminal Procedure Code, the order of externment under Section 5(b) of the Adhiniyam cannot be sustained. See Bala @ Iqbal vs. Additional Collector, Indore, 1997 Cr.L.R. M.P.

72. In case of Ayub Khan vs. State of M.P., 1994(1) VIBHA 168 a Division Bench of this Court has observed that the powers of externment are to be exercised sparingly with case and circumspection. They cannot be used for punishing a man for his past deeds. In view of the aforesaid legal position the petitioner’s externment under section 5 (b) of the Adhiniyam cannot be sustained and is quashed.

14. This Court in the matter of Pappu @ Dinesh Gupta vs. State of M.P. and others, 2007 (3) M.P.L.J. 115, has held that:

11. Accordingly, conviction in seven criminal cases under section 4-A of the Public Gambling Act could not have provided material for passing an order of externment in exercise of powers under section 5(a) of the Rajya Suraksha Adhiniyam, unless the District Magistrate was satisfied on the basis of material before it that the movements or acts of the petitioner were causing or calculated to cause alarm, danger or harm to person or property.”
7. The Court recorded categorical finding that on the basis of past and stale cases an order of externment cannot be passed. The Authority has to satisfy itself in regard to existing of criminal activities of a person when the order of externment was proposed to be made. The past activities may be related to the situation existing at the moment.

In the present case, no criminal activity of the petitioner was reported at the time when externment proceedings were initiated against the petitioner. It is mentioned by the Magistrate that in spite of registration of criminal cases there was no improvement in the criminal activities of the petitioner. However, that finding is contrary to the facts because after 2013, no offence was registered against the petitioner. Last preventive action was taken against the petitioner in the year of 2013. In this view of the matter, the order of externment passed against the petitioner is contrary to law.

8. Consequently, the petition is allowed. The impugned orders Annexure P-3 dated 18.03.2015 and Annexure P-5 dated 15.06.2015 are hereby quashed.

9. No order as to costs. 

                                   (S.                   K.
                               Gangele)
                                                Judge




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