Madhya Pradesh High Court
Yudhisthir Singh vs The State Of Madhya Pradesh on 20 July, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO.6607/2017
Yudhisthir Singh
Vs.
State of M.P. and others
Shri Sanjeev Kumar Singh, learned counsel for the
petitioner.
Shri Piyush Dharmadhikari, learned Govt. Advocate for
the respondents.
ORDER
(20/07/2017) The petitioner has filed the present writ petition challenging the orders dated 20/03/2017 and 10/10/2016 passed by respondents No.2 and 3 respectively.
2. The petitioner is the resident of Village Kotha, Police Station Kotwali, Distt. Sidhi. The Superintendent of Police i.e. respondent No.4 has recommended the case of the petitioner to the District Magistrate Sidhi, submitting that there are as many as 12 cases registered against the petitioner which, itself, shows that the activities of the petitioner are dangerous to the society. On the basis of the said report, a notice was issued to the petitioner and the petitioner also submitted reply to the said 2 notice. As the reply submitted by the petitioner was not found satisfactory, therefore, the proceedings under the M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'the Adhiniyam of 1990') were initiated against the petitioner by respondent No.3. The District Magistrate, after hearing both the parties and recording the evidence, has passed the order dated 10/10/2016 thereby externing the petitioner for a period of one year from the District Singrauli, Rewa, Satna and Shahdol. Being aggrieved by this order, the petitioner has preferred an appeal under Section 9 of the Adhiniyam before respondent No.2. Respondent No.2 vide order dated 20th March, 2017 has affirmed the order passed by respondent No.3. Being aggrieved by these orders, the petitioner has preferred the present writ petition.
3. Learned counsel for the petitioner argued that the impugned orders passed by respondents No.2 and 3 are contrary to law. He submitted that the orders have been passed on the basis of criminal antecedents of the petitioner. He further submitted that in most of the cases the petitioner has been acquitted by the competent Court and two cases are pending against him. He further submitted that Section 6 of 3 the Adhiniyam of 1990 is applicable in case of conviction, however, as the petitioner has not been convicted for any of the offences, therefore, Section 6 the Adhiniyam of 1990 would not be applicable in his case. He further submitted that the petitioner is a political person and has not supported the ruling party person and, therefore, the ruling party leaders are having rivalry to the petitioner and under the political influence, the impugned orders have been passed. It has further been submitted that the petitioner has produced all the documents before respondent No.3 regarding his acquittal and it has further been submitted that there was no heinous offence registered against the petitioner within a period of four years, however, without considering all these facts, the impugned orders have been passed. He also submitted that the petitioner, being aggrieved by the order passed by respondent No.3, has filed appeal before respondent No.2 stating that he has been acquitted in various cases and only two cases of petty offences are pending against him before the competent authority and, therefore, no case under the Adhiniyam of 1990 is made out against him. Learned counsel contended that in most of the cases, the petitioner has 4 been acquitted prior to the impugned orders have been passed. Learned counsel for the petitioner relied upon the judgment passed by the Division Bench of this Court in the case of Ashok Kumar Patel Vs. State of M.P., reported in ILR (2009) MP 3090.
4. The respondents have filed their reply and in the reply they have stated that the activities of the petitioner are disturbing the public peace and tranquility and, therefore, the action has been initiated against him. They have further submitted that respondent No.4 has recommended the case of the petitioner to the District Magistrate, Sidhi and on the basis of the report, action has been taken against the petitioner. The order has been passed by respondent No.3 after appreciating the entire facts and circumstances as also the evidence recorded by respondent No.3. After recording the evidence, respondent No.3 has come to a clear conclusion that a case is made out against the petitioner for proceeding under Sections 5(b) and 6 of the Adhiniyam of 1990 and, therefore, proceedings were initiated. Against the said order, the petitioner preferred an appeal and the Commissioner i.e. respondent No.2 also affirmed the order passed by respondent 5 No.3. The respondents have further submitted that from the aim and object of the Adhiniyam of 1990, it is crystal clear that the action which has been taken against the petitioner is not a punishment but to prevent him from causing any action which is against the interest of public peace and tranquility.
5. Learned Govt. Advocate submitted that the orders passed by both the authorities are reasoned orders and passed after giving due opportunity of hearing to the petitioner. Learned Govt. Advocate relied upon the judgment passed by this Court in the case of Manoj S/o Ramcharan Soni Vs. State of M.P. & others reported in 2017(2) MPLJ 294.
6. I have heard learned counsel for the parties and perused the record as well as the order passes by respondents No.2 and 3. In the present case, admittedly, the action has been taken by respondents No.2 and 3 under Section 5 of the Adhiniyam of 1990. Section 5 of the Adhiniyam provides for removal of persons about to commit offence. Section 5 of the Adhiniyam of 1990 reads as under :
"5. Removal of persons about to commit offence. - Whenever it appears 6 to the District Magistrate-
(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property; or
(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abatement of any such offence, and when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property;
or
(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant;
the District Magistrate, may by an order in writing duly served on him or by beat of drum 7 or otherwise as the District Magistrate thinks fit, direct such person or immigrant-
(a) so as to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease; or
(b) to remove himself outside the district or my part thereof or such area and any district or districts, or any part thereof, contiguous thereto by such route within such time as the District Magistrate may specify and not to enter or return to the said district or part thereof or such area and such contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself."
A plain reading of Section 5(b) of Adhiniyam of 1990 would show that for passing an order of externment against a person two conditions must be satisfied i.e. -
(i) there are reasonable grounds for believing that a person is engaged or is about to be engaged in commission of an offence involving force or violence or an 8 offence punishable under Chapter-XII, XIV or XVII or under Section 506 or 509 of the Indian Penal Code or in the abetment of any such offence;
(ii) in the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property.
Thus, two conditions are required to be fulfilled before passing the order of externment against a person.
7. Thus, in view of aforesaid, now it is to be examine whether the order dated 10/10/2016 passed by respondent No.3 is in consonance with Section 5(b) of the Adhiniyam of 1990. The first condition is to be seen whether the petitioner was engaged in commission of offence or was to be engaged in commission of offence mentioned under Section 5(b) of the Adhiniyam of 1990.
8. In the present case, from perusal of the order passed by respondent No.3, it reveals that there were seven cases registered against the petitioner. First case was registered against the petitioner on 13/09/2005 being Criminal Case 9 No.520/2005 under Sections 294, 323, 506, 34 of IPC. In the said case, the petitioner has been acquitted. Second case was registered against the petitioner on 18/6/2009 at Crime No.344/09 under Sections 294, 323, 506, 34 of IPC and on the basis of compromise, he is also acquitted. Third case against the petitioner was registered on 07/09/2011 at Crime No.617/2011 under Sections 341, 342, 294, 387, 506, 34 of IPC which is pending. Forth case was registered on 12/05/2013 at Crime No.400/2013 under Sections 294, 323, 506 of IPC which is pending. Fifth case was registered on 10/11/2014 at crime No.968/2014 under Section 325 of IPC in which he has been acquitted. Sixth case was registered on 14/2/2015 at Crime No.70/2015 under Sections 341, 294, 323, 506, 34 of IPC in which the petitioner has been acquitted. Seventh case was registered on 22/12/2015 at Crime No.03/2016 under Sections 325, 323, 34, 452 of IPC in which challan has been filed and the case is pending. These are series of offences which are registered against the petitioner out of which four criminal cases are from the year 2013 to 2015 i.e. within a period of four years in which two cases are pending. Thus, on the basis of this criminal record, 10 respondent No.3 has come to conclusion that there are reasonable grounds to believe that the petitioner is about to be engaged in commission of an offence involving force. In most of the cases, offence under Section 506 of IPC has been registered against the petitioner. The Division Bench of this Court in the case of Ashok Kumar Patel Vs. State of M.P. & others (supra), in para-8 has held as under :
"8. The expression "is engaged or is about to be engaged" in the commission of offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 or in the abetment of any such offence, shows that the commission of the offence or the abetment of such offence by the person must have a very close proximity to the date on which the order is proposed to be passed under Section 5(b) of the Act of 1990. Hence, if a person was engaged in the commission of offence or in abetment of an offence of the type mentioned in Section 5(b), several years or several months back, there cannot be any reasonable ground for believing that the 11 person is engaged or is about to be engaged in the commission of such offence."
From perusal of the dates of the above mentioned offences, it is clear that out of these seven offences, four offences are registered against the petitioner within four years i.e. from 2013 to 2015.
9. So far as registration of offences against the petitioner are concerned, the offences are of the year 2005, 2009, 2011, 2013, 2014 and 2015 and in most of the cases the petitioner has been acquitted by the Court and in only two cases, challan has been filed against the petitioner.
10. The second condition which must be satisfied for passing of the order of externment against a person is that in the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. Learned counsel for the petitioner argued that respondent No.3, in his order, did not mention the name of any person who was not willing to come forward to give evidence in public against such person by reason of apprehension. However, 12 respondent No.3 in para-3 of the impugned order has given a reason for not giving the names of these witnesses, as has been given in the police report, as per Section 19 of the Adhiniyam of 1990. Section 19 of the Adhiniyam of 1990 provides that District Magistrate or Additional District Magistrate or Sub Divisional Magistrate are not required to disclose the identity or name of any informant.
11. The Division Bench of this Court in the case of Ashok Kumar Patel (supra) in paras-10 and 11 has held as under :
"10. The second condition which must be satisfied for passing of an order of exeternment against a person is that in the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of person or property. Construing a paramateria provision in Section 27 of the City of Bombay Police Act, 1902 in Gurbachan Singh V. The State of Bombay and another (AIR 1952 SC 221), the Supreme Court observed :-13
"The law is certainly an
extraordinary one and has been
made only to meet those
exceptional cases where no
witnesses for fear of violence to
their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety or the public residing therein".
11. In the instant case, the District Magistrate has in the impugned order only baldly stated that the list of offences registered against the petitioner reflects that he is a daring habitual criminal and because of this there is fear and terror in the public and has not recorded any clear opinion on the basis of materials, that in his opinion witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of their person or property. In most of the cases, Challans have been filed by the Police in Court obviously after examination of the witnesses under 14 Section 161 of Cr.P.C. and the cases are pending in the Court. There is no reference in the order of District Magistrate that witnesses named in the Challans filed by the Police are not coming forward to give evidence against the petitioner in Court. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reason of apprehension to danger to their person or property to give evidence against the petitioner in respect of the alleged offences, an order under Section 5(b) of the Act of 1990 cannot be passed by the District Magistrate by merely repeating the language of Section 5(b) of he Act of 1990."
12. In the present case, also there is no reference in the order of District Magistrate that witnesses named in the challan filed by the Police are not coming forward to give evidence against the petitioner in the Court. Hence, in absence of any existence of material to show that the witnesses are not coming forward by the reason of apprehension to danger to their person or property or under 15 Section 5(b) of the Adhiniyam of 1990 cannot be passed by the District Magistrate.
13. In the case of Ashok Kumar Patel (supra), the Division Bench of this Court in para-13 has held as under :
"13. The act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and the fundamental rights to personal liberty under Article 21 of the Constitution and unless the conditions mentioned under Section 5(b) of the Act of 1990 are strictly satisfied, an order of externment, will have to be quashed by the Court. While considering a case under Section 56 of the Bombay Police Act, which also empowered the police to pass an order of externment, the Supreme Court observed in Pancharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra (supra) as under :-
"It is true that the provisions of Section 56 make a serious 16 inroad on personal liberty but such restraints have to be suffered m the larger interests of society. This Court in Gurbachan Singh V. The State of Bombay, 1952 SCR 737= (AIR 1952 SC 221) had upheld the validity of Section 27(1) of the City of Bombay Police Act, 1902, which corresponds in Section 56 of the Act.
Following that decision, the challenge to the constitutionality of Section 56 was repelled in 1956 SCR 533 = (AIR 1956 SC
585). We will only add that care must be taken to ensure that the terms of Section 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee."
In view of the aforesaid, this Court is of the opinion that the order passed by the District Magistrate as well as appellate order do not confer with the condition given in 17 Section 5(b) of the Adhiniyam of 1990.
14. Consequently, the writ petition is allowed. The impugned orders dated 20/03/2017 and 10/10/2016 passed by respondents No.2 and 3 respectively are hereby quashed.
(Ms. Vandana Kasrekar) JUDGE ts