Madhya Pradesh High Court
Gyan Singh vs The State Of Madhya Pradesh on 20 August, 2019
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
W. P. No. 511/ 2019
THE HIGH COURT OF MADHYA PRADESH
W. P. No. 511/ 2019
(Gyan Singh Vs. State of M.P. & Others)
JABALPUR; Dated: 20/08/2019
Shri Manish Datt, learned senior counsel with
Shri Rahul Sharma, learned counsel for the petitioner.
Shri S.S. Baghel, learned Government Advocate
for the respondents/ State.
With the consent of learned counsel for the parties, the matter is heard finally.
2. Being aggrieved with the order dated 31.12.2018 (Annexure-P/3) passed by the respondent No.2 i.e. Commissioner, Sagar Division, Sagar, this petition has been filed seeking quashment of the same.
3. As per the facts of the case, the Superintendent of Police, Tikamgarh, vide his memo dated 22.03.2018, recommended that the petitioner is an habitual criminal and had been involved in criminal activities since year 2004 and committing crime continuously, due to which, terror has been created among the public and nobody is coming forward to record his statement against the petitioner. Whatever restrictions had been imposed against the petitioner, no fruitful result yielded as the petitioner did not 2 W. P. No. 511/ 2019 restrain himself from getting involved in criminal activities, therefore, it is appropriate that power under Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'the Adhiniyam, 1990') be exercised and he be externed from the revenue boundaries of District-Tikamgarh and it's adjoining districts. In the said memo, the Superintendent of Police, Tikamgarh, had given details of ten cases registered against the petitioner. The Police had also imposed prohibitory measures initiating proceeding under Section 110 of the Code of Criminal Procedure, 1973, against the petitioner, but nothing positive came from the petitioner's side.
4. Considering the recommendations made by the Superintendent of Police, the District Magistrate issued a notice under Section 8 of the Adhiniyam, 1990, explaining therein as to why power under Section 5 of the Adhiniyam, 1990, shall not be exercised against him and he be externed for a period of one year from District-Tikamgarh and it's adjoining district.
5. In response to the said notice, the petitioner through his counsel submitted reply on 08.06.2018 and he himself appeared on 20.08.2018.
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6. The District Magistrate recorded the statement of the witness namely Shri Anand Singh Parihar, Station House Officer, who has narrated the criminal record of the petitioner and also disclosed that there were ten cases registered against him and also apprised the District Magistrate that the petitioner has created terror in the society and due to fear and terror of the petitioner, nobody comes forward to get the statement recorded against him.
7. One Shri Ramla Ahirwar, the witness of a criminal case registered against the petitioner at Police Station-Prithvipur, also recorded his statement and stated before the District Magistrate that he had made 3-4 complaints against the petitioner in the said police station as the petitioner has grabbed two acres of his land. He further stated that since the petitioner is always armed, therefore due to fear, he did not approach him for getting his land back. He has also stated that he had fear of his life and not only he, but other villagers were also terrorized by the petitioner.
8. Likewise, Shri Amit Dangi, also recorded his statement and stated before the District Magistrate that the petitioner had assaulted him by lathis and report of that incident was made to the Police Station-Prithvipur. He had 4 W. P. No. 511/ 2019 also stated that the petitioner was in a habit of creating property disputes. He has further disclosed that the petitioner had also assaulted the Forest Officers.
9. Thereafter, Shri Swami Prasad Yadav, has also recorded his statement and disclosed that on his land, the petitioner has constructed his house and due to terror, he is not able to get his property back, although he lodged report to the Police Station-Prithvipur. He has also stated that there were several cases registered against the petitioner in respect of grabbing immovable property of the villagers, but due to fear of life, nobody is able to fight against him and even record his statement in the Court.
10. The petitioner has also recorded the statement of his witnesses, but those were not found satisfactory. As such, the petitioner was provided adequate opportunity to defend himself and to put-up his stand.
11. The District Magistrate has also observed that earlier on 29.09.2018, an order of externment was passed against the petitioner, but in an appeal preferred by him, the Commissioner, Sagar Division, Sagar, set-aside the said order and remitted the matter back to the District Magistrate for deciding the same afresh after giving an 5 W. P. No. 511/ 2019 opportunity of hearing to the petitioner and thereafter, he was provided full opportunity.
12. During the course of arguments, learned senior counsel for the petitioner had stated before the Court that the petitioner was falsely implicated in criminal cases registered against him due to some political rivalry. He had also disclosed that in maximum cases, the petitioner had been acquitted and he had never threatened any of the witnesses.
13. In support of his contentions, learned senior counsel for the petitioner has placed reliance upon the decisions passed in the cases of Anek @ Anil Nageshwar Vs. State of M.P. & Others passed in W.P. No.9297/2017 on 08.08.2017, Shambu Tiwari Vs. State of M.P. & Others passed in W.P. No.8686/2014 on 15.12.2014, Asaf Ali S/o Sheikh Mubarak Vs. State of M.P. & Others reported in 2006(3) MPLJ 592, Ashu @ Assu @ Ashish Jain Vs. State of M.P. & Others reported in 2011(3) MPLJ 367, Rajesh @ Mangoudi Vs. State of M.P. & Others reported in 2011(3) MPHT 332, Dharmendra Singh Vs. State of M.P. & Others reported in 2007(2) MPLJ 108, Pappu @ Dinesh Gupta Vs. State of M.P. & Others reported in 6 W. P. No. 511/ 2019 2007(3) MPLJ 115 and Ganesh @ Gannu Vs. State of M.P. & Others reported in 2018(3) MPLJ 291.
14. Per contra, learned Government Advocate for the State submits that the order passed by the District Magistrate as well as the appellate authority are perfect. Both the authorities have considered the requirement of exercising the power under Section 5 of the Adhiniyam, 1990, and found that this is a fit case in which such power could be exercised. He further submits that merely because the petitioner has been acquitted in criminal cases registerd against him, it cannot be a ground for setting-aside the orders impugned because here in this case, not only the criminal cases but ten cases imposing prohibitory measures have also been registered against the petitioner, therefore, the orders passed by the authorities which are impugned in this petition, cannot be said to be illegal and they do not call for any interference.
15. Arguments heard.
16. Record perused.
17. The District Magistrate although found that there was no substance in the arguments advanced on behalf of the petitioner, but he has also taken note of the recommendation of the Superintendent of Police, 7 W. P. No. 511/ 2019 Tikamgarh, in which it is stated that the petitioner on 17.09.2018, had beaten one Ramla Ahirwar, who had given statement against him in a case of externment (Zilabadar) and report of that incident was also lodged in Police Station-Prithvipur vide Crime No.369/18 under Sections 341, 294, 323 and 506 of the Indian Penal Code.
18. In view of the decision of the Division Bench of this Court passed in the case of Ashok Kumar Patel Vs. State of M.P. & OThers reported in 2009(4) MPHT 263, wherein in Paragraph-8, it is observed 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, thee cannot be any reasonable ground for believing that the person is engaged or is about to be engaged in the commission of such offence."
19. Bare reading of Section 5(b) of the Adhiniyam, 1990, and view taken by the Division Bench in the case of Ashok Kumar Patel (supra), before passing an order of externment, two conditions must be satisfied:-
(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 8 W. P. No. 511/ 2019 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;
and
(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.
20. In the present case, considering the order passed by the District Magistrate and also by the appellate authority and discussion made herein above, it is clear that both the conditions are fulfilled. Here, it is a case in which the witnesses were recorded by the District Magistrate, the petitioner had been granted opportunities to cross-examine them and it is also a case in which, from the record, it is clear that the witness who made the statement before the District Magistrate in the proceedings of externment, was also later on threatened by the petitioner and offence in that respect was also registered against him. Thus, the only ground which is available to the petitioner to get the orders impugned set-aside, is that in view of his acquittal in all registered criminal cases, whether the order of externment can be declared illegal.
21. This Court in the case of Sanju @ Sanjay Ben Vs. State of M.P. & Others reported in 2006(1) ANJ (MP) 161, has observed that the past activities must be related to 9 W. P. No. 511/ 2019 the situation existing at the moment when the order is to be passed and all opportunities should be given to the person whose liberty is likely to be affect by the State. It is also observed that old and stale activities cannot be a ground for externment.
22. As far as the cases relied upon by learned senior counsel for the petitioner are concerned, in none of the cases, it is held by the Court that if the petitioner is acquitted in criminal cases which have been foundation for exercising power under Section 5 of the Adhiniyam, 1990, the order passed by the authority for externment is vitiated and can be set-aside. However, the Court has considered the aspect, it is for the District Magistrate to consider the impact of the order of acquittal and if that is not done, then the order of externment suffers from proper application of mind and that can be set-aside.
23. But, here in this case, not only the District Magistrate but the appellate authority has also taken note of the orders of acquittal, then observed that the same have no direct impact and even after acquittal, as to why the order of externment is proper.
24. This Court has also examined the existing state of affairs and is dealing with the same here onwards. 10 W. P. No. 511/ 2019
25. In the facts and circumstances of the case in hand, it is clear that acquittal of the petitioner in alleged criminal cases cannot be a ground for quashing the order of externment because it is clear from the statement of the witnesses that due to fear and terror of the petitioner, witnesses were not coming forward to make statement against the petitioner. Even otherwise, there were ten prohibitory proceedings initiated against the petitioner. Since as per the order of Division Bench, two required conditions are satisfied and further, it is clear that the petitioner had also threatened the witness who made statement before the District Magistrate in externment proceedings, I do not find any reason to interfere in the orders impugned. I am also of the opinion that it is a fit case in which the authority has rightly exercised the power under Section 5 of the Adhiniyam, 1990.
26. In all the cases which have been taken note of hereinabove, the basic principle of exercising power under Section 5 of the Adhiniyam, 1990, has been discussed and as per the same, if two conditions are satisfied, then the order of externment can be passed by the authority. As per the law laid-down by Division Bench of this Court in the case of Ashok Kumar Patel (supra), those conditions have 11 W. P. No. 511/ 2019 been elaborately discussed and I find that those are fully satisfied in the present case.
27. Accordingly, I do not find any substance in the contentions raised by learned senior counsel for the petitioner that acquittal in alleged criminal cases is a ground for quashing the order of externment. Although, in the facts and circumstances of the present case, acquittal would not have impact directly on the impugned order of externment because the authorities have also taken note of the acquittal of the petitioner and simultaneously taken note of the prohibitory proceedings initiated against him. Thus, the petition being without any substance, is hereby, dismissed.
(SANJAY DWIVEDI) JUDGE Prachi Digitally signed by PRACHI KUNTE Date: 2019.09.05 16:15:49 +05'30'