Madhya Pradesh High Court
Farhan vs The State Of Madhya Pradesh on 15 March, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
th
ON THE 15 OF MARCH, 2024
MISC. CRIMINAL CASE No. 9755 of 2024
BETWEEN:-
FARHAN S/O JAMEEL, AGED ABOUT 23 YEARS,
OCCUPATION: SERVICE RESIDENT OF 17/1 RANIPURA,
INDORE (MADHYA PRADESH)
.....APPLICANT
(BY SHRI SUNIL KUMAR SONI, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION CENTRAL
KOTWALI INDORE (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
COMMISSIONER OF POLICE INDORE (MADHYA
PRADESH)
.....RESPONDENTS
( BY SHRI VAIBHAV BHAGWAT, GOVT. ADVOCATE APPEARING ON BEHALF
OF ADVOCATE GENERAL
SHRI AJAY KUMAR, SUB INSPECTOR, P.S. KOTWALI, INDORE).
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This application coming on for admission this day, the court
passed the following:
ORDER
01] This Miscellaneous Criminal Case has been filed by the petitioner under Section 482 of the Cr.P.C., seeking the following relief:-
"It is therefore humbly submitted to kindly allow the petition and set Signature Not Verified Signed by: MONI RAJU Signing time: 3/20/2024 6:28:36 PM -2- aside the order Passed by the learned non-applicant no. 2 dated 26/2/2024 passed in externment case no. 211/2022 (P.S. Central Kotwali Vs. Farhan) and by allowing the application submitted before learned non-applicant no.2 may kindly be allowed and proceedings pending may kindly be dismissed. Alternatively by setting aside the order impugned, matter may kindly be remanded back to the learned non-applicant no. 2 to appreciate the grounds raised through application, by giving the applicant due and complete Opportunity of hearing and to pass detailed /speaking order in accordance with Law."
2] Although, the petition has been filed u/s.482 of Cr.P.C., however, considering the nature of relief which is against an executive order and relates to the personal liberty of the petitioner, the same is being treated under Art.226 of the Constitution of India.
3] The grievance of the petitioner is that the externment proceedings under the M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'the Adhiniyam, 1990') have been initiated against him in the case No. 211/2022, by the Commissioner of Police, Indore vide its show cause notice dated 02.04.2022, as 12 criminal cases were registered against the petitioner during the year 2015 to 2020, however, subsequent to the issuance of the show cause notice on 02.4.2020, the proceedings under the provisions of National Security Act, 1980 (hereinafter referred to as 'the Act of 1980') were also initiated against him on 20.2.2023 parallelly, and the petitioner was detained by the Collector, Indore for a period of more than nine months which can be made out from the order sheets of the externment proceedings only. According to the counsel for the petitioner, te order passed by the Collector was also set aside by the Signature Not Verified Signed by: MONI RAJU Signing time: 3/20/2024 6:28:36 PM -3- Advisory Board, and the petitioner was released in the month of January, 2024.
4] Shri Sunil Kumar Soni, learned counsel for the petitioner has submitted that on the same set of offences, on the basis of which the externment proceeding was initiated against the petitioner, he was also detained under the provisions of the Act of 1980 for a period of around six months. Thus, it is submitted that in the light of the subsequent preventive detention under the Act of 1980, the proceedings initiated against the petitioner under provisions of the Adhiniyam of 1990 have already been rendered infructuous. Counsel has further submitted that otherwise also, the proceedings are liable to be quashed for the reason that, the show cause notice was issued to the petitioner on 2.4.2022, and it has already been almost two years since the aforesaid notice was issued, and the externment proceedings are still pending, and in such circumstances due to inordinate delay in the conclusion of the proceedings, the same are liable to be quashed.
5] In support of his submissions, Shri Soni has also relied upon the decision rendered by this Court in the case of Annu @ Anurag s/o Laxminarayan Raikwar vs. State of M.P. and another reported as 2023 (1) MPLJ (Cri.) 141 in which it is held that if the petitioner was under preventive detention under the NSA, he cannot be proceeded with the externment proceedings under the Adhiniyam of 1990 on the same set of facts and offences. It is submitted that in the case of Sandeep Yadav vs. State of Madhya Pradesh and others {Writ Signature Not Verified Signed by: MONI RAJU Signing time: 3/20/2024 6:28:36 PM -4- Petition No.30057/2023 decided on 17.01.2024} it has been held by this court that the externment proceedings has to be concluded within a reasonable period of time.
6] Shri Vaibhav Bhagwat, Government Advocate for the respondent/State has opposed the prayer. However, it is not denied that on the same set of offences, on the basis of which, the externment proceedings were initiated, the petitioner was also detained under the provisions of the Act of 1980, for a period of six months.
7] Heard the rival submissions and perused of the documents filed on record, as also the order passed by this Court in the case of Annu @ Anurag (supra), in which, in para 6, it is held as under:-
"06. From the record, it is apparent that while passing the impugned order of externment dated 07.12.2021, the District Magistrate, Ujjain has relied upon the 32 criminal cases registered against the petitioner till 11.7.2020; whereas the order of detention was passed on 19.8.2020 and in which also the same cases were referred to Thus, it is apparent that when the aforesaid order of detention was passed by the Collector under the National Security Act on 19.8.2020, all the cases registered against the petitioner were already taken into consideration. Whereas, the show cause notice in the present case was issued to the petitioner on 15.7.2021, i.e. prior to the issuance of the order of detention. In such circumstances, when the Collector had already passed a harsher order of detention for a period of three months against the petitioner on 19.8.2020, in the considered opinion of this Court, on the same set of facts, there was no occasion for the District Magistrate, Ujjain to again pass the impugned order of externment.
It is also found that the order of detention was passed only for a period of three months which has already expired and the petitioner has also not challenged the same, and thereafter, no other case has been registered against the petitioner. In such circumstances, after the period of detention was over, the respondents had no right to passing the order of externment against the petitioner, as the object of both the Acts viz; the Signature Not Verified Signed by: MONI RAJU Signing time: 3/20/2024 6:28:36 PM -5- National Security Act and the Act of 1990 is to prevent an accused from committing further offence and which purpose, in the considered opinion of this Court was already served while passing the order of detention which is apparently a harsher measure than an order of externment, and there was no fresh reason/criminal case registered against the petitioner which may give rise to a fresh apprehension in the minds of the District Magistrate that the petitioner would continue his criminal activities after around one year of coming out of the jail and would disturb the public peace. In such circumstances, this court is of the considered opinion that the availability of alternative remedy would be no bar in entertaining this petition under Article 226 of the Constitution and the principle of double jeopardy as enshrined under Article 20(2) would be applicable in the facts and circumstances of the case as the petitioner cannot be made to suffer twice under two different Acts for the same set of offences."
(emphasis supplied) 8] Whereas, in the case of Sandeep Yadav (Supra), this Court in para 11 & 12, has held as under:-
"11. In view of the same, because in the present case also show cause notice was issued after a period of around one year, this Court is of the considered opinion that imitation of externment proceeding was contrary to the object of the Act of 1990, which is, to enable the District Magistrate to curb the activities of anti social elements at the earliest."
12. Thus, the impugned order dated 09.10.2023, passed by the respondent no.1 cannot be sustained in the eyes of law, and is hereby set aside, and accordingly, the present petition stands allowed."
(emphasis supplied) 9] Thus, considering the facts of the present case on the anvil of the aforesaid decisions, it is found that since the petitioner has already been detained for a period of around six months, and on account of the same set of offences registered against him, the externment proceedings were initiated under the provisions of the Adhiniyam of 1990, which cannot be allowed to continue as the same has already been rendered infructuous on account of the petitioner's incarceration under the NSA. The petition is Signature Not Verified Signed by: MONI RAJU Signing time: 3/20/2024 6:28:36 PM -6- also liable to be allowed on the ground that it has already been almost two years since the proceedings were initiated against the petitioner. Thus, on both these grounds, the petition deserves to be allowed and is hereby allowed.
10] Resultantly, the externment proceedings pending against the petitioner in case No. 211/2022 before the Commissioner of Police, Indore are hereby quashed.
Petition stands allowed.
(SUBODH ABHYANKAR) JUDGE moni Signature Not Verified Signed by: MONI RAJU Signing time: 3/20/2024 6:28:36 PM