Madhya Pradesh High Court
Ramgopal vs The State Of Madhya Pradesh on 15 September, 2014
1
W.P.No.4088/2014
Date: 15/9/2014
Shri Umesh Gajankush learned counsel for the petitioner.
Ms. Neelam Abhyankar, learned counsel for the
respondent/State.
Heard finally with consent.
This writ petition has been filed by petitioner challenging the order dated 2/4/14, Annexure P3, passed by District Magistrate in respect of externment of petitioner from District Dhar and adjoining districts for a period of six months and also the order dated 15/5/14 passed by Commissioner rejecting the appeal.
In brief, the petitioner who is the resident of Pithampur District Dhar was served with the notice dated 7/11/13 initiating the proceedings for externment under M.P. Rajya Suraksha Adhiniyam, 1990 (for short the Act). The petitioner had filed reply dated 13/11/13. Thereafter the impugned order of externment dated 2/4/14 under Section 5(a) (b) and 6(c) of the Act was passed by the District Magistrate which has been confirmed in appeal.
Learned counsel for petitioner challenging the impugned order submits that petitioner is a representative of workers union and cases were registered against the petitioner at the behest of management. He has submitted that out of seven cases on which reliance has been placed, compromise was arrived at in five 2 cases but that aspect of the matter has not been considered. He has further submitted that the District Magistrate has failed to consider that requirements of Section 5(b) of the Act are not satisfied and that in the report of Superintendent of Police even Section 6(c) of the Act was not mentioned. He has also submitted that the order of externment has been based upon the old and stale cases.
Counsel for State has opposed the writ petition by submitting that the order of externment has been passed on the basis of cogent and relevant material.
I have heard the learned counsel for the parties and perused the record.
The record reveals that the order of externment is based upon seven cases which have been registered against the petitioner. Counsel for petitioner has pointed out that out of these seven cases, mentioned in the list Annexure R2 cases from serial No. 1 to 5 have ended in compromise. He has pointed out that this fact was pointed out to the District Magistrate in the reply but all these cases have been shown to be pending in the impugned order.
The record also reveals that the order of externment is based upon the old and stale cases. Since the cases from serial No. 2 to 6 were registered between the year 2004 to 2011 and the order of externment has been passed on 2/4/14 therefore it could 3 not have been passed on the basis of cases registered against the petitioner in 2011 or prior to that. There is only one case which was registered in the year 2013. Thus, the cases on the basis of which the order of externment has been passed are not in proximity of time of passing of order.
This Court in the matter of Narish Bilwar Vs. State of MP 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 MP 2005(4) MPHT 102, referring to earlier judgments on this 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 counsel 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 MP and another, 1994(1) Vibh 168, Bala @ Iqbal V. Additional Collector, Indore, 1995 Cr.L.J. (MP) 72, Nyaju @ Niyas Modh Vs. State of MP 2000(1) JLJ 321, Jokhu V. 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 4 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 Sections 151, 107, 116(3), 110, 379 and 324 IPC 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.5
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 Asaf Ali s/o Sheikh Mubarak Vs State of MP 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 V. Additional Collector, Indore, 1997 Cr.L.R. MP 72. In case of Ayub Khan V. State of MP., 1994(1) VIBHA 168 a Division Bench of this Court has observed that the powers of externment are to be exercised sparingly with care 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 6 Gupta, Vs. State of MP and others, 2007(3) MPLJ 115, has held that:
11. Accordingly, conviction in seven criminal cases under section 4A 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 Adhiniaym, 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.
12. The record made available to this Court contains the report of Superintendent of Police and the statement of Manoj Kumar Singh, Incharge Police Inspector of Police Station, Anooppur. There is no material on record, wherefrom it may be inferred that the acts of the petitioner were causing or calculated to cause alarm, danger or harm to a person or property.
In order to exercise power under section 5(a) of Rajya Suraksha Adhiniaym, learned District Magistrate was obliged to arrive at a categorical finding that the movements or acts of the petitioner were causing or calculated to cause alarm, danger or harm to person or property. Mere conviction in seven cases under section 4A of the Public Gambling Act by itself is not sufficient to pass an order of externment. It is the 7 reach effect and potentiality of the acts of the petitioner which it supports would cause or calculated to cause alarm, danger or harm to person or property which could have provided a basis for externment. I may successfully refer for this preposition to the Supreme Court decision in the case of State of Uttar Pradesh Vs. Kamal Kishore Saini, AIR 1988 SC 208.
15. Thus, the powers of externment are to be exercised sparingly with care and circumspection. The activities on the basis of which an order of externment is made against any person should be those as existing at the time when the order was proposed to be made. The past activities should have nexus with the situation existing at the time when the order of externment was passed. The externment order cannot be sustained on the basis of old and stale activities. Mandate of the section is that the person concerned must be involved in the alleged activities in the present time."
This Court also in the matter of Ashu @ Assu @ Asish Jain @ Ankush Vs. State of MP and others reported in 2011(3) MPLJ 367 has also expressed that if, a person was engaged in commission of offence or in abatement 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 person is engaged or is about to be engaged in commission of such offence.
8So far as the second requirement of Section 5(b) of the Act is concerned, the District Magistrate has merely stated in the order that witnesses are not coming forward to give evidence against the petitioner nor elaborate reason was given supporting the reason for the same.
The Division Bench of this court in the matter of Ashok Kumar Patel Vs. State of MP & others, reported in 2009(4) MPLJ 434 while considering the requirement of Section 5(b)of the Act has held as under: "10.The second condition which must be satisfied for passing of an 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 a reason of apprehension on their part as regards safety of person or property. Construing a pari materia provision in section 27 of the City of Bombay Police Act, 1902 in Gurbachan Singh Vs. the State of Bombay and another, AIR 1952 SC 221, the Supreme Court observed: "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 9 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 section 161 of Criminal Procedure Code 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 the Act of 1990."
Thus, the second condition of Section 5(b) of the Act is also not fulfilled in the matter.
The material on record also reveals that the conditions in Section 5(a) also do not exist in the matter.
So far as Section 6(c) of the Act is concerned, the report which was submitted by the Superintendent of Police and has been placed on record as Annexure R/1 it is reflected that the externment of petitioner was recommended by Superintendent of Police only on the basis of Sections 5(a) and 5(b) of the Act. In 10 the said report, Section 6(c) of Act is not mentioned.
In the aforesaid circumstances, the impugned order of externment as affirmed in the appeal cannot be sustained having partially in violation of the requirements of the Act and the judgment of this Court which has been noted above.
In view of this, the writ petition is allowed and the impugned orders dated 2/4/14 passed by the District Magistrate as well as 15/5/14 passed by the Commissioner are set aside.
C.c. as per rules.
(Prakash Shrivastava) JUDGE BDJ