Madhya Pradesh High Court
Sonu vs The State Of Madhya Pradesh on 24 January, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 24th OF JANUARY, 2024
WRIT PETITION No. 31663 of 2023
BETWEEN:-
SONU S/O BABULAL RATORE, AGED ABOUT 31
YEARS, OCCUPATION: LABOUR GOSHALA ROAD
RATLAM AT PRESENT R/O DHANMANDI
PS.MANAK CHOWK RATLAM (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI NILESH MANORE- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
COLLECTOR / DISTRICT MAGISTRATE
THROUGH DISTRICT MAGISTRATE
RATLAM (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
SUPERINTENDENT OF POLICE RATLAM,
DIST. RATLAM (MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THROUGH
COMMISSIONER UJJAI DIVISION DIST.
UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRIMUKESH PORWAL- GOVERNMETN ADVOCATE )
This petition coming on for admission this day, the court passed
the following:
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 30-Jan-24
5:41:15 PM
2
ORDER
With the consent of learned counsel for the parties the matter is finally heard.
By this petition preferred under Article 226 of the Constitution of India, the petitioner has challenged the order dated 11.03.2023 passed against him for his externment under the provisions of M.P. Rajya Suraksha Adhiniyam, 1990 (For short 'Adhiniyam, 1990') by District Magistrate, Ratlam and also the order dated 24.11.2023 passed by the appellate authority dismissing the appeal of the petitioner against his order of externment.
2. The facts of the case are that on the basis of report of Superintendant of Police, a show cause notice for externment was issued to the petitioner. The petitioner filed his reply to the aforesaid show cause notice and submitted that the cases which are alleged to be registered against him are old and stale cases. They are of petty nature and in most of them he has been acquitted. Even the cases in which he has been convicted only small penalty of fine has been imposed and the rest of the case are pending for trial.
3. Learned counsel for the petitioner submits that the order passed by the competent authority is contrary to the provisions of section 5(A) and 5(B) of the Adhiniyam, 1990 and the order is passed on old and stale cases. There is no objective consideration by the competent authority. The order is contrary to the law laid down by the Division Bench of this Court in the case of Ashok Kumar Vs. State of MP reported in 2009(4) MPLJ 434 and the other judgments decided in the case of Chandra Pakash @ Tinku Pandey Vs. State of MP reported in 2022(1) MPLJ Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 30-Jan-24 5:41:15 PM 3 556, Meena Sonkar Vs. State of MP reported in 2017(2) MPLJ 565 and Vinod Vs. State of MP reported in 2016 (2) MPLJ 650 and also the judgment passed in the case of Lacchu @ Laxman Vs. State of MP reported in 2022 (2) MPLJ 362. He further relied on a recent judgment by the Apex Court in the case of Deepak Vs. State of MP reported in AIR 2022 SC 1241. While considering the para-materia provision of Maharashtra Police Act, the Apex Court held that the order of externment restraining the accused from entering a particular area infringes his fundamental right guaranteed under Article 19(1)(d) of the Constitution of India. Hence, restriction imposed by order of externment must stand test of reasonableness.
It is further submitted that the competent authority must record its satisfaction of existence of the grounds for externment on the basis of objective material placed before it. He further submitted that the authorities have failed to record satisfaction in the impugned order regarding second requirement of section 5(B) of the Adhiniyam, 1990. They have not recorded satisfaction on the basis of material that the witnesses are not willing to come forward to give evidence against the petitioner by reason of apprehension as regards their safety. The order passed by the Appellate Authority on merit is nothing but repetition of the order passed by the District Magistrate without any application of mind.
4. Per contra, learned counsel for the respondent/State has supported the order passed by the respondents and has submitted that the petitioner is a habitual offender and as many as 32 criminal cases are registered against him. He has been actively involved in the criminal activities since the year 2011. In the year 2022, an FIR was lodged against him for commission of offence under section 4(A) of the Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 30-Jan-24 5:41:15 PM 4 Gambling Act. It is submitted that the District Magistrate after objective consideration of the material has passed the impugned order which has rightly been affirmed by the appellate authority. There is no illegality in the same warranting any interference in the writ petition.
5. For the purpose of appreciating the rival contentions of learned counsel for the parties it would be apt to refer Section 5 of the Adhiniyam, 1990 which is as under:
"5. Removal of persons about to commit offence.- whenever it appears 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 reasonably 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, 4 XVI, or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abetment 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 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 any 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 of 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.Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 30-Jan-24 5:41:15 PM 5
A plain reading of Section 5 (b) of the Act quoted above, would show that for passing an order of externment against a person, 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 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.
6. Division Bench of this Court in the case of Ashok Kumar Patel vs. State of M.P. & others, 2009(4) MPLJ 434 after considering Section 5 of the Act held thus:
"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 theoffence 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 6 person is engaged or is about to be engaged in the commission of such offence.Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 30-Jan-24 5:41:15 PM 6
7. In the case of Ramgopal Ragjhuvanshi vs. State of M.P. and others, 2014(4) MPLJ 654 this Court after considering the earlier judgments in respect of Section 5 of the Act held that the order of externment cannot be passed on the basis of old and stale cases. A co- ordinate Bench of this Court in the case of Bhim @ Vipul vs. Home Department, (W.P. No.4329/2015, decided on 14-09-2015) has also considered the judgments rendered in the cases of Ashok Kumar (supra) and Ramgopal Ragjhuvanshi (supra) and held that the expression "
engaged or is to be engaged" used in Section 5(b)(i) shows that commission of offence or the abetment of such offence by the person must have close proximity to the date on which the order is proposed to be passed under Section 5(b) of the Act. 12. In the case of Sanju @ Sanjay Ben Vs. State of M.P. and others, 2005 (4) MPHT 102 while considering the provisions of the Adhiniyam, 1990, the court held that the provision is not punitive in its nature and a person cannot be externed for his past acts. Although past activities of a person may afford a guide as to his behaviour in future, they must be reviewed in the context of 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.
8. The submissions of learned counsel for the parties are being examined in the light of the aforesaid judicial pronouncements.
9. The District Magistrate/respondent No.1 has considered 32 cases registered against the petitioner. The list of criminal cases is reproduced as under:
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 30-Jan-24 5:41:15 PM 7कायाालय पुललस थाना माणक चोक लिला रतलाम अलभयुक्त का आपरालधक ररकाडा क्र. नाम आरोपी अप. क्र. धारा चालान क्र. मु.फौ.क्र. लनणाय अलभयुक्ती 1 सोनू लपता 44/11 4 क सट्टा एक्ट 29/29.1.11 144/31.1.11 1000 बाबुलाल राठौर अथादण्ड िालत तेली उम्र 26 साल लन.
158, गोशाला रोड, रतलाम 2 -''- 503/11 13 िुआ एक्ट 410/4.11.11 3498/11.11.11 100-100 अथादण्ड-
3 -''- 573/11 13 िुआ एक्ट 524/28.12.1 3575/31.12.12 24.09.15 2 दोषमुक्त/ 4 -''- 38/12 13 िुआ एक्ट 31/5.2.12 2108/4.9.12 25.06.16 के स खत्म/ लनणाय प्राप्तआ नही 5 -''- 39/12 8/20 एन.डी.पी.एस.एक्ट 120/13.4.12 1068/4.5.12 26.08.22 को दोषमुक्तप 6 -''- 20/13 4 क सट्टा एक्ट 03/5.1.13 89/15.1.13 दद 13.12.13 दोषमुक्त1 7 -''- 33/14.1.13 13 िुआ एक्ट. 21/15.1.13 191/29.1.13 100-100 अथादण्ड-
8 -''- 45/20.1.13 13 िुआ एक्ट. 32/20.1.13 189/29.1.13 100-100 अथादण्ड-
9 -''- 193/13 4 क सट्टा एक्ट 146/19.4.13 1017/19.4.13 -- 10 -''- 513/13 4 क सट्टा एक्ट 419/26.9.13 3133/11.10.13 06.02.17 दोषमुक्ते 11 -''- 689/13 4 क सट्टा एक्ट 576/26.11.1 4073/11.12.13 03.06.17 3 दोषमुक्त/ 12 -''- 12/14 13 िुआ एक्ट 16/8.1.14 92/10.1.14 ेे100-100 प्रत्येतक को अथादण्ड 13 -''- 15/6.1.14 4 क सट्टा एक्ट1 12/7.1.14 398/1.2.14 1000 अथादण्ड टीएमसी 14 -''- 54/14 4 क सट्टा एक्ट 33/21.1.14 399/1.2.14 दोषमुक्त/ 15 -''- 546/14 4 क सट्टा एक्ट 439/18.7.14 4132/18.11.14 07.10.15 के स खत्म/ लनणाय प्राप्ता नही 16 -''- 562/14 4 क सट्टा एक्ट 456/22.7.14 4515/10.12.14 20.09.16 के स खत्म.
लनणाय प्राप्ता नही 17 -''- 627/14 4 क सट्टा एक्ट 507/14.8.14 4726/18.12.14 िुमा स्वीसकार Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 30-Jan-24 5:41:15 PM 8 1000 अथादण्ड 18 -''- 641/14 13 िुआ एक्ट 773/9.12.14 1397/18.5.15 िुमा स्वीसकार 1100-1100 अथादण्ड-
19 -''- 761/14 4 क सट्टा एक्ट 645/18.10.1 4124/18.11.14 06.01.16 4 को दोषमुक्तट 20 -''- 698/14 4 क सट्टा एक्ट 613/7.10.14 317/3.2.15 22.03.16 को दोषमुक्तट 21 -''- 848/14 4 क सट्टा एक्ट 722/15.11.1 4518/10.2.14 --
422 -''- 941/14 4 क सट्टा एक्ट 830/31.12.1 318/3.2.15 दोषमक् ु त1 4 19.2.16 23 -''- 43/15 4 क सट्टा एक्ट 29/17.1.15 919/8.4.15 दोषमुक्त1 24 -''- 57/15 4 क सट्टा एक्ट 39/27.1.15 920/8.4.15 27.01.16 दोषमुक्त 25 -''- 532/15 4 क सट्टा एक्ट 478/28.09.1 3341/29.09.15 29.01.16 5 दोषमक् ु त 26 -''- 693/15 4 क सट्टा एक्ट 610/17.12.1 4858/18.12.15 अर्थदण्ड1 रू.
5 1000 27 -''- 287/17 4 क सट्टा एक्ट 260/07.07.1 58/22.07.17 29.10.18 7 दोषमुक्त 28 -''- 34/18 4 क सट्टा एक्ट 25/22.1.18 190/7.2.18 न्या7याऱय विचाराधीन 29 -''- 551/19 4 क सट्टा एक्ट 522/17.12.1 2436/23.12.19 16.12.19 9 दोषमुक्त 30 -''- 560/19 4 क सट्टा एक्ट 538/25.12.1 126/4.2.20 न्या4याऱय 9 विचाराधीन 31 -''- 63/15.2.20 4 क सट्टा एक्ट. 48/18.2.20 918/01/12.20 30.11.23 दोषमुक्त 32 -''- 371/20 4 क सट्टा एक्ट 282/14.10.2 1513/17.12.20 न्या/याऱय 0 विचाराधीन 33 -''- 94/22 4 क सट्टा एक्ट 78/26.05.22 1028/27.06.2022 न्या/याऱय विचाराधीन
10. Upon perusal of the aforesaid list, it is evident that the cases from serial No.1 and 31 were registered on and from 2011 up to 2020. In 14 of those cases he has been acquitted. In 03 cases the decision Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 30-Jan-24 5:41:15 PM 9 has been given but the out come is not mentioned. In 09 cases he has been convicted and petty fines in the rage of Rs.100/- to Rs.1000/- have been imposed upon him. 04 cases are pending against him in the Court of law. Thus, the offences regarding which proceedings are pending against the petitioner at the present are of petty nature i.e being involved in offence punishable under the Gambling Act. In fact, all the cases which have been registered against the petitioner except one are under the Gambling Act and only one case was under the NDPS Act in which he has been acquitted. No offence punishable under the Indian Penal Code or any other like enactment has been registered against the petitioner. It appears that the allegation against him is of being constantly involved in gambling activities. Out of the 32 almost 26 cases registered against the petitioner were up to the year 2015 which have already been disposed off.
11. Upon perusal of the impugned order, it is seen that the District Magistrate has only observed that in view of the activities of the petitioner, the social environment is being polluted and the youth of the area are getting derailed and getting themselves involved in gambling activities. Nowhere has it been recorded by him that the movements or acts of the petitioner are causing or are calculated to cause any alarm, danger or harm to any person or property. The only reason of the youth getting involved in gambling activities cannot be said to be alarm, danger or harm as contemplated under Section 5 (A) of the Adhiniyam, 1990 as those activities even if are being carried out by those persons are out of their own will and volition and for the same no physical harm or pressure is alleged to have been or is being exercised by the petitioner.
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 30-Jan-24 5:41:15 PM 1012. From a perusal of the impugned order it is also apparent that the authorities have not recorded any opinion on the basis of material that in their opinion witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension as regards to their safety. Hence, in absence of any existence of material to show that witnesses are not coming forward by reason of apprehension to give evidence against the petitioner in respect of the alleged offences, an order u/s 5 (b) of Adhiniyam, 1990 cannot be passed by the District Magistrate as held in the case of Ashok Kumar Patel Vs. State of M.P. by the Division Bench that for a passing an order of externment against the person both the conditions mentioned under section 5 (b) (i) and (ii) have to be satisfied.
13. In the present case there is no satisfaction of the District Magistrate in the impugned order regarding second requirement of Section 5(b) of the Act, 1990. He has not recorded his satisfaction on the basis of material that witnesses are not willing to come forward to give evidence in the public against the petitioner by the reason of apprehension as regards to their safety. The authority has not discussed the nature of cases, the date of registration of cases and their present status. Most of the cases are old and stale.
14. Under the provision of Section 5 of the Act, if a detention order has to be passed, there has to be sufficient material for passing the order as fundamental right of freedom of a person is involved. The order passed by the appellate Authority is nothing but repetition of the order passed by the District Magistrate without any application of mind.
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 30-Jan-24 5:41:15 PM 1115. In the aforesaid circumstances, the impugned order of externment and affirmation thereof in the appeal are unsustainable having been found in violation of the requirements of the Act 1990 and the judgments passed by this Court.
16. Accordingly, the writ petition is allowed. The impugned orders dated 11.03.2023 passed by the District Magistrate, Ratlam and the order dated 24.11.2023 passed by the Commissioner, Ujjain are quashed. No order as to costs.
(PRANAY VERMA) JUDGE jyoti Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 30-Jan-24 5:41:15 PM