Madhya Pradesh High Court
Jugal @ Khachera vs The State Of Madhya Pradesh on 8 February, 2018
THE HIGH COURT OF MADHYA PRADESH
WP-18248-2017
(JUGAL @ KHACHERA Vs THE STATE OF MADHYA PRADESH)
7
Gwalior, Dated : 08-02-2018
Shri Bhupendra Singh Dhakad, learned counsel for the
petitioner.
Shri B.M.Patel, learned Govt. Advocate for the
respondents/State.
sh Petitioner has filed this petition being aggrieved by the order e dt.17.10.2017 passed by Commissioner, Gwalior Division Gwalior, ad rejecting his appeal under the provisions of M.P. Rajya Suraksha Pr Adhiniyam, 1990 (hereinafter shall be referred to as 'Act of 1990') against the order dt.13.09.2017 passed by the District Magistrate, a hy Shivpuri ordering externment of the petitioner for a period of one year from the District of Shivpuri and neighbouring districts of Gwalior, ad Ashok Nagar, Sheopur, Morena, Datia and Guna.
M The brief facts of the case are that a show cause notice was served on the petitioner on the basis of the report dt.05.05.2017 of received from the Superintendent of Police Shivpuri mentioning rt therein that the petitioner is continuously engaged in criminal ou activities since 1999 and he has made it a source of livelihood, therefore, the petitioner was asked to show cause on such report of C S.P. by issuing notice dt.22.05.2017 asking the petitioner to appear on h 31.05.2017.
ig Petitioner had submitted his reply on 06.06.2017 and had H pointed out that the notice is faulty and even those cases have been taken into consideration which have either been decided or in which the petitioner was already exonerated but without considering such reply, order of externment was passed by the District Magistrate.
Learned counsel for the petitioner submits that in fact the petitioner was subjected to an externment order dt.13.12.2006 against which the petitioner had filed an appeal before the Commissioner, Gwalior Division Gwalior and this appeal was allowed vide order dt.05.04.2007 (Annexure P/6). The period of externment was restricted to the date of the passing of the order by the Commissioner, Gwalior Division Gwalior. Thereafter another order of externment was passed by the Collector Shivpuri on 08.04.2009, in which cases up to 2005 as have been mentioned in the impugned order up to S.No.31 were taken into consideration and the petitioner has been again exonerated by the Commissioner, Gwalior Division Gwalior vide order dt.08.06.2009 holding that most of the cases are against the Public Gambling Act 1867 (hereinafter shall be referred to as the 'Gambling Act') and as per the provisions contained in Section 6 (c) of the Act of 1990, there is a provision that if a person is convicted under sh the provisions of Gambling Act for three offences within a duration of e three years, then only proceeding for externment can be undertaken ad under the Act of 1990. On such basis, the second order of externment Pr dt.08.04.2009 was also quashed by the Commissioner.
Learned counsel for the petitioner submits that in Crime a No.151/2009 under the provisions of Section 353, 186, 189, 294 and hy 34 of IPC, the petitioner has been exonerated vide order dt.22.12.2016.
ad Case No.524 of 2010 under Section 323, 341, 506B, 294 of IPC M resulted in acquittal on account of compromise vide order dt.31.12.2011. Similarly, Crime No.218 of 2011 under Section 341, of 323, 294 of IPC resulted in compromise on 13.09.2011. In case No.35/2013, he was simply made to fill a bond. In case No.292/2014 rt under Section 353 of IPC and Section 13 of the Gambling Act, he was ou exonerated on 18.02.2016. Similarly, he was exonerated in case C No.294/2014 under Section 25, 27 of Arms Act on 10.05.2015. h It is further submitted that the petitioner was exonerated in ig Crime No.797/2014 under section 353 of IPC and Section 4 (1) of the H Gambling Act. Therefore, only four cases were pending against the petitioner when S.P. had sent a proposal and none of them had resulted in conviction. Therefore, on the same analogy on which Commissioner Gwalior Division Gwalior had allowed the appeal on 08.06.2009, the petitioner is entitled to be exonerated.
Petitioner has placed reliance on the judgment of this court in Manakchand Jain Vs. State of M.P. and others as reported in 2016 Legal Eagle 635, so also the judgment of the learned Single Bench of this court at Jabalpur in the case of Jahangeer Alvi Vs. State of M.P. and others as reported in 2017 (3) MPLJ 667 and placing reliance on such judgment, he submits that the petitioner is entitled to be exonerated, inasmuch as he was falsely impleaded and that too on the basis of stale cases and those cases in which he stood exonerated.
Division Bench of this court in the case of Manakchand Jain (supra) has dealt with this aspect and has held that in the light of the law laid down in the case of Pappu @ Dinesh Gupta Vs. State of others as reported in 2007 (3) MPLJ 115 has held that externment on the basis of old cases pertaining to involvement in the cases of Gambling Act and Code of Criminal Procedure have been held to be sh insufficient for taking action for externment from the District.
e Reliance has also been placed on the judgment of Asaf Ali Vs. State ad of M.P. and others as reported in 2006 (3) MPLJ 592 to the effect Pr that action can not be taken on the basis of stale and old cases. Hon'ble Division Bench in the case of Manakchand (supra) has noted that in a the case of Dharmendra Singh Vs. State of M.P. and others as hy reported in 2007 (2) MPLJ 108, a Bench of this court considered the ad identical question and after taking note of the law laid down by the M Hon'ble Supreme Court in the case of Dharamdas Shamlal Agrawal Vs. The Police Commissioner and another as reported in 1989 (2) of Crimes 53, has laid down the principle that based on cases which were old and stale and in cases where the incumbent has been rt acquitted, action for externment is unsustainable and the subjective ou satisfaction arrived at based on such cases is also vitiated. Similarly, C Coordinate Bench of this court while examining the illegality of the h externment order in the case of Jahangeer Alvi (supra) held that the ig criminal proceedings from the year 1999 to 2008 were already H considered in previous externment proceedings and therefore competent authority could not have taken into consideration the record of criminal cases from 1991 to 2008. It further noted that no sufficient material was available before the District Magistrate to pass externment order and therefore it held that the order does not fulfill conditions as enumerated in Section 5 (b) and Section 6 of the Act of 1991 and thus, it quashed the externment order.
In the present case also the facts are identical. The District Collector had taken into consideration the cases since 1999 to 2008 which were already considered by the Commissioner while passing the order dt.08.06.2009 where externment order dt.8.4.2009 was under
challenge.
Thus, in the light of the law laid down by this court so also by the Hon'ble Supreme Court in the case of Dharamdas Shamlal (supra), the externment order can not be said to be sustainable in the eyes of law and consideration of old and stale 21 cases was beyond the purview of District Magistrate in the light of the judgment rendered in the case of Jahangeer Alvi (supra).
As far as other 11 cases are concerned, in 7 cases, the petitioner sh was either exonerated or the matter was compromised and in the e remaining 4 cases, there was conviction only in one case and ad remaining cases pending were either under Cr.P.C. or under the Pr Gambling Act and only one case is pending under Section 25, 27 of the Arms Act, which can not be said to be sufficient to take away life a and liberty of a person by externing him out of not only the district but hy also out of neighbouring districts.
ad In fact, the order of externment has wide implications on the M person suffering from such order, inasmuch as he has not only been uprooted and externed out of the home district and neighbouring of districts but that order has an impact of taking away right of livelihood and also the right of the person enjoying fundamental rights embedded rt in the place of his usual residence. Such rights can not be taken up ou lightly to serve the motives of certain persons to whom the District C Magistrate may be subservient and therefore the impugned order in the h light of the above analysis is an order depriving the petitioner of his ig life and liberty without following due process of law. H Thus, the order is illegal and the Commissioner, Gwalior Division Gwalior, in fact, has failed to apply his mind and decide the appeal without taking into consideration all these aspects as have been mentioned above and for which the material was available before the Commissioner in the form of two earlier orders passed by the former Commissioner of Gwalior Division Gwalior in two different appeals. Therefore, the impugned order dt.17.10.2017, so also the original order passed by the Collector dt.13.09.2017 are quashed. Petition is allowed.
State to bear cost of this litigation for illegal depriving the petitioner of his life and liberty, which is quantified to Rs.10,000/-.
(VIVEK AGARWAL) JUDGE SP sh Digitally signed by SANJEEV KUMAR PHANSE e Date: 2018.02.15 15:40:55 +05'30' ad Pr a hy ad M of rt ou C h ig H