Chattisgarh High Court
Gulab Mahato @ Santosh Mahato vs State Of Chhattisgarh on 19 April, 2017
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
W.P.(Cr.)No.350/2016
Page 1 of 12
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No.350 of 2016
Gulab Mahato @ Santosh Mahato, aged about 38 years, S/o
Kishore Mahato, R/o Model Town, Police Station Supela,
District Durg (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, Through the Chief Secretary, Govt. of
Chhattisgarh, Mahanadi Bhawan, Mantralaya, Naya Raipur
(C.G.)
2. The Principal Secretary, Govt. of Chhattisgarh, Department of
Home (Police), Mahanadi Bhawan, Mantralaya, Naya Raipur
(C.G.)
3. The Collector (District Magistrate), Durg, District Durg (C.G.)
4. The Superintendent of Police, Durg, District Durg (C.G.)
---- Respondents
For Petitioner: Mr. Arvind Kumar Dubey, Advocate. For Respondents / State: Mr. Aditya Sharma, Panel Lawyer.
Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 19/04/2017
1. Seeking quashment of the order of the appellate authority / State of Chhattisgarh dated 2-11-2016 affirming the order of externment dated 24-6-2016 passed by the District Magistrate, Durg, this instant writ petition under Article 226 / 227 of the Constitution of India has been filed.
2. Essential facts leading to passing of the order of externment duly affirmed by the appellate authority are as under:-- W.P.(Cr.)No.350/2016 Page 2 of 12
2.1) The Superintendent of Police, Durg, submitted a report to the District Magistrate, Durg, under Section 5 (a) and (b) of the Chhattisgarh Rajya Suraksha Adhiniyam, 1990 (for short, 'the Act of 1990') and on that basis, a case was registered under Section 5 (a) and (b) of the Act of 1990, and the petitioner was served with a show cause notice stating that there are reasonable grounds for believing that he is 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 IPC and in the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards the safety of their person or property and, therefore, why the order of externment be not passed against him to remove him outside the district or any part thereof. 2.2) The petitioner filed his reply opposing the show cause notice and said that no case is made out for his externment from the district(s), the said case was registered in the year 2013 on a report dated 20-6-2013 and in the course of that enquiry, the District Magistrate examined three witnesses namely Gangaram Yadav, Head Constable; Shriram Mandavi, Head Constable; and Aditya Sharma, Police Inspector, and on the basis of that, the order of externment of the petitioner from six districts namely Durg, Rajnandgaon, Balod, Dhamtari, Raipur and Bemetara was passed.W.P.(Cr.)No.350/2016
Page 3 of 12 2.3) The learned District Magistrate by its order dated 24-6-
2016 directed removal of the petitioner from five districts finding that the condition precedent for exercise of jurisdiction under Section 5 (a) and (b) of the Act of 1990, is available on record. 2.4) The petitioner preferred appeal against that order before the State Government under Section 9 of the Act of 1990 and the appellate authority / State Government by its impugned order affirmed the order of externment finding no merit in the petitioner's appeal against which this writ petition under Article 226 / 227 of the Constitution of India has been preferred.
3. Mr. Arvind Kumar Dubey, learned counsel appearing for the petitioner, would submit that the order of externment is based on no material available on record. Report of the Superintendent of Police was submitted to the Collector on 20- 6-2013 and after that date, there is no case registered against the petitioner in any of the provisions as required under Section 5 (b) of the Act of 1990. He would further submit that in most of the cases like in S.T.No.7/2004, Criminal Case No.278/2002 and Criminal Case No.163/2012, the petitioner has already been acquitted by the jurisdictional criminal court. Therefore, on the basis of old pending cases, in which the petitioner has been acquitted, the order of externment could not have been passed. He would also submit that the second part of Section 5
(b) of the Act of 1990 has not been satisfied and there is no evidence to hold that the witnesses are not coming forward to W.P.(Cr.)No.350/2016 Page 4 of 12 give evidence in public against the petitioner on the ground of apprehension on their part as regards the safety of their person or property, only three police officers have been examined and that too the petitioner has not been permitted to cross-examine them. Only on the basis of self-serving statement, such a finding has been arrived at by the learned District Magistrate and no independent witness was examined to hold that the witnesses are not ready and willing to give evidence against the petitioner. Lastly, he would submit that the appellate authority also in a very perfunctory and casual manner has dismissed the appeal which warrants interference by this Court under Article 226 / 227 of the Constitution of India. Concluding his submission, he would submit that stale and old cases cannot be a ground for passing the order of externment / restriction.
4. On the other hand, Mr. Aditya Sharma, learned Panel Lawyer appearing on behalf of the State / respondents, would support the impugned order.
5. I have heard learned counsel for the parties and considered the rival submissions made on behalf of the parties and also gone through the material available on record with utmost circumspection.
6. In order to decide the dispute between the parties, the provisions contained in the Act of 1990 are required to be noticed. The Act of 1990 is an Act to provide for the security of W.P.(Cr.)No.350/2016 Page 5 of 12 the State, maintenance of public order and certain other matters connected therewith. Under Section 3 of the Act of 1990, the District Magistrate is empowered to make restriction order if he is satisfied that the person concerned is acting or is likely to act in a manner prejudicial to the security of the State or the maintenance of public order and that, in order to prevent him from so acting, in the interest of the general public, the District Magistrate is entitled to make an order under Section 3 of the Act of 1990. Section 5 (b) of the Act of 1990, with which we are concerned, states as under: -
"5. Removal of persons about to commit offence.--Whenever it appears to the District Magistrate--
(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, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abatement 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"
7. Section 5 (b) of the Act of 1990 is in two parts, first part is, there is reasonable ground for believing that such person is engaged in the 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 IPC and second part is, in the opinion of the District Magistrate witnesses are not willing to come W.P.(Cr.)No.350/2016 Page 6 of 12 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. If the District Magistrate is satisfied with the two parts, as aforesaid, he can pass order under Section 5 (b) of the Act of 1990 to remove any such person outside the district or any part thereof specified in the order and further direct him not to enter or return to the said district or part thereof. These provisions are intended for making preventive actions to counteract activities of anti-social elements and the Act confers on the Government the power to take appropriate action so that peace and tranquility is not disturbed and one manner of maintaining peace and tranquility is by removal of anti-social elements and by restriction of their activities.
8. In the matter of Prem Chand v. Union of India and others 1, the Supreme Court has unmistakably held that exercise of powers by police with reference to externment must be bona fide and on the basis of vague allegations, the order of externment should not be passed. Relevant portion of paragraph 9 of the report states as under: -
"9. ... But fundamental rights are fundamental and personal liberty cannot be put at the mercy of the Police. Therefore, Ss. 47 and 50 have to be read strictly. Any police apprehension is not enough. Some ground or other is not adequate. There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there 1 AIR 1981 SC 613 W.P.(Cr.)No.350/2016 Page 7 of 12 must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety. We are clear that the easy possibility of abuse of this power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied. We are further clear that natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Articles 14, 19 and 21 of the Constitution as expounded by this Court in Maneka Gandhi, (1978) 1 SCC 248 : (AIR 1978 SC 597). ..."
9. In the matter of Bala @ Iqbal v. Additional Collector, Indore and another2, it has been held that the mandate of Section 5
(b) of the Act of 1990 is that the person must be involved in the activities committed in the present time, and observed in paragraph 12 as under: -
"12. Perusal of the said provision 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. All expressions in clauses
(a) and (b) of Section 5 of the Adhiniyam can not present time. The provision is not punitive in its nature and a person can not 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."
10. In the matter of Nyaju alias Niyas Mohd. v. State of M.P. 3, it has been held that full opportunity should be given to person whose liberty is likely to be affected by the State.
11. Applying the law laid down in the afore-cited cases, if the facts 2 1995 Cr.LJ (MP) 72 3 2000(1) JLJ 321 W.P.(Cr.)No.350/2016 Page 8 of 12 of the present case are examined, it would be apparent from the record that in the instant case, case against the petitioner was registered on the report of the Superintendent of Police submitted on 20-6-2013 and thereafter, show cause notice was issued to the petitioner which he has replied, but on the back of the petitioner, three official witnesses were examined to hold that general public are not ready and willing to record their evidence against the petitioner, however, the petitioner was not allowed to cross-examine them and on the basis of those testimonies, a finding has been recorded that the general public is not ready and willing to give evidence against the petitioner. It is wholly unfair. The petitioner may be a criminal, but entitled to opportunity of hearing to defend himself. The evidence recorded beyond the back of the petitioner and finding based on Section 5 (b) of the Act of 1990 on the basis of that evidence cannot be allowed to be relied upon against the petitioner, as he has not been given opportunity to cross-examine them. Further more, no independent witness was examined by the learned District Magistrate to record his finding on second part of Section 5 (b) of the Act of 1990. The finding based on the commission of offence by the petitioner, as is stated in Section 5 (b) of the Act of 1990, so far as the first part of Section 5 (b), is also not proper. Show cause notice was issued in June, 2013, whereas the impugned order of externment was passed on 24-6-2016. In the order passed by the District Magistrate, W.P.(Cr.)No.350/2016 Page 9 of 12 paragraphs 1 to 19, cases alleged to be pending against the petitioner have been recorded. A careful perusal of the said cases would show that all are cases from 1998 to 9-1-2013 and according to the petitioner, in most of the offences, he has been acquitted. Copies of the judgments of three criminal cases have been filed before this Court in which offence under Sections 302 and 307 of the IPC have been alleged and in which the petitioner has already been acquitted way back before the initiation of proceeding by the learned District Magistrate. Therefore, the learned District Magistrate ought to have seen that whether the cases registered and pending against the petitioner are of present one and on the date of externment order, as it has been held in Bala @ Iqbal (supra) that past activities of a person may afford a guide as to his behaviour in future and further followed by the judgment of the Supreme Court in Prem Chand (supra) that police apprehension is not enough, there must be a clear and present danger based on credible material making his movements dangerous, so as to hold that his presence in five districts named in the order is harmful and hazardous to life and safety of citizens of those districts.
12. Therefore, in view of the aforesaid discussion, there is not an iota of doubt that the learned District Magistrate did not consider the matter in the manner in which it ought to have been considered before passing the order of externment. Both W.P.(Cr.)No.350/2016 Page 10 of 12 the ingredients of Section 5 (b) of the Act of 1990 either of the commission of offence relating to Chapter XII, XVI or XVII or under Section 506 or 509 of the IPC or of the second part of Section 5 (b) that witnesses are not ready and willing to come forward to give evidence in public against such person by reason of apprehension on their part, are missing and not established and no conclusion was arrived at by the District Magistrate that presence of the petitioner in five districts is dangerous and harmful to life and liberty of the citizens of those districts. Not only this, the appellate authority also did not consider it in proper perspective and merely holding that from 2005 to 2010 the petitioner remained in jail and was also involved in criminal offences from 2011 to 2013 dismissing the appeal will not suffice the purpose. Thus, in the considered opinion of this Court, firstly, the petitioner was not granted reasonable and proper opportunity of hearing to defend himself particularly, to cross-examine the official witnesses who have been examined and secondly, requirement under Section 5 (b) of the Act of 1990 is not established and, therefore, taking away the personal liberty of the petitioner by prohibiting his presence in five districts is absolutely illegal and violative of Articles 14, 19 and 21 of the Constitution of India.
13. As a fallout and consequence of aforesaid discussion, the order of externment passed by the District Magistrate duly affirmed by the State Government i.e. the appellate authority, is hereby W.P.(Cr.)No.350/2016 Page 11 of 12 quashed.
14. The writ petition is allowed to the extent indicated herein-above, but with no order as to costs.
Sd/-
(Sanjay K. Agrawal) Judge Soma W.P.(Cr.)No.350/2016 Page 12 of 12 HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (Cr.) No.350 of 2016 Gulab Mahato @ Santosh Mahato Versus State of Chhattisgarh and others HEAD NOTE The order of externment under Section 5 (b) of the Chhattisgarh Rajya Suraksha Adhiniyam, 1990, must be based on credible material and there must be clear and present danger. jkT; lqj{kk vf/kfu;e dh /kkjk 5 ¼[k½ ds varxZr gVk, tkus dk vkns'k fo'oluh; lkexzh ij gh vk/kkfjr gksxk rFkk ogkaW Li"V :i ls [krjk ekStwn gksuk pkfg,A