Madhya Pradesh High Court
Virendra Rawat vs The State Of Madhya Pradesh on 5 September, 2022
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 5th OF SEPTEMBER, 2022
WRIT PETITION No. 16692 of 2022
Between:-
VIRENDRA RAWAT S/O SHRI NAHAR SHINGH
RAWAT, AGED ABOUT 37 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE BORKHAD TEHSIL
ALIRAJPUR DISTRICT ALIRAJPUR (MADHYA
PRADESH)
.....PETITIONER
(MS. PURVI PAREEK, LEARNED COUNSEL FOR THE
PETITIONER)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. COMMISSIONER OFFICE OF COMMISSIONER,
INDORE (MADHYA PRADESH)
3. DISTRICT MAGISTRATE OFFICE OF DISTRICT
MAGISTRATE (MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE OFFICE OF
SUPERINTENDENT OF POLICE, ALIRAJPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SHREY RAJ SAXENA, LEARNED DY. ADVOCATE GENERAL
FOR THE RESPONDENTS/STATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN DALAI In the instant petition, a challenge has been made to the order dated Date: 2022.09.06 15:43:32 IST 29.10.2021 passed by the District Magistrate, Alirajpur whereby the petitioner 2 was externed from the District Alirajpur and its adjoining districts of Madhya Pradesh, Gujarat and Maharashtra for the period of one year. The said order was challenged before the Commissioner and the appeal filed by the petitioner has been partly allowed and the order of externment in respect of adjoining districts for the other States have been quashed and the order regarding externment from the District-Alirajpur has been maintained.
The facts of the case are that on 26.10.2021, a report was prepared by the Superintendent of Police, District Alirajpur against the petitioner alleging that since 2009, the petitioner is involved in various criminal activities and several criminal cases. It is also alleged that the petitioner is doing said activities, which are against the maintenance of law and order and, therefore, the proceedings for externment be drawn against the petitioner. On the basis of the aforesaid, a show cause notice under Section 8(1) of M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred as Adhiniyam) was issued to the petitioner. Reply was filed by the petitioner before the Collector, Dist. Alirajpur against the show-cause notice. By the impugned order, the petitioner was externed from the District Alirajpur and its adjoining districts of Madhya Pradesh, Gujarat and Maharashtra for the period of one year. Being aggrieved by the order of externment, the petitioner preferred a writ petition W.P. No.25198/2021 before this Court. The said petition was disposed off by this Court by order dated 06.12.2021 on the ground of availability of alternative and efficacious remedy of appeal under Section 9 of M.P. Rajya Suraksha Adhiniyam, 1990. Thereafter the petitioner preferred an appeal before the Commissioner, Indore which has been partly allowed by the impugned order whereby the part of the order by Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN DALAI Date: 2022.09.06 15:43:32 IST which the petitioner was externed from the District of Gujurat and Maharashtra was set aside and the order in respect of externment for District Alirajpur was 3 maintained.
Counsel for the petitioner submits that the District Magistrate has passed an order on the basis of the report of the Superintendent and taking into consideration the 7 cases against the petitioner which are old and stale. For the period from 2009 till 2021, 7 cases were registered against the petitioner. Some of the cases were already decided and some were pending before the Court. These cases are old and stale and were not sufficient to form an opinion to pass the order of externment.
Learned counsel for the petitioner further submits that the order of externment has been passed without compliance of provision of section 5-B of the Act, 1990. It is argued that the District Magistrate has not recorded his satisfaction that the witnesses are not willing to come forward to give evidence in public due to apprehension of their safety and therefore, the order of externment is bad in law. In support of his submission, he places reliance of the judgment of Division Bench in the case of Ashok Kumar Patel Vs. State of MP and Ors reported in 2009 (4) MPLJ 434 and also the judgment passed by the co-ordinate bench in the case of Meena Sonkar Vs. State of MP and Ors reported in 2017 (2) MPLJ 565 and in the case of Jahangeer Alvi Vs State of MP and Ors reported in 2017 (3) MPLJ 667 and also the judgment in the case of Istfaq Mohammad Vs. State of MP and Ors reported in 2018 (3) MPLJ 349.
Per contra, learned counsel for the respondent/state denied the submissions of the learned counsel for the petitioner and submitted that the Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN externment order and the appellate order passed on the basis of material DALAI Date: 2022.09.06 15:43:32 IST available against the petitioner. He relied on the report of the Superintendent of 4 Police.
Before adverting to the contentions of the counsel for the petitioner as discussed earlier and examining them on the anvil of the law prevailing in the field of externment, it is apt to refer the provisions of the Adhiniyam, 1990. Section 5 of the Act under which the order of externment has been passed is quoted hereinbelow:-
"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 Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN DALAI Date: 2022.09.06 15:43:32 IST part thereof, contiguous thereto by such route within such time as the District Magistrate may specify and not 5 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."
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.
At this stage, I think it condign to survey the authorities on the legal issues canvassed on behalf of the petitioner.
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 the offence 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 Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN DALAI Date: 2022.09.06 15:43:32 IST of offence or in abetment of an offence of the type mentioned in section 5 (b), several years or several 6 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."
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 at Indore 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 ''œengaged 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 7 related to the situation existing at the moment when the order is to be passed. In the present case from the facts it is noted that the same cases were being repeatedly considered by the authority and on earlier occasions, he found that the same material cannot formed a basis for passing an order of externment but by the Signature Not VerifiedDigitally signed by SAN impugned order is passed on the basis of most of the same cases which are old SOUMYA RANJAN DALAI Date: 2022.09.06 15:43:32 IST and stale which has already been held by this Court in number of cases as discussed above that the old and stale activities cannot be grounds of 7 externment.
In the light of the aforesaid authoritative pronouncement of judgments, the contentions of the petitioner have to be examined on the anvil of facts of the present case and the law as discussed above.
Upon perusal of the order passed by the respondent/District Magistrate, Alirajpur, it is evident that he has reproduced the report of the Superintendent of Police, Alirajpur wherein the details of 7 cases have been mentioned. The first case relates to the year 2009 whereby Crime No. 24/2009 for commission of offence under Section 34(A) of Excise Act was registered. In the said case, the petitioner was fined of Rs. 1000/-. The second case relates to the year 2009 as Crime No. 67/2009 for commission of offences under Section 294, 323, 506, 34 of IPC. In the said case, the challan has been filed and the same is still pending before the Court of law. The third case is also of the year 2009 whereby Crime No. 69/2009 for commission of offences under Section 294, 451, 427, 323, 380 r/w Section 307 of IPC have been registered. In the said case, the challan has been filed and the same is still pending before the Court of law. The fourth case is of the year 2012 for commission of offences of Crime No. 323/2012 for commission of offences under Section 364, 365, 34 of IPC. In the said case, the closure report has already been filed. The fifth case relates to the Crime No. 106/2013 for commission of offence under Section 34(A) of Excise Act. In the said case, the petitioner had been fined Rs.1500/-. The sixth case also relates to Crime No. 149/2015 under Section 34(A) of Excise Act. In the said case, the challan has been filed and the matter is pending before the Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN Court of law. The last case has been registered of the year 2021 bearing Crime DALAI Date: 2022.09.06 15:43:32 IST No. 290/2021 for offences under Section 294, 323, 506, 34 of IPC. In the said 8 case also, the challan has been filed and the matter is pending before the Court.
Apart from that list of the cases show that most of the cases are registered in the year 2009, 2012, 2013 and 2015 and only one case of the year 2021 have been registered. Apparently, the aforesaid cases are old and stale cases.
Upon perusal of the impugned order, it is found that the District Magistrate has stated that the list of offences registered against the petitioner to reflect that the petitioner is a daring habitual offender, but he did not record any opinion on the basis of the materials that in his 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. There is no statement of any witnesses in the record to indicate that they have deposed that they are not willing to come forward for evidence because of the criminal record of the petitioner. In absence of any any existence of material to show that the witnesses are not come forward by reasons of apprehension to give evidence against the petitioner in respect of alleged offences and order under Section 5(b) of the Adhiniyam, 1990 cannot be passed by District Magistrate as held in the case of Ashok Kumar Patel vs. State of M.P. by the Division Bench that for passing an order of externment against the person both the conditions mentioned under Section 5(b)(i) and (ii) have to be satisfied.
This Court in the case of Meena Sonkar vs. State of M.P. and others, 2017(2) MPLJ 565 and also in the case of Anek alias Anil Nageshwar vs. State of Madhya Pradesh & four others [W.P. No.9297/2017, decided on 8- Signature Not VerifiedDigitally signed by 8-2017] held as under:
SAN SOUMYA RANJAN
DALAI
Date: 2022.09.06
15:43:32 IST
"The second requirement is also necessitated to pass an order of externment that on account of the activities of a 9 person, who is externed, the witnesses amongst public are not coming forth to depose in the criminal cases against him either under apprehension of person or property. But in the order impugned existence of such material is not on record, more so, no such finding has been recorded by the competent authority to record satisfaction. Therefore, the order impugned do not fulfill the second requirement of Section 5(b) of the Adhiniyam."
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.
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 which have been noted hereinbefore.
Accordingly, the writ petition is allowed. The impugned orders dated 29.10.2021 passed by the District Magistrate, Alirajpur and the order dated 14.07.2022 passed by the Commissioner, Indore are quashed.
No order as to costs.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.09.06
15:43:32 IST