Madhya Pradesh High Court
Jittu @ Jitendra @ Jay vs The State Of Madhya Pradesh on 4 October, 2018
1 W.P. No.15129/2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL
SEAT AT JABALPUR
Case No. W.P No.15129/2018
Parties Name Jittu @ Jitendra @ Jay
Vs.
State of M.P. & others
Date of Judgment 04/10/2018
Bench Constituted Single Bench.
Judgment delivered by Justice Sujoy Paul
Whether approved for No
reporting
Name of counsels for For petitioner: Shri B.K. Upadhyay,
parties Advocate.
For Respondents: Shri Rahul
Mishra, Govt. Advocate.
Law laid down
Significant paragraph
numbers
ORDER
04/10/2018 This petition filed under Article 226 of the Constitution takes exception to the order dated 12.03.2018 whereby the District Magistrate, Hoshangabad in Criminal Case No.0009/2017 (Annexure-P/4) directed the petitioner to remain outside Hoshangabad and adjoining Districts of Harda, Betul, Chhindwara, Narsinghpur, Sehore, Raisen, Bhopal and Jabalpur for a period of one year. This order of District Magistrate was unsuccessfully challenged by the petitioner before the Commissioner, Narmadapuram Division, Hoshangabad in Appeal No.306/2017-18. The said appeal was 2 W.P. No.15129/2018 dismissed by order dated 26.04.2018.
2. Learned counsel for the petitioner raised two fold submissions. By taking this Court to the details of the offences mentioned against the petitioner, which were reproduced in the impugned order dated 12.03.2018, Shri Upadhyay submits that the petitioner was subjected to orders of externment in the years 2008, 2009 and 2014. In the previous occasions, the District Magistrate must have considered the history of criminal cases/antecedents and thereafter passed the orders of externment. After his last externment, which had taken place in the year 2014, only three criminal cases were registered against him. Thus, the first point raised is the criminal cases registered against the petitioner prior to 2014 i.e. the last date of externment could not have been taken into account. Secondly, there was no material available on record before the District Magistrate to establish that the petitioner subjected anybody to any kind of threat which prevented such person to depose their statements against the petitioner in the criminal cases. The petitioner has been acquitted in most of the criminal cases..The learned Magistrate has not conducted any inquiry whatsoever to examine whether petitioner can be subjected to externment. Thus, necessary conditions to invoke Section 5(b) of M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as "the Adhiniyam") are not satisfied. In support of aforesaid contentions, Shri Upadhyay relied on the order passed by this Court in W.P. No.11569/2015 (Ajay Pratap Singh Vs. State of M.P.), wherein it was held that it appears from the order of District Magistrate that no inquiry at his own 3 W.P. No.15129/2018 was conducted to ascertain whether there was any likelihood of involvement of the petitioner in commission of offence for which he was earlier prosecuted, the exercise of power is improper. Shri Upadhyay also relied on 2014 (4) MPLJ 654 (Ramgopal Raghuvanshi Vs. State of M.P. and others) and 2017 (3) MPLJ 667 (Jahangeer Alvi Vs. State of M.P. and others). On the strength of these authorities, Shri Upadhyay submits that the impugned externment order and order of Appellate Authority may be set aside. The petitioner urged that in most of the criminal cases, the petitioner has already been exonerated. Hence, those cases cannot be taken into account for deciding the question of externment.
3. Per contra, Shri Rahul Mishra, learned Govt. Advocate supported the impugned order by taking this Court to sub- clause (b) of Section 5 of the Adhiniyam. Learned Govt. Advocate contends that necessary ingredient for invoking this provision was satisfied and, therefore, the District Magistrate has rightly passed the order. Emphasis is laid on Entry 30 of the impugned order dated 12.03.2018 wherein the petitioner shown to be an accused in offences under Sections 294, 323, 427, 506 and 34 IPC. Reliance is placed on a Division Bench judgment of this Court reported in 2009 (4) MPLJ 434 (Ashok Kumar Patel Vs. State of M.P. and others). Considering the record of the petitioner, Shri Mishra submits that no interference is warranted in the present case. Shri Mishra further contended that the judgments of acquittal filed by the petitioner in the present case show that the petitioner was mostly acquitted because nobody dared to either depose 4 W.P. No.15129/2018 against him or turned hostile during trial which itself shows that the power of externment was rightly exercised. The same view is taken by the Appellate Authority.
6. No other point is pressed by learned counsel for the parties.
7. I have heard learned counsel for the parties and perused the record.
8. Before dealing with the rival contentions of the parties, it is apposite to refer Section 5 of the Adhiniyam which reads 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, 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
9. The point involved in this case is no more res integra. In (2003) SCC Online MP 688 (Baboo Khan vs. State of M.P. & Anr.), Justice A.M. Sapre, J. (As his Lordship then was) held as under:-
5 W.P. No.15129/2018"7. But that apart, acquittal in itself is no ground to set aside the externment order. Acquittal in any criminal/sessions trial can be on several ground and may be based on several reasons which may be technical in nature or it may be because of certain infirmities in the prosecution case, but the fact of accused involvement in the crime, his commission of the offence and his behavior can always be taken into account while deciding the case of his externment- it being one of the most relevant factor in such type of cases."
(Emphasis supplied) As per this judgment, despite exoneration from criminal cases, the conduct of the petitioner can be taken into account and it was held to be a "most relevant factor".
10. In the case of Ajay Pratap Singh (supra), this Court came to hold that the District Magistrate has not conducted any enquiry on his own to ascertain whether there was any likelihood of involvement of petitioner in the commission of offence. The said judgment cannot be pressed into service in the fact situation of present case for the simple reason that the petitioner is admittedly an accused in Crime No.412/16 involving offences under Section 294, 323, 427 and 506 r/w 34 of IPC. Section 5(b) of Adhiniyam of 1990 is wide enough to provide a ground for removal of a person believing that a person engaged or is about to be engaged for certain offences including Section 506 and 509 of IPC. The said crime number is admittedly registered against the petitioner, after his last externment which had taken place in the year 2014. Thus, necessary ingredient for invoking Section 5(b) is very much available in the present case. Hence, the judgment of Ajay 6 W.P. No.15129/2018 Pratap Singh (supra) is of no help to the petitioner.
11. The petitioner also placed reliance on the judgment of Jahangeer Alvi (supra). In this case, interference was made because externment order was solely based upon old and stale cases. This Court did not examine the existence of an offence under Section 506 of IPC which fulfills the requirement of Section 5(b) of the Adhiniyam, 1990. Thus, this judgment is distinguishable. Putting it differently, this is trite law that a judgment is a precedent on a point which has been specifically decided and not on something which is logically flowing from therefrom. [See (2003) 2 SCC (Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. & Others)]
12. I am unable to persuade myself with the argument of Shri Upadhyay for yet another reason. Shri Upadhyay placed reliance on certain Single Bench judgments. A Division Bench of this Court in Ashok Kumar Patel (supra) considered the provisions of Adhiniyam of 1990 and opined as under:-
"13. The Act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and the fundamental right to personal liberty under Article 21 of the Constitution and unless the conditions mentioned under section 5(b) of the Act of 1990 are strictly satisfied, an order of externment, will have to be quashed by the Court."
(Emphasis supplied)
13. It is noteworthy that the Apex Court in Pandharinath Shridhar Rangnekar vs. Dy. Commissioner of Police, State of Maharashtra AIR 1973 630 opined as under:-
"It is true that the provisions of section 56 make a 7 W.P. No.15129/2018 serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society. This Court in Gurbachan Singh v. The State of Bombay, 1952 SCR 737 : AIR 1952 SC 221 had upheld the validity of section 27(1) of the City of Bombay Police Act, 1902, which corresponds to section 56 of the Act. Following that decision, the challenge to the constitutionality of section 56 was repelled in 1956 SCR 533 : AIR 1956 SC 585. We will only add that care must be taken to ensure that the terms of sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee."
(Emphasis supplied)
14. The Division Bench in very clear terms made it clear that if the condition of Section 5(b) of the Adhiniyam, 1990 are strictly satisfied, an order of externment can be maintained. A cumulative reading of the judgments of Baboo Khan and Ashok Kumar Patel (supra) leads to the inevitable conclusion that mere acquittal from criminal cases is not sufficient to disturb the order of externment. More so, when the recent case pending against the petitioner fulfills the requirement to invoke Section 5(b) of the Adhiniyam, 1990. In view of aforesaid analysis, no fault can be found in the impugned orders passed by the learned District Magistrate and Commissioner, Narmadapuram Division Hoshangabad.
15. The petition sans substance and is hereby dismissed. No cost.
(Sujoy Paul) Judge Biswal/mohsin Digitally signed by MOHAMMED MOHSIN QURESHI Date: 2018.10.04 04:34:47 -07'00'