Madhya Pradesh High Court
Rameshwar Prasad Kushwaha vs The State Of Madhya Pradesh on 11 January, 2019
Equivalent citations: AIRONLINE 2019 MP 194
[1] WP-23456-2018 The High Court of Madhya Pradesh WP-23456-2018 (RAMESHWAR PRASAD KUSHWAHA Vs THE STATE OF M.P. & ORS.) Jabalpur; Dated: 11-01-2019 Mr. Mukhtar Ahmed, Advocate for the petitioner.
Mr. Anubhav Jain, Government Advocate for the State.
Heard.
The petitioner has filed the present petition being aggrieved by the order dated 26.03.2017, passed by District Magistrate, Narsinghpur by which order of externment for a period of one year has been passed against the petitioner.
Being aggrieved by the aforesaid order, the petitioner preferred an appeal under Section 9 of M.P. Rajya Suraksha Adhiniyam, 1990 (for short "Adhiniyam of 1990") before the Commissioner. By order dated 14.08.2018, the learned Commissioner dismissed the appeal of the petitioner. Hence this petition before this Court.
The proceedings under Section 5(a)(b) of the Adhiniyam of 1990 have been initiated against the petitioner on the request made by the Superintendent of Police, Narsinghpur by letter dated 29.09.2017. As per the report, the petitioner is involved in sale of illegal liquor in the local area since 2015. He has been punished in five cases. The proceedings under Section 110 have also been initiated against him in the year 2017. The case was registered by the District Magistrate and notice was issued to the petitioner. The petitioner filed reply by submitting that the has been falsely implicated in various excise cases. He is not keeping well and his family members are depended upon him. On the basis of material available, District Magistrate has passed the order under Section 5(a)(b) of the Adhiniyam of 1990 debarring him to enter into the territory of District Narsinghpur and in nearby districts, namely, Chhindwara, Seoni, Jabalpur, Damoh, Sagar, Raisen & Hoshangabad. Thereafter, the petitioner preferred an appeal and that too has been dismissed by the Magistrate. Hence, the present petition before this Court.
Learned counsel for the petitioner submits that petitioner has been falsely Digitally signed by SAIFAN KHAN Date: 12/01/2019 17:26:00 [2] WP-23456-2018 implicated in various cases. Even otherwise, these cases are pity cases which does not warrant order of externment for a period of one year. Out of one year, petitioner has already served about 10 months period, therefore the impugned order be quashed.
Learned Government Advocate opposed the arguments advanced by the petitioner by submitting that there is no improvement in the conduct of the petitioner. As per the report of the Superintendent of Police, he is continuously found involved in the sale of illegal liqour and fine was imposed. Hence, the impugned order has rightly been passed.
I have heard the learned counsel for the parties.
The law in respect of consideration of cases under the provisions of Section 5 of the MP Rajya Suraksha Adhiniyam, 1990 is well settled. The Division Bench of this Court in case of Ashok Kumar Patel Vs. State of M.P. & Others, reported in ILR (2009) MP 3090 has held that such an order cannot be passed mechanically. The District Magistrate under Section 5(b) of the M.P. Rajya Suraksha Adhiniyam is required to find out whether the petitioner was engaged in commission of offence or in abatement of such offence which was close to proximity to the date when the impugned order of externment was passed. The second condition which must be satisfied for passing an order against the person is that in opinion of District Magistrate witnesses are not willing to come forward to give evidence and to furnish evidence against such person by reasons of apprehension on their part as regard safety, but the District Magistrate in the impugned order has only reproduced the list of offence registered against the petitioner and formed an opinion against petitioner. Relevant portion of the aforesaid judgment is reproduced below:
"9. We will therefore have to examine the impugned order dated 18-11- 2008 passed by the District Magistrate, under Section 5 (b) of the Act of 1990 to find out whether the petitioner was engaged in the commission of an offence or was about to be engaged in the commission of an offence mentioned in Section 5 (b) of the Act of 1990, or in the abetment of such offence, which was very close in proximity to 18-11-2008 when the impugned order of externment was passed. The first offence mentioned is alleged to have been committed by the petitioner on 9-4-1995 when the petitioner and his other associates forcibly took possession of 'Mahuwa' of Tilakdhari Tripathi, son of Indramani Tripathi and collected the same, and Crime No. 46/95 under Sections 447 and 379 of the Indian Penal Code was registered Digitally signed by SAIFAN KHAN Date: 12/01/2019 17:26:00 [3] WP-23456-2018 and the petitioner was arrested and produced before the Court. The second offence is alleged to have been committed by the petitioner on 14-3-2007 when the petitioner is alleged to have written a letter to Shivshankar Tripathi, son of Tilakdhari Tripathi, giving threats regarding construction of new building of Shiksha Guarantee School, and Crime No. 42/2007 under Sections 353, 294, 506 read with Section 34 of the Indian Penal Code has been registered and a challan has been filed in the Court in Case No. 729/2008. The third act which has been mentioned in the impugned order is not an offence alleged to have been committed but a prohibitory proceeding No. 22/2007 under Sections 107 and 116(3) of the Code of Criminal Procedure instituted against the petitioner on 9-4-2007 and the petitioner has been produced in Court. The fourth offence alleged to have been committed by the petitioner is in July, 2008 when the petitioner along with 6 or 7 others is alleged to have caused hindrance in Government work during the election of Palak Shikshak Sangh and created disturbances in election work and committed 'Marpeet' on the basis of which Crime No. 216/2008 for offences under Sections 253, 294, 323, 325 and 506-B read with Section 34 of Indian Penal Code has been registered. In our considered opinion, these offences alleged to have been committed by the petitioner in the years 1995 to 2007, cannot be the foundation of an order under Section 5 (b) of the Act of 1990 as the alleged offences have no proximity at all to the order of externment passed on 18-11- 2008. Even, the offence alleged to have been committed by the petitioner along with 6 or 7 other persons in July, 2008, cannot constitute a reasonable ground to believe on 18-11-2008 that the petitioner is engaged or is about to be engaged in offence mentioned in Section 5 (b) of the Act of 1990.
10. The second condition which must be satisfied for passing of an order of externment against a person is that in the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of person or property. Construing a pari materia provision in Section 27 of the City of Bombay Police Act, 1902 in Gurbachan Singh v. The State of Bombay and Anr.(AIR 1952 SC
221), the Supreme Court observed:
"The law is certainly an extra-ordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety or the public residing therein."
11. In the instant case, the District Magistrate has in the impugned order only baldly stated that the list of offences registered against the petitioner reflects that he is a daring habitual criminal and because of this there is fear and terror in the public and has not recorded any clear opinion on the basis of materials, that in his opinion witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of their person or property. In most of the cases, Challans have been filed by the Police in Court obviously after examination of the witnesses under Section 161 of Cr.PC and the cases are pending in the Court. There is no reference in the order of District Magistrate that witnesses named in the Challans filed by the Police are not coming forward to give Digitally signed by SAIFAN KHAN Date: 12/01/2019 17:26:00 [4] WP-23456-2018 evidence against the petitioner in Court. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reason of apprehension to danger to their person or property to give evidence against the petitioner in respect of the alleged offences, an order under Section 5 (b) of the Act of 1990 cannot be passed by the District Magistrate by merely repeating the language of Section 5 (b)of the Act of l990.
12. In State of N.C.T. of Delhi and Anr. v. Sanjeev alias Bittu (supra), the Supreme Court interpreting Section 47 of the Bombay Police Act, 1978, which is similarly worded as Section 5 of the Act of 1990, has held in Para 25:
"It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary, the order directing externment should show existence of some material warranting an order of externment. While dealing with question mere repetition of the provision would not be sufficient. Reference to be made to some material on record and if that is done the requirements of law are met. As noted above, it is not the sufficiency of material but the existence of material which is sine qua non."
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. While considering a case under Section 56 of the Bombay Police Act, which also empowered the police to pass an order of externment, the Supreme Court observed in Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, State of Maharashtra (supra), as under:
"It is true that the provisions of Section 56 make a 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 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."
In view of above, the order of externment dated 26.03.2017 is quashed. Petition is allowed. No cost.
(VIVEK RUSIA)
s@if JUDGE
Digitally signed by SAIFAN KHAN
Date: 12/01/2019 17:26:00