Madhya Pradesh High Court
Ajay Pratap Singh vs The State Of Madhya Pradesh on 6 October, 2015
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.11569/2015
Ajay Pratap Singh
Vs.
State of Madhya Pradesh & others
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Shri K.B. Vishwakarma, learned Counsel for the petitioner.
Shri A.P. Singh, learned Government Advocate for the
respondents-State.
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Present : Hon'ble Shri Justice K.K. Trivedi
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O R D E R
(06/10/2015)
1. By this petition under Article 226 of the Constitution of India, the petitioner has called in question the validity of order dated 03.07.2015 passed in the appeal filed by the petitioner against the order dated 16.02.2015 of the District Magistrate, Rewa removing the petitioner from the area.
2. It is contended in the writ petition that a report against the petitioner was submitted by the Superintendent of Police, Rewa to the District Magistrate, Rewa on 25.11.2014 alleging that looking to the criminal activities of the petitioner and registration of cases against him right from the year 1983, a threat in the mind of the residence of the area has grown up on account of which continuance of the petitioner in the area was not desirable. Accordingly, it was recommended that action under Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (herein after referred to as 'Act') be taken against the petitioner. A show cause notice was issued to the petitioner on 01.12.2014 by 2 the District Magistrate. A reply to the said show cause notice was filed by the petitioner indicating that the action initiated against the petitioner was not just and proper as in many of the cases, he has been acquitted. He is a social worker and false cases have been registered against him. There was no material available with the police authorities to indicate that the petitioner was intending to continue with the said criminal activities or that because of his activities, witnesses were not coming forward to depose against him in the Court of law. As such it was contended that no action was required to be taken against the petitioner.
3. It is further contended that despite filing of the aforesaid reply, no enquiry whatsoever was conducted by the District Magistrate to arrive at any conclusion after full satisfaction that the petitioner was continuously involved in such activities and a case specifically was made out under Section 5(a) and (b) of the Act against the petitioner for his removal from the area. Yet the order was passed on 16.02.2015 against the petitioner. An appeal against the said order was filed by the petitioner but the same has been dismissed, hence, this writ petition is required to be filed.
4. The writ petition was entertained and notices were issued to the respondents. Despite service of notice, no return whatsoever has been filed by the respondents.
5. Heard learned Counsel for the parties at length and perused the original record.
6. Undoubetedly upon receipt of the information from the Superintendent of Police the case was registered by the District Magistrate and in terms of the order dated 3 01.12.2014, a show cause notice was issued to the petitioner. It appears from the order that the District Magistrate has only examined the documents, which were made available by the police authorities. The counsel for the petitioner appeared before the District Magistrate on 30.01.2015. The order was passed on 16.02.2015.
7. From the perusal of the aforesaid order of the District Magistrate, it appears that no enquiry on his own was conducted by the District Magistrate to ascertain whether there was any likelihood of involvement of the petitioner in commission of offence for which earlier he was prosecuted. It is further clear from the order that no independent witnesses were examined by the District Magistrate to ascertain whether there was any threat of life or otherwise in the mind of witnesses because of criminal activities of the petitioner in the area on account of which they were not coming forward to adduce evidence against him in the Court of law. That being so, it is seen that instead of conducting independent enquiry, the District Magistrate has simply based his findings on the report of the police authorities.
8. The law in that respect is well settled by now. The Apex Court in several cases has held that it is not a mere formality to record its own satisfaction by the competent authority, which is bestowed with the power of removing a person from the area. Considering all those laws laid-down by the Apex Court, the Division Bench of this Court in the case of Ashok Kumar Patel vs. State of M.P. and others1, , has held in paragraphs 5 to 11 as under :
"5. Section 5 of the Act of 1990 under which the order of externment has been passed is quoted herein below:-
1 [2009(4) MPLJ 434] 4 "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 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 part thereof, contiguous thereto by such route within such time as the District Magistrate may specify and not to enter or return to the said district or 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. "
6. A plain reading of Section 5 (b) of the Act of 1990 quoted above, would show that for passing an order of externment against a person, two conditions must be satisfied:-5
(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.
7. In State of N.C.T. of Delhi and another vs. Sanjeev alias Bittoo (supra), the Supreme Court had the occasion to interpret section 47 of the Bombay Police Act, 1978, which contains provisions similar to section 5 of the Act of 1990 and has referred to these essential conditions for passing an order under section 47 of the Delhi Police Act in para 10 of the judgment as reported in the AIR thus :-
"Section 47 consists of two parts. First part relates to that satisfaction of the Commissioner of Police or any Authorised Officer reaching a conclusion that movement or act of any person are causing alarm and danger to person or property or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in commission of enumerated offences or in the abetment of any such offence or is so desperate and dangerous as to render his being at large hazardous to the community. Opinion of the Concerned Officer has to be formed that witnesses are not willing to come forward in public to give evidence against such person by reason of apprehension on their part as regards safety of person or property. After these opinions are formed on the basis of materials forming foundation therefore the Commissioner can pass an order adopting any of the available options as provided in the provision itself. The three options are - (1) to direct such person to so conduct himself as deemed necessary in order to prevent violence and 6 alarm or (2) to direct him to remove himself outside any part of Delhi or (3) to remove himself outside whole of Delhi."
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 of offence or in abetment of an offence of the type mentioned in section 5(b), several years or several months back, there cannot be any reasonable ground for believing that the person is engaged or is about to be engaged in the commission of such offence.
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, 1992 in Gurbachan Singh vs. The State of Bombay and another, 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 7 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 the Criminal Procedure Code 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 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 1990."
9. This Court has also examined the laws on previous occasions in respect of taking away the right of free living in particular area by a citizen. Placing reliance in several decisions of the Apex Court, this Court has held that while passing the order of removal, the District Magistrate is required to intimate the said person that he has a right to challenge such an order in appeal. That is to be done in compliance of Article 22 of the Constitution of India. The order impugned nowhere indicates that such observations were made.
10. From the perusal of the order impugned, it is clear that the same is passed only and only on the report of the police authorities. That being so, the enquiry so conducted by the District Magistrate cannot be said to be in compliance of the mandatory provisions of law as propounded by the Apex Court and as have been laid-down by this Court in the case of Ashok Kumar Patel (supra). Time and again this Court has observed that casual findings are recorded by the District Magistrate simply on the basis of the police report.
8That is not the object of law. In the present case also it is seen that in paragraph 5 of impugned order of District Magistrate, only this much is said that from the report of the Superintendent of Police and the record of the crime, the said District Magistrate has reached to the conclusion that there is every likelihood that the petitioner will repeat the crime and as such the case is made out under Section 5(b) of the Act for his removal. The aforesaid provisions specifically prescribe that the satisfaction of the District Magistrate should be independent and not only on the basis of such information given by the police authorities. Accordingly, this Court is of the opinion that the procedure adopted by the District Magistrate in passing of the order impugned was not just and proper. The Appellate Authority has not looked into these aspects and, therefore, the order passed by the Appellate Authority is equally bad in law.
11. Consequently, the writ petition is allowed. The order dated 16.02.2015 as also the order dated 03.07.2015 are quashed.
12. The writ petition is allowed and disposed of. However, there shall be no order as to costs.
(K.K. Trivedi) Judge Skc