Madhya Pradesh High Court
Ramjilal vs The State Of Madhya Pradesh on 31 October, 2014
1
WRIT PETITION No.2279/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(SB : SHEEL NAGU, J.)
WRIT PETITION No.2279/2014
Ramjilal
Vs.
State of MP & Others
Shri Prakhar Dhengula, Advocate for petitioner.
Shri A.S. Rathore, Panel Lawyer for respondents/State.
ORDER
(Passed on 31 October, 2014)
1. This petition under Article 226 of the Constitution of India assails the order of externment dated 14.11.2013 passed by District Magistrate, Shivpuri contained in Annexure P/2 under Section 5 of the M.P. Rajya Suaksha Adhiniyam, 1990 (for brevity "Adhiniyam of 1990") externing the petitioner for one year from District of Shivpuri and the contiguous Districts of Sheopur, Gwalior, Guna, Ashoknagar, Morena and Datia. The challenge is further laid to the appellate order dated 24.02.2014 (Annexure P/1) passed by the Commissioner, Gwalior Division, Gwalior affirming the said order of externment.
2. Learned counsel for rival parties are heard.
3. Learned counsel for petitioner contends that the impugned order of externment is perverse as it is unsupported by any material to establish that the petitioner is engaged or is about to be engaged in the commission of an offence involving 2 WRIT PETITION No.2279/2014 force or violence or an offence punishable under Chapters XII, XVI or XVII or u/Ss. 506 or 509 of the Indian Penal Code or in abetment of any such offence. It is further contented that 9 cases, which are alleged to be the foundation of the impugned order mentioned in table contained therein have all ended in acquittal except the case bearing Crime No.304/2012 alleging offences punishable u/Ss.327, 294, 323, 506 r/w S. 34 of the Indian Penal Code registered at Police Station Mudiya, District Gwalior. It is also submitted that despite the fact of the petitioner having been acquitted of all the offences except one, having been brought to the notice of the competent authority, the petitioner has been presumed to be a person liable to be externed u/S. 5 (b) of Adhiniyam of 1990 by wrongly holding his actions to be prejudicial to public order.
4. Reliance is placed on the Division Bench decision in the case of Ashok Kumar Patel v. State of MP & Others : 2009 (4) MPLJ 434 and the Single Bench decision of this Court in the case of Raju Rathore v. State of MP (Writ Petition No.3297/2012) rendered on 14.12.2012.
5. Per contra, the learned counsel for State by filing a detailed return has controverted the petitioner's contentions. It is submitted that the acquittals, in majority of the criminal cases, are of no avail to the petitioner since the same are an outcome of compounding of offences u/S. 320 of the Criminal 3 WRIT PETITION No.2279/2014 Procedure Code and do not involve in acquittal on merits. The sole pending case registered at Crime No.304/2012 alleging offences punishable u/Ss.327, 294, 323, 506 r/w S. 34 of the Indian Penal Code registered at Police Station Mudiya, District Gwalior is relied upon. The State further contents that the petitioner is involved in threatening and intimidating large number of persons in the community, which has created atmosphere of terror in the mind of the people at large preventing them from fearlessly coming forward to depose against the petitioner in the Court of law. It is further submitted that earlier externment proceedings were initiated against the petitioner, but the same could not reach logical end on account of the same having been aborted by political pressure exerted by the petitioner.
6. Having heard the counsel for rival parties, it is noticeable that earlier the petitioner suffered an order of externment dated 08.04.2009, which was successfully assailed in Writ Petition No.1716/2009. After quashing the order of externment dated 08.04.2009, this Court remanded the matter to the District Magistrate for affording due and sufficient opportunity to the petitioner before passing order afresh.
7. A perusal of the order dated 04.05.2009 passed in Writ Petition No.1716/2009 indicates that the said petition was allowed on account of the District Magistrate having 4 WRIT PETITION No.2279/2014 disbelieved the statement of the petitioner that he had been acquitted of the offences alleged against him because certified copies of the orders of acquittals were not filed by the petitioner.
8. In the abovesaid background scrutinizing the impugned order herein dated 14.11.2013 (Annexure P/2), it is evident that in para 3 of the said order, the factum of petitioner having been acquitted of 8 out of 9 offences, has been brought to the notice of the District Magistrate. However, the District Magistrate has ignored the said aspect of acquittal in 8 out of 9 criminal cases primarily on the ground that one of the offences bearing Crime No.304/2012 is still pending adjudication and in the other offences, the acquittals are based on compounding of offences and not acquittal after adjudication. The District Magistrate has further made a sweeping statement of the petitioner having been involved in several offences, in which the witnesses are apprehensive of approaching the Courts to give statements against him.
9. The District Magistrate while passing the impugned order was persuaded by the fact of offences having been registered against the petitioner during the period from 1998 to 2012. On this factual background, the District Magistrate found existence of a case of breaching of public order leading to invocation of his powers u/S. 5 (b) of the Adhiniyam of 1990. 5 WRIT PETITION No.2279/2014
10. Perusal of the statutory provisions of Section 5 (b) of the Adhiniyam of 1990 indicates that the order of externment can stand the test of law only when the following ingredients are established on the basis of objective assessment of the material available on record :-
(i) Reasonable ground exists for believing that the 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 u/S. 506 or 509 of IPC or in abatement of any such offence; and
(ii) when in the opinion of District Magistrate witnesses in such offences are unwilling to give evidence in public against such person by reason of apprehension on their part as regards safety of their person or property;
The first abovesaid ingredient constituting ground for invoking Section 5 (b) of the Adhiniyam of 1990 can further be categorized into two sub ingredients as follows :-
(i) There are reasonable grounds for believing that the person is engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or u/S. 506 or 509 of IPC or in abatement of any such offence; or
(ii) There are reasonable grounds for believing that such person is about to be engaged in commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII 6 WRIT PETITION No.2279/2014 or u/S. 506 or 509 of IPC or in abatement of any such offence.
11. From close scrutiny of the abovesaid first sub-ingredient, it is evident that term "person is engaged in commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or u/S. 506 or 509 of IPC or in abetment of any such offence" clearly means that any of the offences of the nature mentioned is either being committed or has been committed in presenti or the person concerned is about to commit the offence of the nature mentioned.
12. Thus, the exceptional power of externment is to be exercised against a person, who is presently involving in an offence, or is about to commit an offence of the nature mentioned in the provision. Obviously, this extraordinary power is intended by the Legislature to be exercised against the persons who are or are about to be involved in presenti in the offences of the nature mentioned. The object of the Legislature, thus, is that the intensity of the act of the person concerned, who has committed an offence or is about to commit an offence of the nature mentioned therein in presenti, is of such a nature that it sends ripples of terror in the mind of the public at large by preventing them from making a statement in the Court against the person concerned. 7 WRIT PETITION No.2279/2014
13. The term "public order" has not been defined in the Adhiniyam of 1990, but has been appropriately explained by the Apex Court in one of it's earliest decisions, i.e. Romesh Thappar v. State of Madras : AIR 1950 SC 124 (Para 7), which holds the field till date as per Ramlila Maidan Incident in Re (2012) 5 SCC 1 (Para 37).
14. Thus, there is a clear distinction between a mere breach of peace and breach in public order. Unless any person is involved in such an act or acts, which disturbs the normal rhythm of life of the general public at large of a particular community, locality or area, the disturbance in public order cannot be presumed by the mere fact of involvement in various criminal cases in the distant and recent past.
15. Thus, this Court has to test the impugned order of externment on the basis of the abovesaid discussion and provisions of law contained in the Adhiniyam of 1990 and that whether the petitioner is engaged or is about to engage in the commission of the offence of the nature mentioned in Section 5 (b) in presenti qua the order of externment.
16. The order of externment is primarily based on 9 criminal cases registered against the applicant, which are detailed in the table contained in the impugned order. These 9 cases pertain to the years 1998, 2002, 2005 and 2012. In all these offences, except the one bearing Crime No.304/2012, the 8 WRIT PETITION No.2279/2014 petitioner has been acquitted by the judgment dated 31.01.2003 (Crime No.142/2002) in Special Sessions Trial No.95/2002; judgment dated 17.07.2007 (Crime No.79/2005) in Criminal Case No.392/2005; judgment dated 17.07.2007 (Crime No.80/2005) in Criminal Case No.393/2005; and judgment dated 09.03.2004 (Crime No.110/2002) in Special Sessions Trial No.14/2003.
17. A perusal of these judgments of acquittal indicates that they have been rendered after adjudication and not by compounding of the case or compromise as contended by the District Magistrate. Though it is noticeable that the prosecution witnesses turned hostile and did not support the story of the prosecution, but that itself cannot lead to the inference that the petitioner was instrumental in persuading or coercing the prosecution witnesses to depose in his favour.
18. It is worthy of mention that the reference of the offences of 1998, 2002 and 2005 cannot by any stretch of imagination justify existence of basic ingredients of Section 5 (b) of the Adhiniyam of 1990 as all these offences were committed in the distant past qua the impugned order of externment and, therefore were not offences in which the petitioner was engaged or about to be engaged in presenti.
19. The sole offence of Crime No.304/2012, which continues to be pending adjudication till date cannot alone create 9 WRIT PETITION No.2279/2014 foundation enabling the District Magistrate to come to a conclusion of existence of that offence being committed or about to be committed in the presenti.
20. The statements of the witnesses, which have been annexed alongwith the return to support the findings of the District Magistrate that the witnesses are being terrorized by the petitioner, are also of no avail to the State and its functionaries. There is a bald statement by the District Magistrate that the witnesses are not coming forward to depose against the petitioner without any supportive material that they are feeling diffident in deposing against the petitioner in public by raising apprehension on their part as regards safety of their person or property. The apprehension in the instant case appears to be in the mind of District Magistrate, which is supported by bald statements and reports of the the Superintendent of Police and the other supporting staff rather than any independent material or evidence to support the said apprehension.
21. The findings of the District Magistrate regarding existence of exceptional circumstances for invoking extraordinary power of externment u/S.5 (b) of the Adhiniyam of 1990 are to be arrived at by objective assessment of the material and evidence on record as regards offence being committed or likely to be committed in presenti. The nature of 10 WRIT PETITION No.2279/2014 satisfaction by the District Magistrate may be subjective, but has to be based on objective assessment of actual material existing on record.
22. This Court reminds itself that the power of externment is an exception to the fundamental right of liberty enshrined in Article 21 of the Constitution of India. This exceptional power is thus to be exercised with great circumspection, care and caution to prevent its misuse. It is common knowledge that the authorities vested with this kind of extraordinary power are tempted by the very nature of the power to overstep their jurisdiction. Thus, the need to act with circumspection becomes more necessary and correspondingly the need arises for the supervisory Courts while exercising its power of judicial review to scrutinize such orders of externment with hawk eyes and to strike down any misuse or overstepping of this power by the authorities concerned, lest the right of liberty stands breached. In support of this proposition, the decisions of the Apex Court in the cases of Dr. N.B.Khare v. The State of Delhi : AIR 1950 SC 211, which continues to hold the field vide Rekha v. State of Tamil Nadu & Another : (2011) 5 SCC 244 is worthy of reference.
23. In view of the above, this Court has no hesitation to hold that the impugned order of externment dated 14.11.2013 passed by District Magistrate, Shivpuri contained in Annexure 11 WRIT PETITION No.2279/2014 P/2 and the order of appellate authority dated 24.02.2014 (Annexure P/1) cannot stand the test of law as they desperately fall short of fulfilling the basic requirement of Section 5 (b) of the Act of 1990.
24. Consequently, the impugned orders dated 24.02.2014 (Annexure P/1) passed by the Commissioner, Gwalior Division, Gwalior and dated 14.11.2013 (Annexure P/2) passed by District Magistrate, Shivpuri are quashed. Consequently, this petition is allowed.
25. The petitioner shall be entitled to actual cost of the petition, which is quantified at Rs.2,000/-.
(SHEEL NAGU) Judge 31/10/2014 Mehfooz/-