Madhya Pradesh High Court
Bablu @ Omkar Singh vs The State Of Madhya Pradesh on 9 September, 2021
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 Writ Petition No.2926/2021
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.2926/2021
(Bablu @ Omkar Singh Vs. State of M. P. and Others)
Jabalpur, Dated: 09-09-2021
Shri Jitendra Prasad Tiwari, Advocate with Shri Rudra
Prasad Dwivedi, Advocate for the petitioner.
Shri Sachin Jain, learned Panel Lawyer for the
respondents/State.
With the consent of learned counsel for the parties, heard finally.
The petitioner has filed this petition under Article 226 of the Constitution of India challenging the legality, validity and propriety of the impugned order dated 19.01.2021 (Annexure P/4) passed by respondent no.2-The District Magistrate, Umaria exercising the power provided under Sections 5,6 and 7 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as the 'Adhiniyam, 1990'), ordered externment of the petitioner for a period of one year from the revenue boundaries of District Umaria and also from the nearby Districts Shahdol, Annupur, Satna, Jabalpur, Katni and Dindori.
Although, the impugned order is appealable under Section 9 of the Adhiniyam, 1990 and appeal lies before the Commissioner but for the reason assigned in the petition itself that at the relevant point of time, the Commissioner, Shahdol was not presiding as the post of Commissioner was lying vacant, therefore, after filing the appeal, the same was withdrawn and this petition has been preferred. This Court on 11.02.2021 directed the State to ascertain whether the court of Commissioner, Shahdol is functional or not. No instructions as 2 Writ Petition No.2926/2021 per the order-sheet were received by the Court and on 12.03.2021, notices were issued to the respondents for filing reply. Reply has been filed but no objection in regard to maintainability of the petition has been raised, therefore, under such a circumstance, the objection raised by counsel for the State at the time of hearing regarding maintainability of the petition on the ground of non-availing the statutory remedy of appeal is hereby rejected.
The necessary facts of the case, in a nutshell, are that the petitioner is a businessman, engaged in the business of mining and also involved in Agriculture, holding the post of State Secretary of M.P. Kisan Congress. As per the petitioner, he being a leader of opposition party, therefore, leaders of the rulling party tried to harass the petitioner and got an order of externment from the District Magistrate on 20.09.2019. Despite a report being submitted by the-then Superintendent of Police for invoking the power under Sections 5,6 and 7 of the Adhiniyam, 1990 showing that 23 cases till 2018 were registered against the petitioner under different sections of IPC and, therefore, it was a fit case in which order of externment against the petitioner could be passed, the District Magistrate found that out of 23 cases registered against the petitioner, in some cases he has been acquitted and from report of Superintendent of Police dated 12.09.2019, it is clear that after 23.02.2018, no criminal case was registered against the petitioner and as such, no such situation has arisen that the activities of the petitioner are disturbing the public peace or in any manner pre-judicial to the security of the State or maintenance of public order, therefore, refused to invoke the power under Sections 5,6 and 7 of the Adhiniyam, 1990 against the petitioner.
However, the Superintendent of Police again submitted a report on 27.08.2020 to the District Magistrate asking to 3 Writ Petition No.2926/2021 invoke power under Sections 5,6 and 7 of the Adhiniyam, 1990 against the petitioner and pass order of externment against him as petitioner was involved in criminal activities since 1998 till the date of submitting the report. In the said report, the description of cases registered against the petitioner under various sections of IPC have been shown and as per the said report, total 29 cases were shown to have been registered against the petitioner.
A show cause was issued on 02.09.2020 (Annexure P/3) under Section 8(1) of the Adhiniyam, 1990 asking the petitioner to appear before the authority on 22.09.2020 and submit his stand as to why power under Sections 5,6 and 7 of the Adhiniyam, 1990 should not be invoked against him and order of externment be not passed prohibiting him to enter into the revenue boundaries of Districts Umaria, Shahdol, Annupur, Satna, Jabalpur, Katni and Dindori for a period of one year.
The petitioner submitted reply to the show cause making a request therein that the documents and material collected against him may be supplied so that proper reply could be filed. But no response was given by the respondents.
The District Magistrate then passed an order on 19.01.2021 (Annexure P/4) directing externment of the petitioner for a period of one year from the revenue boundaries of Districts Umaria, Shahdol, Annupur, Satna, Jabalpur, Katni and Dindori.
Since the appellate authority was not functioning, therefore, this petition has been filed challenging the order of the District Magistrate, mainly on the ground that the order has been passed by the authority without application of mind. As per learned counsel for the petitioner, Section 6 of the Adhiniyam, 1990 has no applicability in the facts of the case as the petitioner was never convicted. He further submits that the mandatory requirement of Section 5(b) has also not been 4 Writ Petition No.2926/2021 fulfilled and it is the settled principle of law that the order passed by the authority without fulfilling the requirement of Section 5(b) of the Adhiniyam, 1990 suffers from material irregularity and is not sustainable in the eyes of law. It is also contended by learned counsel for the petitioner that the order of externment dated 20.09.2019 (Annexure P/1) passed by the District Magistrate considering 23 cases registered against the petitioner till 2018 and merely because few more cases have been registered against him, power of Sections 5,6 and 7 of the Adhiniyam, 1990 could not have been invoked because the said request of the Superintendent of Police had been rejected by the District Magistrate just some time prior to the date of the impugned order.
Respondents have filed their reply, supported the impugned order and stated that petitioner was engaged in criminal activities since 1998 and has continued with the same till 2020 facing almost 29 criminal cases against him, therefore, the authority had no option but to invoke the power as provided under Section 5 of the Adhiniyam, 1990. It is also clarified that merely because in some of the cases, the petitioner has been acquitted, does not mean that the order of externment cannot be passed. Learned counsel for the respondents has submitted that the District Magistrate, after making an enquiry reached to the conclusion that continuous involvement of the petitioner in criminal activities and the nature of offences registered against him, undoubtedly, makes him a known criminal, habitual offender and as such, the order of externment has rightly been passed.
Learned counsel for the petitioner has placed reliance upon the orders passed by this Court in W.P. No. 8065/2020 (Anil Pawar alias Anil Basod Vs. State of M.P. and others), W.P. No. 18858/2019 (Raju alias Batla Vs. State of M.P.) and W.P. No. 2507/2021 (Banti alias Jeen Vs. State of M.P. and 5 Writ Petition No.2926/2021 Others).
Considering the rival contentions of learned counsel for the parties and perusal of record, in the opinion of this Court, it is to be examined as to whether the authority before passing the order got himself satisfied that the requirements as has been prescribed under Section 5(b) of the Adhiniyam, 1990 are fulfilled or not.
In number of occasions so also in cases in which the petitioner has placed reliance, this Court has held that unless the conditions mentioned under Section 5(b) of Adhiniyam, 1990 are strictly satisfied, this Court can very well quash the order of externment.
To answer the rival contentions of the counsel for the parties, it is appropriate to take into account the provisions of Section 5 of Adhiniyam, 1990, which provides 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 reasonable 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 6 Writ Petition No.2926/2021 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."
From a bare perusal of Section 5(b) of Adhiniyam, 1990, as quoted hereinabove, it is significant 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 engage in commission of offence involving force or violence or an offence punishable under Chapters XII, XVI and XVII or under Section 506 and 509 of the Indian Penal Code, 1860 or in the abatement of any such offence, and (ii) in the opinion of District Magistrate witnesses are not willing to come-forward to give evidence in public against such person by reason or apprehension on their part as regards the safety of their person or property.
The Division Bench of this Court in case of Ashok Kumar Patel (supra) has categorically laid down that the District Magistrate before exercising the power provided under Section 5 of Adhiniyam, 1990 has to satisfy himself whether two requirements/conditions, as have been quoted hereinabove, are fulfilled or not.
In case of Jahangeer Alvi (supra), this Court has taken note of the said requirements and while placing reliance upon 7 Writ Petition No.2926/2021 the decision of Division Bench passed in case of Ashok Kumar Patel (supra), has also very categorically observed that if these two requirements are not fulfilled and there is no specific opinion given by the District Magistrate in that regard, the order of externment cannot be sustained.
In the instant case, the District Magistrate in its order dated 19.01.2021 has observed in paragraph 4 that the prosecution produced witness namely Smt. Gayatri Tiwari, W/o. Dr. Rajkamal, the then Police Station Incharge, Police Thana, Naurajabad and except the said police officer, none of the witnesses have been examined and, therefore, it is difficult to understand as to on what basis the District Magistrate got himself satisfied and has given a finding that the prosecution witnesses are not coming forward to give evidence against the petitioner because of his threat or fear. None of the witnesses of the criminal cases registered against the petitioner have come forward nor have shown their inability to reach the Court for getting their statement recorded. In the order impugned, even the names of witnesses have also not been mentioned. The Superintendent of Police in its report has also not mentioned the names of witnesses, not coming forward to get their statement recorded due to terror of the petitioner or any threat given to them by the petitioner. Thus, I have no hesitation to say that the District Magistrate has failed to fulfil the requirement as prescribed under Section 5(b) of the Adhiniyam, 1990.
In view of the law discussed in preceding paragraphs, it has been consistently held that there are two mandatory requirements provided under Section 5(b) of the Adhiniyam, 1990 and before invoking Section 5, the District Magistrate is obliged to get himself satisfied about fulfilling those requirements. But the order of externment dated 19.01.2021 (Annexure P/4) passed by the District Magistrate does not fulfil the said requirements. Not only this, it is also clear from the 8 Writ Petition No.2926/2021 record that there was no occasion for the District Magistrate to invoke Section 6 of the Adhiniyam, 1990 for the reason that there is no order of conviction against the petitioner and the externment order, in absence of order of conviction cannot be passed. For ready reference, Section 6 of the Adhiniyam, 1990 is reproduced, which reads as under:-
"6. Removal of persons convicted of certain offences. - If a person has been convicted-
(a) of an offence,-
(i) under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (45 of I860); or
(ii) under the Protection of Civil Rights Act, 1955 (22 of 1955); or
(b) twice, of an offence under Suppression of Immoral Traffic in Women and Girls Act, 1956 (104 of 1956); or
(c) thrice, of an offence within a period of three years under [Section 3 or 4 or 4-A] of the Public Gambling Act, 1867 (3 of 1967), in its application to the State of Madhya Pradesh;
the District Magistrate may, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted direct such person by an order to remove himself outside the district or part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route and within such time as the District Magistrate may order and not to enter or return to the District or part thereof or such area and such contiguous district or part thereof, as the case may be, from which he was directed to remove himself.
Explanation :- For the purpose of this Section, the expression, "an offence similar to that for which he was convicted" means :-
(i) in the case of a person convicted of an offence mentioned in clause (a), an offence falling under any of the Chapters or Sections of the Indian Penal Code, 1860 (45 of 1860), mentioned in that clause or an offence falling under the provisions of the 9 Writ Petition No.2926/2021 Act mentioned in sub-clause (ii) of that clause; and
(ii) in the case of a person convicted of an offence mentioned in clauses (b) and (c), an offence falling under the provisions of the Acts mentioned respectively in the said clauses."
Thus, considering the aforesaid facts and circumstances of the case and also examining the material available on record, this Court is of the opinion that the District Magistrate before passing the order of externment failed to fulfil the requirement of Section 5(b) of the Adhiniyam, 1990 and also failed to see that Section 6 of the Adhiniyam, 1990 has no application. The order passed by the District Magistrate on 19.01.2021 (Annexure P/4) is, therefore, not sustainable in the eyes of law and deserves to be quashed. No other point is argued by learned counsel for the petitioner, therefore, on the basis of the submission made and examining the legal position, the impugned order is hereby quashed.
The petition is accordingly allowed. The order dated 19.01.2021 (Annexure P/4) is hereby set aside.
(SANJAY DWIVEDI) JUDGE rao Digitally signed by SATYA SAI RAO Date: 2021.09.16 10:26:55 +05'30'