Madhya Pradesh High Court
Istfaq Mohd. Alias Chhota Bhaiya vs The State Of Madhya Pradesh on 25 January, 2018
HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Petition No.22357/2017
Istfaq Mohammad
-Versus-
State of M.P. & others
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Single Bench: Hon'ble Shri Justice Vijay Kumar Shukla
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Shri Sampoorn Tiwari, Advocate for the petitioner.
Shri Sudeep Deb, Govt. Advocate for the State.
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Whether approved for Yes.
reporting ?
Law laid down
Significant paragraph Nos.
JUDGMENT
( Jabalpur, dt.25.01.2018) In the instant petition filed under Article 226 of the Constitution of India the legality and validity of the order dated 9- 10-2017 passed by the respondent No.3 has been challenged whereby the petitioner has been externed under the provisions of Section 5(a) and (b) of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 [hereinafter referred to as `the Act 1990'] and further challenge has been made to the order dated 6-12-2017 passed by the respondent No.2 whereby the order of externment has been affirmed and the appeal preferred by the petitioner has been dismissed.
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2. By the impugned order the petitioner has been externed from entering into the District Katni and its contiguous districts - Jabalpur, Satna, Damoh and Panna for a period of one year.
3. The facts, briefly stated, are that on the basis of the report submitted by the Superintendent of Police, Katni (respondent No.3) dated 27-01-2017 to the District Magistrate, Katni to the effect that the petitioner is involved in criminal activities since 1998 and he is spreading his terror to the local public. It is further alleged that the petitioner is involved in criminal activities and there are 23 criminal cases registered against the petitioner which have been mentioned in the impugned order. On the basis of the said report proceedings for externment were initiated against the petitioner and a show cause notice was issued to him.
4. After receipt of the notice, the petitioner submitted a detailed reply and pleadings that the respondent No.4 by concealing the material and actual facts submitted his reply, because many cases instituted against the petitioner have already been closed and he has been acquitted. In those cases only few cases are pending wherein he has been falsely implicated. It is further submitted that the petitioner has not been given a reasonable and fair opportunity in the 3 proceedings. It is contended that the petitioner had submitted an application for grant of permission of cross-examination of the witnesses but the same was rejected and opportunity of cross- examination was not afforded to the petitioner.
5. Counsel for the petitioner submitted that the order of externment has not been passed in accordance with the provions envisaged under Section 5 of the Act 1990. The criminal cases shown to be registered against the petitioner do not constitute any alarm, danger or harm to person or property, which are essential ingredients of Section 5(a) of the Act and also there are no ingredients of clause (b) of Section 5. In the present case there is no material for recording satisfaction that the petitioner is engaged or is about to be engaged in commission of the offence involving criminal force, violence or offence punishable under Chapater XII, Chapater XVI or Chapater XVII or Sections 506 and 509 of the Indian Penal Code or in the abatement of any such offence and the other. There is also no opinion of the District Magistrate that the witnesses are not coming forward to give evidence in the public, because of any apprehension of their safety of their person or property. Counsel appearing for the petitioner also submitted that the appellate Authority has passed the order without independent 4 application of mind and the appellate order is nothing but jut confirmation of the order passed by the District Magistrate.
6. Per contra, counsel for the respondents denied the cases of the petitioner and submitted that the externment order and the appellate order passed on the basis of the material available against the petitioner. He relied on the report of the Superintendent of Police.
7. Before adverting to the contentions of the counsel for the petitioner as discussed earlier and examining them on the anvil of the law prevailing in the field of externment, it is apt to refer the provisions of the Adhiniyam, 1990. Section 5 of the Act under which the order of externment has been passed is quoted hereinbelow:-
"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 i s a b o u t t o b e e n g a g e d i n t h e commission of an offence involving force or violence or an offence punishable under Chapter XII, 5 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 of 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."
8. A plain reading of Section 5 (b) of the Act quoted above, would show that for passing an order of externment against a person, two conditions must be satisfied:-
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(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.
9. At this stage, I think it condign to survey the authorities on the legal issues canvassed on behalf of the petitioner.
10. Division Bench of this Court in the case of Ashok Kumar Patel vs. State of M.P. & others, 2009(4) MPLJ 434 after considering Section 5 of the Act held thus:
"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, thee cannot be any reasonable ground for believing that the 7 person is engaged or is about to be engaged in the commission of such offence."
11. In the case of Ramgopal Ragjhuvanshi vs. State of M.P. and others, 2014(4) MPLJ 654 this Court after considering the earlier judgments in respect of Section 5 of the Act held that the order of externment cannot be passed on the basis of old and stale cases. A co-ordinate Bench of this Court at Indore in the case of Bhim @ Vipul vs. Home Department, (W.P. No.4329/2015, decided on 14-09-2015) has also considered the judgments rendered in the cases of Ashok Kumar (supra) and Ramgopal Ragjhuvanshi (supra) and held that the expression "engaged or is to be engaged" used in Section 5(b)(i) shows that commission of offence or the abetment of such offence by the person must have close proximity to the date on which the order is proposed to be passed under Section 5(b) of the Act.
12. In the case of Sanju @ Sanjay Ben Vs. State of M.P. and others, 2005 (4) MPHT 102 while considering the provisions of the Adhiniyam, 1990, the court held that the provision is not punitive in its nature and a person cannot be externed for his past acts. Although past activities of a person may afford a guide as to his behaviour in future, they must be reviewed in the context of the time when the order is proposed to be made. The past activities must be 8 related to the situation existing at the moment when the order is to be passed. In the present case from the facts it is noted that the same cases were being repeatedly considered by the authority and on earlier occasions, he found that the same material cannot formed a basis for passing an order of externment but by the impugned order is passed on the basis of most of the same cases which are old and stale which has already been held by this Court in number of cases as discussed above that the old and stale activities cannot be grounds of externment.
13. The opportunity of hearing and application of mind by the competent authority have been held essential requirements before passing an order of externment or detention under the Adhiniyam, 1990 or the Act, 1980. The Division Bench in the case of Ravi Tiwari and another Vs. Union of India and others, 2003 (3) MPHT 528 held that the authorities cannot pass orders or cannot grant approval mechanically by filling the gaps in cyclostyle order. Another Division Bench in thecase of Shri Sayeed alias Aslam Vs State of M.P., 2003 (4) MPHT 312 (DB) held that in the cases of detention order passed under the Act, 1980 subjective satisfaction of the authority cannot be lightly recorded by reproducing the words and the sentences of the statute. There has to be proper consideration 9 and appreciation for recording the satisfaction which has to be passed on true materials.
14. In the light of the aforesaid authoritative pronouncement of judgments, the contentions of the petitioner have to be examined on the anvil of facts of the present case and the law as discussed above.
15. The respondent No.3, Collector has referred list of 23 cases registered against the petitioner from the year 1998 to 2017:
Sr. Crime Number/Offence Date of incident No.
01. 47/1998 : under section 324 of 13-04-1998 IPC.
02. 41/2007: under sections 324 and 28-02-2007 294 of the IPC.
03. 62/2007 : under sections 294, 26-03-2007 506, 354, 323/34 of IPC.
04. Istigasa No.32/2007: under 12-04-2007 sections 107 and 116(3) CrPC.
05. Istigasa No.04/2007: under 29-09-2007 section 110 CrPC.
06. Istigasa No.51/2008: under 27-03-2008 sections 107 and 116(3) CrPC.
07. Crime No.57/2008 : under 30-06-2008 sections 341, 294 and 323 of the IPC.
08. Istigasa No.222/2008: under 22-01-2008 sections 107 and 116(3) CrPC.
09. Istigasa No.02/2010 : under 06-01-2010 section 151 CrPC.
10. Istigasa No.02/2007: under 06-01-2010 section 151 CrPC.10
11. Crime No.11/10 : under sections 31-01-2010 294, 506 and 323/34 of IPC.
12. Crime No.161/2010 : under 06-11-2010 sections 450, 294, 506, 427 and 323/34 of the IPC.
13. Istigasa No.220/2010: under 01-10-2010 sections 107 and 116(3) CrPC.
14. Istigasa No.05/2010: under 07-11-2010 sections 107 and 116(3) CrPC.
15. Istigasa No.06/2011: under 04-11-2011 sections 110 CrPC.
16. Istigasa No.19/2012: under 31-10-2010 section 110 CrPC.
17. Istigasa No.50/2014: under 04-02-2014 sections 107 and 116(3) CrPC.
18. Istigasa No.05/2014: under 05-03-2014 section 110 CrPC.
19. Istigasa No.52/2016: under 22-02-2016 sections 107 and 116(3) CrPC.
20. Istigasa No.117/2017: under 19-05-2016 sections 107 and 116(3) CrPC.
21. Crime No.80/2016 : under 03-06-2016 sections 458, 294, 323, 324 and 506/34 of the IPC.
22. Crime No.18/2017 : under 20-01-2017 sections 294, 323 and 506 of the IPC.
23. Istigasa No.05/2017: under 24-01-2017 section 110 CrPC.
Out of 23 cases, except 8 cases, all have been found to be registered for preventive sections under sections 107, 110 and 116 of the Code of Criminal Procedure.
16. The petitioner has submitted that in the list the cases at Sr. Nos,4,5,6,8,10,13,14,15,16,17,18,19,20,23 have not been disclosed properly and the actual facts regarding acquittal of the 11 petitioner have not been mentioned. He submitted that other cases are not within his knowledge. He claims that he has been acquitted in all criminal cases except the cases enumerated at Sr.Nos.21 and
23. It is also contended that the alleged offence in the list are simple in nature.
17. Upon perusal of the order it is noted that the Collector has mentioned the list of cases in para 2 of the order. In para 4 he has discussed about the provisions of Section 5 of the Act 1990. In para 6 of the order the Collector has recorded his satisfaction in terms of the language of Section 5 of the Act, but there is no discussion of the reply or the contentions raised by the petitioner.
18. In the instant case, upon perusal of the impugned orders, it is also found that the District Magistrate has only baldly stated the list of the offences registered against the petitioner to reflect that the petitioner is a daring habitual criminal but he did not record any opinion on the basis of the materials that in his opinion witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension as regards to their safety. Hence, in absence of any existence of material to show that witnesses are not coming forward by reason of apprehension to give evidence against the petitioner in respect of the alleged offences, an 12 order u/s 5 (b) of Adhiniyam, 1990 cannot be passed by the District Magistrate as held in the case of Ashok Kumar Patel Vs. State of M.P. (Supra) by the Division Bench that for a passing an order of externment against the person both the conditions mentioned under section 5 (b) (i) and (ii) have to be satisfied.
19. This Court in the case of Meena Sonkar vs. State of M.P. and others, 2017(2) MPLJ 565 and also in the case of Anek alias Anil Nageshwar vs. State of Madhya Pradesh & four others [W.P. No.9297/2017, decided on 8-8-2017] held as under:
"The second requirement is also necessitated to pass an order of externment that on account of the activities of a person, who is externed, the witnesses amongst public are not coming forth to depose in the criminal cases against him either under apprehension of person or property. But in the order impugned existence of such material is not on record, more so, no such finding has been recorded by the competent authority to record satisfaction. Therefore, the order impugned do not fulfill the second requirement of Section 5(b) of the Adhiniyam."
20. In the present case there is no satisfaction of the District Magistrate in the impugned order regarding second requirement of Section 5(b) of the Act 1990. He has not recorded his satisfaction on the basis of materials that witnesses are not willing to come forward to give evidence in the public against the petitioner by the 13 reasons of apprehension as regards to their safety. The authority has not discarded the nature of cases, the date of registration of cases and their present status. Most of the cases are old and stale.
21. Further, in the reply, nothing has been stated to give him proper opportunity of hearing as his application for cross- examination was dismissed. It is settled law, if a detention order has to be passed, there has to be sufficient material for passing the order as fundamental right of freedom.
22. Under the provision of Section 5 of the Act, if a detention order has to be passed, there has to be sufficient material for passing the order as fundamental right of freedom of a person is involved. The order passed by the appellate Authority is nothing but repetition of the order passed by the District Magistrate without any application of mind.
23. In the aforesaid circumstances, the impugned order of externment and affirmation thereof in the appeal are unsustainable having been found in violation of the requirements of the Act 1990 and the judgments passed by this Court which have been noted hereinbefore.
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24. Accordingly, the writ petition is allowed. The impugned orders dated 9-10-2017 (Annexure-P/3) and 06-12-2017 (Annexure-P/4) are quashed. No order as to costs.
(Vijay Kumar Shukla) Judge ac.
Digitally signed by AJAY KUMAR CHATURVEDI Date: 2018.01.31 12:27:25 +05'30'