Madhya Pradesh High Court
Mukesh Gupta vs The State Of Madhya Pradesh on 19 April, 2018
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HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. 1598/2018
Mukesh Gupta
-Versus-
State of Madhya Pradesh & Ors.
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SINGLE BENCH: JUSTICE VIJAY KUMAR SHUKLA
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Shri Baldev Prasad Patel, learned counsel for the petitioner.
Shri Manish Soni, learned Government Advocate for the
respondents/State.
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Whether approved for reporting ? Yes/No
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ORDER
(Jabalpur, Dated: 19.04.2018) In the instant petition filed under Article 226 of the Constitution of India, a challenge has been made to the order dated 05.12.2017 passed by the Collector, Chhindwara, in exercising of the powers conferred under Section 5(ka)(kha) of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as "Adhiniyam 1990"), whereby the petitioner has been externed for a period of one year. Against the said order, the petitioner preferred an appeal before the Commissioner, Jabalpur (respondent no.2) and the appeal has also been rejected vide order dated 10.01.2018. 2
2. Assailing both the orders, learned counsel for the petitioner submits that the order of externment has been passed contrary to the provisions of "Adhiniyam-1990"as the old, stale and cases of minor offences have been taken into consideration and further the Collector has failed to record the proper finding that the witnesses are not coming-forward, because of any threat of the petitioner. It is further submitted by him that the proceedings of externment were initiated on a report submitted by Superintendent of Police, Chhindwara whereby, as many as 12 cases have been said to be registered against the petitioner from the year, 2003 to 2016. Learned counsel for the petitioner further submitted that in all the cases he has been acquitted except the case at sl. no. 12 bearing Crime No. 235/2016. It is further submitted by him that except one case i.e. Crime No. 325/2016, the other cases at sl. no. 8 to 11 were of proceedings under Section 107, 110 & 116 of Cr.P.C. It is further submitted by him that the case at sl. no. 4 was relating to the offence punishable under Sections 147, 148, 149, 323, 427 and 307 of IPC and the case at sl. no. 5 was also registered on the same date for the offences punishable under Sections 147, 148, 452, 294 & 506 of IPC. In the same manner the case at sl. no. 6 was registered for the offences punishable under Sections 147, 148, 452, 323, 394 & 506 of IPC. The case at sl. no. 7 was of year, 2015 for commission of 3 offences punishable under Sections 294, 506, 323 & 34 of IPC. It is submitted that the case at sl. no. 1 was of year, 2003 for commission of offence under Sections 454 & 380 of IPC. The case was at sl. no.2 was of year, 2010 for offences under Sections 294, 323, 506 & 34 of IPC. The case at sl. no. 3 was registered in the year, 2011 for the offence under Section 13 of Gambling Act. Thus, all the cases are old cases and except the case at sl. no. 12 in all the cases, petitioner has already been acquitted by the Court of Law before the date of initiation of externmnet proceedings.
3. It is further contended by learned counsel for the petitioner that there is no proper satisfaction of the District Magistrate that the witnesses are not coming forward because of threat of the petitioner. Only on the basis of the Statement of Inspector Shri Bhupendra Singh Gulbanke, Magistrate has recorded a finding that the witnesses are not coming forward because of the threat and duress of the petitioner.
4. 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.
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5. 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 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 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."5
6. 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:-
(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. At this stage, I think it condign to survey the authorities on the legal issues canvassed on behalf of the petitioner.
8. 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 abatement of any such offence, shows that the commission of the offence or the abatement 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 abatement 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 6 engaged in the commission of such offence."
9. 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 abatement 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.
10. 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 7 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.
11. 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 and appreciation for recording the satisfaction which has to be 8 passed on true materials.
12. From the list of the cases, it is manifest that 12 cases have been registered against the petitioner. The case at sl. no. 1 was registered in the year-2003 for commission of the offence under Sections 454 & 380 of IPC. The case at sl. no. 2 is was registered in the year-2010 for commission of offence under Sections 294, 323, 506 & 354 of IPC. The case at sl. no. 3 was registered in the year- 2011 under the Gambling Act. The cases at sl. no. 4, 5 & 6 were registered on the same date in the year, 2014. The case at sl. no. 7 was registered in the year, 2015 for commission of the offences under Section 294, 506, 323 & 34 of IPC. The cases at sl. no. 8 to 11 are the proceedings under Sections 107, 110 & 111 of the Cr.P.C. Except one case i.e. the case at sl. No. 12 bearing Crime No. 235/2016 all cases are from the year, 2003 to 2015.
13. 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. 9 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 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.
14. 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 @ 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."
15. In the present case, there is no proper satisfaction of the District Magistrate regarding the second requirement of Section 5(b) of the Act, 1990. Only on the basis of the statement of the Inspector, 10 Shri Bhupendra Singh Gulbanke he has been recorded a finding that the witnesses are not coming forward because of the terror and threat of the petitioner. There is no any other witnesses examined by the authorities in support of the case. Thus, there is no material to prove that the witnesses are not willing to come forward to give their evidence in the public against the petitioner by reasons of apprehension as regard to their safety. After taking into consideration the nature of the case, date of registration of the case, I am of the considered that there was no sufficient material for passing the order. It is a settled law that 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 infringed by invocation of the provisions of externment.
16. 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.
17. In the aforesaid circumstances, the impugned 11 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.
18. Accordingly, the writ petition is allowed. The impugned orders dated 05.12.2017 (Annexure-P/1) and 10.01.2018 (Annexure-P/2) are quashed. No order as to cost.
(VIJAY KUMAR SHUKLA) JUDGE Amitabh Digitally signed by AMITABH RANJAN Date: 2018.04.23 21:21:02 -07'00' 12