Madhya Pradesh High Court
Jagdish @ Munna vs The State Of Madhya Pradesh on 18 June, 2019
1 W.P. No.1174 of 2019
HIGH COURT OF MADHYA PRADESH: JABALPUR
Single Bench : Hon'ble Shri Justice Subodh Abhyankar
WRIT PETITION NO.1174 OF 2019
Jagdish @ Munna
Vs.
State of M.P. and others
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Present :-
Shri Sanjay Sarwate, Advocate for the petitioner.
Shri Rajbahoran Singh, Government Advocate for the respondents/State with
Mr. Praveen Kumar, T.I., Piparia, Hoshangabad (M.P.)
ORDER
(Passed on this the 18th day of June, 2019) The present petition has been filed by the petitioner under Article 226 of the Constitution of India against the order of externment dated 03.01.2019 (Annexure P/6) and the order dated 29.10.2018 (Annexure P/4) passed by the Commissioner, Narmadapuram Division, Hoshangabad (M.P.) and District Magistrate, Hoshangabad (M.P.) respectively under the provisions of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'the Adhiniyam of 1990'). Vide order dated 29.10.2018, the District Magistrate has externed the petitioner from the District of Hoshangabad and the adjoining districts for a period of one year. In an appeal preferred against the aforesaid order, the 2 W.P. No.1174 of 2019 Commissioner, Narmadapuram has affirmed the said order vide its order dated 03.01.2019.
2. In brief the facts of the case are that on 05.02.2018 a notice was issued to the petitioner as to why he should not be externed from the district of Hoshangabad as as many as 09 cases have been registered against him, out of which cases at Sr. No.1 to 3 were registered in the year 2014, No.4 and 5 were of 2015 and No.6 was in the year 2016 whereas Sr. No.7 & 8 the cases were registered in the year 2017 whereas only one case was registered against him in the year 2018.
3. Counsel for the petitioner has submitted that so far as the case at Sr. No.2 is concerned, he has already been acquitted in the same, however the other 08 cases are still pending adjudication hence it cannot be said that the people of the locality are not coming forward to depose against him on account of fear generated by the petitioner. The counsel has further submitted that so far as the cases from Sr. No.1 to 5 are concerned, they are in respect of the family dispute of the petitioner and the society at large is not affected so far as these offences are concerned. The counsel has further submitted that the learned District Magistrate has not recorded its satisfaction as to the involvement of the petitioner in the criminal cases which has led to the fear in the mind of the public so as to compel him to be externed from the District of Hoshangabad. It is further submitted that no 3 W.P. No.1174 of 2019 independent witness has been produced on whose deposition a satisfaction can be recorded under the Act of 1990. The counsel has also relied upon a judgment rendered by the Division Bench of this Court in the case of Ashok Kumar Patel vs. State of M.P. and others reported in 2009(4) M.P.L.J. 434.
4. On the other hand, counsel for the State has opposed the prayer and has submitted that no case for interference is made out inasmuch as there are 09 cases registered against the petitioner from the year 2014 till 2018 and in each year either one or to offences or two or more offences have been committed by the petitioner since 2014 and his presence in the District has given to a law and order situation on account of his activities, hence the order has been passed by the learned District Magistrate after due consideration of the material available on record which has also been affirmed by the Commissioner, Narmadapuram which does not call for any interference.
5. Heard counsel for the parties and perused the record.
6. So far as the cases which have been registered against the petitioner are concerned, list of the same is as under:
S.No. Crime No. Section Police Station
1. 521/14 294, 506, 34 of IPC Pipariya
2. 559/14 294, 427, 336, 506, 34 of IPC Pipariya
3. 806/14 25 of Arms Act Pipariya
4. 292/15 13 of Gambling Act Pipariya
4 W.P. No.1174 of 2019
5. 471/15 452, 323, 294, 506, 34 of IPC Pipariya
6. 435/16 294, 323, 506, 34 of IPC Pipariya
7. 247/17 327, 294, 506, 34 of IPC Pipariya
8. 286/17 452, 294, 323, 506, 34 of IPC Pipariya
9. 19/18 294, 323, 307, 427, 506, 34 Pipariya
of IPC
7. It is also noted by this Court that on 05.04.2019 the counsel for the State was directed to keep the record of the case available in the Court for its perusal but despite intimation the counsel has not produced the record, even today and on the last date of hearing i.e. 09.04.2019 the counsel for the State has sought time to produce the relevant record.
8. Admittedly, the case at Sr. No.2 has been compromised between the parties and the petitioner has been acquitted in the aforesaid case. So far as the other 08 cases are concerned, from Sr. No.1 and 3 to 9, the same are pending. On a close scrutiny of the impugned order passed by the District Magistrate, this Court finds that although the Court has recorded a finding that the witnesses are not coming forward to depose against the petitioner but on what basis the aforesaid finding has been recorded is not known. It is also apparent that before passing the aforesaid order, the District Magistrate has not examined any independent witness who could say that only because of the fear infused by the petitioner, he has not come forward to depose against him. It also appears that the learned Magistrate has not 5 W.P. No.1174 of 2019 gone through any of the proceedings of the cases pending against the petitioner in which he could have seen as to why the witnesses are not coming forward if it is a case of the respondents that the witnesses are not coming forward in these cases.
9. So far as the nature of offences are concerned, it is found that except the offence committed in the year 2018 at Sr. No.9 at Crime No.19/2018 which is registered under Sections 294, 323, 307, 427, 506 and 34 of IPC, none of the other cases are serious in nature so as to call for an order of externment against the petitioner. In this regard, a reference may be had to the case of Ashok Kumar Patel (supra) wherein the Division Bench of this Court in similar circumstances has held as under :-
"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 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 6 W.P. No.1174 of 2019 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.
12. In State of N.C.T. of Delhi and another vs. Sanjeev alias Bittu (supra), the Supreme Court interpreting section 47 of the Bombay Police Act, 1978, which is similarly worded as section 5 of the Act of 1990, has held in para 25:-
"It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary, the order directing externment should show existence of some material warranting an order of externment. While dealing with question mere repetition of the provision would not be sufficient. Reference to be made to some material on record and if that is done the requirements of law are met. As noted above, it is not the sufficiency of material but the existence of material which is sine qua non."
13. The Act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and the fundamental right to personal liberty under Article 21 of the Constitution and unless the conditions mentioned under section 5(b) of the Act of 1990 are strictly satisfied, an order of externment, will have to be quashed by the Court. While considering a case under section 56 of the Bombay Police Act, which also empowered the police to pass an order of externment, the Supreme Court observed in Pandharinath Shridhar Rangnekar vs. Dy.
Commissioner of Police, State of Maharashtra 7 W.P. No.1174 of 2019 (supra), as under:-
"It is true that the provisions of section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society. This Court in Gurbachan Singh vs. The State of Bombay, 1952 SCR 737 = AIR 1952 SC 221 had upheld the validity of section 27(1) of the city of Bombay Police Act, 1902, which corresponds to section 56 of the Act. Following that decision, the challenge to the constitutionality of section 56 was repelled in 1956 SCR 533 = AIR 1956 SC 585. We will only add that care must be taken to ensure that the terms of sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee."
14. We are thus of the considered opinion that the two conditions for an order of externment stated in section 5(b) of the Act of 1990 do not exist in this case and the order passed by the District Magistrate and appellate order of the Commissioner are liable to be quashed. Since the impugned order of externment passed by the District Magistrate and the appellate order passed by the Divisional Commissioner are liable to be quashed on this ground alone, it is not necessary for us to deal with the other grounds raised by the petitioner in this writ petition. In the result, we quash the impugned order dated 18-11-2008 passed by the District Magistrate Rewa in Cr. Case No.227/08 as well as the appellate order dated 13- 1-2009 passed by the Commissioner, Rewa Division."
10. Under the facts and circumstances of the case and also taking 8 W.P. No.1174 of 2019 note of the aforesaid judgment rendered by the Division Bench of this Court, in the considered opinion of this Court, no case for externment is made out against the petitioner.
11. As a result, the order dated 29.10.2018 (Annexure P/4) passed by the respondent No.3/District Magistrate, Hoshangabad (M.P.) as also the order dated 03.01.2019 (Annexure P/6) passed by the respondent No.2/Commissioner, Narmadapuram Division, Hoshangabad (M.P.) are hereby quashed.
12. The petition stands allowed.
(Subodh Abhyankar) Judge 18/06/2019 DV Digitally signed by DINESH VERMA Date: 2019.06.19 11:16:22 +05'30'