Madhya Pradesh High Court
Sudhir vs M.P. Shasan Through Pramukh Sachiv on 18 December, 2024
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2024:MPHC-IND:36450
1 WP-24015-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 18th OF DECEMBER, 2024
WRIT PETITION No. 24015 of 2024
SUDHIR
Versus
M.P. SHASAN THROUGH PRAMUKH SACHIV AND OTHERS
Appearance:
Shri Neeraj Siresiya - Advocate for the petitioner.
Shri Kratik Mandloi - P.L. for respondents/State.
ORDER
1. This petition under Article 226 of the Constitution of India has been preferred by the petitioner being aggrieved by the order dated 26/12/2023 (Annexure P/2) passed by the District Magistrate, District Dewas externing him for a period of one year with effect from date of order from the revenue limits of District Indore, Ujjain, Shajapur, Sehore, Harda, Khandwa and Khargone in exercise of powers under Section 5(a)(b) of M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred as 'the Adhiniyam'). The petitioner has also challenged the order dated 31/7/2024 (Annexure P/3) passed by the Commissioner, Ujjain Division, Ujjain whereby his appeal preferred against order dated 26/12/2023 under Section 9 of the Adhiniyam has been dismissed.
2 . The facts of the case are that on the basis of report of Superintendent of Police, District Dewas dated 4/10/2023 a show cause Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 12/20/2024 2:40:02 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36450 2 WP-24015-2024 notice for externment was issued to the petitioner by the District Magistrate under Section 8(1) of the Adhiniyam. The petitioner filed his reply to the said notice after which the District Magistrate passed his order on 26/12/2023, which has been affirmed by the Commissioner by the impugned order.
3 . It is submitted on behalf of the petitioner that the impugned order of externment has been passed only on the basis of number of cases registered against the petitioner. No satisfaction has been recorded of existence of grounds of externment on the basis of the available material. The externment order is contrary to the provisions of the Adhiniyam. There is no objective consideration by the competent authority. The order is contrary to the law laid down by Division Bench of this Court in Ashok Kumar V/s. State of M.P., 2009 (4) MPLJ 434 and various other decisions on the same point. The authorities have failed to record satisfaction in the impugned orders regarding requirement of Section 5 of the Adhiniyam.
4. Per contra, learned counsel for the respondents / State has supported the externment order of the petitioner and has submitted that the petitioner is a habitual offender and has 9 criminal cases registered against him. He is involved in criminal activities since the year 2003. Recently an FIR was lodged against the petitioner under Section 323, 294, 506 and 34 of the IPC at police station BNP, District Dewas and on as many as five occasions prohibitory proceedings have been taken against him for keeping the peace under Section 110 of the Cr.P.C. It is submitted that the District Magistrate after objective consideration of the material on record has passed the externment order which has rightly been affirmed in appeal. There is no Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 12/20/2024 2:40:02 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36450 3 WP-24015-2024 illegality in the same warranting interference in this petition.
5 . I have considered the submissions of the learned counsel for the parties and have perused the record.
6. It would firstly be apt to refer to the provisions of the Adhiniyam particularly Section 5 under which the order of externment has been passed against the petitioner. The same is 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 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, 4 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.
7. On a perusal of the record and the impugned order, I find that petitioner's externment order has been passed invoking Section 5 (a) of the Adhiniyam. For passing such an externment order there must be a clear and Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 12/20/2024 2:40:02 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36450 4 WP-24015-2024 present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. There must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in the locality or any part thereof is hazardous to the community and its safety. A stringent test must be applied in order to avoid easy possibility of abuse of this power to the detriment of the fundamental freedom. This has been so held in Abdul Mannan V/s. State of M.P. And Others 2008 (III) MPJR 100 .
8 . It may also be noticed that in order to pass a restriction order under Section 3 of the Adhiniyam there should be satisfaction that the person is acting or is likely to act in a manner prejudicial to the security of the State or the maintenance of public order and to prevent him it is necessary in the interest of the general public to pass restriction order.
9. A scrutiny of the order passed by the District Magistrate shows that there is no satisfaction recorded by him in regard to fulfillment of requirements of Section 5(a) and 3 of the Adhiniyam. The reasons assigned by the District Magistrate to extern the petitioner and to pass the restriction order against him do no satisfy the basic requirements of the said provisions. It has merely been observed that petitioner has been involved in criminal cases from 2003 up to 2023 which are nine in number but the gravity of the same and the allegations levelled against the petitioner therein have not been taken into consideration nor has any finding been recorded specifically to the effect that the movements and acts of the petitioner are causing or are calculated to cause alarm, danger or harm to person or property. It has been observed that his acts may cause breach of public order and peace but Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 12/20/2024 2:40:02 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36450 5 WP-24015-2024 nothing further has been recorded. Thus the justification given by the respondents in their return for passing of the externment order against the petitioner under Section 5(a) of the Adhiniyam does not hold ground.
10. 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."
11. It would be profitable to refer to some of the decisions of this Court in this regard at this stage.
12. Division Bench of this Court in the case of Ashok Kumar Patel (Supra) has 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 6 person is engaged or is about to be engaged in the commission of such offence."
13 . In Ramgopal Raghuvanshi vs. State of M.P. and others , 2014(4) Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 12/20/2024 2:40:02 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36450 6 WP-24015-2024 MPLJ 654 this Court after considering the earlier judgments in respect of Section 5 of the Adhiniyam held that the order of externment cannot be passed on the basis of old and stale cases. A co-ordinate Bench of this Court in the case of Bhim @ Vipul vs. Home Department, (W.P.: -No.4329/2015, decided on 14-09-2015) has considered the judgments rendered in the cases of Ashok Kumar (supra) and Ramgopal Raghuvanshi (supra) and has 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.
14. In Sanju @ Sanjay Ben Vs. State of M.P. and others , 2005 (4) MPHT 102 while considering the provisions of the Adhiniyam 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 behavior 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 related to the situation existing at the moment when the order is to be passed.
15. The respondent District Magistrate has considered nine criminal cases registered against the petitioner and five prohibitory proceedings. Upon perusal of the list it is clear that first case registered against the petitioner under Section 294, 506, 352 and 34 of the IPC was in the years 2003. One case was registered against him under Section 289 of the IPC in the year 2004. One case under Section 323, 294, 34 of the IPC was registered in the year 2006. Thereafter no case was registered against the petitioner upto the Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 12/20/2024 2:40:02 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36450 7 WP-24015-2024 year 2016 when two cases were registered under Section 323, 324, 294, 506 and 34 of the IPC. A similar case was registered in the year 2017. In 2022, ie., after lapse of a period of five years one similar case was registered. Two cases were registered in the year 2023 for similar offences. Four prohibitory proceedings under Section 110 of the Cr.P.C have also been taken by way of Istagasha from the year 2018 upto 2023. From a perusal of the allegations levelled against the petitioner in all the aforesaid cases it cannot be said that he is a hardened criminal. The acts which have been alleged against him cannot be said to be so grave that they may give apprehension in the mind of the respondent authorities that mere presence of the petitioner in the locality would give rise to a situation of law and order. Though the petitioner has been alleged of having committed criminal offences but they are not so grave in nature so as to castigate him as a habitual offender.
16. Upon perusal of the impugned order, it is also found that the District Magistrate has only baldly enumerated the list of the offences registered against the petitioner to hold that he is a daring habitual criminal but he has not recorded any finding upon satisfaction on the basis of the material that in his opinion witnesses are not willing to come forward to give evidence in public against the petitioner in respect of the alleged offences by reason of apprehension as regards to their safety. Hence, in absence of any such finding, an order under Section 5 (b) of Adhiniyam could not have been passed by the District Magistrate since for passing an order of externment against a person both the conditions under Section 5(b) (i) and (ii) have to be satisfied. It may also be noted that the authority has not discussed the nature of cases, the date of registration of cases and their present status. Most of the Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 12/20/2024 2:40:02 PM NEUTRAL CITATION NO. 2024:MPHC-IND:36450 8 WP-24015-2024 cases are old and stale.
17. In the aforesaid fact situation it would also be apt to refer to the decision of this Court in Meena Sonkar vs. State of M.P. and others, 2017(2) MPLJ 565 and also in Anek alias Anil Nageshwar vs. State of Madhya Pradesh & four others [W.P. No.9297/2017, decided on 8-8- 2017] in which it has been 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."
18. Under the provision of Section 5 of the Adhiniyam, if a detention order has to be passed, there has to be sufficient material for the same as fundamental right of freedom of a person is involved. The order passed by the appellate Authority is also nothing but repetition of the order passed by the District Magistrate without any application of mind. In such circumstances, the impugned order of externment and affirmation thereof in appeal is unsustainable being in violation of the requirements of the Adhiniyam and the judgments passed by this Court.
19. Accordingly, the writ petition deserves to be and is hereby allowed. The impugned order dated 26/12/2023 (Annexure P/2) passed by the District Magistrate, Indore and the order dated 31/7/2024 (Annexure P/3) passed by the Commissioner, Ujjain Division, Ujjain are hereby quashed.
Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 12/20/2024 2:40:02 PMNEUTRAL CITATION NO. 2024:MPHC-IND:36450 9 WP-24015-2024 No order as to costs.
(PRANAY VERMA) JUDGE SS/-
Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 12/20/2024 2:40:02 PM