Madhya Pradesh High Court
Veeru @ Virendra Rai vs Principal Secretary The State Of Madhya ... on 15 September, 2014
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH :
JABALPUR.
Writ Petition No.833/2014
Veeru.
Vs.
State of Madhya Pradesh and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Manoj Sharma, Advocate and Shri Vishal Dhagat,
learned counsel for the petitioner.
Shri Rajesh Tiwari, learned Govt. Advocate for
respondents.
ORDER
(15.9.2014) This writ petition under Article 226 of the Constitution of India, is directed against the order dated 17.12.2013, passed in appeal, by the Commissioner Sagar, Division Sagar, dismissing the appeal of the petitioner against the order of externment issued under the M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as the Act for brevity) as also calls in question the order dated 31.10.2013, passed by the District Magistrate Damoh, directing externment of the petitioner for a period of one year from Damoh and adjoining districts.
2: The petitioner is said to be a Ward Member of the Municipal Council Damoh. It is claimed by the petitioner that he is a member of National Congress Party. It is alleged that because elections of Legislative Assembly in the State of Madhya Pradesh were declared and notified and since the petitioner was a strong candidate for campaigning against 2 the Ruling Bhartiya Janta Party, on false pretext, a report was obtained against the petitioner for his externment so that the participation of the petitioner in the election campaign may be avoided. With this object, though a list of 69 cases said to be registered against the petitioner right from the year 1978 upto 2013, was prepared, but in such cases, there was no involvement of the petitioner in the recent past nor on previous occasion, he was convicted. In most of the cases, the petitioner was acquitted. In one of the case, the petitionr was convicted for life imprisonment and against the said judgment and sentence, appeal was pending before this Court. Looking to the evidence available in the said case, the petitioner was granted bail by this Court. It is the case of the petitioner that mechanically without application of mind, the respondent District Magistrate, even without granting opportunity of defence in proper manner passed the order of externment. Since appeal against the said order was dismissed by the appellate authority, the petitioner was left with no option, but to file the present writ petition. Various documents have been filed with the writ petition indicating that the cases registered against one Vicky alias Vikas Rai were said to be registered against the petitioner, whereas, the petitioner is known as Veeru alias Virendra Rai and has no connection with Vicky alias Vikas Rai.
3: Upon issuance of notices of this writ petition, a return was filed by the respondents and allegations made by the petitioner were denied. It is contended that the Town Inspector keeping in view the history of involvement of the petitioner in the criminal activities which endangered the public at large, on account of his continuance in such activities, made a report to the Superintendent of Police Damoh, who in turn referred the report to the District Magistrate. A show cause notice was issued to the petitioner, his explanation was received and after considering the material available on record, the District Magistrate reached to the conclusion that looking to the continuance of criminal activities of the petitioner, his presence in the society was not warranted. In fact, there was a threat and apprehension that the petitioner would create such a situation that the free and fair elections of Legislative Assembly would not be possible within the constituency where the petitioner ordinarily resides. That being so, it is contended that the order was rightly passed against the petitioner. Keeping in view all these facts, the appellate authority has dismissed the appeal of the petitioner. Hence, interference in the order impugned is not called for.
4: Under the direction of this Court, the original proceedings initiated against the petitioner have been produced.
5: Heard learned counsel for the parties at length and perused the record.
6: First of all, it would be necessary to examine what report was submitted by the police authorities against the petitioner. It is not in dispute that the first memo was sent by the Town Inspector Police Station Kotwali, Damoh. The allegation made in the report of the Town Inspector indicate that in fact an action was to be taken under Section 5 of the Act against the petitioner because of the long list of criminal cases. The very same report of the Town Inspector was verbatim referred to the District Magistrate by the Superintendent of Police. On the basis of this, the Collector and District Magistrate Damoh instead of applying his mind whether action was to be initiated under Section 5 or 6 of 4 the Act issued the show cause notice against the petitioner for an action under Section 6 of the Act only.
7: From the ordersheet in the original proceedings, it is indicated that on 24.10.2013, the proceedings were initiated by the District Magistrate. Upon service of the notice, on 26.10.2013, the petitioner appeared before the District Magistrate and asked for time to file reply. On 30.10.2013, the reply was filed by the petitioner. On the very next date when, the reply was filed, it appears that the order was passed on 31.10.2013. Neither any fact is recorded in the order sheet whether any enquiry was conducted after receipt of the reply of the petitioner nor this has been indicated that the evidence was recorded granting an opportunity to cross examine the witnesses to the petitioner by the District Magistrate. The provisions of the Act specifically contemplates that an action of externment is to be taken against any person if the removal of person convicted of certain offences is proved. Not a whisper was indicated, what were the offences said to be committed by the petitioner thrice within a period of three years, as is prescribed in sub-clause (c) of section 6 of the Act. It was also not stated whether any offence is said to be proved against the petitioner under Chapter XII, XVI or XVII, or under Section 506 or 509 of Indian Penal Code. There was nothing to indicate that the offences under the Protection of Civil Rights Act, 1955, were found proved against the petitioner. There was no allegation of involvement of petitioner in immoral traffic, therefore, none of the criterias laid down under Section 6 for initiating any process for externment of the petitioner or for his removal was made out.
8: From the proceedings, it is also not clear whether there was any apprehension that the petitioner would continue to commit the offence if he is not removed from the area. For the satisfaction of the District Magistrate, which according to law is required to be recorded before passing any such order of removal under Section 5 of the Act, the enquiry is required to be conducted. A Division Bench of this Court while dealing with in such aspect in the case of Ashok Kumar Patel Vs. State of M.P. and others [2009(4) MPLJ 434] has categorically held that it is not mere a formality to record the satisfaction, but it is a requirement of law and mere involvement of such a person in the past in any such type of offence would not make out a case for his removal from the area. The findings recorded by the Division Bench in this respect in paragraphs 8 and 9 would be relevant which read 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, there cannot be any reasonable ground for believing that the person is engaged or is about to be engaged in the commission of such offence.
9. We will therefore have to examine the impugned order dated 18.11.2008 passed by the District Magistrate, under section 5(b) of the Act of 1990 to find out whether the petitioner was engaged in the commission of an offence or was about to be engaged in the commission of an offence mentioned in section 5(b) of the Act of 1990, or in the abetment of such offence, which was very close in proximity to 18.11.2008 6 when the impugned order of externment was passed. The first offence mentioned is alleged to have been committed by the petitioner on 9.4.1995 when the petitioner and his other associates forcibly took possession of 'Mahuwa' of Tilakdhari Tripathi, son of Indramani Tripathi and collected the same, and Crime No.46/95 under Sections 447 and 379 of the Indian Penal Code was registered and the petitioner was arrested and produced before the Court. The second offence is alleged to have been committed by the petitioner on 14.3.2007 when the petitioner is alleged to have written a letter to Shivshankar Tripathi, son of Tilakdhari Tripathi, giving threats regarding construction of new building of Shiksha Guarantee School, and Crime No.42/2007 under Sections 353, 294, 506 read with section 34 of the Indian Penal Code has been registered and a challan has been filed in the Court in Case No.729/2008. The third act which has been mentioned in the impugned order is not an offence alleged to have been committed but a Prohibitory Proceeding No.22/2007 under Sections 107 and 116(3) of the Code of Criminal Procedure instituted against the petitioner on 9.4.2007 and the petitioner has been produced in Court. The fourth offence alleged to have been committed by the petitioner is in July, 2008 when the petitioner along with 6 or 7 others is alleged to have caused hindrance in Government work during the election of Palak Shikshak Sangh and created disturbances in election work and committed 'Marpeet' on the basis of which Crime No.216/2008 for offences under sections 253, 294, 323, 325 and 506-B read with section 34 of Indian Penal Code has been registered. In our considered opinion, these offences alleged to have been committed by the petitioner in the years 1995 to 2007, cannot be the foundation of an order under Section 5(b) of the Act of 1990 as the alleged offences have no proximity at all to the order of externment passed on 18.11.2008. Even, the offence alleged to have been committed by the petitioner along with 6 or 7 other persons in July, 2008, cannot constitute a reasonable ground to believe on 18.11.2008 that the petitioner is engaged or is about to be engaged in offence mentioned in section 5(b) of the Act of 1990."
9: On earlier occasion also, this Court while dealing in a case of externment ordered in such circumstances has categorically held that there are certain condition precedent to initiate any action under Section 6 of the Act as has been held in the case of Kala Vs. State of M.P. and another [2004(4) MPLJ 234]. In light of these pronouncement if it is examined whether there was sufficient material to hold that the petitioner was involved in such activities, it would be clear from the fact that gambling act though alleged against the petitioner in some of the cases, but except for the year 2003, the said act was repeated only in the year 2008, and there was no recent past involvement of the petitioner in the said case. As against these matters, in some of the cases, there was no involvement of the petitioner and this fact has not been verified by the District Magistrate Damoh, yet keeping in mind the said offences registered against the petitioner, order of externment was passed.
10 : It is contended by the learned counsel for the petitioner that only because of political rivalry and since the petitioner is an active member of the opposite party, the action has been initiated against him. Though a reply has been filed denying the said fact, but from the order passed by the Collector and from the proposal made by the Town Inspector and the Superintendent of Police, it would be clear that the apprehension was in the mind that continuance of petitioner in the area will create obstruction in the conduct of the ensuing elections. However, a definite opinion in such respect cannot be recorded merely on the basis of allegations.
11 : Since from this analysis made herein above, it is clear 8 that the order of externment was passed against the petitioner de hors the provisions of the Act and that too without conducting the proper enquiry, therefore, the order impugned cannot be sustained. The writ petition is bound to be and is hereby allowed. The order impugned dated 31.10.2013 Annx.P/4 and the order passed in appeal by the Commissioner on 17.12.2013 are hereby quashed.
12 : The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.
(K.K. TRIVEDI) Judge A.Praj.
HIGH COURT OF MADHYA PRADESH : JABALPUR.
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