Madhya Pradesh High Court
Ashraf @ Bheru vs The State Of Madhya Pradesh on 6 November, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2024:MPHC-IND:31565
1 WA-2463-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 6 th OF NOVEMBER, 2024
WRIT APPEAL No. 2463 of 2024
ASHRAF @ BHERU
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Akash Rathi, learned counsel for the appellant.
Shri Bhuwan Gautam, learned Government Advocate for the respondents /
State.
ORDER
Per: Justice Vivek Rusia With the consent of parties, heard finally.
The appellant / writ petitioner has filed the present writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005 challenging the order dated 01.10.2024, whereby Writ Petition No.25930 of 2024 challenging the order of externment passed by the District Magistrate, Dewas has been dismissed by the Writ Court.
02. Facts of the case in nutshell are that vide externment order dated 18.06.2018, the then District Magistrate prohibited the appellant to enter into the local limit of District - Dewas and the adjoining seven districts. At that time, 17 criminal cases were registered against the appellant. After six years, the Superintendent of Police vide letter dated 11.03.2024 requested the District Signature Not Verified Signed by: RAVI PRAKASH Signing time: 08-11-2024 18:00:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31565 2 WA-2463-2024 Magistrate to initiate the proceeding of externment under the provisions of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (in short 'the Adhiniyam of 1990') on the basis of 6 - 7 criminal cases and one recent case for commission of offence punishable under Section 341, 294, 323, 506 & 34 of the Indian Penal Code.
03. A show-cause notice was issued to the appellant and the final order dated 20.08.2024 has been passed in exercise of power conferred under Section 5(b) of the Adhiniyam of 1990. But instead of filing an appeal against the said order, the appellant directly approached the Writ Court by filing a writ petition challenging the order of externment stating that the order under Section 5(b) of the Adhiniyam of 1990 has been passed without understanding the scope of the said section. The Writ Court has dismissed the writ petition by holding that after the earlier order or externment dated 18.06.2018, as many as four criminal cases have been registered against him. Hence, the present writ appeal is before this Court.
04. Shri Akash Rathi, learned counsel for the appellant submits that the appellant directly approached the Writ Court by way of writ petition because at that time, his wife was carrying pregnancy of eight months and the appeal takes time to decide finally. Shri Rathi further submits that since requirement of Section 5(b) of the Adhiniyam of 1990 has not been found fulfilled and the criminal cases are of minor offences, therefore, the appellant directly approached the Writ Court for protection of his fundamental right by way of writ petition, instead of approaching the Appellate Authority.
05. Learned Government Advocate for the respondents / State submits that the appellant is a known criminal of District - Dewas and if he is released, it will not be in the safety of the local public. In spite of the order of externment passed in the year 2018, number of criminal cases have been registered against the Signature Not Verified Signed by: RAVI PRAKASH Signing time: 08-11-2024 18:00:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31565 3 WA-2463-2024 appellant. In the year 2023 also, he was directed to maintain good conduct for a period of one year and mark appearance before the Police Station - Kotwali. However, he has not complied the aforesaid directions and never marked appearance before the police station, therefore, no interference is called for and the writ appeal is liable to be dismissed.
Heard.
06. It is correct that the appellant was required to approach the Appellate Authority challenging the impugned order of externment, but since he filed a writ petition which has been dismissed on merit, therefore, now he cannot be relegated to the Appellate Authority to file an appeal. It is also correct that there is no improvement in the criminal activities of the appellant as number of criminal cases have been registered against him, but the same cannot be a sole criteria to pass the order of externment. The Writ Court has considered the entire material that came on record and the law laid down by the Apex Court as well as by this Court in catena of judgments.
07. The District Magistrate is competent to pass an order of externment either under Section 5(a) or 5(b) or under Section 5(a) & (b) both of the Adhiniyam of 1990 jointly. If the conditions enumerated under Section 5(a) & (b) are fulfilled separately or jointly and a ground for externment under Section 5(a) & (b) both are there, the order under Section 5(a) & (b) can be passed jointly.
08. In the present case, the order of externment has been passed under Section 5(b) of the Adhiniyam of 1990 only, therefore, the District Magistrate was required to record the reasons for externment considering the scope of Section 5(b). Section 5(b) is in two part; first part says that whenever it appears that a person is engaged or about to engage in the commission of an offence involving force or violence or in abatement of such offence, and second part says that when Signature Not Verified Signed by: RAVI PRAKASH Signing time: 08-11-2024 18:00:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31565 4 WA-2463-2024 in the opinion of District Magistrate that the witnesses are not willing to come forward to give evidence in public against such person, they also he can be removed outside the districts. The word 'and' is there, therefore, both the conditions are required to be fulfilled before passing the order under Section 5(b) of the Adhiniyam of 1990. The District Magistrate has not recorded any finding in respect of Section 5(a) and recorded its opinion for passing an order under Section 5(b), but nothing is there that witnesses are not coming forward to give evidence against the appellant. But looking to the criminal records of the appellant and in spite of initiation of proceedings under the provisions of the Adhiniyam of 1990 in the year 2018, he has been continuously involving in the criminal activities, therefore, removal from District - Dewas for limited period was desirable by the District Magistrate. No reason has been assigned for removing him from remaining six district contiguous to District - Dewas as there is no criminal activities in the said districts by the present appellant, hence, the order of externment ought to have been passed only for District - Dewas.
09. In similar situation, the Division Bench of this Court in the case of Ashok Kumar Patel v/s The State of Madhya Pradesh & Others reported in 2009 SCC OnLine MP 419 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 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), Signature Not Verified Signed by: RAVI PRAKASH Signing time: 08-11-2024 18:00:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31565 5 WA-2463-2024 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.
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10. The second condition which must be satisfied for passing of an order of externment against a person is that in the opinion of the District Magistrate, 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 person or property. Construing a pari materia provision in section 27 of the City of Bombay Police Act, 1902 in Gurbachan Singh v. The State of Bombay, (1952) 1 SCC 683 : AIR 1952 SC 221, the Supreme Court observed:--
"The law is certainly an extra-ordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety or the public residing therein."
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 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 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.
Signature Not Verified Signed by: RAVI PRAKASH Signing time: 08-11-2024 18:00:56NEUTRAL CITATION NO. 2024:MPHC-IND:31565 6 WA-2463-2024
12. In State of N.C.T. of Delhi v. 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 nan."
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 v. Dy. Commissioner of Police, State of Maharashtra (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 v. The State of Bombay, (1952) 1 SCC 683 : 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."
09. In view of the above, the period of externment of one year is hereby reduced to the period already undergone i.e. three months by the present appellant. However, for remaining period, the appellant shall furnish a personal bond of Rs.1,00,000/- (Rupees One Lakh Only) before the local police station for maintaining good conduct otherwise, the bond shall be forfeited without further Signature Not Verified Signed by: RAVI PRAKASH Signing time: 08-11-2024 18:00:56 NEUTRAL CITATION NO. 2024:MPHC-IND:31565 7 WA-2463-2024 reference to the Court. He shall mark his presence once in a month before the local police station and if he fails to mark his presence the effect of the impugned order shall be revived.
10. With the aforesaid observations and directions, Writ Appeal stands disposed of.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
Ravi
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 08-11-2024
18:00:56