Bhaiya Sameer vs The State Of Madhya Pradesh on 27 July, 2015

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Madhya Pradesh High Court

Bhaiya Sameer vs The State Of Madhya Pradesh on 27 July, 2015

(O R D E R) 29 .07.2015 By this petition under Article 226 of the Constitution of India the petitioner has essentially called in question the order dated 4.8.2014 said to be passed by the District Magistrate/Collector, Chhatarpur under the provisions of Section 5(b) and 6 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'Act'). Since the appeal filed by the petitioner against the said order has also been dismissed on 14.1.2015 by the Commissioner, Sagar Division, Sagar, the present writ petition is required to be filed.

2. A show cause notice was issued to the petitioner under Section 8 of the Act by the District Magistrate, Chhatarpur calling his explanation as to why an action should not be taken for removal of the petitioner from the district as also the adjoining districts under the Act. The reply to the said show cause notice was filed by the petitioner indicating that because of the active 2 participation of the petitioner in the political activities, since he has left the earlier party and has joined another national political party and has been nominated as candidate for ensuing Assembly Elections, the reports have been mischievously made alleging involvement of the petitioner in several cases and recommending that he should be removed from the area. It was pointed out in the reply that the petitioner has been acquitted in many of the cases. Some of the cases have been settled and compounded by the complainants. The petitioner was not named in other referred cases as main accused. Few of the cases are pending in which the petitioner is said to be involved, but nothing is indicated that the witnesses are not coming forward to adduce the evidence against the petitioner in those cases because of any threat given by the petitioner. It was again stated that the petitioner was involved in some of the false cases by the police, which have been withdrawn subsequently. Thus, it was said that the action as proposed against the petitioner was not warranted.

3. The District Magistrate, after considering the material made available to him as also the explanation submitted by the petitioner, reached to the conclusion that because of the illegal involvement of the petitioner in such criminal activities he was to be removed from the area in terms of the provisions of Section 5 and 6 of the Act. The order was thus passed on 4.8.2014 but was given effect to w.e.f. 8.8.2014. As has been stated, the aforesaid order was called in question in appeal, but, since the same has been dismissed, the present writ petition has been filed.

4. Upon notice of the writ petition, return has been filed by the respondents. It is contended in the return that due opportunity of hearing was given to the petitioner. From the report of Superintendent of Police it is clear that there was continuance of the involvement of the petitioner in the offences and as the said cases were in the close proximity, the petitioner was rightly removed from the area after recording the satisfaction by the District Magistrate in the order impugned. Such an aspect has rightly been considered by the appellate authority and the appeal of the petitioner has also been dismissed by appropriate order. Thus, it is contended that no wrong whatsoever has been committed by the authorities.

5. Heard learned counsel for the parties at length and examined the record.

6. It is seen that action has been taken under the provisions of Section 5 of the Act by the District Magistrate. The said provisions read thus:

"5. Removal of persons about to commit offence - Whenever it appears to the District Magistrate -

(a) that the movement or acts of any person are causing or calculated to cause alarm, danager or harm to person or property; or

(b) that there are reasonable 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 4 evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property;

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 or 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. As far as the first part is concerned, the same is not made applicable. The second part of Section 5 of the Act, and the provisions prescribed in sub-section (b) of the Act has been specifically pressed home by the respondents. From the perusal of the provisions of Section 6 of the Act it is clear that the same is not attracted in the case of the petitioner. This Court on number of occasions has considered the applicability of the provisions of sub-section (b) of Section 5 of the Act and the fulfillment of the necessary requirement for exercising such powers by the District Magistrate. In the case of Ashok Kumar Patel vs. State of M.P. and others 5 [2009(4) MPLJ 434] the Court while recording the opinion has held that 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. The Division Bench of this Court while dealing with in such aspect in the case of Ashok Kumar Patel (supra) 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 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 6 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.

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 Vs. The State of Bombay and another, 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."

8. In view of the aforesaid law, in case findings are tested from the order impugned it is clear that the findings are recorded by the Collector on the basis of the report submitted by the Superintendent of Police without conducting any enquiry himself. This has been found incorrect in exercise of powers by the District Magistrate by this Court on number of occasions. This particular aspect was not considered by the appellate authority while deciding the appeal of the petitioner. And for that reason the order impugned cannot be sustained.

9. Learned counsel for the petitioner has placed reliance in the case of Jittu alias Jitendra Bhavsar v. State of M.P., 2008(III) MPWN 48 and contended that the order of externment cannot be made on the basis of some stray cases of Public Gambling Act unless the movement of petitioner is alarming and dangerous. It is also contended that in view of the law laid down in the case of Asaf Ali s/o Sheikh Mubarak v. State of M.P. and others, [2006(3) MPLJ 592, merely because of registration of several cases in the past, which have been decided, the petitioner should not have been removed from the area.

10. Since this Court has already examined the correctness of the order passed by the District Magistrate in view of the law laid down by the Division Bench of this Court in the case of Ashok Patel (supra) reference of the aforesaid decisions are not necessary. Suffice it to say that there was no material to show that he Collector has recorded his satisfaction, in all probability for externment of the petitioner, in terms of the provisions of Section 5(b) of the Act in appropriate manner.

11. For the aforesaid reasons, the writ petition is allowed. The impugned orders dated 4.8.2014 and 14.1.2015 are hereby quashed. The petitioner is free to move according to his wish. There shall be no order as to costs.

(K.K. Trivedi) Judge shuk la

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Madhya Pradesh High Court