Madhya Pradesh High Court
Anil @ Bade Guddu vs The State Of Madhya Pradesh on 19 November, 2014
Writ Appeal No.816 of 2014
19.11.2014
Shri Manoj Sharma, learned counsel for the
appellant.
Shri Piyush Dharmadhikari, learned Govt. Advocate
for the respondents/State.
Heard counsel for the parties.
This appeal takes exception to the judgment of the learned Single Judge of this Court dated 17.07.2014 in Writ Petition No.836/2014. The appellant had essentially challenged the externment order passed by the competent Authority and which came to be affirmed by the Appellate Authority. The appellant was served with the show cause notice dated 24.10.2013 which alleged about the involvement of appellant in criminal cases specified in Section 6 (c) of the Rajya Suraksha Adhiniyam, 1990. The appellant resisted the said notice by pointing out that he was not convicted for offence referred to in Section 6 (c) of the above stated enactment Act at all much less in three cases in the past three years. This contention did not commend to the competent Authority. As a result, the competent Authority passed the externment order against the appellant on 31.10.2013. That order was made subject matter of challenge before the Appellate Authority which appeal, however, came to be rejected on 17.12.2013.
Writ Appeal No.816 of 2014 2The appellant then approached this Court by way of Writ Petition No.836/2014 which was dismissed by the learned Single Judge of this Court by passing a speaking judgment dated 17.07.2014. Dissatisfied with the said decision, the appellant had invoked remedy of writ appeal bearing Writ Appeal No.601/2014. In the said writ appeal specific plea was taken that the competent Authority could not have assumed jurisdiction to proceed against appellant, in absence of appellant having been convicted in respect of specified offence on three occasions in the past three years before issuance of the externment order, so as to attract Section 6 (c) of the Act. However, the Division Bench of this Court disposed of the appeal on 11.08.2014 with liberty to the appellant as it found that the said argument was not specifically taken before the learned Single Judge and, therefore, did not form part of the judgment rendered by the learned Single Judge. Accordingly, the appellant went back before the learned Single Judge by way of Review Petition No.569/2014 which, however, has been dismissed on the ground that no ground is made out for review of the order.
Once again, the appellant has approached this Court by way of present appeal pursuant to the liberty given by the Division Bench of this Court vide order dated 11.08.2014. In the present appeal, the argument which was canvassed on the earlier occasion has been reiterated. It is Writ Appeal No.816 of 2014 3 also contended by the appellant that at least in the review petition filed by the appellant before the learned Single Judge, the contention which was pointedly taken in the review petition and also argued before the Court, the review petition ought not to have been rejected without dealing with those aspects.
The fact that the issue now urged, was taken by the appellant in the first place before the competent Authority itself in response to the show cause notice and again reiterated the same before the Appellate Authority as can be discerned from Paragraph 4 of the decision of the Appellate Authority. Indeed, in the speaking judgment of the learned Single Judge of this Court dated 17.07.2014, no reference is found to that contention, but the appellant having approached the learned Single Judge by way of review petition and pointedly raised this contention, the learned Single Judge ought to have dealt with the same in the final decision whilst disposing of the review petition. For, in our considered opinion, the argument is a mixed question of fact and law. If the fact asserted by the appellant that he has not been convicted for the specified offence within three years on three occasions before issuance of the externment order is correct, the Externing Authority cannot assume jurisdiction. That requirement is a jurisdictional fact under Section 6 (c) of the Act of 1990;
Writ Appeal No.816 of 2014 4and if that is not fulfilled, the Authority cannot assume jurisdiction to issue externment order against such person.
In the present case, no finding has been recorded by the competent Authority of the factual matrix in the first place, inspite of the objection taken by the appellant on this count. Similarly, the Appellate Authority although referred to the contention in paragraph 4 of the order has not addressed itself to the factual position which would empower the Authority to proceed in the matter further. The learned Single Judge has also not dealt with this aspect at all.
In the show cause notice, the competent Authority was obliged to explicitly mention the three cases in which the appellant has been convicted for the stated offence on three occasions in the preceding three years before the issuance of show cause notice. That is conspicuously absent in the show cause notice. In absence thereof, the competent Authority could not have assumed jurisdiction to pass externment order against the petitioner. This legal position has been adverted to by the learned Single Judge of this Court in the case of Veeru @ Virendra Rai Vs. State of M.P. and others in Writ Petition No.833/2014, decided on 15.09.2014. In paragraph 7, the learned Single Judge after analyzing the facts of that case and having noticed that the petitioner in that case had not suffered Writ Appeal No.816 of 2014 5 conviction in respect of the stated offence on three occasions in three years' period preceding the issuance of the externment order, held that the externment order cannot be sustained in law. We have no hesitation in affirming that view taken by the learned Single Judge as the same is manifest from the bare provision in the Act of 1990. Having said this, we have no hesitation in setting aside the impugned order passed by the competent Authority to extern the appellant from Damoh and surrounding Districts. Besides this, nothing more is required to be said.
The appeal succeeds. The impugned order and judgment passed by the learned Single Judge in Writ Petition No.836/2014 on 17.07.2014 and Review Petition No.569/2014 on 01.10.2014 are set aside. Further, the orders dated 31.10.2013 passed by the competent Authority and by the Appellate Authority dated 17.12.2013 are also set aside being illegal and bad in law.
The writ appeal stands disposed of accordingly.
(A.M. Khanwilkar) (Miss Vandana Kasrekar)
Chief Justice Judge
AM.