Madhya Pradesh High Court
Dabbu @ Shahjad vs The State Of Madhya Pradesh on 9 January, 2019
Equivalent citations: AIRONLINE 2019 MP 16
[1] WP-361-2019 The High Court of Madhya Pradesh WP-361-2019 (DABBU @ SHAHJAD Vs THE STATE OF M.P. & ORS.) Jabalpur; Dated: 09-01-2019 Mr. Manoj Kushwaha, Advocate for the petitioner.
Mr. Anubhav Jain, Government Advocate for the State.
Heard.
The petitioner has filed the present petition being aggrieved by the order of externment dated 30.05.2018, passed by District Magistrate, Damoh by which he has been restrained for a period of one year to enter into the limits of Damoh & nearby districts in exercise of power under Section 5(a)(b) read with Section 7 of M.P. Rajya Suraksha Adhiniyam, 1990.
Being aggrieved by the aforesaid order, the petitioner preferred an appeal before the Commissioner, Sagar Division. By order dated 25.10.2018, the learned Commissioner has set aside the order on merits, but directed the petitioner to submit a bond of Rs.50,000/- and surety of the same amount for the period of one year that he will maintain a good conduct and will not commit any offence. The petitioner has also been directed to give attendance daily in the nearby police station for the next six months. The petitioner is mainly aggrieved by the direction of giving daily attendance in the police station.
According to the petitioner, he is a social activist and belongs to a political party. He had been falsely implicated in various criminal cases because of the political enmity. Learned Commissioner has found that all the cases registered against the petitioner are very old, therefore, the order of externment cannot be upheld but despite that he has directed him to give daily attendance in the police station which is nothing but a harassment to the petitioner and amounts to his confinement to the city for a period of six months.
I have heard the learned counsel for the parties.
The law in respect of consideration of cases under the provisions of Section 5 of the MP Rajya Suraksha Adhiniyam, 1990 is well settled. The Division Bench of this Court in case of Ashok Kumar Patel Vs. State of M.P. & Digitally signed by SAIFAN KHAN Date: 10/01/2019 18:11:10 [2] WP-361-2019 Others, reported in ILR (2009) MP 3090 has held that such an order cannot be passed mechanically. The District Magistrate under Section 5(b) of the M.P. Rajya Suraksha Adhiniyam is required to find out whether the petitioner was engaged in commission of offence or in abatement of such offence which was close to proximity to the date when the impugned order of externment was passed. The second condition which must be satisfied for passing an order against the person is that in opinion of District Magistrate witnesses are not willing to come forward to give evidence and to furnish evidence against such person by reasons of apprehension on their part as regard safety, but the District Magistrate in the impugned order has only reproduced the list of offence registered against the petitioner and formed an opinion against petitioner. Relevant portion of the aforesaid judgement is reproduced below:
"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 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- Digitally signed by SAIFAN KHAN Date: 10/01/2019 18:11:10 [3] WP-361-2019 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 v. The State of Bombay and Anr.(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 Cr.PC 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 l990.
12. In State of N.C.T. of Delhi and Anr. 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 non."
13. The Act of 1990 certain serious restrictions on the fundamental right Digitally signed by SAIFAN KHAN Date: 10/01/2019 18:11:10 [4] WP-361-2019 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 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 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."
The Commissioner has already set aside the order of District Magistrate on merits, but has wrongly put the condition of giving attendance daily in the police station to the petitioner, which is unreasonable, therefore the said order is modified and the petitioner will give attendance to the nearest police station once in the month for the remaining period of externment.
With aforesaid observation, the petition is partly allowed.
(VIVEK RUSIA)
s@if JUDGE
Digitally signed by SAIFAN KHAN
Date: 10/01/2019 18:11:10