Madhya Pradesh High Court
Kalyan Singh vs The State Of Madhya Pradesh on 30 March, 2015
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.6103/2014
Kalyan Singh
Vs.
The State of M.P. & others
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Shri A.D. Mishra, learned Counsel for the petitioner.
Shri Vaibhav Tiwari, learned Panel Lawyer for the respondents-
State.
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Present : Hon'ble Shri Justice K.K. Trivedi
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O R D E R
(30/03/2015) The petitioner, a resident of village Bandri, Tahsil Khurai, District Sagar, being aggrieved by order dated 30.10.2013 passed against him by the District Magistrate, Sagar, under the provisions of Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (herein after referred to as 'Act'), has filed an appeal before the Commissioner, Sagar Division, Sagar, which appeal has been dismissed on 18.04.2014, therefore, this writ petition has been filed.
2. A show cause notice was issued to the petitioner on receipt of the report from the Superintendent of Police on 13.03.2012 by the District Magistrate, Sagar, specifically informing the petitioner that right from the year 1996, criminal cases were registered against him up to the year 2010 and in such cases criminal prosecution was launched against the petitioner. Because of the criminal activities of the petitioner, the local residents of the area were terrorized and because of the said fact not only the general people but 2 also the traders and politicians were not lodging report against the petitioner. The evidence of the independent witnesses were recorded and it was found that the report of the Superintendent of Police was correct. The petitioner was called upon to file reply to the said show cause notice. The petitioner filed an application for supply of certain documents so that he may file his reply to the show cause notice in appropriate manner. The documents were not made available to the petitioner and, therefore, he filed a reply to the show cause notice according to whatever information he could gather. In the reply the petitioner has denied all the allegations. He categorically contended that he is a law abiding person, was keeping good relations with people at large, was taking part in religious functions and by no act the petitioner has caused hindrance in the law and order situation.
3. It is contended in the writ petition that no opportunity of hearing was granted to the petitioner in appropriate manner and after receipt of the reply, the order was passed on 30th October, 2013 removing the petitioner from the area in exercise of power under Section 5(b) of the Act. He was restrained to visit the adjoining areas also but was allowed to take part in criminal prosecution only, that too after informing the police authorities in that respect, to appear before the Court where the trials were pending and to leave the area immediately thereafter. Being aggrieved by this order, the petitioner preferred an appeal before the Commissioner, Sagar Division, Sagar, who dismissed the appeal of the petitioner after receipt of the record, therefore, the present writ petition is required to be filed.
4. Upon instructions from the Court, the respondents have filed their return categorically contending that it was reported by the Police that there were criminal cases launched against the petitioner for the last many years and 3 that he was continuously involved in such activities. Because of fear, on account of such activities of the petitioner, witnesses were not coming forward to adduce evidence. On receipt of this report, the District Magistrate for the purposes of satisfying himself, asked the police authorities to produce the independent witnesses. The statements of those witnesses were recorded by the District Magistrate. After recording said statements since the District Magistrate was satisfied that there were reasons to believe that on account of criminal activities of the petitioner, continuously criminal cases were being registered against him by the Police and because of the fear and threat of dire consequences, the witnesses were not coming forward to adduce the evidence in those criminal cases, therefore, his continuance or presence in the area concerned was not desirable or proper for maintenance of law and order situation.
5. After this the show cause notice was issued to the petitioner and he was granted full opportunity to defend himself even through a counsel. By filing the reply he stated that out of 12 criminal cases, 10 have already been decided, only two cases are pending against him and because of rivalry since he was falsely roped and involved in the criminal case, the report was made against the petitioner for an action under the Act. He further stated that there was no continuity of criminal activities and, therefore, action initiated against him be closed. However, such stand taken by the petitioner in his reply was not found justified in view of the material available on record and, therefore, the order was rightly passed. The appeal of the petitioner was also considered in appropriate manner and the same has been dismissed in accordance to law. Therefore, no irregularity is committed by the respondents in passing the order against the petitioner. The glaring fact, which is brought to the notice of the Court, is that the order 4 so passed against the petitioner has come to an end inasmuch as the period of one year externment of petitioner is over and, therefore, there is no need to quash the said order.
6. Under the orders of the Court, original record is made available for perusal of the Court, by the Panel Lawyer. Learned Counsel for the parties are heard at length and record is perused.
7. Undisputedly report was made by the Superintendent of Police on the basis of a report submitted by the Station House Officer, Police Station Bandri, District Sagar on 01.05.2011. The report contained factual aspects of 12 cases registered against the petitioner in which his criminal prosecution was launched. In 1996 a case under Section 25/27 of the Arms Act was registered against the petitioner. In the very same year yet another case was registered under Section 327, 294 and 506-B I.P.C. In 1997 the case was registered against the petitioner under Gambling Act. In 1998 the offence was registered under I.P.C. and repeatedly again the case was registered under the Arms Act in the year 2003. The report further indicates that in the Gambling Act, fine was imposed on the petitioner. Similarly, in the case of Gambling Act again in 2002, fine of Rs.500/- was imposed on the petitioner. The results of other cases were not notified.
8. On receipt of this report, the District Magistrate thought it better to examine the independent witnesses whether because of the threats of dire consequences or fear of life, witnesses were not coming forward to adduce evidence against the petitioner and being encouraged by such, the petitioner was continuing such criminal activities or not. The independent witnesses were produced. One Dhan Singh Yadav, son of Rajaram Yadav and Chandan 5 Adivasi, son of Kishan, appeared before the District Magistrate and deposed that because of criminal activities of the petitioner, they were not in a position to depose anything against him and right from the year 1996, the petitioner was involved in the criminal activities. That apart, because of such criminal activities of the petitioner even when the offences were committed by him, aggrieved persons were not coming forward to lodge complaint against him. The people at large are living under the terror of the petitioner.
9. The District Magistrate after satisfying himself issued show cause notice to the petitioner on 19.03.2012. On receipt of this show cause notice, instead of filing a reply, the petitioner made an application for supply of certain documents on 17.05.2012. The reply was filed by the petitioner on 13.12.2012 and he filed his written arguments also on 23.10.2013. What was stated in the reply was only the fact as has been referred to herein above and nothing more. Even the petitioner has not demanded that he be granted an opportunity to cross-examine those independent witnesses, who have deposed against him before the District Magistrate. In his written arguments he contended that since the matter relating to externment has remained pending for 2½ years in which the petitioner is regularly appearing, treating it as sufficient punishment, proceedings for externment may be closed.
10. In proximity of these circumstances, contention raised by learned Counsel for the petitioner are considered. It is contended that there was no justification for initiating the proceedings against the petitioner for his externment, firstly because there was no subjective satisfaction shown in the show cause notice relating to the requirement of Section 5(b) of the Act. Secondly the cases initiated against the petitioner have resulted in his favour but this aspect was 6 completely ignored. Lastly, the opportunity of hearing was not extended to the petitioner in appropriate manner.
11. First of all, what is the subjective satisfaction of the District Magistrate for initiating the proceedings under Section 5 of the Act, is required to be examined. Trite it is that mechanically on the report of the Superintendent of Police, without recording his own satisfaction, the District Magistrate is not required to initiate the proceedings. This particular aspect is considered by the Division Bench of this Court in the case of Ashok Kumar Patel vs. State of M.P. and others, [2009 (4) MPLJ 434] . While dealing with such an aspect, this Court has said that it is not mere formality to record the opinion on the basis of the material placed by the police authorities. The District Magistrate is required to form his own opinion, rather a clear opinion on the basis of material that the witnesses were not willing to come forward to give evidence against such a person because of apprehension on their part as regards safety of person or property. Here in the case in hand the District Magistrate has not blindly acted on the report of the Superintendent of Police but has directed production of independent witnesses, has recorded their statement and has categorically pointed it out to the petitioner while issuing the show cause notice. By doing so, in fact the opinion was formed by the District Magistrate that there was reason to believe that because of criminal activities of the petitioner, the witnesses were not coming forward to depose against him in the criminal prosecution. Even the certified copy of the order passed in one of the cases launched against the petitioner was available where the acquittal of the petitioner was only because not only the complainant but the eye witnesses have become hostile in the Court and they have deposed that the report was not lodged against the petitioner by the complainant nor any incident was reported to the police in the statement under 7 Section 161 of the Code of Criminal Procedure by the witnesses. If this was the material available before the District Magistrate and if on the basis of this action was taken by him against the petitioner, it cannot be said that the District Magistrate has not complied with the provisions of Section 5(b) of the Act relating to recording his own satisfaction before initiating proceedings against the petitioner.
12. As against this, nothing has been pointed out by the petitioner by filing a reply to show cause notice nor he has dared to ask for an opportunity to cross-examine those witnesses who have deposed against him before the District Magistrate. This shows that there was a justified reason recorded by the District Magistrate in the show cause and ultimately it was found to stand as the rebuttal was not done in appropriate manner by the petitioner. For that reason if the order was passed by the District Magistrate exercising power under Section 5(b) of the Act, it cannot be said that any illegality was committed.
13. The other submission which learned Counsel for the petitioner has made relating to closer of 10 criminal cases, if in the manner the criminal cases were sought to be disposed of in favour of the petitioner, it was not to be held that there was no reason to believe that the petitioner was involved in such criminal activities. Reliance is placed in the case of Massu alias Musheer Mohammad vs. Sub- Divisional Magistrate, Bhopal and others, [2014(3) MPHT 17] but the said case is totally distinguishable inasmuch as the proceedings of externment were done by the Additional District Magistrate or by the Sub Divisional Magistrate and not by the District Magistrate in the manner indicated herein above. Even if there was acquittal or closer of the cases launched against the persons like petitioner, only because of the non-availability of the evidence as the 8 witnesses were not coming forward to depose against the petitioner, the plea cannot be raised that proceeding under the Act cannot be initiated. The very object of the Act is to maintain law and order situation by taking strict action against those antisocial elements.
14. Lastly, challenge to the order of externment has now become academic only because the period of externment of the petitioner is already over. Even if the appeal was filed by the petitioner before the competent appellate authority, no interim stay was granted in the said proceedings. The order of externment was passed against the petitioner on 30th October, 2013 for a period of one year, which come to an end on completion of the period of one year on 31 st October, 2014. Even otherwise, all these aspects were tested by the Appellate Court as well and appeal of the petitioner was dismissed by a reasoned speaking order. Interference in the said orders in the writ proceedings, in the given circumstances, is not called for.
15. Consequently, the writ petition fails and is hereby dismissed.
(K.K. Trivedi) Judge Skc