Madhya Pradesh High Court
Sikandar @ Shekhar vs Home Department on 31 July, 2017
WP-887-2017
(SIKANDAR @ SHEKHAR Vs HOME DEPARTMENT)
31-07-2017
Ms. Swati Ukhale, learned counsel for the petitioner.
Shri Umesh Gajankush, learned Dy. GA for the
respondent/State.
Initially, the petitioner has filed the present petition
being aggrieved by the show cause notice dated
22.12.2016 issued by the District Magistrate,
Khargone under Section 5 of the Madhya Pradesh
Rajya Suraksha Adhiniyam'1990 as to why he should
not be prohibited to enter into the territorial limits of
Khargone District and nearby Districts like Dhar,
Indore, Dewas, Khandwa, Barwani & Burhanpur. The
petitioner submitted a reply to the show cause notice
and filed the present petition before this Court but
after filing the present petition, District Magistrate
has passed the final order of externment for the
period of six months under Section 5 of the Madhya
Pradesh Rajya Suraksha Adhiniyam' 1990. Petitioner
filed an application for amendment and challenged
the said order also.
By order dated 16.03.2017, the interim relief was
granted to the petitioner.
After notice, respondent has filed the return.
With the consent of parties, petition is heard finally.
The petitioner has assailed the impugned order dated
22.12.2016 on the ground that the District
Magistrate has wrongly considered 12 criminal cases
registered against him while passing the impugned
order. Petitioner further submits that out of 12 cases,
Cases No.1 to 9 were subject matter of order of
externment dated 09.09.2013 as held by the
Commissioner vide order dated 24.02.2014. The
petitioner filed the W.P.No.2233/2015 challenging
the aforesaid 2 orders and this Court by order dated
16.05.2014 has set aside the order of externment
with the finding that the cases are relating to the
year 1999 to 2000 and on the basis of the said case,
order of externment cannot be passed.
Petitioner has stated that after 2014, only 3 cases
have been registered against him and out of which in
2 cases, he has been acquitted and one case is
relating to the offences under Section 34 of the M.P.
Excise Act, therefore, there was no material available
before the District Magistrate to pass the order of
externment taking fundamental right of the petitioner
as granted under the Constitution of India. He has
also assailed the order on the ground that the
petitioner's wife is carrying pregnancy at advange
stage and due to deliver a child and during this
period presence of petitioner is neccesary with her.
Respondent has filed the return submitting that the
petitioner is continuously engaged in the criminal
activities. Since, he has formed a gang of anti social
elements and because because of his activities and
movements in the area of Khargone fear has come in
the minds of general public.
Petitioner was given opportunity of hearing and
thereafter the order was passed under Section 8 of
the Madhya Pradesh Rajya Suraksha Adhniyam'1990.
Petitioner has been acquitted in the criminal cases
because witnesses are afraid of giving evidence
against him hence prayed for dismissal of the writ
petition.
That out of 12 cases, Cases No.1 to 9 were subject
matter of order of externment dated 09.09.2013 as
held by the Commissioner vide order dated
24.02.2014. The petitioner filed the
W.P.No.2233/2015 challenging the aforesaid 2 orders
and this Court by order dated 16.05.2014 has set
aside the order of externment with the finding that
the cases are relating to the year 1999 to 2000 and
on the basis of the said case, order of externment
cannot be passed.
That after 2014, only 3 cases have been registered
against him and out of which in 2 cases, he has been
acquitted and one case is relating to the offences
under Section 34 of the M.P. Excise Act, therefore,
there was no material available before the District
Magistrate to pass the order of externment taking
fundamental right of the petitioner as granted under
the Constitution of India.
As per Section 5(a) whenever it appears to the
District Magistrate that moment or act of any person
are causing or calculated to cause alarm danger or
harm to person or property, he may by an order in
writing direct such person to remain outside the
district. Under Section 5(b) if there are reasonable
ground or belief that such person is engaged or about
to engaged in commission of offence involved under
Chapter XII, XVI or XVII or under Section 506 or 509
of the Indian Penal Code. The report was submitted
under Section 5 (b) but order was passed under
Section 5(a), therefore, along with the report there
was no material available as per the requirement of
Section 5(a) and all the material was produced as
required under Section 5(b).
The Division Bench of this Court in case of Ashok
Kumar Patel Vs. State of M.P. & Others, reported
in 2009(4) MPLJ 434 has held that in absence of
existence of any material to show that witnesses are
not coming forward by reasons of apprehension to
danger and order under Section 5(b) cannot be
passed by the District Magistrate.
In case of Sanju @ Sanju Ben Vs. State of M.P. &
Others, reported in 2005(4) MPHT 102 this Court
has held that old and stole activities cannot be
ground for externment placing reliance over the apex
Court passed in case of Premchand Vs. Union of India
& Others, reported in AIR 1981 SC 613. In case of
Ramgopal Raghuvanshi Vs. State of M.P. &
Others, reported in 2015(1) MPHT 205, writ bench
of this Court has held that under Section 5(a) there
should be material before the District Magistrate to
reach to the satisfaction that on the basis of the said
material, moment or act of the petitioner were
causing or calculated to cause alarm of danger or
harm to the person or property. The magistrate was
obliged to arrive at the categorical finding that the
moment the person was causing danger of property
mere presumption and registration of criminal case
cannot be basis to arrive such satisfaction.
Similar controversy came up before this Court in
W.P.No.3504/2017 in which by order dated
25.07.2017, this Court has set aside the order of the
District Magistrate as well as the order passed by the
Commissioner on the ground that criminal cases
prior to 2013 could not have been taken into
consideration because in respect of those cases,
proceedings have already been set aside. The
Magistrate was oblidged to arrive at a categorical
finding the movement of the petitioner was causing
danger of property or to a person mere presumption
and registration of criminal case cannot be basis to
arrive such satisfaction.
Facts of the present case are also similar to the facts
in W.P.No.3504/2017. Operative part of the said order is reproduced below:
âIt is true that from the year 1986 to 2008 as many as 16 criminal cases were registered against the petitioner and a show cause notice under Section 5, 7 and 8 was issued under the Act of 1990 against the petitioner by the District Magistrate.
But vide order dated 09.10.2001 the then District Magistrate has set aside the proceedings of exeternment. Thereafter in the year 2013 again a show cause notice was issued under Section 5(a-b) against the petitioner on the basis of involvment of the petitioner in 22 criminal cases. Again petitioner contested the said proceedings by filing reply and after hearing the arguments, the proceedings have been closed on the ground that only on the basis of earlier criminal cases, the order of externment cannot be passed. Now again the Superintendent of Police has submitted a report dated 01.02.2017 to the District Magistrate by giving details of all criminal cases from 1986 to 2016 and requested for initiation of enquiry of externment.
After the order dated 13.11.2013 only 3 cases are said to have been registered against the petitioner i.e.(i) Crime No.271/2016 for offences punishable under Section 323, 294 & 506/3 of IPC; (ii) Crime No.93/2016 for offences punishable under Section 279, 337 of IPC; (iii) Crime No.339/2017 for offences punishable under Section 41, 224 & 504 of IPC.
The petitioner has filed the copy of order dated 04.03.2016 by which he has been acquitted in a criminal case in Crime No.93/2016, & vide order dated 24.09.2016. He has been acquitted in a case (Crime No.271/2016) therefore, at the time of passing of the impugned order dated 08.03.2017 only one case was pending under Crime No.339/2016 for offences punishable under Section 341, 294 & 506 of IPC but the District Magistrate has wrongly held that all the three cases are pending.
That Superintendent of Police, Neemuch vide letter dated 01.02.2017 submitted a report under Section 5(b) of the Adhiniyam of 1990 and thereafter, the show cause notice was issued to the petitioner under Section 5 read with Section 6, 7 and 8 that order was passed under Section 5(a). Section 5(a) & (b) of the Adhiniyam of 1990 is reproduced below:
âRemoval of persons about to commit offence-Whenever it appears to the District Magistrate -
(a) that the movements or acts of any person are causing or calculated to cause alarm, danger 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 abatement of any such offence, and when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or propertyâ As per Section 5(a) whenever it appears to the District Magistrate that moment or act of any person are causing or calculated to cause alarm danger or harm to person or property, he may by an order in writing direct such person to remain outside the district. Under Section 5(b) if there are reasonable ground or belief that such person is engaged or about to engaged in commission of offence involved under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code. The report was submitted under Section 5 (b) but order was passed under Section 5(a), therefore, along with the report there was no material available as per the requirement of Section 5(a) and all the material was produced as required under Section 5(b).
The Division Bench of this Court in case of Ashok Kumar Patel (supra) has held that in absence of existence of any material to show that witnesses are not coming forward by reasons of apprehension to danger and order under Section 5(b) cannot be passed by the District Magistrate.
In case of Sanju @ Sanjay Ben (Supra) this Court has held that old and stole activities cannot be ground for externment placing reliance over the apex Court passed in case of Premchand Vs. Union of India & Others, reported in AIR 1981 SC 613. In case of Ramgopal Raghuvanshi Vs. State of M.P. & Others, reported in 2015(1) MPHT 205, writ bench of this Court has held that under Section 5(a) there should be material before the District Magistrate to reach to the satisfaction that on the basis of the said material, moment or act of the petitioner were causing or calculated to cause alarm of danger or harm to the person or property. The magistrate was obliged to arrive at the categorical finding that the moment the person was causing danger of property mere presumption and registration of criminal case cannot be basis to arrive such satisfaction. From the findings recorded in para 5, the District Magistrate has placed reliance over the pending criminal cases against the petitioner from the year 1986 to 2016 and passed the impugned order. That the criminal cases prior to 2013 could not have been taken into consideration because in respect of those cases, proceedings have already been set aside. So far as 3 cases registered in the year 2016 are concerned, out of which in 2 cases petitioner has been acquitted which has not been considered by the District Magistrate, therefore, there was total non-application of mind while passing the impugned order.
Even otherwise, out of period of six months of externment, 5 months have already been expired. Petitioner has already undergone the maximum period of externment. In view of the above discussion, both the impugned order are as set aside. Petition is allowed.No order as to costs.â Therefore, the present petition is also allowed and the impugned order is set aside. No order as to costs.
(VIVEK RUSIA) JUDGE