Madhya Pradesh High Court
Amit vs The State Of Madhya Pradesh on 13 July, 2023
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 13 th OF JULY, 2023
WRIT PETITION No. 12322 of 2023
BETWEEN:-
AMIT S/O BABULAL BAISWAR, AGED ABOUT 35 YEARS,
OCCUPATION: VEGETABLE MERCHANT TAVDIPURA,
SANAVAD, DIST. KHARGONE (MADHYA PRADESH)
.....PETITIONER
(SHRI MUKESH SINJONIA- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY HOME DEPARTMENT VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. COM M ISSION ER INDORE DIVISION, INDORE
(MADHYA PRADESH)
3. DISTRICT MAGISTRATE KHARGONE, DISTT.
KHARGONE (MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE KHARGONE,
DISTT. KHARGONE (MADHYA PRADESH)
.....RESPONDENTS
(MS.PRANJALI YAJURVEDI - PANEL LAWYER)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
The present petition is filed under Article 226 of the Constitution of India challenging the order dated 16.05.2023 by which the respondent no.2 has confirmed the order dated 20.03.2023 passed by respondent no.3 for externment of petitioner for a period of one year under the provisions MP Rajya Signature Not Verified Signed by: SOURABH YADAV Signing time: 14/07/2023 6:56:32 PM 2 Suraksha Adhiniyam, 1990.
2. The facts of the case are that on the report of Superintendent of Police, Khargone, a show cause notice for externment was issued to the petitioner and the petitioner filed his reply to the said show cause notice. Thereafter, the District Magistrate passed the impugned order dated 20.03.2023, whereby, the petitioner has been externed for a period of one year from the date of order from District Khargone and its contiguous districts Dhar, Indore, Dewas, Khandwa, Badwani and Buranpur. The said order was challenged in the appeal under section 9 of the Adhiniyam, 1990 before the respondent no.2 but the said appeal has also been dismissed and the order of externment has been affirmed.
3. Learned counsel for the petitioner submits that the impugned order of externment is based on old and stale cases and further there is no compliance of provisions of section 5A and5B of the Adhiniyam, 1990. There is no objective consideration by the competent authority. The order is contrary to the law laid down by the Division Bench of this Court in the case of Ashok Kumar Vs. State of MP reported in 2009(4) MPLJ 434 and the other judgments decided in the case of Chandra Pakash @ Tinku Pandey Vs. State of MP reported in 2022(1) MPLJ 556, Meena Sonkar Vs. State of MP reported in 2017(2) MPLJ 565 and Vinod Vs. State of MP reported in 2016 (2) MPLJ 650 and also the judgment passed in the case of Lacchu @ Laxman Vs. State of MP reported in 2022 (2) MPLJ 362. He further relied on a recent judgment by the Apex Court in the case of Deepak Vs. State of MP reported in AIR 2022 SC 1241 while considering the para-materia provision of Maharashtra Police Act, the Apex Court held that the order of externment restraining the accused from Signature Not Verified Signed by: SOURABH YADAV Signing time: 14/07/2023 6:56:32 PM 3 entering a particular area infringes his fundamental right guaranteed under Article 19(1)(d) of the Constitution of India. Hence, restriction imposed by order of externment must stand test of reasonableness.
4. It is further held that the competent authority must record its satisfaction of existence of the grounds for externment on the basis of objective material placed before it.
5. He further submitted that that the authorities have failed to record satisfaction in the impugned order regarding second requirement of section 5(B) of the Adhiniyam, 1990. He has not recorded his satisfaction on the basis of material that the witnesses are not willing to come forward to give evidence in the judgment against the petitioner by a reason and apprehension as regards to their safety. The order passed by the Appellate Authority on merit is nothing but repetition of the order passed by the District Magistrate without any application of mind.
6. Per contra, learned counsel for the respondent/state supported the order passed by the respondent and submitted that the petitioner is a habitual offender and has five criminal cases registered against him. He is actively involved in the criminal activities since 2008. It is submitted that against the petitioner as many as 9 cases are registered and four prohibitory action has been taken against him.
7. The respondent/District Magistrate has considered nine criminal cases registered against the petitioner. The list of the criminal cases is reproduced as under :-
S.No. Crime no. Sections 34,36 Excise 1. 26/2008 Act 294, 323, 506, 2. 185/2008 34 IPC Signature Not Verified Signed by: SOURABH YADAV Signing time: 14/07/2023 6:56:32 PM 4 3. 187/2008 294, 323, 506, 34 IPC 294, 323, 506, 4. 23/2016 IPC 294, 323, 506, 5. 200/2017 IPC 294, 323, 506, 6. 455/2017 34 IPC 34-A Excise 7. 306/2018 Act 294, 323, 506, 8. 481/2020 IPC 294, 323, 506, 9. 349/2021 IPC
8. Upon perusal of the aforesaid list, it is evident that the cases at serial no.1,2,3 are of year 2008, the cases at serial no.4 is of year 2016, the case at serial no.5, 6 are of year 2017, the cases at serial no.7 is of year 2018 whereas, the case at serial no.8 and 9 is of year 2020-2021. Thus, most of the cases are old and stale cases except one case of year 2021, which has been registered for commission of offence under section 294, 323, 506, IPC. Thus, the offence under the close proximity is either of minor nature or in the nature of prohibitory proceedings for keeping peace and good behavour.
9. In the instant case, upon perusal of the impugned orders, it is also found that the District Magistrate has only baldly stated the list of the offences registered against the petitioner to reflect that the petitioner is a daring habitual criminal but he did not record any opinion on the basis of the materials that in his opinion witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension as regards to their safety. Hence, in absence of any existence of material to show that witnesses are not coming forward by reason of apprehension to give evidence against the petitioner in respect of the alleged offences, an 11 order u/s 5 (b) of Adhiniyam, 1990 cannot be passed by the District Magistrate as held in the case of Ashok Signature Not Verified Signed by: SOURABH YADAV Signing time: 14/07/2023 6:56:32 PM 5 Kumar Patel Vs. State of M.P. by the Division Bench that for a passing an order of externment against the person both the conditions mentioned under section 5 (b) (i) and (ii) have to be satisfied.
10. This Court in the case of Meena Sonkar vs. State of M.P. and others, 2017(2) MPLJ 565 and also in the case of Anek alias Anil Nageshwar vs. State of Madhya Pradesh & four others [W.P. No.9297/2017, decided on 8-8-2017] held as under:
"The second requirement is also necessitated to pass an order of externment that on account of the activities of a person, who is externed, the witnesses amongst public are not coming forth to depose in the criminal cases against him either under apprehension of person or property. But in the order impugned existence of such material is not on record, more so, no such finding has been recorded by the competent authority to record satisfaction. Therefore, the order impugned do not fulfill the second requirement of Section 5(b) of the Adhiniyam.
11. In the present case there is no satisfaction of the District Magistrate in the impugned order regarding second requirement of Section 5(b) of the Act 1990. He has not recorded his satisfaction on the basis of materials that witnesses are not willing to come forward to give evidence in the public against the petitioner by the 12 reasons of apprehension as regards to their safety. The authority has not discarded the nature of cases, the date of registration of cases and their present status. Most of the cases are old and stale.
12. Under the provision of Section 5 of the Act, if a detention order has to be passed, there has to be sufficient material for passing the order as fundamental right of freedom of a person is involved. The order passed by the Signature Not Verified Signed by: SOURABH YADAV Signing time: 14/07/2023 6:56:32 PM 6 appellate Authority is nothing but repetition of the order passed by the District Magistrate without any application of mind.
13. In the aforesaid circumstances, the impugned order of externment and affirmation thereof in the appeal are unsustainable having been found in violation of the requirements of the Act 1990 and the judgments passed by this Court which have been noted hereinbefore.
14. Accordingly, the writ petition is allowed. The impugned orders dated 20.03.2023 passed by the District Magistrate, Khargone and the order dated 16.05.2023 passed by the Commissioner, Indore are quashed.
No order as to costs.
(VIJAY KUMAR SHUKLA) JUDGE Sourabh Signature Not Verified Signed by: SOURABH YADAV Signing time: 14/07/2023 6:56:32 PM