Madhya Pradesh High Court
Jahangeer Alvi vs The State Of Madhya Pradesh on 10 January, 2017
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Petition No.9425/2016
Jahangeer Alvi
-Versus-
The State of M.P. & Ors.
CORAM :
Hon'ble Shri Justice Vijay Kumar Shukla
Shri Jayant Neekhra, Advocate for the petitioner.
Shri Puneet Shroti, Panel Lawyer for the respondents/State
ORDER
( 10.01.2017) In the instant writ petition filed under Article 226 of the Constitution of India the petitioner has challenged the legality and validity of the order of externment passed under the provisions of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 [for brevity `the Act'] by the District Magistrate, Hoshangabad and also the order passed by the Commissioner, Narmadapuram Division, Hoshangabad, respondent No.2, dismissing the appeal preferred by the petitioner against the said order.
2. On 2-6-2016 notices were issued to the respondents and the counsel appearing for the State was directed to seek instructions in the matter. On 8-11-2016 counsel for the respondents sought for two weeks time to file reply and he was directed to keep the relevant records available before the Court on the next date. Again, on 29- 11-2016 time was prayed for on behalf of the respondents. On 6-12- 2 2016 again time was sought for by the respondents. Thereafter on 8-12-2016 the matter was fixed in the week commencing 19-12- 2016 to enable the counsel for the respondents to file reply.
3. Despite number of opportunities having been granted reply was not filed on behalf of the respondents. On 20-12-2016 this Court passed the following order:
"Shri Jayant Neekhra, learned counsel for the petitioner.
Shri Vikram Johri, Panel Lawyer for the respndents-State.
As prayed for on behalf of the respondents ten days time is granted to file reply.
List in the week commencing 9 th January 2017.
It is made clear if no reply is filed, the matter will be heard on the basis of record available."
4. Today, learned counsel for the respondents-State submits that the record is available and the matter may be decided in absence of reply on the basis of the record available, as directed by this Court on 20-12-2016.
5. Considering the nature of the petition and the previous orders passed by this Court, the petition is heard finally.
The petitioner has submitted that the Superintendent of Police, Hoshahgabad submitted a report before the District Magistrate, Hoshangabad complaining that the petitioner is indulged in criminal activities and also involved in various offences. He recommended for taking action against the petitioner under the provisions of sections 5(b) and 6-A of the Act removing the 3 petitioner outside of the District Hoshangabad and also its contiguous Districts viz. Raisen, Sehore, Harda, Betul, Chhindwara and Narsinghpur. Along with his recommendation he has enclosed a list of criminal cases in which the petitioner is alleged to be involved.
6. On the basis of the said report a notice to show cause was issued to the petitioner and he has filed reply to the said notice and submitted that most of the alleged criminal cases relate to the period 1999 to 2015. He also submitted that on the basis of the same record from the year 1999 to 2008, earlier proceeding for externment was initiated against him and thereafter in the year 2008 on the basis of the same record, the recommendation for externment was sent by the Office of the Superintendent of Police Hoshangabad. The District Magistrate, Hoshangabad passed order on 29-12-2008 and did not find any ground for passing an order of externment under Section 5 of the Act. He passed an order for furnishing a personal bond. A copy the said order has been placed as Annexure-P/7 on record.
7. A notice was issued to the petitioner. In the reply he submitted that most of the criminal cases against him were of minor nature and were not within the close proximity on the date on which the order of externment was proposed to passed. He also alleged that action was taken against him because of personal bias of the Superintendent of Police Hoshangabad against whom the father of the petitioner had made a written complaint to the Director General of Police, Madhya Pradesh.
48. Per contra, counsel for the respondent-State supported the order of externment and also the order passed by the appellate Authority on the ground that from the record there was sufficient material before the District Magistrate to record subjective satisfaction for passing the order of externment. He further submits that the appellate Authority has also rightly dismissed the appeal preferred by the petitioner, as no any illegality or infirmity was found therein in the order impugned. The propriety of the order of externment and the order passed by the appellate Authority are tested on the anvil of the facts and the law governing the field.
9. Before adverting to the facts of the present case, it is pertinent to quote the relevant provisions of the Act. Section 5 of the Act under which the order of externment has been passed is quoted hereinbelow:-
"5. Removal 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 reasonably 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 abetment 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 5 regards the safety of their person or property; or
(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant;
the District Magistrate, may by an order in writing duly served on him or by beat of drum or otherwise as the District Magistrate thinks fit, direct such person or immigrant-
(a) so as to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease; or
(b) to remove himself outside the district or any part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route within such time as the District Magistrate may specify and not to enter or return to the said district of part thereof or such area and such contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself."
10. A plain reading of Section 5 (b) of the Act quoted above, would show that for passing an order of externment against a person, two conditions must be satisfied:-
(i) There are reasonable grounds for believing that a person is engaged or is about to be engaged in 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 or in the abetment of any such offence; and 6
(ii) 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 property.
11. Before referring to the judgments in this regard, it would be apposite to refer to the facts of the present case. The Superintendent of Police Hoshahgabad by letter dated 04-11-2015, Annexure-P/1 sent a proposal for externment of the petitioner under the provisions of Sections 5(b) and 6-A of the Act from the contiguous districts viz. Raisen, Sehore, Betul, Chhindwara and Narsinghpur for a period of one year. As many as 16 criminal cases registered against the petitioner have been referred in the letter, the same are reproduced hereunder:
Sr.No. Crime Numbers Sections Provisions 1 294/99 341, 294, 323/34 Indian Penal Code. 2 78/01 451, 294, 506, 323, 427 Indian Penal Code. 3 131/03 457, 380 Indian Penal Code.
4 37/04 307/34 Indian Penal Code.
5 236/04 307, 452 Indian Penal Code.
6 341/04 327, 365, 342/34 Indian Penal Code. 7 204/06 302, 294, 327, 506/34 Indian Penal Code. 8 208/06 25 and 27 Arms Act, 1959.
9 387/06 341, 294, 323, 506/34 Indian Penal Code. 10 389/2006 25 Arms Act, 1959 11 19/2007 294, 323, 506/34 Indian Penal Code. 12 210/2008 341, 294, 323, 506/34 Indian Penal Code.
13 97/10 307, 147, 148, 149, 506 Indian Penal
and 3(2)(v) Code/SCST Act.
14 554/16 452, 294, 506/34 Indian Penal Code.
15 560/14 25 Arms Act.
16 472/15 294, 147, 327, 341, 506 Indian Penal Code
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12. The record produced before the Court by the counsel for the State shows that the order of externment is based on consideration of the aforementioned 16 criminal cases registered against the petitioner. Some cases are pending and in some case the petitioner has been acquitted. The record reveals that the order of externment is based upon old and stale cases. The last case at Sr. No.16 shown in the list pertains to the year 2016 for commission of the offence punishable under sections 294, 147, 327, 341 and 506 of the Indian Penal Code, which is till under investigation.
13. In this case it is relevant to mention that in the year 2008 and prior to that externment proceedings were initiated agaisnt the petitioner and at earlier point of time an order of externment was also passed, but by order dated 29-12-2008, Annexure-P/7, the District Magistrate - competent authority did not find sufficient material to pass an order of externment, as there was no any fresh material to pass an order of externment. He had only directed the petitioner to file a personal bond.
14. Counsel for the petitioner conceded that the criminal cases pending from the year 1999 to 2008 were already taken into consideration in the previous externment proceedings and, therefore, the same could not have been the basis for recording satisfaction for passing of an order of externment under Sections 5(b) and 6-A of the Act. According to him only the cases which were registered from the year 2009 to 2015 could have been the basis for recording the satisfaction for passing an order of externment. He has also submitted that there was no proposal for passing an order of externment from District Jabalpur but, by the order impugned the competent authority also removed the petitioner from the District 8 Jabalpur without recording any reason for the same. The ground of malafide was not pressed and argued.
15. From a bare perusal of the records produced by the counsel for the State, it reveals that the order of externment is based on old and stale cases. At this juncture, I consider it condign to survey and examine the propriety of the impugned order of externment.
16. Division Bench of this Court in the case of Ashok Kumar Patel vs. State of M.P. & others, 2009(4) MPLJ 434 after considering Section 5 of the Act held thus:
"8. The expression is engaged or is about to be engaged" in the commission of 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 or in the abetment of any such offence, shows that the commission of the offence or the abetment of such offence by the person must have a very close proximity to the date on which the order is proposed to be passed under Section 5(b) of the Act of 1990. Hence, if a person was engaged in the commission of offence or in abetment of an offence of the type mentioned in section 5 (b), several years or several months back, thee cannot be any reasonable ground for believing that the person is engaged or is about to be engaged in the commission of such offence. "
17. In the case of Ramgopal Ragjhuvanshi vs. State of M.P. and others, 2014(4) MPLJ 654 this Court after considering the earlier judgments in respect of Section 5 of the Act held that the 9 order of externment cannot be passed on the basis of old and stale cases. A co-ordinate Bench of this Court at Indore in the case of Bhim @ Vipul vs. Home Department, (W.P. No.4329/2015, decided on 14-09-2015) has also considered the judgments rendered in the cases of Ashok Kumar (supra) and Ramgopal Ragjhuvanshi (supra) and held that the expression "engaged or is to be engaged"
used in Section 5(b)(i) shows that commission of offence or the abetment of such offence by the person must have close proximity to the date on which the order is proposed to be passed under Section 5(b) of the Act.
18. In the present case we do not find any case within the close proximity on the date of the order impugned and, therefore, if a person was engaged in commission of the offence or in abetment of offence of type mentioned under Section 5(b) of the Act several years or several months back, there cannot be any reasonable ground for believing that the person is engaged or is to be engaged in commission of such offence. Further, the competent authority could not have taken into consideration the record of the criminal cases from the year 1999 to 2008. As on the basis of said record the competent authority had already passed an order on 29-12-2008 and did not find any ground for passing of an order of externment. Remaining cases from the year 1999 to 2014 also do not satisfy the requirement of the conditions mentioned in Section 5(b) of the Act. There is no material on record to establish that the District Magistrate has found that prosecution witnesses are not willing to come-forward to give evidence in Court against the petitioner because of any apprehension of threat on the part of the petitioner. In the impugned order the Competent Authority has further failed to record any reason for passing an order of externment in respect of 10 District Jabalpur also, whereas there was no proposal in that regard by the Superintendent of Police or any other material before the Authority.
19. 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 rights of number of persons are involved. The order passed by the appellate Authority is nothing but repetition of the order passed by the District Magistrate without any application of mind.
20. In the light of the aforesaid judgments, this Court is of the considered opinion that there was no sufficient material available before the District Magistrate to pass the order of externment and the order impugned does not fulfil the conditions as enumerated in Sections 5(b) and 6-A of the Act.
21. In the aforesaid circumstances, the impugned order of externment as affirmed in appeal is unsustainable having passed in violation of the requirements of the Act and judgments of this Court which have been noted hereinbefore. Accordingly, the writ petition is allowed and the impugned order dated 28-01-2016 passed by the District Magistrate, Hoshangabad in Misc. Criminal Case No.06/2006 and affirmation thereof by the Commissioner, Narmadapuram Division, Hoshangabad in Appeal No.70/Cr.A./2015-16, dated 19-05-2016 are quashed and set aside.
(Vijay Kumar Shukla) Judge ac.
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