Madhya Pradesh High Court
Abid Ali S/O Sayyad Ali vs State Of M.P. And Anr. on 25 June, 2002
Equivalent citations: 2003CRILJ3103
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. Petitioner challenges the order of his externment from Bhopal and contiguous districts Sehore, Rajgarh and Hoshangabad passed under Section 5 of the M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'the Adhiniyam') for a period of one year as per order Annexure-B dated 10-7-2001 and against the dismissal of appeal as per order dated 29th September, 2001 Annexure A.
2. Petitioner is a resident of Kabitpura, Tehsil Jamalpura, Bhopal, Externment proceedings were started against the petitioner. On receipt of the report from Superintendent of Police dated 9-2-2001 Annexure-C pointing out that large number of cases were registered against the petitioner during the last ten years. Even though time to time police has taken the" action against the petitioner but petitioner was still involved in the criminal activities. Such action was taken under Sections 5(a) and 5(b) of the Adhiniyam. A show cause notice was issued to the petitioner on 2-6-2001. 20 cases were pointed out for the period between 1990-2001. It was mentioned that petitioner was continuously involved in criminal and antisocial activities. The activities of the petitioner were causing alarm to general public. The petitioner has caused the fear to the people. They were not prepared to lodge the report or to depose. Several prohibitory actions were taken but petitioner has failed to show the improvement. Thus, show cause notice was issued to the petitioner on 9-6-2001 why he should not be externed for a period of one year Under Sections 5(a) and 5(b) of the Adhiniyam.
3. Petitioner filed a reply Annexure-E to the show cause notice on 19-6-2001. In the reply to the show cause notice petitioner contended that he was falsely implicated in the cases. He was acquitted in the case registered at crime No. 309/96 in the year 1997 which was registered under Section 307 of the IPC. Petitioner was not involved in the gambling or gambling activities and wherever case of the gambling is detected, name of the petitioner is falsely implicated in the case. Petitioner denied the involvement in the criminal activities.
4. Reply was filed on 19-6-2001. Next date fixed before the District Magistrate was 26-6-2001. It was reported that petitioner was again arrested in the case under Sections 147, 148, 149, 294, 506, 353, 332, 336, 427 of the IPC, and under Section 3/5 of Explosive Substances Act. Even during the pendency of externment proceedings petitioner was found involved in the criminal activities. The District Magistrate recorded the evidence and also gave opportunity to the petitioner to cross-examine the witnesses examined in support of the case. The order of externment for a period of one year was passed on 10-7-2001 regarding the satisfaction that on the basis of various criminal activities the District Magistrate was satisfied that the movement or acts of petitioner were causing alarm, danger or harm to the safety of persons and their properties. District Magistrate recorded the satisfaction under Sections 5(a) and 5(b) of the Adhiniyam. Satisfaction was also recorded that the petitioner was engaged or was about to engage in commission of offences as specified under IPC or abetment of any such offences in future also. Thus, the recording the satisfaction under Sections 5(a) and 5(b) of the Adhiniyam the order of externment Annexure B was passed for a period of one year and petitioner was asked to remove himself outside the District of Bhopal and contiguous districts as mentioned above within 48 hours and not to re-enter till 9-7-2001. The petitioner submits that out of 20 cases which were made the grounds of externment, four were Under Section 13 of Gambling Act, four were Under Section 3/4 of Gambling Act, One was under Section 25 of Arms Act, one was for preventive action Under Section 109, Cr. P.C., three were Under Sections 107/116/151, Cr. P.C., three were under different Sections of IPC, one was Under Section 307, IPC and after externment proceedings were started a case was registered Under Section 506 of IPC and Explosive Substances Act. Petitioner submits that the statements of the witnesses were recorded before issuance of show cause notice. Copies of the statements were not supplied to the petitioner. There was no material on the basis of which respondents formed their opinion. The defence witnesses were not taken into consideration. The material on which the respondents formed their opinions had no nexus or relevance but were too remote starting from ten years back. The order is based on vague allegations and has been passed in gross violation of Articles 14, 19 and 21 of the Constitution of India.
5. In the return filed by the respondents it has been contended that petitioner was involved in criminal activities. As many as 20 criminal offences were registered in Bhopal city itself. On account of offences under IPC, Gambling Act and criminal conduct of the petitioner as also his reputation he created terror. People at large were not coming forth to even giving evidence against the petitioner. During the course when witnesses were examined between 16-3-2001 to 10-7-2001, the petitioner was also present and had duly signed the proceedings which are filed as Annexure R. 1. Petitioner did not choose to cross examine any of the witnesses. Thus, the order of externment was passed on 10-7-2001. The order of externment was passed after due adherence to the provisions and procedure prescribed under the provisions of the Adhiniyam.
6. It is also pointed out that while the proceedings of externment were in progress two more cases had been registered against the petitioner namely vide crime No. 340/ 2001 at police station Shahjahanbad and crime No. 618/2001 at police station Jahangirabad in Bhopal. After issuance of the order of externment the petitioner has also, violated the same and was found moving around in the vicinity of Kachchi Maszid Kabitpura police station, Teela Jamalpura, District Bhopal on 31-1-2002 in respect of which FIR has been registered in police station Teela Jamalpura vide crime No. 21/ 2002 under Section 14 of the Adhiniyam.
7. The statements of Shivshankar Tripathi, R.D. Katiyar, Abdul Rajjak and K.R. Sharma were recorded on 16-3-2001. The statements of Ramarayan Singh, Phoolbai, Lakhuram and D.S. Chouhan were recorded on 30-3-2001. The statements of defence witnesses Chand Khan, Abdul Said Khan, Mehmood Raza Khan were recorded on 22-6-2001 and statement of Aftab Khan was recorded on 26-5-2001.
8. Against the order of externment passed by the district Magistrate an appeal was filed before the State Govt. which was dismissed on 29th September, 2001 as per order Annexure A. Hence, the present writ petition has been filed before this Court.
9. Shri Hamid Khan, learned counsel for the petitioner, submits that there is no material to attract Section 5(a) which is independent provision and petitioner was not involved in any kind of activities which are required to attract Section 5(b) of the Adhiniyam. Additional ground of involvement in criminal cases during the pendency of the externment proceedings was also used without putting the petitioner to the notice of the same. The case in which petitioner was arrested during the pendency of the externment proceedings was not mentioned in the show cause notice, hence same could not be used as to form a ground in the absence of same being added to the show cause notice as ground of order of externment. Counsel for petitioner also submits that the allegations are general in nature. Most of the cases were stale and trivial in nature. The activities of the petitioner could hot be termed to be alarming, causing danger or harm to the safety of persons and their properties nor the activities were such that petitioner was engaged or was about to be engaged in the commission of the offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under Section 506 of the IPC 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 regards the safety of their person or property.
10. Learned counsel for the respondents has supported the impugned order Annexure B and appellate order Annexure A and submits that petitioner involved himself in the offences. Even during the pendency of externment proceedings and had violated the order of externment after it was passed which indicates that the satisfaction recorded by the District Magistrate that petitioner was engaged or was about to be engaged in commission of the offences and his activities were alarming causing danger or harm to the safety of the persons and their properties is unassailable and is based on material on record.
11. The first question for consideration is whether petitioner was given due opportunity for defending himself as per Section 8 of the Adhiniyam. Sub-section (1) of Section 8 requires hearing to be given before an order under Section 3, 4, 5 or 6 is passed against any person, the District Magistrate shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the District Magistrate shall grant such application and examine such witnesses unless for reason to be recorded in writing, the District Magistrate is of opinion that such an application is made for the purpose of vexation or delay. Person may appear through legal practitioner under Sub-section (3) of Section 8 and may also file reply.
12. A show cause notice Annexure D, in the instant case, was issued on 9-6-2001 in which 20 cases were specifically mentioned. General nature of allegations and material against him was mentioned in the notice. It was mentioned that petitioner was involved in criminal and anti social activities. People were having fear and were not ready to lodge the report or to depose against the petitioner and action taken time to time of preventive nature had failed to bring about an improvement in the conduct of the petitioner. Thus, the petitioner was required to explain why he should not be externed.
13. In the return in para 2 there is categorical averment made that during the course of examination of the witnesses which took place between 16-3-2001 to 10-7-2001 the petitioner was also present and has duly signed the proceedings. Copies of the said proceedings are filed collectively as Annexure R. 1. Petitioner himself did not choose to cross examine any of the witnesses. Copies of the statements are collectively filed as Annexure R. 2. No rejoinder has been filed by the petitioner that he was not given opportunity to cross-examine the witnesses and he was not present between 16-3-2001 to 10-7-2001. The first submission that petitioner was not given due opportunity to defend as required under Section 8 of the Adhiniyam is untenable.
14. The submission raised by the counsel for petitioner that show cause notice was defective is not acceptable. Show cause notice gives the details of the 20 cases which were mentioned in the report of the Superintendent of Police and petitioner was informed of the general nature of the material allegations against him as required Under Section 8 of the Adhiniyam.
15. Next submission is about the stale nature of the cases for passing an order of externment. 20 cases were registered against the petitioner in 10 years. Out of them four were under Section 13 of Gambling Act. four under Section 3/4 of Gambling Act, one was under Section 25 of Arms Act, one of preventive action Under Section 109 Cr. P.C., three Under Section 107/ 116/151 Cr. P. C., three under different sections of IPC, one of them Under Section 307 IPC and after starting externment proceedings a case under Section 506 IPC and Section 3/5 of Explosive Substances Act was registered and one more case was registered during the pendency of the proceedings. He was arrested also. Crime No. 288/2000 was registered under Sections 147, 148, 323 IPC. Petitioner was bound in several proceedings for maintaining peace and order and fine was imposed in few cases of gambling also. Though the petitioner was acquitted under Section 307 of IPC but the petitioner was found involved during pendency of the externment proceedings in two cases and there is allegation of violating order of externment.
16. Counsel for petitioner has relied upon the decision of this Court in Satish v. State of M.P., 1991 (2) M.P.W.N. Note No. 9 : (1991 Cri LJ 2952). In that case it was noticed by this court that from 6-5-1989 to the date of the issue of show cause notice in December, 1989 no incident was reported against Satish. Counsel for petitioner has also relied upon a decision of this Court in Ayub Khan v. State of M.P. 1994(1) VIBHA 168, in which it was held that while passing the externment order under Section 5 externee cannot be punished for his past deeds. Powers are to be exercised sparingly with care and circumspection. If order is passed with prior notion without application of mind cannot be allowed to stand. The witnesses examined by externee were also not taken into consideration. No incident during the period of 18 months was reported. The distinguishing point in the case of Ayub Khan is that no evidence as to the involvement of Ibrahim in any of the crime or incident adversely affecting the public order within that period of 18 months was shown but present case is different in close proximity, there were cases against petitioner.
17. In the instant case the proceedings were initiated on the report on 9-2-2001 Annexure C sent by Superintendent of Police and there are at least 4 cases reflected in the report of the Superintendent of Police with respect to the offences which took place in close proximity of sending the report by the Superintendent of Police. On 23-6-2000 a case was registered under Sections 147, 148, 294, 323, 506 and 448 of the IPC. The petitioner was arrested in that case. Another incident took place on 10-8-2000. Petitioner was found involved in gambling. A sum of-Rs. 10,100/- was recovered. Case under Section 13 of the Gambling Act was registered and challan was filed before the Court. On 29-1-2001 again the petitioner was found involved in gambling in his own house. Case under Section 3/4 of the Gambling Act was registered and challan was filed in the court. On 30-1-2001 proceedings under Section 110 of the Cr. P.C. were drawn. There were three cases in the year 1999. One of them was under Section 3/4 and another under Section 13 of the Gambling Act and third one was under Section 407/116 of Cr. P. C. and four cases in the year 1998, two under the Gambling Act and two Under Sections 151 & 110 of the Cr. P.C
18. The statement of Phoolbai indicates that petitioner entered her house, gave beating to her. The accused was armed with weapons. Her daughters were taking bath in the bath room. The clothes of daughters were torned and the goods which were collected for the marriage were taken away. Offence was registered at police station Mangalwara at crime No. 288/2000. Her son Manoj was so much beaten by the accused that he left the house and his whereabouts were not known. Her daughters were also living under constant threat and could not appear in the examination. Her entire family has been ruined. They are not even able to go outside to work as labour and they were on the verge of starvation.
19. The statement of Abdul Rajjak shows that he suffered various injuries. The case under Section 307 of IPC was registered but the witnesses turned hostile and some of the witnesses did not enter into the witness-box due to fear of the petitioner. K.R. Sharma has deposed about the involvement of the petitioner under Section 13 of the Gambling Act Ramraman Singh has deposed as to the involvement of the petitioner under Section 307 of the IPC in which he was acquitted due to the witnesses having the fear of the petitioner. Lakhuram has also deposed that witnesses have the fear of the petitioner to depose against the petitioner. Same is the statement of D. S. Chouhan. The incident relating to Phoolbai took place in June, 2000. Thereafter the petitioner was again involved in gambling activities on 29-1-2000 and 30-1-2000.
20. It is true that only 20 cases were mentioned in the show cause notice but the fact which is not disputed is that petitioner was found involved in the case under Section 506B and other sections of the IPC and Section 3/5 of Explosive Substances Act. Petitioner was involved in two cases during pendency in crime No. 340/2001 and 618/2001. Out of these cases only one case has been noticed by the District Magistrate and as a matter of fact it has been mentioned that criminal case was registered under Section 506 of IP.C, even during the pendency of the externment proceedings at crime No. 340/2001 under Section 147, 148, 149, 294, 506, 353, 332, 336, 427 IPC read with Section 3/5 of the Explosive Substances Act. The order sheet dated 26-6-2001 indicates that this fact was informed to the District Magistrate on behalf of the petitioner himself that he was in the jail in connection with the said offences. Even if this activity of involvement is ignored it has been rightly mentioned in the order as a matter of fact that an event took place during the pendency of the externment proceedings in which petitioner was arrested and fact was to his knowledge and nothing turns on that as there were several other cases which were employed to form an opinion Under Section 5(a) (b) of the Adhiniyam. There is overwhelming evidence to show that petitioner was involved in the activities which were alarming and causing danger and harm to person or property and there were definitely reasonable grounds for the District Magistrate to believe that petitioner was engaged or was 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 IPC or in the abetment of any such offence. There is material on record to support the reason mentioned in the order. Thus, the ingredients of Section 5 are fulfilled in the instant base, independently there is evidence to indicate that movement of the petitioner was causing alarm and damage or harm to person or property as reflected in the statement of Phoolbai, Abdul Rajjak and the various reasons reflected in the order of District Magistrate who has considered the evidence minutely and thereafter had recorded the satisfaction as required under Section 5(a) and 5{b) of the Adhiniyam.
21. The submission that cases Of stale and trivial in nature were taken into consideration, is not acceptable in the facts of this case. No doubt about it that some of the cases which are mentioned in the back-ground may be not of much gravity but in the facts of the case since the criminal activities of the petitioner went on increasing from 1st May, 2000 onwards, the past record of criminal activity assumes significance so as to form an opinion whether order passed against the petitioner has no basis to form an opinion as to criminal tendency. It is said that past is a mirror for the future conduct and in the close vicinity of the initiation of the proceedings in February, 2001 and at the time of issue of show cause notice the activities of the petitioner were still going on, he was indulging in one or the other act. Even if the matter is confined on the date of issue of show cause notice, it can be said that the satisfaction reached by the District Magistrate is based on reasonable apprehensions and petitioner's conduct was such which led the District Magistrate to believe that movements were causing alarm to the inhabitants and danger or harm to person or property and there were reasonable grounds to invoke Section 5(a) & 5(b) of the Adhiniyam.
22. Counsel for the petitioner has relied upon the decision of Delhi High Court in Kalyan Khari v. State (NCT of Delhi) 2002 Cri LJ 176. In that case externment proceedings were initiated against Kalyan Khari, the petitioner, notice under Section 15 was given on 14-7-1999. Externment was directed on 30th October, 2000 for a period of one year. In that case offences which were registered in the year 2000 after issue of notice was not brought to the notice of the petitioner neither confronted during the hearing nor any reply on the same was sought. In the instant case, factum of arrest was brought to notice by petitioner himself. The petitioner was arrested. Even if case in question is ignored there is enough material to support the order.
23. Resultantly, I find no merit in the writ petition. It is dismissed. However, in the facts and circumstances of the case, no order as to costs.