Madhya Pradesh High Court
Rohit Patel vs The State Of Madhya Pradesh on 21 December, 2018
1
W. P. No.25908/ 2018
HIGH COURT OF MADHYA PRADESH
W. P. No.25908/ 2018
(Rohit Patel Vs. State of M.P. & Others)
JABALPUR; Dated: 21.12.2018
Shri Shailendra Verma, learned counsel for the
petitioner.
Shri Sudeep Deb, learned Government Advocate for
the respondents/State.
As per the direction given by this Court on 02.11.2018, the record of the case from the office of the District Magistrate is received but no reply has been filed. However, considering the issue involved in the case and availability of the record of the case, the matter is heard finally.
By the instant petition, the petitioner is seeking quashment of the order dated 14.05.2018 (Annexure- P-
3) passed by respondent No.3 exercising the powers provided under Section 5 of the Madhya Pradesh Rajya Surakshta Adhiniyam, 1990 (hereinafter referred to as the 'Adhiniyam, 1990) directed the externment of the petitioner. Thereafter, an appeal was preferred before respondent No.2 which was also dismissed vide order dated 17.10.2018 (Annexure-P-2).
It is averred by the petitioner that the orders passed by respondent No.3 as well as respondent No.2 are liable to be set aside as there are petty offences registered against the petitioner and respondent No.4 has made unreasonable recommendation before the respondent 2 W. P. No.25908/ 2018 No.2 for exercising the powers enshrined in Section 5 of the Adhiniyam, 1990 and to pass the order of the externment against the petitioner.
As per the recommendation made by respondent No.4, it is shown that there were 7 cases registered against the petitioner and all of them relate to petty offences. A show-cause notice was issued to the petitioner on 03.01.2018 asking him to submit reply. He submitted a reply to the show-cause notice stating therein that out of 7 cases, 3 related to the Excise Act, in which, fine has been imposed upon the petitioner and one case i.e. registered vide Crime No.766/2014, in which, the petitioner has been acquitted. It is also stated in the reply that the other cases, in which, there are other accused persons, those cases are pending in the Court and nothing has been done so far, therefore, it does not appear to be proper to allege against the petitioner that because of his threat and terror, witnesses are not coming-forward for giving their evidence against him.
The District Magistrate taking note of the report of the respondent No.4, has passed the order of the externment dated 14.05.2018 restricting the petitioner to enter into Narsinghpur District and its surrounding districts for a period of one year.
From perusal of the order passed by the District Magistrate, it reflects that the authority has taken note of the report of respondent no.4, but not recorded any objective satisfaction of requirement of Section 5(b) of the Adhiniyam, 1990.
3 W. P. No.25908/ 2018The petitioner has contended that there is no compliance of mandatory requirement of Section 5(b) of the Adhiniyam, 1990 and on the basis of the same he has sought quashment relying upon a decision reported in 2004(4) MPLJ 234 parties being Kala Vs. State of M.P. and another, in which, the Hon'ble Court has considered the importance of compliance of Section 5(b) of the Adhiniyam, 1990 and the same is being reproduced hereinbelow:-
"8. It is necessary under section 5(b) that if a person is involved in an offence punishable under Chapter XII, XVI or XVII or under section 506 and 509 of the Indian Penal Code or in the abetment of any such offence, or is about to be engaged in such an offence, an action of externment can be taken. However, condition precedent is that the opinion has to be formed by the District Magistrate as "witnessess are not willing; to come forward to give evidence and proceed against such person by reason of apprehension on their part as regard to safety of their 'person or property'. In order (P/1), Addl. District Magistrate has mentioned that the persons are not lodging report and have the apprehension of safety on giving evidence against petitioner in the Court. But, the name of even single witness who has been given threat or who has apprehension of appearing in the Court due to fear of the petitioner, has not been referred to in the order. On specific query being made as to name of the witness, who has stated that he has apprehension of petitioner in deposing in the Court or in public, it has fairly been stated by the respondents counsel that there is nothing on record to suggest the name. Thus, in my opinion, satisfaction which has been recorded under section 5(b) by the Addl. District Magistrate lacks objective consideration of the matter. Thus, the order of externment based on section 5(b) has no legs to stand. Moreso, in view of the fact that the cases are of the year 2003 and it is not the case set up that any of the case has reached the evidence stage in the trial Court, thus, I find force in the submission raised by Shri H.S. Ruprah, learned Senior Counsel appearing for the petitioner that is criminal cases the stage of evidence has not yet reached, it is 'premature' to infer that any of the witness 4 W. P. No.25908/ 2018 has any apprehension in deposing in public against the petitioner or has any kind of apprehension of person or property, thus, I find that the order of externment based on section 5(b) is liable to be quashed as essential ingredient to attract same does not exist in the instant case."
As per the order passed by the Hon'ble Court considering the mandatory requirement of condition prescribed under Section 5(b) of the Adhiniyam, 1990, it is clear that in the present case even the District Magistrate has not shown name of any of the witnesses who has been called to give statement against the petitioner but due to threat and terror of the petitioner he is not coming forward to record his statement. It is also clear that even the District Magistrate in its whole order not required to show satisfactory condition mentioned under Section 5(b) of the Adhiniyam, 1990. Merely because, in the report of respondent No.4 it is shown, but that could not be the basis for recording objective satisfaction by the District Magistrate even without recording any statement of any of the witnesses who has stated that on account of the threat and terror of the petitioner, he is hesitating to come to the Court for recording his statement.
I have also perused the record submitted by the Government Advocate, but even in the record nothing is found to substantiate as to on what basis the District Magistrate proceeded in the matter relying upon the recommendation made by respondent No.4 against the petitioner. In my opinion, in absence of fulfilling the second requirement of Section 5(b) of the Adhiniyam, 5 W. P. No.25908/ 2018 1990, which necessitated to pass an order of externment considering the activities of person, who is externee, the witnesses among public are not coming Court to depose in the criminal cases against him even under apprehension of person or property. But in the order impugned, if such a requirement and material to substantiate such requirement does not exist the finding recorded by the competent authority to reach the satisfaction cannot be considered to be fulfilling of requirement of such a mandatory provision. Thus, considering the above aspect, in my opinion, the order of externment of the petitioner dated 14.05.2018 (Annexure-P-3) passed by the respondent No.3/District Magistrate relying upon the report of respondent No.4/Superintendent of the Police, Narsinghpur, is without application of mind and without recording the proper satisfaction of Section 5(b) of the Adhiniyam, 1990 and thus is not sustainable and is hereby set aside.
Resultantly, the order passed by the appellate authority i.e. the respondent No.2/Commissioner, Jabalpur Division, Jabalpur, dated 17.10.2018 (Annexure- P-5) is also liable to be set aside and the same is hereby set aside.
Accordingly, this petition succeeds and is hereby allowed.
Parties shall bear their own costs.
(SANJAY DWIVEDI) JUDGE ac/-
Digitally signed by ANIL CHOUDHARYDate: 2018.12.21 17:08:17 +05'30'