Madhya Pradesh High Court
Sunil vs The State Of Madhya Pradesh on 23 September, 2015
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.10546/2015
Sunil
Vs.
State of M.P. and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Nitin Karan, learned counsel for the petitioner.
Shri A.P. Singh, learned Govt. Advocate for
respondents-State.
________________________________________________________
ORDER
(23.09.2015) The petitioner has called in question the order dated 12.1.2015, passed by the District Magistrate, Sagar, under the provisions of Section 5(b) of the M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as the Act for short), as also the order dated 1.6.2015, passed by the appellate authority, the Commissioner, Sagar Division Sagar, rejecting the appeal of the petitioner, in this petition under Article 226 of the Constitution of India.
2: It is contended by learned counsel for the petitioner that merely because of submitting a report by the Station House Officer, Rahatgarh, District Sagar, indicating certain criminal cases registered against the petitioner and forwarding of the said complaint report 2 by the Superintendent of Police to the District Magistrate, a show cause notice was issued to the petitioner calling his explanation as to why he should not be removed from the area under the provisions of Section 5 of the Act. By filing a reply to the said show cause notice, it was categorically pointed out by the petitioner that he belongs to a religious group and since he is discharging the religious and social duties, some of the miscreants have made the complaint against the petitioner on account of which petty offences were registered against him. However, in none of the cases, the petitioner was convicted as in many of the cases, the petitioner was acquitted. Only because of such malafides of the unsocial elements, the report was made against the petitioner, therefore, he was not to be removed from the area.
3: After receipt of the reply of the petitioner, some sort of enquiry was conducted by the District Magistrate, but without even recording his satisfaction in respect of making out a case under Section 5(b) of the Act, the order has been issued against the petitioner. An appeal was preferred against the said order, but the same has been dismissed by the appellate authority without considering these aspects, therefore, the present writ petition is required to be filed.
4: In response to the writ petition, a return has been filed by the respondents categorically contending that cases were registered against the petitioner and a 3 report was submitted by the Superintendent of Police that the petitioner was continuing in such illegal activities and thus, on account of his involvement in those activities, residents of the area were living in threats. Nobody was coming forward to adduce evidence against the petitioner in criminal cases. It is contended that after enquiry, for the aforesaid reasons, the order impugned was rightly passed. The appeal of the petitioner was rightly considered and since it was found that the order of externment has been issued after due consideration of the pleas raised by the petitioner and the evidence available on record, the same was rightly dismissed. In view of this, it is contended that the order of externment is not liable to be interfered with in these proceedings under Article 226 of the Constitution of India.
5: Heard learned counsel for the parties at length and perused the record.
6: The proceedings under the Act are the externment proceedings to remove a person on account of his involvement in criminal activities. Time and again, this Court has examined such an aspect and has considered that in the given circumstances, on recording of satisfaction by the District Magistrate, he can pass an order of removal of any such person, who is said to have been involved in criminal activities within the area. However, the recording of the satisfaction by the District Magistrate in such a case is essentially important.
47: For the satisfaction of the District Magistrate, which according to law is required to be recorded before passing any such order of removal under Section 5 of the Act, the enquiry is required to be conducted. A Division Bench of this Court while dealing with such aspect in the case of Ashok Kumar Patel Vs. State of M.P. and others [2009(4) MPLJ 434] has categorically held that it is not mere a formality to record the satisfaction, but it is a requirement of law and mere involvement of such a person in the past in any such type of offence would not make out a case for his removal from the area. The findings recorded by the Division Bench in this respect in paragraphs 8, 9, 10 and 11 would be relevant which read 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, there cannot be any reasonable ground for believing that the person is engaged or is about to be engaged in the commission of such offence.
9. We will therefore have to examine the impugned order dated 18.11.2008 passed by 5 the District Magistrate, under section 5(b) of the Act of 1990 to find out whether the petitioner was engaged in the commission of an offence or was about to be engaged in the commission of an offence mentioned in section 5(b) of the Act of 1990, or in the abetment of such offence, which was very close in proximity to 18.11.2008 when the impugned order of externment was passed. The first offence mentioned is alleged to have been committed by the petitioner on 9.4.1995 when the petitioner and his other associates forcibly took possession of 'Mahuwa' of Tilakdhari Tripathi, son of Indramani Tripathi and collected the same, and Crime No.46/95 under Sections 447 and 379 of the Indian Penal Code was registered and the petitioner was arrested and produced before the Court. The second offence is alleged to have been committed by the petitioner on 14.3.2007 when the petitioner is alleged to have written a letter to Shivshankar Tripathi, son of Tilakdhari Tripathi, giving threats regarding construction of new building of Shiksha Guarantee School, and Crime No.42/2007 under Sections 353, 294, 506 read with section 34 of the Indian Penal Code has been registered and a challan has been filed in the Court in Case No.729/2008. The third act which has been mentioned in the impugned order is not an offence alleged to have been committed but a Prohibitory Proceeding No.22/2007 under Sections 107 and 116(3) of the Code of Criminal Procedure instituted against the petitioner on 9.4.2007 and the petitioner has been produced in Court. The fourth offence alleged to have been committed by the petitioner is in July, 2008 when the petitioner along with 6 or 7 others is alleged to have caused hindrance in Government work during the election of Palak Shikshak Sangh and created disturbances in election work and committed 'Marpeet' on the basis of which Crime No.216/2008 for offences under sections 6 253, 294, 323, 325 and 506-B read with section 34 of Indian Penal Code has been registered. In our considered opinion, these offences alleged to have been committed by the petitioner in the years 1995 to 2007, cannot be the foundation of an order under Section 5(b) of the Act of 1990 as the alleged offences have no proximity at all to the order of externment passed on 18.11.2008. Even, the offence alleged to have been committed by the petitioner along with 6 or 7 other persons in July, 2008, cannot constitute a reasonable ground to believe on 18.11.2008 that the petitioner is engaged or is about to be engaged in offence mentioned in section 5(b) of the Act of 1990.
10. The second condition which must be satisfied for passing of an order of externment against a person is that in the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of person or property. Construing a pari materia provision in section 27 of the City of Bombay Police Act, 1902 in Gurbachan Singh Vs. The State of Bombay and another, AIR 1952 SC 221, the Supreme Court observed :-
"The law is certainly an extra-ordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety or the public residing therein."
11. In the instant case, the District Magistrate has in the impugned order only baldly stated that the list of offences registered against the petitioner reflects that he is a daring habitual criminal and because of this there is fear and terror in the public 7 and has not recorded any clear opinion on the basis of materials, that in his opinion witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of their person or property. In most of the cases, Challans have been filed by the Police in Court obviously after examination of the witnesses under section 161 of Criminal Procedure Code and the cases are pending in the Court. There is no reference in the order of District Magistrate that witnesses named in the Challans filed by the Police are not coming forward to give evidence against the petitioner in Court. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reason of apprehension to danger to their person or property to give evidence against the petitioner in respect of the alleged offences, an order under section 5(b) of the Act of 1990 cannot be passed by the District Magistrate by merely repeating the language of section 5(b) of the Act of 1990."
8: These requirements of law indicate that a definite opinion is to be recorded only after extending a full opportunity of hearing to the person concerned against whom action under Section 5 of the Act is required to be taken. Nothing is found in the order passed by the District Magistrate in this respect as to how he could record his satisfaction regarding making out a case to take action against the petitioner under Section 5 of the Act. If a person was not given an opportunity of explaining any fact and if that fact is brought to the notice of the competent authority, at a later stage, only on the basis of that fact, the order of externment that too without granting an opportunity of hearing or 8 explaining such facts to the person concerned cannot be passed. From perusal of the show cause notice itself, it is clear that allegation relating to continuance of the criminal activities of the petitioner were not effectively made. It was not alleged that the petitioner was in fact behaving in such criminal manner that a threat was created in the mind of the witnesses about the dire consequence in case they come forward to adduce evidence against the petitioner in the Courts of law. In absence of such a reason and compliance of the Rules and the law, the order of externment was not to be passed against the petitioner. The show cause notice issued to the petitioner itself was faulty and any proceeding done on the basis of such show cause notice and consequential order passed on those proceeding cannot be given a stamp of approval by this Court.
9: Resultantly, the writ petition is allowed. The impugned order dated 12.1.2015 and the order passed in appeal of the petitioner on 1.6.2015 both stand quashed.
10 : The writ petition stands allowed to the extent indicated herein above. However, there shall be no order as to costs.
(K.K. TRIVEDI) Judge A.Praj.
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