Madhya Pradesh High Court
Banti @ Amit Rai vs The State Of Madhya Pradesh on 17 May, 2017
1
W. P. No.2242/2017
W. P. No.2242/2017
17.05.2017
Shri P. C. Paliwal, learned counsel for the
petitioner.
Ms. D. K. Bohre, learned Government Advocate
for the respondent State.
With consent of learned counsel for the parties, the matter is finally heard.
This petition under Article 226 of the Constitution of India is directed against the order dated 18.01.2017 passed by the Commissioner, Jabalpur, Division Jabalpur; whereby, an order of externment of the petitioner by the District Magistrate Katni, has been affirmed.
Proceedings against the petitioner under Madhya Pradesh Rajya Suraksha Adhiniyam 1990, (hereinafter referred to as Adhiniyam 1990) was initiated by District Magistrate on the basis of the report from Superintendent of Police, Katni, vide his letter No. ^^iq-v- @dVuh@jhMj@ftyk cnj@15@2015 dated 20.10.2015 that the petitioner has indulged in criminal activity since 2 W. P. No.2242/2017 1988 which are not conducive to peace and serenity and there is always apprehension of breach of peace and public order.
Show cause notice was issued vide preliminary order dated 27.07.2016 purportedly under Section 5 of Adhiniyam 1990, on the finding that 9 cases of which 3 cases were in respect of Forest Offence under Section 41 of the Indian Forest Act, 1927, and under Section 5 (1), 15, 16 of Madhya Pradesh Van Upaj Vyapar Viniyaman Adhiniyam, 1969. 5 cases were under various provisions of Indian Penal Code viz., under Section 147, 149, 323, 324, 365, 330, 120B vide Crime No.8/2010 under Section 354 , 456, 34 vide Crime No.154/2011; under Section 294, 323, 506 vide Crime No.37/11; under Section 324, 307 vide Crime No.466/2014 under Section 294, 323, 506, 327, 34 vide Crime No.134/2014. And the ninth case reported were the complaint cases under Section 107, 110, and 116 of the Code of Criminal Procedure 1973 between 2010 to 2015.
Responding to said preliminary order and the 3 W. P. No.2242/2017 show cause notice, petitioner filed his reply on 3.11.2016. It was stated that out of cases in 7 cases the petitioner is acquitted whereas in remaining case of Crime No.134/2014 the matter is being compromised. It was stated that he has been victimized because of political clout.
The District Magistrate while not disputing that the cases registered vide Crime No.154/11, 37/11, 466/2014 , 134/204 and the Istagasa 41/11, 262/2014 and 42/2015 had been compromised, yet externed him from District Katni and the District of Jabalpur Satna, Damoh Panna and Umariya for a period of one year by order dated 09.11.2016 on the finding that because of the registration of cases against the petitioner under various provisions of the Indian Penal Code, his presence in these 6 district will not be congenial to public peace and order. An Appeal preferred by the petitioner has been dismissed by the impugned order.
Petitioner challenges the orders on the ground that though the condition precedent required to be 4 W. P. No.2242/2017 satisfied for an action under Section 5 of Ahinityam 1990 has not been fulfilled, yet the petitioner has been subjected to externment. It is urged that maximum number of cases having ended into an acquittal goes to establish that the petitioner has been falsely implicated. It is urged that no satisfactory evidence has been led before the District Magistrate as could establish even a prima facie case against the petitioner. It is contended that even an opportunity of hearing has not been given. To substantiate the contention that the opportunity of hearing has not been given to the petitioner reliance is placed on the order sheets recorded before the District Magistrate brought on record vide rejoinder. It is contended that the preliminary order cum show cause notice was issued on 27.10.2016. Petitioner filed his reply on 03.11.2016.
It is urged that without affording any opportunity to lead evidence the matter was closed on 03.11.2016. It is urged that entire proceedings was only an eyewash. It is contended that though there is no likelihood of breach of public peace and order yet 5 W. P. No.2242/2017 the petitioner has been subjected to externment from six districts.
Learned Govt. Advocate on her turn supports the order of externment as well as the Appellate order. It is contended that, the impugned order does not warrant any interference. It is urged that reasonable grounds were available for believing that the petitioner was engaged in commission of an offence involving force and violence and that there exists the likelihood that the witness will not come forward to record evidence against the petitioner in the pending criminal case. It is contended that order of externment being in public interest does not warrant any interference.
Considered the rival submissions.
Section 5 of the Adhiniyam, 1990 whereunder action is taken stipulates :
"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 6 W. P. No.2242/2017 property; or
(b) that there are reasonable grounds for believing that such 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 he Indian Penal Code, 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 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 7 W. P. No.2242/2017 district or part thereof or such area and such contiguous district, or part thereof, as the case may be, from which he was directed to remove himself."
A Division Bench of this Court in Ashok Kumar Patel vs. State of M. P. and others : 2009 (4) M.P.L.J. 434, while dwelling upon the aspect of the said provisions opined :
"6. A plain reading of section 5(b) of the Act of 1990 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 he Indian Penal Code, 1860 or in the abetment of any such offence; and
(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.
8. The expression "is engaged or is about to be engaged" in the commission of offence 8 W. P. No.2242/2017 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.
13. The Act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and the fundamental right personal liberty under Article 21 of the Constitution and unless he conditions mentioned under section 5 (b) of the Act of 1990 are strictly satisfied, an order of externment, will have to be quashed by the Court. While considering a case under section 56 of the Bombay Police Act, which also empowered the police to pass an order of externment, the Supreme Court observed in Pandharinath Shridhar Rangnekar vs. Dy. 9 W. P. No.2242/2017
Commissioner of Police, State of Maharashtra (supra) as under :"It is true that the provisions of section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society. This Court in Gurbachan Singh vs. The State of Bombay, 1952 SCR 737 = AIR 1952 SC 221 had upheld the validity of section 27(1) of he City of Bombay Police Act, 1902, which corresponds to section 56 of the Act. Following that decision, the challenge to the constitutionality of section 56 was repelled in 1956 SCR 533 = AIR 1956 SC 585. We will only add that care must be taken to ensure that the terms of sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee."
Thus, it is to be seen whether the condition precedent is satisfied in the case at hand, when admittedly only an incident leading to registration of an offence is being relied upon by the District Magistrate in passing the order of externment. True it is that an offender always have a ready defence of being falsely implicated and they always abjure the guilt. But for the action under section 5 of the 10 W. P. No.2242/2017 Adhiniyam, 1990, it is not only the implication of an offence which should alone be the guiding factor, but some more in degree which would lead to real likelihood of breach of peace and serenity. The facts of the present case does not attract the fulfillment of condition precedents for an exercise of powers under section 5 of Adhiniyam, 1990.
In the case at hand the District Magistrate while not disputing the fact that out of 9 cases, 3 cases were under Forest Act, and out of remaining 6 cases, 5 cases ended in acquittal. Furthermore, no cases under IPC is reported to have been registered after 2014, yet an inference is drawn that the cases are registered in 2016 which is factually incorrect. Thus, there does not exist any cause as would give rise to of real likelihood of the petitioner engaging in commission of an offence invoking force or violence. The reasonable ground which imperatively should exist for an incumbent to be externed, being not present the impugned order of externment cannot be given the stamp of approval. Even the Appellate Authority has glossed over these 11 W. P. No.2242/2017 aspects; therefore, even the Appellate Order is not sustainable in the eyes of law. Consequently, the impugned order dated 18.01.2017 (Annexure P/1) and 08.11.2016 (Annexure P/2) are set aside.
Petition is allowed to the extent above. No costs.
(SANJAY YADAV) JUDGE Loretta/das