Madhya Pradesh High Court
Bindheshwari Patel vs The State Of Madhya Pradesh on 8 February, 2018
HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Petition No.18941/2017
Vindheshwari Patel
-Versus-
State of M.P. & others
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Single Bench: Hon'ble Shri Justice Vijay Kumar Shukla
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Shri Sharad Gupta, Advocate for the petitioner.
Shri Shivendra Pandey, Govt. Advocate for the State.
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Whether approved for Yes.
reporting ?
Law laid down
Significant paragraph Nos.
JUDGMENT
( Jabalpur, dt.08.02.2018) In the instant petition filed under Article 226 of the Constitution of India the legality and validity of the order of externment passed by the District Magistrate, Katni dated 04-01- 2016 under the provisions of Section 5(a) and (b) of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 [hereinafter referred to as `the Act 1990'] and also the order passed by the Divisional Commissioner, Jabalpur, respondent No.4 rejecting the appeal preferred by the petitioner.
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2. The factual expose' adumbrated in a nutshell are that the Superintendent of Police, Katni submitted a report dated 29-01-2017 against the petitioner along with a list of 27 criminal cases registered against him, for initiation of externment proceeding under the provisions of Act 1990. A notice was issued to the petitioner of which he filed his reply stating that on the basis of the same list of cases registered against him, earlier also proceedings for externment was initiated vide Case No.7/SSA/2015. In the said case the District Magistrate passed an order on 4-01-2016 and had ordered the petitioner to be externed from District Katni and its contiguous districts for a period of one month. It is also submitted that out of 20 cases, the petitioner has been acquitted in 14 cases and 5 cases are pending. In some cases fine has been imposed. It is further submitted that the proceedings under the Act 1990 are being initiated against the petitioner repeatedly at the instance of political persons.
3. It is further contended that the petitioner is District President of the Lok Tantrik Party and, therefore, in order to prevent him from participating in the meeting, an adroit attempt has been made to harm the petitioner. Learned counsel appearing for the petitioner also submitted that the Superintendent of Police, Katani has again submitted a report dated 29-10-2017 along with list of 3 cases out of which 26 cases are common in the list which was submitted in the year 2015 and thereafter only one offence under Section 151 of the Cr.P.C. has been instituted against him. It is assiduously urged by him that the order of externment has been in contrary to the provision envisaged under Section 5(a) and (b) of the Act 1990 and also runs counter to the judgment passed by this Court in Jahangeer Alvi vs. State of M.P. and others, 2017(3) MPLJ 667 and also Ashok Kumar Patel vs. State of M.P. & others, 2009(4) MPLJ 434.
4. Per contra, counsel for the State submitted that the impugned order has been passed taking into consideration the report of the Superintendent of Police. The petitioner was served a show cause notice and the District Magistrate has passed the order of externment after recording his satisfaction in accordance with law.
5. Before adverting to the contentions of the counsel for the petitioner as discussed earlier and examining them on the anvil of the law prevailing in the field of externment, it is apt to refer the provisions of the Adhiniyam, 1990. Section 5 of the Act under which the order of externment has been passed is quoted hereinbelow:-
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"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 i s a b o u t t o b e e n g a g e d i n t h e 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 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."
6. 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 5 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
(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.
7. At this stage, I think it condign to survey the authorities on the legal issues canvassed on behalf of the petitioner.
8. 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."6
9. In the case of Ramgopal Raghuvanshi 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 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.
10. In the case of Sanju @ Sanjay Ben Vs. State of M.P. and others, 2005 (4) MPHT 102 while considering the provisions of the Adhiniyam, 1990, the court held that the provision is not punitive in its nature and a person cannot be externed for his past acts. Although past activities of a person may afford a guide as to his behaviour in future, they must be reviewed in the context of the time when the order is proposed to be made. The past activities must be related to the situation existing at the moment when the order is to 7 be passed. In the present case from the facts it is noted that the same cases were being repeatedly considered by the authority and on earlier occasions, he found that the same material cannot formed a basis for passing an order of externment but by the impugned order is passed on the basis of most of the same cases which are old and stale which has already been held by this Court in number of cases as discussed above that the old and stale activities cannot be grounds of externment.
11. In the light of the aforesaid authoritative pronouncement of judgments, the contentions of the petitioner have to be examined on the anvil of facts of the present case and the law as discussed above.
12. The respondent No.2, District Magistrate, Katni has referred list of criminal cases registered against the petitioner as under :
Sr. Crime Number/Offence Date of incident No.
01. Crime No.419/92 under sections 8-8-1992 353, 332 and 294 IPC.
02. Crime No.670/92 under section 11-11-1992 25 Arms Act.
03. Crime No.62/93 under sections 04-02-1993 25 and 27 of the Arms Act, 1959.8
04. Crime No.262/94 under sections 25-5-1994 324 and 506/34 IPC.
05. Crime No.353/94 under sections 11-6-1994 399 and 402 IPC and under sections 25 and 27 of the Arms Act.
06. Crime No.421/95 under sections 24-6-1995 341, 147 and 149 of IPC.
07. Crime No.824/95 under sections 22-11-1995 354, 506-II and 323/34 of IPC and under Section 3(1)(xi) of the Scheduled Castes and Scheduled (Prevention of Atrocities) Act, 1989.
08. Crime No.158/98 under section 27-03-1998 4(a) of Gambling Act.
09. Crime No.543/98 under sections 25-9-1998 147, 341, 294 and 506 of the IPC.
10. Crime No.997/2002 under 23-12-2002 sections 341, 147 and 506 of IPC.
11. Crime No.587/2004 under 29-9-2004 section 309/34 of the IPC
12. Crime No.656/2004 under 21-10-2004 sections 325/34 of IPC.
13. Crime No.510/2005 under 24-8-2005.
sections 323, 294, 506-II/34 of the IPC.
14. Crime No.703/2005 under 19-11-2005 sections 341, 147, 353, 332 and 186 of the IPC.
15. Crime No.355/2006 under 19-6-2006 sections 341, 294, 506, 327, 323 of IPC.
16. Crime No.80/2008 under 02-02-2008 sections 294, 323 and 5406/34 of IPC
17. Crime No.371/2009 under 10-6-2009 sections 341 and 147 of the IPC.
18. Crime No.349/10 under sections 21-12-2010 147, 149, 307, 353, 186 and 188 of IPC.
19. Crime No.340/13 under sections 13-4-2013 294, 323 and 506/34 of the IPC.
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20. Crime No.368/2006 under 29-11-2006 sections 420, 467, 471 and 474/34 of IPC.
21. Crime No.140/2010 under 06-05-2010 sections 294, 323 and 506/34 of the IPC.
22. Crime No.166/2006 under 12-9-2006 sections 341/34 of the IPC.
23. Crime No.466/2008 under 29-9-2008 sections 353, 294 and 506/34 of the IPC.
24. Crime No.349/2010 under 21-12-2010 sections 147, 149, 307, 353, 186 and 188 of the IPC.
25. Crime No.209/2011 under 19-9-2011 sections 147, 451, 294, 506 and 427 of the IPC.
26. Crime No.262/92 under sections 15-11-2012 147, 249, 297, 323, 294 and 506 of the IPC.
27. Crime No.201/2015 under 31-5-2015 sections 294, 323, 427 and 506/34 of the IPC.
28. Instgasa No.05/17 under section 12-01-2017 151 of the CrPC.
29. Crime No. / under sections 23-03-2017 294, 323 and 506 of the IPC.
13. From the aforesaid table it is clear that the cases mentioned from Sr. No.1 to 26 were already a part of the previous proceedings of externment against the petitioner. Thereafter, one case under Section 151 of the Cr.P.C. was registered on 12-01-2017
14. In the present case we do not find any case within the close proximity of the date of the order impugned and, therefore, if a person was engaged in commission of the offence or in abetment of 10 offence of type mentioned under Section 5(b) of the Act 1990 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.
15. This Court in the cases of Meena Sonkar vs. State of M.P. and others, 2017(2) MPLJ 565; Anek alias Anil Nageshwar vs. State of Madhya Pradesh & four others [W.P. No.9297/2017, decided on 8-8-2017]; and also in the case of Istfaq Mohammad vs. State of M.P. and others, [W.P. No.22357/2017, decided on 25- 01-2018] held as under:
"The second requirement is also necessitated to pass an order of externment that on account of the activities of a person, who is externed, the witnesses amongst public are not coming forth to depose in the criminal cases against him either under apprehension of person or property. But in the order impugned existence of such material is not on record, more so, no such finding has been recorded by the competent authority to record satisfaction. Therefore, the order impugned do not fulfill the second requirement of Section 5(b) of the Adhiniyam."
16. 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 right of freedom of a person is involved. The order passed by the appellate Authority is nothing but 11 repetition of the order passed by the District Magistrate without any application of mind.
17. In the aforesaid circumstances, the impugned order of externment and affirmation thereof in the appeal are unsustainable having been found in violation of the requirements of the Act 1990 and the judgments passed by this Court which have been noted hereinbefore.
18. Accordingly, the writ petition is allowed. The impugned orders dated 19-6-2017 (Annexure-P/3) and 18-10-2017 (Annexure-P/4) are quashed. No order as to costs.
(Vijay Kumar Shukla) Judge ac.
Digitally signed by AJAY KUMAR CHATURVEDI Date: 2018.02.09 19:06:31 +05'30'