Madhya Pradesh High Court
Shaikh Saleem vs Principal Controller Of Defence ... on 7 September, 2011
WP 7019.11
Writ Petition No. 7019 of 2011
07-09-2011
Shri Z. M. Shah, learned counsel for the petitioner.
Shri Piyush Dharmadhikari, learned Govt. Advocate
for the respondents/State.
With consent of the learned counsel for the parties, matter is heard finally.
This petition under Article 226 of the Constitution of India is directed against the order dated 13-04-2011 as also the order dated 08-02-2011.
By order dated 08-02-2011, District Magistrate, Khandwa in exercise of his powers under section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (referred to as 'Adhiniyam, 1990') has externed the petitioner from district Khandwa and the adjoining districts of Burhanpur, Khargone, Dewas, Betul, Harda and Indore for a period of one year. Whereas, by order dated 13-04-2011, an appeal preferred by the petitioner under section 9 of Adhiniyam, 1990 has been dismissed by Commissioner, Indore Division, Indore.
Proceeding against the petitioner under Adhiniyam, 1990 was initiated on the basis of report from Superintendent of Police, Khandwa on 16-09-2010 that, the petitioner has indulged in the criminal activities which are not conducive to peace and security and there is always apprehension of breach of peace and public order.
WP 7019.11 Show cause notice under section 8 (1) of the Adhiniyam, 1990 was issued to the petitioner calling upon him as to why he be not externed from Khandwa and adjoining districts because of the likelihood of breach of peace and tranquility because of the criminal cases registered against the petitioner under different sections of the Indian Penal Code. Vide Crime No. 171/10 offence under section 147, 323, 336, 427, 452, 506 I.P.C.; whereas, vide Crime No. 173/10 an offence under section 307147, 148, 149, 323, 324 I.P.C. was registered. Besides, there were 4 Istgasa against the petitioner under section 107, 116 (3) Cr.P.C. 1973, and a report dated 09-09-2010. These cases cumulatively led the District Magistrate to record the satisfaction that petitioner's stay at Khandwa and adjacent districts would definitely cause breach to public peace and order. Accordingly, the order of externment was passed which was affirmed by the Appellate Authority.
Petitioner challenges the orders on the ground that though the conditions precedent required to be satisfied for an action under section 5 of the Adhiniyam having not been fulfilled, yet an order of externment is passed. It is urged that the petitioner is an Assistant Teacher appointed since 29-07-1998 and has been falsely implicated for the said offences for which he has no nexus as the petitioner hails from an affluent family and his wife and mother are Panch of the Village Panchayat. It is urged WP 7019.11 that it is only on the basis of incident which led to lodging of false prosecution against the petitioner, that the proceeding under the Adhiniyam has been initiated and externment order is passed. It is contended that even the evidence led before the District Magistrate is by the rival group. It is contended that though there is no likelihood of breach of peace and tranquility yet the petitioner has been inflicted with the order of externment.
Learned Govt. Advocate on his turn supports the order of externment as well the appellate order. It is contended that the impugned order does not warrant any interference. It is urged that reasonable grounds are 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 witnesses 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.
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 property; or
(b) that there are reasonable grounds for WP 7019.11 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 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 WP 7019.11 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 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 WP 7019.11 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.
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 Adhiniyam, 1990, it is not WP 7019.11 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 security. 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. The District Magistrate has basically relied upon the incident which took place on 10-11/07/2010 at village Mundwara and has recorded his satisfaction that there is a real likelihood of the petitioner having engaged in the commission of an offence involve force of violence. The said opinion formulated by the District Magistrate is conclusive in nature whereas offence registered in respect of the same incident is still pending adjudication and does not born out from the record that any charges in respect of offence registered against the petitioner has been framed. Thus the reasonable ground does not exist as would lead the District Magistrate to draw an inference as per clause (b) of Section 5 of the Adhiniyam, 1990. In view whereof the externment deserves to be and is hereby quashed.
The petition is allowed to the extent above. However, no costs.
(SANJAY YADAV) JUDGE sc WP 7019.11 WP 7019.11