Madhya Pradesh High Court
Ballu @ Hari Bhan Singh vs The State Of Madhya Pradesh on 24 July, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 24th of JULY 2023
WRIT PETITION No.3090 of 2023
BETWEEN:-
BALLU @ HARI BHAN SINGH S/O SHRI JAGDISH SINGH,
AGED ABOUT 46 YEARS, OCCUPATION PETI
CONTRACTOR IN A LIQUOR SHOP, R/O VILLAGE
JUJAWAL, POLICE STATION SALEEMANABAD, DISTRICT
KATNI, MP.
.....PETITIONER
(BY SHRI ASHOK KUMAR TIWARI - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH THE
PRINCIPAL SECRETARY, HOME DEPARTMENT,
VALLABH BHAWAN, BHOPAL, MP.
2. COMMISSIONER, JABALPUR DIVISION,
JABALPUR, MP.
3. DISTRICT MAGISTRATE, DISTRICT KATNI, MP.
4. SUPERINTENDENT OF POLICE, DISTRICT
KANTI, MP.
......RESPONDENTS
(RESPONDENTS/STATE BY SHRI L.A.S. BAGHEL - GOVERNMENT
ADVOCATE)
..............................................................................................................................................................................
This petition coming on for admission this day, the court
passed the following :
ORDER
Since pleadings are complete and learned counsel for the parties are ready to argue the matter, therefore, it is heard finally.
22. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is challenging the legality, validity and propriety of order dated 30.12.2022 (Annexure-P/1) passed by the Commissioner, Jabalpur Division, Jabalpur (respondent No.2), whereby the appeal preferred by the appellant/petitioner under Section 9 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (in short the 'Adhiniyam, 1990') against the order dated 13.09.2022 (Annexure-P/3) passed by the District Magistrate, District Katni (respondent No.3) under Section 5(a)(b) of the Adhiniyam, 1990, restraining the petitioner to enter into the revenue boundaries of District Katni and other adjoining districts of Katni for a period of one year, has been dismissed by the Commissioner affirming the order of the District Magistrate.
3. Learned counsel for the petitioner has contended that orders passed by the respondents are liable to be set aside mainly on the ground that respondent No.3 has exercised the powers provided under Section 5(b) of the Adhiniyam, 1990 arbitrarily without application of mind. It is also contended that the requirement of Section 5 of the Adhiniyam, 1990 is not fulfilled as the required ingredient of Section 5(b) of the Adhiniyam, 1990 is missing despite that the order of externment has been passed whereas under the existing circumstances, respondent No.3 could not have exercised the powers provided under Section 5 of the Adhiniyam, 1990. That apart, he has also submitted that on earlier occasion, the Superintendent of Police, Katni vide letter dated 19.03.2019, after giving description of cases registered against petitioner had requested respondent No.3 to exercise the powers provided under Section 5 of the Adhiniyam, 1990 and pass an order of externment against the petitioner and thereafter, though respondent No.3 in a case registered against the petitioner initiated 3 proceeding under the provisions of the Adhiniyam, 1990 and also considered the fact that last offence was registered against him in the year 2019, but refused to exercise the powers provided under Section 5 of the Adhiniyam, 1990 against the petitioner holding therein that sufficient material was not placed before him. However, respondent No.3 exercising the powers provided under Section 3(a) of the Adhiniaym, 1990 had directed the petitioner to appear before the Police Station Saleemnabad in every fortnight for a period of one year. According to learned counsel for the petitioner when almost on the same offences, respondent No.3 refused to exercise the power of externment against the petitioner vide order dated 25.11.2019 (Annexure-P/4), then there was no reason with respondent No.3 for exercising the said power that too within a short period of passing the earlier order. According to him, the last offence registered against the petitioner was not in the close proximity of the date of exercising the powers and even the mandatory requirement for recording the statement of the witnesses, who were witnesses in the offence registered against the petitioner and not coming forward to get their statement recorded due to fear and terror of the petitioner, has not been followed and as such, as per learned counsel for the petitioner, the order of externment is not sustainable in the eyes of law. In support of his contention, he has placed reliance upon an order passed on 31.05.2021 in Writ Petition No.18600/2020 [Rajjan Yadav Vs. The State of M.P. and others].
4. On the other hand, learned Government Advocate has opposed the submissions advanced by learned counsel for the petitioner and submitted that looking to long criminal history of the petitioner and the cases registered against him, it is sufficient to ascertain that respondent No.3 has rightly exercised the powers provided under Section 5 of the 4 Adhiniyam, 1990 which has been approved by respondent No.2. According to learned Government Advocate in the existing circumstances, no interference in the impugned orders are called for. He has submitted that the petition is without any substances and deserves dismissal.
5. I have heard the arguments advanced by learned counsel for the parties and perused the record of externment proceeding produced by the respondents.
6. On perusal of order dated 25.11.2019 passed by respondent No.3, it is clear that respondent No.3 had taken note of the last offence registered against the petitioner which was registered against him in the year 2019 whereas in the present circumstances, respondent No.3 has taken note of the offence registered against the petitioner till 2022. However, as per the list of offences registered against the petitioner, the last offence was registered against him vide Crime No.243/2022 under Sections 294, 323, 427, 506 and 34 of the Indian Penal Code as the incident occurred on 07.05.2022. Not only this, respondent No.3 has also observed that even after directing the petitioner to appear before the police station in every fortnight, he did not follow the said order and also committed offence thereafter, but from the record of externment proceeding, it is clear that respondent No.3 has not followed the requirement of Section 5 of the Adhiniyam, 1990 especially Section 5(b) which reads as under:-
"5(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the 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 5 reason of apprehension on their part as regards the safety of their person or property."
7. This Court in an identical situation in Writ Petition No.20115 of 2018 [Vicky @ Imran Vs. State of M.P. and others] after considering various judgments has observed as under:-
"7. Although, in the recommendation made by the respondent No.3, the District Magistrate, Burhanpur, was informed that there is a terror created by the petitioner among the residents of the district and because of the same, the witnesses are not coming forward to give evidence against the petitioner. Even in the order of the District Magistrate, nowhere it is disclosed that as to how and on what basis the authority has drawn an inference that due to terror of the petitioner, witnesses are not coming in the Court to record their statement. The proceedings initiated by the authorities do not disclose that any of the witnesses has been recorded before the authority and has disclosed this fact that he is not coming to the Court to record his statement against the petitioner as he has been terrorized by him. It does make it clear that such an observation of the authority was without foundation. Although, it is mandatory for the authority to form an objective satisfaction by fulfilling all the requirement of Section 5(b) of the Adhiniyam, 1990.
8. This Court in a case reported in 2004 (4) MPLJ 234 parties being Kala Vs. State of M.P. and another, which was subsequently followed in W.P. No.25908/2018 parties being Rohit Patel Vs. State of M.P. and others, laid down that compliance of requirement of Section 5(b) of the Adhiniyam, 1990 is a mandatory requirement and as such importance of such compliance has also been shown in the order passed by this Court. The relevant portion 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 6 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 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."
9. 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.3 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." In the present case not only the reply but from the record, it is not clear as to whether, respondent No.3 has ever called any of the witnesses who are witnesses of cases registered against the petitioner or it has come that they are not appearing before the Court for recording their statement because of 7 fear and terror of the petitioner and as such, in my opinion, the order passed by respondent No.3 does not fulfil the requirement of Section 5(b) of the Adhiniyam, 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 impugned orders, 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 fulfilled the requirement of such a mandatory provision. Thus, considering the above aspect, in my opinion, the order of externment of the petitioner passed on 13.09.2022 (Annexure-P/3) by respondent No.3/District Magistrate, District Katni relying upon the report of the Superintendent of Police, Katni, is without application of mind and also without recording the proper satisfaction of Section 5(b) of the Adhiniyam, 1990 and as such, the same is not sustainable in the eyes of law and is hereby set aside.
8. Resultantly, the order passed by appellate authority i.e. respondent No.2/Commissioner, Jabalpur Division, Jabalpur on 30.12.2022 (Annexure-P/1) is also liable to be set aside and as such, it is hereby set aside.
9. Ex consequentia, the petition filed by the petitioners stands allowed.
(SANJAY DWIVEDI) JUDGE Devashish DEVASHISH MISHRA 2023.07.28 18:24:20 +05'30'