Madhya Pradesh High Court
Nihore @ Nihorwa @ Ahmed Ali Musalman vs The State Of Madhya Pradesh on 11 January, 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 THT 11TH OF JANUARY, 2023
WRIT PETITION NO. 24158 OF 2022
BETWEEN:-
NIHORE @ NIHORWA @ AHMED ALI
MUSALMAN, S/O JALEELALI MUSALMAN,
AGED ABOUT 57 YEARS, OCCUPATION-
GROCERY STORE, R/O VILLAGE PATEHARA, P.S.
ATRAILA, DISTRICT REWA (M.P.).
......PETITIONER
(BY SHRI SANJEEV KUMAR MISHRA- ADVOCATE)
AND
1. STATE OF MADHYA PRADESH, THROUGH
SECRETARY, MINISTRY OF HOME,
VALLABH BHAWAN, BHOPAL, M.P.
2. COMMISSIONER REWA, DIVISION REWA,
DISTRICT REWA (M.P.).
3. DISTRICT MAGISTRATE CUM COLLECTOR,
REWA, DISTRICT REWA, M.P.
4. SUPERINTENDENT OF POLICE REWA,
DISTRICT REWA, M.P.
.....RESPONDENTS
(BY SHRI GIRISH KEKRE - GOVERNMENT ADVOCATE)
................................................................................................................................................
Reserved on : 19.12.2022
Pronounced on : 11.01.2023
2
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:
ORDER
This petition is under Article 226 of the Constitution of India questioning the validity of the order dated 24.06.2022 (Annexure P/2) passed by the respondent No. 3 whereby exercising power under Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'Adhiniyam, 1990') the respondent No. 3 passed the order of externment of the petitioner from Revenue District Rewa and adjoining Districts Satna, Sidhi and Singrauli for a period of one year from the date of order restraining him to enter in the revenue boundaries of the said Districts. Against the said order of externment, petitioner preferred an appeal before the Commissioner, Rewa Division, Rewa but vide order dated 16.09.2022 (Annexure P/5) the appeal was also dismissed by the Commissioner, affirming the order of respondent No.
3. This petition therefore has been filed challenging both the orders.
2. The facts and circumstances of the case giving rise to this petition are that the Superintendent of Police, Rewa submitted a report before the District Magistrate, Rewa requesting therein to exercise power provided under Section 5(b) of the Adhiniyam, 1990 against the petitioner as he has been carrying out criminal activities continuously since 1996 and 14 cases are registered against him under various provisions of the Indian Penal Code and his presence in the Districts is an alarm of violating law and order situation and is also not in public interest and therefore, appropriate order be passed.
3. A show cause notice was issued to the petitioner on 20 th May, 2022 (Annexure P/1) by the respondent No. 3 asking him to explain as 3 to why action on the recommendation of Superintendent of Police, Rewa be not taken against him and power under Section 5 of the Adhiniyam, 1990 be not exercised. The petitioner submitted his reply to the show cause notice and also appeared before the respondent No. 3 alongwith his counsel. In the reply, the petitioner submitted that in some of the cases shown to have been registered against him, he has been acquitted by the court and some of the cases have been compromised and some cases are still pending in which he has been falsely implicated.
4. The District Magistrate considered the reply to the show cause notice submitted by the petitioner and also the record submitted by the Superintendent of Police, Rewa and observed that the petitioner has been doing criminal activities since long time and number of offences have been registered against him, the police has also initiated restraint proceeding so as to stop him from committing criminal activities but all went in vain as no improvement is noticed in the activities of the petitioner and as such the District Magistrate found it proper to exercise power provided under Section 5 of the Adhiniyam, 1990 and accordingly passed the order of externment of the petitioner dated 24.06.2022 (Annexure P/2).
5. Against the order of externment, the petitioner preferred an appeal before the Commissioner, Rewa Division, Rewa and after hearing the counsel appearing for the petitioner and examining the record the Commissioner found that the Superintendent of Police submitted his report before the District Magistrate showing that 15 cases registered against the petitioner and his presence in the District and activities in which he is found involved are not in the interest of the public and also not proper for maintaining the law and order and as such the Commissioner found that the power under Section 5(b) of the 4 Adhiniyam, 1990 has rightly been exercised by the District Magistrate and the order of externment passed against the petitioner is proper. Accordingly, the Commissioner approved the order dated 24.06.2022 (Annexure P/2) passed by the District Magistrate and dismissed the appeal preferred by the petitioner.
6. Learned counsel for the petitioner has raised different grounds in the petition for seeking quashment of the impugned orders saying that the facts and circumstances of the case very clearly indicate that the offences registered against the petitioner are not in a very close proximity as are mentioned in the order of externment and therefore the requirements of Section 5(b) of the Adhiniyam, 1990 are not fulfilled. It is also contended that the District Magistrate while exercising the power under Section 5(b) of the Adhiniyam, 1990 did not call any of the witnesses of the cases registered against the petitioner and record their statement so as to ascertain that because of fear and the threat given by the petitioner they are not coming to the court to get their statements recorded. Learned counsel for the petitioner has also contended that since the action of the District Magistrate and the Commissioner does not fulfill the requirements of Section 5(b) of the Adhiniyam, 1990 therefore in view of the law laid down by the High Court in the case of Ashok Kumar Patel vs. State of M.P. and others reported in 2009 (4) MPHT 263 the impugned orders are not sustainable in the eyes of law and deserve to be set aside. He has also placed reliance on an order of the High Court passed in the case of Kala Vs. State of M.P. reported in 2004 (4) MPLJ 234 and prays for setting aside of the impugned orders.
7. Respondents have filed their reply and tried to justify the order of the District Magistrate and also of the Commissioner, Rewa Division, Rewa and reiterated that as per the facts mentioned in the 5 recommendation made by the Superintendent of Police when petitioner has been found involved in the criminal activities since 1996 and committing crime till 2022 continuously, although in some of the cases he has been acquitted as prosecution failed to prove the case but it does not mean that in the present case power under Section 5(b) of the Adhiniyam, 1990 cannot be exercised by the District Magistrate against the present petitioner.
8. Although, in the petition the petitioner has taken several grounds and relied upon several decisions of the High Court to substantiate his case but during the course of arguments when counsel was asked as to on what ground impugned orders can be set side he failed to demonstrate and answer the queries put by the Court. However, in the opinion of this Court, the interest of litigant should not be defeated because the counsel failed to answer the queries put by the Court. From the record it is clear that the orders passed by the authorities especially the District Magistrate, Rewa without considering the fact that requirements of Section 5 are not being fulfilled and he had also not called any of the witnesses who are the witnesses in criminal cases registered against the petitioner and those witnesses are not coming forwarded to record their statement.
9. Section 5 of the Adhiniyam, 1990 prescribes as to in what manner such power can be exercised and what are the requirements to ascertain whether order of externment can be passed against a person who has been found involved in criminal activities. Under the existing circumstances, it is apt to reproduce Section 5 so as to reach to a conclusion whether those requirements have been fulfilled or not. Section 5 of the Adhiniyam, 1999 thus reads as under:-
6"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 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 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 duty 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 districts, or part thereof, as the case may be, from which he was directed to remove himself."
As per the provision of Section 5(b) of the Adhiniyam, 1990, it is clear that before exercising the power and passing the order of externment, 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 under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 or abetment of any such offence; and
(ii) 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 7 apprehension on their part as regards the safety of their person or property.
The Division Bench of our High Court in the case of Ashok Kumar Patel (supra) has considered the aforesaid aspect and observed as under:
"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 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 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, 1860 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 Penal Code, 1860 has been registered and a challan has been filed in 8 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 253, 294, 323, 325 and 506-B read with section 34 of Indian Penal Code, 1860 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 v. The State of Bombay & 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."9
10. In the present case it is clear from the orders passed by the District Magistrate and the Commissioner, Rewa Division, Rewa and also from the reply submitted by the respondents/State that the conditions as mentioned in Section 5(b) of the Adhiniyam, 1990 have not been fulfilled. While passing the orders both the authorities have not considered the aforesaid requirement of law and also not recorded the statements of any of the witnesses of the cases registered against the petitioner. Although learned counsel for the petitioner has not argued as to on what grounds the impugned orders are liable to be set aside, but from perusal of the impugned orders it reveals that the conditions required to be fulfilled under Section 5(b) of the Adhiniyam,1990 have not been fulfilled. This Court in the case of Kala (supra) has considered this aspect and also the fact whether requirements of Section 5(b) of the Adhiniyam, 1990 have been fulfilled or not and set aside the order of externment passed by the District Magistrate.
11. In view of the discussion made hereinabove and in view of the law laid down by the Division Bench of this Court in the case of Ashok Kumar Patel (supra), in my considered opinion, the order passed by the District Magistrate, Rewa and also the order passed by the Commissioner, Rewa Division, Rewa in appeal are liable to be set aside.
12. Accordingly, this petition is allowed. The order of externment of the petitioner dated 24.06.2022 (Annexure P/2) passed by the District Magistrate, Rewa and the order dated 16.09.2022 (Annexure P/5) passed by the Commissioner, Rewa Division, Rewa are hereby set aside. However, there shall be no order as to costs.
(SANJAY DWIVEDI) JUDGE Raghvendra RAGHVENDRA SHARAN SHUKLA 2023.01.13 17:54:06 +05'30'