Madhya Pradesh High Court
Kamru @ Kamal Singh Ajnar vs Home Department on 16 June, 2022
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 16th OF JUNE, 2022
WRIT PETITION No. 10071 of 2022
Between:-
KAMRU @ KAMAL SINGH AJNAR S/O SHRI
SEKADIYA , AGED ABOUT 52 YEARS,
OCCUPATION: AGRICULTURIST, PERMANENT
GRAM PRATAP FALIA, UDAYGARH, TEHSIL
JOBAT (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ROHIT MANGAL - ADVOCATE)
AND
1. HOME DEPARTMENT THROUGH PRINCIPLE
SECRETARY HOME DEPARTMENT, VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. THE COMMISSIONER COMMISSIONER OFFICE,
INDORE (MADHYA PRADESH)
3. COLLECTOR AND DISTRICT MAGISTRATE
ALIRAJPUR (MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE ALIRAJPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY MS.VINITA PHAYE - GOVERNMENT ADVOCATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
With the consent of the parties, the matter is heard finally. This is a petition filed under Article 226 of the Constitution of India Signature Not VerifiedDigitally signed by SAN SOURABH YADAV Date: 2022.06.17 17:12:57 IST challenging the order of externment dated 23.03.2022, whereby, the petitioner has been externed from entering in the District of Alirajpur as well as near 2 district namely Jhabua, Dhar, Badwani and some other districts of Gujrat for six months.
Being aggrieved by the said order, the petitioner preferred an appeal under section 9 of the MP Rajya Suraksha Adhiniyam, 1990 (for short Adhiniyam, 1990) before the respondent no.2.
The said appeal has been partly allowed and the order of externment has been set aside to the extent of districts belonging to the other states but the remaining part of the order has been affirmed.
The facts of the case are that on the basis of report of Superintendent of Police, Alirajpur, a show cause notice for externment was issued to the petitioner. The petitioner filed the reply to the said notice and thereafter, the District Magistrate passed the order of externment on 23.03.2022, which has been partly set aside.
It is submitted that the petitioner belongs to a congress political party. He was elected on the post of Sarpanch at Gram Panchayat Jamali Badi Tehsil Jobat District Alirajpur. After completion of the tenure as Sarpanch, he was appointed as Pradhan in Gram Panchayat. The petitioner is also a Congress Block President of Udaygarh Block District Alirajpur. The order of externment has been passed on political consideration.
Learned counsel for the petitioner submits that the order passed by the competent authority is contrary to the provisions of section 5(A) and 5(B) of the Adhiniyam, 1990 and the order is passed on the old and stale cases. There is no objective consideration by the competent authority. The order is contrary Signature Not VerifiedDigitally signed by SAN SOURABH YADAV to the law laid down by the Division Bench of this Court in the case of Ashok Date: 2022.06.17 17:12:57 IST Kumar Vs. State of MP reported in 2009(4) MPLJ 434 and the other 3 judgments decided in the case of Chandra Pakash @ Tinku Pandey Vs. State of MP reported in 2022(1) MPLJ 556, Meena Sonkar Vs. State of MP reported in 2017(2) MPLJ 565 and Vinod Vs. State of MP reported in 2016 (2) MPLJ 650 and also the judgment passed in the case of Lacchu @ Laxman Vs. State of MP reported in 2022 (2) MPLJ 362. He further relied on a recent judgment by the Apex Court in the case of Deepak Vs. State of MP reported in AIR 2022 SC 1241 while considering the para-materia provision of Maharashtra Police Act, the Apex Court held that the order of externment restraining the accused from entering a particular area infringes his fundamental right guaranteed under Article 19(1)(d) of the Constitution of India. Hence, restriction imposed by order of externment must stand test of reasonableness.
It is further held that the competent authority must record its satisfaction of existence of the grounds for externment on the basis of objective material placed before it.
He further submitted that that the authorities have failed to record satisfaction in the impugned order regarding second requirement of section 5(B) of the Adhiniyam, 1990. He has not recorded his satisfaction on the basis of material that the witnesses are not willing to come forward to give evidence in the judgment against the petitioner by a reason and apprehension as regards to their safety. The order passed by the Appellate Authority on merit is nothing but repetition of the order passed by the District Magistrate without any application of mind.
Per contra, learned counsel for the respondent/state supported the order passed by the respondent and submitted that the petitioner is a habitual offender Signature Not VerifiedDigitally signed by SAN SOURABH YADAV Date: 2022.06.17 17:12:57 IST and has five criminal cases registered against him. He is actively involved in the criminal activities since 2005. Recently, an FIR was lodged against the petitioner 4 at police station Udaygarh and twice action under Istaghasa for keeping piece in prohibitory in nature has also been initiated against the petitioner and therefore, the proceedings under section 107, 110, 116 of the Cr.P.C were taken against the petitioner.
It is submitted that the District Magistrate after objective consideration of the material has passed the impugned order. There is no illegality in the same warranting any interference in the writ petition.
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:-
"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 is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, 4 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 Signature Not VerifiedDigitally signed by SAN SOURABH YADAV property; or Date: 2022.06.17
(c) that an outbreak of epidemic disease is likely to 17:12:57 IST result from the continued residence of an immigrant;5
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.†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 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.
At this stage, I think it condign to survey the authorities on the legal issues canvassed on behalf of the petitioner.
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 Signature Not VerifiedDigitally signed by SAN SOURABH YADAV Date: 2022.06.17 17:12:57 IST the Act held thus:
"8. The expression is engaged or is about to be engaged" in the commission of offence involving 6 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 6 person is engaged or is about to be engaged in the commission of such offence.†In the case of Ramgopal Ragjhuvanshi 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 "€œengaged 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. 12. 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 Signature Not VerifiedDigitally signed by SAN SOURABH YADAV provision is not punitive in its nature and a person cannot be externed for his Date: 2022.06.17 17:12:57 IST past acts. Although past activities of a person may afford a guide as to his 7 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 7 related to the situation existing at the moment when the order is to 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.
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.
The respondent/District Magistrate has considered eight criminal cases registered against the petitioner. The list of the criminal cases is reproduced as under:-
S.no Crime No. Sections 1. 91/2005 323, 294, 506, 451, 34 IPC 2. 137/2006 323, 506, 341, 34 IPC 3 66/2017 307, 294, 323, 325, 506 IPC 4. 45/2021 294 IPC 5 234/2021 294, 353, 506 IPC 6. Istgasa 268/2019 107, 116(3) Ja. Fo 7 Istgasa 240/2020 107, 116(3) Ja. Fo 8. Istgasa 03/2021 110 Ja. Fo Signature Not VerifiedDigitally signed by SAN SOURABH YADAV
Upon perusal of the aforesaid list, it is clear that the cases at serial no.1 Date: 2022.06.17 17:12:57 IST and 2 were registered in the year 2005-06. The cases at serial no.3 for 8 commission of offence under section 307, 294, 353, 325, 506 of the IPC was registered in the year 2017. The petitioner has filed a copy of the order of acquittal in the said criminal case in the year 2021 and a criminal case under section 294 of the IPC was registered in which he has already been granted bail and the same is pending before the Court. In the year 2021 again, one case under section 294 of the IPC was registered thereafter, three prohibitory proceedings under section 107, 110, 116 of the Cr.P.C were taken by Istaghasa in the year 2019, 2020 and 2021. Thus, the offence in the close proximity is only in the nature of prohibitory proceedings for keeping piece and good behaviour.
In the instant case, upon perusal of the impugned orders, it is also found that the District Magistrate has only baldly stated the list of the offences registered against the petitioner to reflect that the petitioner is a daring habitual criminal but he did not record any opinion on the basis of the materials that in his opinion witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension as regards to their safety. Hence, in absence of any existence of material to show that witnesses are not coming forward by reason of apprehension to give evidence against the petitioner in respect of the alleged offences, an 11 order u/s 5 (b) of Adhiniyam, 1990 cannot be passed by the District Magistrate as held in the case of Ashok Kumar Patel Vs. State of M.P. by the Division Bench that for a passing an order of externment against the person both the conditions mentioned under section 5 (b) (i) and (ii) have to be satisfied.
This Court in the case of Meena Sonkar vs. State of M.P. and Signature Not VerifiedDigitally signed by SAN SOURABH YADAV Date: 2022.06.17 17:12:57 IST others, 2017(2) MPLJ 565 and also in the case of Anek alias Anil Nageshwar vs. State of Madhya Pradesh & four others [W.P. 9 No.9297/2017, decided on 8-8-2017] 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.†In the present case there is no satisfaction of the District Magistrate in the impugned order regarding second requirement of Section 5(b) of the Act 1990. He has not recorded his satisfaction on the basis of materials that witnesses are not willing to come forward to give evidence in the public against the petitioner by the 12 reasons of apprehension as regards to their safety. The authority has not discarded the nature of cases, the date of registration of cases and their present status. Most of the cases are old and stale.
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 repetition of the order passed by the District Magistrate without any application of mind.
In the aforesaid circumstances, the impugned order of externment and affirmation thereof in the appeal are unsustainable having been found in violation Signature Not VerifiedDigitally signed by SAN SOURABH YADAV Date: 2022.06.17 of the requirements of the Act 1990 and the judgments passed by this Court 17:12:57 IST which have been noted hereinbefore.10
Accordingly, the writ petition is allowed. The impugned orders dated 23.03.2022 passed by the District Magistrate, Alirajpur and the order dated 26.04.2022 passed by the Commissioner, Indore are quashed.
No order as to costs.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN SOURABH YADAV
Date: 2022.06.17
17:12:57 IST