Madhya Pradesh High Court
Umesh Datt Tiwari @ Ballan vs The State Of Madhya Pradesh on 17 November, 2014
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.7823/2014
Umesh Datt Tiwari @ Ballan
Vs.
State of Madhya Pradesh & others
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Shri Ghanshyam Pandey, learned Counsel for the petitioner.
Shri Rajesh Tiwari, learned Govt. Advocate for the
respondents-State.
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Present : Hon'ble Shri Justice K.K. Trivedi
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O R D E R
(17/11/2014) This writ petition is filed essentially calling in question the order dated 05.11.2013 passed by the District Magistrate, Katni, directing removal of the petitioner from the area of Katni district and adjoining districts for a period of one year in exercise of powers under Section 5 and 6 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (herein after referred to as 'Act'). An appeal preferred against the said order has also been dismissed by the Commissioner, Jabalpur Division, Jabalpur vide order dated 15.04.2014 and such order is also called in question in the present writ petition.
2. It is the case of the petitioner that he was being harassed by the Police by registration of criminal cases against him, therefore, he was required to approach this Court by way of filing W.P. 5013/2014 claiming inter alia the relief to the effect that the respondents-Police authorities be directed not to register the cases against the petitioner under Section 34(2) of the M.P. Excise Act and in case any such criminal case is reported against him or his family members, the investigation of the same be done by superior 2 police office of the district. It was the case of the petitioner that he is being harassed by the Superintendent of Police, Town Inspector of Slimanabad, Sub Inspector and Assistant Sub Inspector posted in the said area. It is stated that on one of the occasion, report was lodged against the petitioner and the action was initiated by giving a show cause to the petitioner on 16.10.2012. The petitioner immediately filed reply to the said show cause stating that he is not involved in such activities and, therefore, action on the port of the police authorities against him was not just and proper. It is the case of the petitioner that he was ropped in false cases, in which ultimately he was acquitted by this Court only when such an appeal was allowed. That being so, the case of the petitioner was that no action was required to be taken against him.
3. It is contended by the petitioner that without conducting any enquiry with respect to the subjective satisfaction of the District Magistrate in relation to the provisions of Sections 5 and 6 of the Act, without extending any opportunity to the petitioner to rebut such evidence, if collected, only on the basis of the police report the order impugned was passed against him directing his removal from the area in exercise of power under Sections 5 and 6 of the Act. An appeal was preferred by the petitioner against the said order but the said appeal has been dismissed by the Appellate Authority without appreciating the grounds raised by the petitioner only on the basis of whatever report was submitted by the police authorities and, therefore, he was required to approach this Court by way of filing the present writ petition.
4. On 17.10.2014 this Court while granting an interim stay, directed the respondents to produce the relevant record to show the material available against the petitioner to justify the action taken by the respondents against him.
3Though no return is filed but certain documents are obtained by learned Govt. Advocate, which have been shown to the Court.
5. Heard learned Counsel for the parties at length and perused the record.
6. It is seen from the record that the report was submitted by the police against the petitioner indicating certain offences said to be committed by him. On the basis of the said report, the show cause was issued to the petitioner on 16.10.2012. From the record it is further clear that offences said to be committed by the petitioner were of the year 1997 onwards. There was no case registered against the petitioner in between September, 1999 to August, 2007. However, thereafter in the year 2011 and 2012 certain offences were registered against the petitioner. Most of the cases were with respect to the threatening. One of the case was for preventive action against the petitioner under Sections 107 and 116 of the Code of Criminal Procedure. For the charge of murder levelled against the petitioner in the year 1999 and the conviction for the said offence, finding was already recorded by this Court in appeal decided on 07.01.2011 and the petitioner was already acquitted.
7. As against this in the entire order the Collector has not discussed what were the evidence available to hold that the petitioner was one who has created such a threat in the mind of the witnesses that they were not coming forward to depose against him about his criminal activities. From the narration of facts made herein above, there was no description as to how the District Magistrate has reached to the conclusion that a case was made out to remove the petitioner from the area, in exercise of power under Section 6(1) of the Act. Again it was not clear that there was 4 likelihood of continuance of such criminal activities by the petitioner, on the basis of available evidence and a satisfaction of such a fact was recorded by the Collector. That being so, it is clear that the enquiry against the petitioner was not properly conducted. Moreover, the petitioner with his written arguments has submitted his defence in the shape of four affidavits of the witnesses. They were never called for examination by the District Magistrate. Thus, the fact as recorded by the Collector relating to involvement of the petitioner in the unsocial activities and criminal cases was not proved.
8. The law is well settled in this respect. The Division Bench of this Court in the case of Ashok Kumar Patel vs. State of M.P. and others, [2009 (4) MPLJ 434] has categorically held that it is not mere a formality to record the satisfaction, but it is a requirement of law and mere involvement of such a person in the past in any such type of offence would not make out a case for his removal from the area. The findings recorded by the Division Bench in this respect in paragraphs 8, 9, 10 and 11 read 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, 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 5 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 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 Indian Penal Code has been registered and a challan has been filed in 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 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 6 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 Vs. The State of Bombay and 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."
11. In the instant case, the District Magistrate has in the impugned order only baldly stated that the list of offences registered against the petitioner reflects that he is a daring habitual criminal and because of this there is fear and terror in the public and has not recorded any clear opinion on the basis of materials, that in his opinion 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 their person or property. In most of the cases, Challans have been filed by the Police in Court obviously after examination of the witnesses under section 161 of Criminal Procedure Code and the cases are pending in the Court. There is no reference in the order of District Magistrate that witnesses named in the Challans filed by the Police are not coming forward to give evidence against the petitioner in Court. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reason of apprehension to danger to their person or property to give evidence against the petitioner in respect of the alleged offences, an order under section 5(b) of the Act of 1990 cannot be passed by the District Magistrate by merely repeating the language of section 5(b) of the Act of 1990."
79. In view of the aforesaid pronouncement of law, if the material placed on record or shown to the Court is examined, nothing is found against the petitioner warranting any action for his removal from the area. As a result, the writ petition is allowed. The orders dated 05.11.2013 and 15.04.2014 are hereby quashed. There shall be no order as to costs.
(K.K. Trivedi) Judge Skc