Madhya Pradesh High Court
Anil Pawar Alias Anil Basod vs State Of Madhya Pradesh on 6 November, 2020
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
Writ Petition No.8065/2020
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
W.P. No.8065/2020
Anil Pawar alias Anil Basod
Versus
State of Madhya Pradesh and others
Date of Order 06.11.2020
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi, J.
Whether approved for reporting Name of counsels for For Petitioner : Shri Rohan Harne, the parties Advocate.
For respondents/State : Shri Akshay Pawar, Panel Lawyer.
Law laid down Significant Para Nos.
Reserved on : 08.10.2020 Delivered on : 06.11.2020 (O R D E R) The matter pertains to externment. The pleadings are complete. The learned counsel for the parties are ready to argue the matter finally, therefore, it is heard finally.
2. By the instant petition, the petitioner is questioning the validity, legality and propriety of 2 Writ Petition No.8065/2020 the orders dated 12.03.2020 (Annexure-P/5) and 03.10.2019 (Annexure-P/1). By order dated 03.10.2019, respondent No.3 (District Magistrate, Harda) exercising the power provided under Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'Adhiniyam, 1990') has passed an order directing the petitioner to be externed for a period of one year from District Harda and its nearby districts i.e. Hoshangabad, Khandwa, Dewas, Sehore and Betul.
3. The said order was assailed in an appeal filed under Section 9 of Adhiniyam, 1990 before the Commissioner, Narmadapuram Division, Hoshangabad. The appeal was dismissed vide order dated 12.03.2020 (Annexure-P/5) affirming the order of the District Magistrate.
4. As per the facts of the case, the Superintendent of Police, Harda submitted a report vide letter dated 20.04.2019 to the District Magistrate, Harda in regard to the present petitioner apprising that he is a man of criminal 3 Writ Petition No.8065/2020 mentality and has been involved in criminal activities since 2013 and over the years a number of offences have been registered against him. To restrain his criminal activities, preventive measures have also been adopted, but nothing fruitful has yielded and no improvement has been noticed in his behaviour. As per the recommendations made by the Superintendent of Police, the criminal activities of the petitioner have created an atmosphere of terror in the society and as such, it is appropriate to take action against him under Section 5 of Adhiniyam, 1990 and accordingly an order of externment should be passed against him. In the said recommendations, the cases registered against the petitioner have also been shown.
5. The District Magistrate thereafter registered a case against the petitioner under the provisions of Adhiniyam, 1990 and issued a show- cause notice under Section 8 of Adhiniyam, 1990 on 25.04.2019 asking the petitioner to appear before the Court and submit his explanation on a 4 Writ Petition No.8065/2020 date fixed i.e. 30.04.2019 but no reply to the notice was received, therefore, another notice was issued on 03.05.2019, asking the petitioner to appear on 20.05.2019. Despite service of notice upon the petitioner, he did not appear on the fixed date and, therefore, left with no option for the Court but to proceed ex parte against him. Thereafter, the witnesses of the prosecution were examined.
6. The District Magistrate, Harda on the basis of material available and also taking into consideration the statement of the prosecution witnesses, found that various offences were registered against the petitioner since 2013, in which, offences punishable under the Public Gambling Act, Arms Act and Kidnapping Act violating the law and order situation have been registered. As per the District Magistrate, to maintain public peace, it is necessary to take action against person like petitioner so that public life may go-on smoothly, public peace can be maintained and possibility of any untoward 5 Writ Petition No.8065/2020 incident can be avoided. The District Magistrate in its order has referred the nature of offences and finally arrived at a conclusion that it was a fit case in which power provided under Section 5(b) of Adhiniyam, 1990 can be exercised against the petitioner and therefore, passed the order dated 03.10.2019 (Annexure-P/1) directing externment of the petitioner thereby restraining him to enter into the revenue boundaries of district Harda and its nearby districts for a period of one year.
7. Thereafter, an appeal was preferred under Section 9 of Adhiniyam, 1990 before the Commissioner, Narmadapuram Division, Hoshangabad. The Commissioner vide order dated 12.03.2020 (Annexure-P/5) has also dismissed the appeal. The Commissioner in its order has observed that considering the criminal activities of the petitioner it can be easily inferred that the required conditions of Section 5(b) of Adhiniyam, 1990 are fulfilled as total 14 cases were registered against the petitioner especially in the year 2018-19, six cases were registered 6 Writ Petition No.8065/2020 against him relating to Public Gambling Act and in Adhiniyam, 1990 it is provided that if a person commits the offence under the Public Gambling Act, 1867 and is convicted thrice within preceding three years' period, in that event if an order of externment is passed against him, that cannot be said to be illegal and inappropriate action. Accordingly, in view of the appellate authority, the order of District Magistrate did not require interference, therefore, he approved the said order. The appeal thus faced dismissal.
8. The challenge is founded mainly on the ground that the requirements of Section 5(b) of Adhiniyam, 1990 are not fulfilled and there was no such material available on record to establish that the prosecution witnesses were apprehensive for giving evidence against the petitioner and therefore, the impugned order does not fulfill the conditions as enumerated in Section 5(b) of Adhiniyam, 1990 and as such, liable to be quashed. It is contended by the counsel for the petitioner that in maximum cases relating to 7 Writ Petition No.8065/2020 Public Gambling Act, only fine was imposed against the petitioner. Therefore, those cases cannot be made basis for exercising the power provided under Section 5(b) of Adhiniyam, 1990. It is also contended by the counsel for the petitioner that in the offence relating to Section 25 of the Arms Act and Section 366 of the Indian Penal Code, the petitioner has been acquitted, but this fact has not been taken note of by the authority and accordingly, the orders impugned do not sustain and are liable to be set aside. In support of his contentions, the counsel for the petitioner has placed reliance upon various decisions reported in 2009(4) MPLJ 434 (Ashok Kumar Patel vs. State of M.P. and others), 2011(3) MPLJ 367 (Ashu @ Assu @ Asish Jain @ Ankush vs. State of M.P. and others), 2007(3) MPLJ 115 (Pappu @ Dinesh Gupta vs. State of M.P. and others) and 2017(3) MPLJ 667 (Jahangeer Alvi vs. State of M.P. and others) .
9. Per contra, learned Panel Lawyer appearing for the respondents/State has relied 8 Writ Petition No.8065/2020 upon the stand taken by them in their reply and has supported the action taken by the authority saying that looking to his criminal antecedents as the petitioner has been continuously involved in criminal activities from 2013 to 2019, there was no other way but to take action against him under the respective provisions of Adhiniyam, 1990. He has supported the orders impugned and has contended that nothing illegal has been committed by the authority. The orders impugned being reasoned one, do not call for any interference. He has also submitted that the petitioner did not choose to file reply to the show-cause notice issued to him nor participated in the proceedings pending before the District Magistrate, therefore, the petitioner has no right to assail the orders impugned. He has also submitted that the petition, infact, has rendered infructuous because the period of externment is already over and deciding the petition is nothing but an academic question and, therefore, it deserves to be dismissed.
10. After considering the rival contentions of 9 Writ Petition No.8065/2020 the counsel for the parties and perusal of the record, it transpires that as per the petitioner, before passing the order of externment against him, the conditions as enshrined under Section 5(b) of Adhiniyam, 1990 are to be satisfied.
11. In number of occasions so also in cases in which the petitioner has placed reliance, this Court has held that unless the conditions mentioned under Section 5(b) of Adhiniyam, 1990 are strictly satisfied, an order of externment will have to be quashed by the Court.
12. To answer the rival contentions of the counsel for the parties, it is appropriate to take into account the provisions of Section 5 of Adhiniyam, 1990, which provides as under:-
"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 10 Writ Petition No.8065/2020 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 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 11 Writ Petition No.8065/2020 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."
13. From a bare perusal of Section 5(b) of Adhiniyam, 1990, as quoted hereinabove, it is significant 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 engage in commission of offence involving force or violence or an offence punishable under Chapters XII, XVI and XVII or under Section 506 and 509 of the Indian Penal Code, 1860 or in the abatement of any such offence, and (ii) in the opinion of District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason or apprehension on their part as regards the safety of their person or property.
14. The Division Bench of this Court in case 12 Writ Petition No.8065/2020 of Ashok Kumar Patel (supra) has categorically laid down that the District Magistrate before exercising the power provided under Section 5 of Adhiniyam, 1990 has to satisfy himself whether two requirements/conditions, as have been quoted hereinabove, are fulfilled or not.
15. In case of Jahangeer Alvi (supra), this Court has taken note of the said requirements and while placing reliance upon the decision of Division Bench passed in case of Ashok Kumar Patel (supra), has also very categorically observed that if these two requirements are not fulfilled and there is no specific opinion given by the District Magistrate in that regard, the order of externment cannot be sustained.
16. In the instant case, the District Magistrate in its order dated 03.10.2019 (Annexure-P/1), has nowhere mentioned that as to whether these two conditions required as per Section 5(b) of Adhiniyam, 1990 are fulfilled or not. Furthermore, no material has been shown on the basis of which he got satisfied in regard to 13 Writ Petition No.8065/2020 fulfillment of these two requirements before passing the order of externment. There is no observation found in the order of the District Magistrate that the prosecution witnesses are not coming forward to give evidence against the petitioner because of any apprehension of threat on the part of the petitioner. Not only this, but the Superintendent of Police has also not shown the name of any of the witnesses of the cases registered against the petitioner who are not coming forward to record their statement due to terror of the petitioner or any threat given by him to them.
17. The State has produced the record of the court of District Magistrate. This Court after carefully perusing the record, has neither seen the name of any of the witnesses nor the statement of any of the witnesses recorded by the authority to show that because of the threat of the petitioner, the witness is not coming to the Court to get his statement recorded. Although, statements of some of the police officers got recorded, but those 14 Writ Petition No.8065/2020 officers were not the witnesses in criminal cases registered against the petitioner and, therefore, their statement is immaterial and does not satisfy the requirements of Section 5(b) of Adhiniyam, 1990. However, in the order of the appellate authority, it is observed as to under what circumstance the District Magistrate could exercise the power but still the appellate authority has failed to observe as to whether the mandatory requirement to fulfill the conditions enumerated in Section 5(b) of Adhiniyam, 1990 are fulfilled or not.
18. In view of the aforesaid facts and circumstances of the case and also on the basis of material available on record, this Court is of the opinion that the District Magistrate before passing the order of externment has completely failed to get himself satisfied that the required conditions of Section 5(b) of Adhiniyam, 1990 are fulfilled and in absence of such observation, the order impugned passed by the District Magistrate cannot be allowed to stand. Accordingly, the order 15 Writ Petition No.8065/2020 passed by the appellate authority also deserves to be quashed.
19. Thus, in the considered opinion of this Court, in the present case, the two conditions which required before passing an order of externment as enumerated in Section 5(b) of Adhiniyam, 1990 do not exist and the order passed by the District Magistrate and also the Commissioner (appellate authority) are liable to be quashed. Since the orders impugned are not sustainable in view of the aforesaid grounds, therefore, no other ground is required to be dwelled upon by this Court.
20. Resultantly, this petition is allowed. The orders of the District Magistrate, Harda dated 03.10.2019 (Annexure-P/1) and also the Commissioner, Narmadapuram Division, Hoshangabad, dated 12.03.2020 (Annexure-P/5), are hereby quashed.
(SANJAY DWIVEDI) JUDGE ac/-
Digitally signed by ANILCHOUDHARY Date: 2020.11.06 17:40:12 +05'30'