Madhya Pradesh High Court
Gulabchand Patel vs The State Of Madhya Pradesh on 24 July, 2017
IN THE HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABAPLUR
SB: Hon'ble Shri Justice Subodh Abhyankar, J
WRIT PETITION NO.1903 OF 2017
Gulabchand Patel.
Vs.
State of Madhya Pradesh & others.
-------------------------------------------------------------------------------------------
Shri Paresh Pareek, learned counsel for the petitioner.
Shri R.K. Kesharwani, learned Panel Lawyer for the respondents-
State.
-------------------------------------------------------------------------------------------
ORDER
(Passed on the 24th day of July, 2017) The petitioner before this Court has filed the present petition against the order dated 18/01/2017 passed by the Commissioner Jabalpur through which the order of externment under Section 5(a) & (b) of M.P. Rajya Suraksha Adhiniyam, 1990 (for short âAdhiniyam, 1990â) dated 05/11/2016 passed by the Collector Katni has been confirmed whereby the petitioner is restrained from entering into the revenue limits of District Katni and also adjoining districts.
2. In brief, the facts of the case are that the petitioner was issued a show cause notice dated 27/10/2016 under Section 5(a)(b) of the Adhiniyam, 1990 on account of illegal activities. Reply of aforesaid show cause notice has been submitted by the petitioner on 05/11/2016 and on 05/11/2016 itself the impugned order has been passed. Against the aforesaid order, an appeal was preferred before the Commissioner, Jabalpur and the same was dismissed by the Commissioner vide its order dated 18.01.2017.
3. Learned counsel for the petitioner has forcefully submitted that the impugned orders are liable to be set aside for the simple reason that the petitioner was not given proper opportunity of hearing to defend his case, although the show cause notice dated 27.10.2016 was issued to the petitioner whereby he was directed to appear on 5.11.2016 but along with the show cause notice, the copy of preliminary report, which was made the basis to issue the show cause notice was not supplied to the petitioner. The aforesaid notice was received by the petitioner on 31.10.2016 and his reply was submitted within four days on 5.11.2016. It is submitted by the petitioner in his reply that in most of criminal cases, which have been referred to in the impugned order, he has already been acquitted, and in fact he is living a public life for last 25-30 years and is occupying the post of Up-Sarpanch at Gram Panchayat Jhinna Pipariya District Katni, and only because of the political ill-will, false cases have been slapped against him. It is further submitted that he is 43 years old person having wife, and his three daughters and son are studying and he himself is engaged in agricultural.
4. It is further submitted that the aforesaid crimes were registered due to political ill-will and the petitioner has already been reformed and is living peacefully with his family. It is further submitted that in eight offences which have been referred to in the impugned order, either the petitioner has been acquitted or only fine is imposed against him and those orders cannot be taken into consideration while passing the impugned order of externment. It is further submitted that the petitioner has not violated the provisions of Sections 3 and 6 of the Adhiniyam, 1990 and the offences which have been alleged against the petitioner are trivial in nature and cannot be used as base to pass the impugned order of externment. It is further submitted that the impugned order has been passed against the provisions of principle of natural justice as the documents on which the Collector has relied, were not provided to the petitioner. The learned counsel for the petitioner has also placed reliance on the order of the Coordinate Bench of this Court in the case of Anoop Saxena Vs. Secretary, Ministry of Home Affairs, reported in 2015(1) MPLJ 121.
5. In the reply, it is submitted by the respondent that the petitioner has not objected that he has not been supplied the copies of preliminary report/statement on the basis of which the show cause notice was issued and the list of offences which has been considered while passing the impugned order cannot be relied upon. It is further submitted that the petitioner is a habitual offender and he was found involved in as many as eight offences, and in most of the cases he has been convicted, although the conviction may be fine only, but nevertheless the conviction which shows the propensity of the petitioner to commit offence. In these circumstances, it is submitted that the Collector as well as the Commissioner have not committed any illegality in passing the impugned orders.
6. It is further submitted by the counsel for the respondents that the petitioner is involved in illegal/criminal activities since 1996 which has continued until 2016 in as much as 7 cases were registered against the petitioner under various sections of IPC/Cr.P.C. in various courts. It is further submitted that the petitioner's appeal before the Commissioner Jabalpur has already been dismissed and there is a concurrent finding of facts which does not call for any interference by this Court.
7. I have heard learned counsel for the parties and perused the record.
8. In the original order dated 5.11.2016 passed by the Collector, the Collector has relied upon the following criminal cases in which the petitioner was found involved from 1996 onwards:
Sl. Date of Crime Offence Result as Petitioner's No. offence No. registered per submission u/s respondent s 1 22/10/96 49/1996 341, 294, Convicted Fine 323, 325/34 of IPC 2 10/04/04 31/2004 327, 294, Convicted Pending 147, 148, 149, 452, 427, 323, 307, 325, 326 of IPC 3 19/09/04 73/2004 341, 294, Convicted Fine 506 of IPC 4 03/05/05 37/2005 294, 324, Fine only Fine 506 of IPC 5 18/11/12 167/12 294, 323, Convicted Acquitted 324, 506 of IPC 6 24/03/16 57/2016 146, 147, Investigatio Acquitted 294, 333, n is still (pending) 353, 527 of going on IPC 7 06/04/16 69/2016 294, 506 of Acquitted IPC (compounded) 8 Proceeding s initiated u/s 107, 116(3) of Cr.P.C. in case No.53/05, 5/13, 7/14 and 43/06.
In the last column of the said table the comments of the petitioner have also been noted and at the Sl. No.6 and 7, in the last column, comments of this court are also mentioned.
9. After taking note of the involvement of the petitioner in the aforesaid offences, it was found by the Collector that due to presence of the petitioner and his recent criminal antecedents, public peace and safety are like to be affected; hence the order of externment was passed. It is also stated in the order that no sooner the petitioner gets bail in any offence his criminal activities are also resumed after coming out of the jail.
10. The aforesaid order was challenged before the Divisional Commissioner, Jabalpur and the same was confirmed by holding that the contention of the petitioner that he has already been acquitted in most of the cases, cannot be accepted, because in most of the cases he has been convicted with fine only and the criminal cases registered against the petitioner from time to time also indicate his propensity to indulge in criminal activities.
11. It is apparent from the record that the petitioner was found involved in as many as eight criminal cases, and some of which have resulted in conviction as indicated in the aforesaid table, but the fact is that even in the recent year i.e. 2016 when the impugned order was passed on 26.10.2016, he has been found to be involved in two cases viz. Crime No.69/2016 under Sections 294, 506 of IPC, which has resulted in acquittal on the basis of compounding in Criminal Case no.761/2016, and in Crime No.27/2016 under Sections 146, 147, 294, 333, 353, 527 of IPC. The offence registered under the Crime No.27/2016 cannot be said to be an offence trivial in nature, in which, according to him he is acquitted, but in the impugned order the Collector has mentioned it to be pending.
12. The contention raised by the petitioner that the statements of witnesses recorded by the Collector in the preliminary enquiry have not been furnished to him which has caused prejudice to him has no substance for the reason that firstly, in the reply filed by the petitioner before the collector, no such objection was raised and secondly, this Court vide its order dated 10.2.2017 had directed the learned counsel for the State to keep the record present before the Court and the affidavits/statements of some witnesses were also submitted in a sealed cover before this Court. In the statement of those witnesses, it is averred that because of the petitioner's terror, they are afraid to lodge report openly and depose against him in a Court of law, however in none of the statement the crime number is mentioned. A bare perusal of the reply submitted by the petitioner before the Collector clearly reveals that no such objections as to proper opportunity of hearing or non-supply of documents were raised by the petitioner. It is only after when the order of externment was passed against the petitioner that he realized and raised his objections for the first time before the appellate Court, which, in the considered opinion of this court cannot be allowed.
13. Reference may be made to the decisions of the Apex Court in the case of Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1. The relevant para 82 of the same reads as under:
â82â¦â¦â¦â¦In case, at the time of trial, there was no objection for not providing sufficient time to the accused or in respect of a small fraction of the mandatory provision of Section 235(2) of the Code, he cannot be allowed to raise the plea of prejudice of such non-compliance at the appellate stage. (Vide Moti Lal v. State of M.P.).
Thus, the aforesaid objection that the petitioner was not provided with all the relied upon documents and that the principles of natural justice were not followed, having raised for the first time at the appellate stage itself, cannot be accepted and is hereby rejected. It is true that the petitioner did have a list of criminal cases to his discredit but the years in which his involvement is shown are, 1996-1, 2004-2, 2005-1, 2012-1 and 2016-2 out of which only the two offence in the year 2016 may be taken into consideration, as the same are recent and have taken place after a gap of four years. Crime No.69/2016 was under Sections 294, 506 of IPC and has resulted in acquittal by compounding. Whereas Crime No.57/2016 was in respect of offences punishable under Sections 146, 147, 294, 333, 353, 527 of IPC which is still pending. The details of the offences have already been noted above in the table from which it is apparent that after 2012, it is only after four years that the offences were again registered in the year 2016 and as such there was no proximity of the offences registered against the petitioner which may give rise to the apprehension of breach of public peace. Out of the seven cases, the petitioner has been convicted in three of them by fine only and after 2005 to 2012 there was no offence registered against the petitioner. In three other cases, the petitioner was acquitted and one is still pending. A couple of proceedings under Sections 107, 116(3) of Cr.P.C. were also initiated against the petitioner but the same are minor in nature. Thus, if the case is analysed from this point of view that the petitioner was earlier involved in the petty cases after a period of 4 years, he is involved in two criminal cases out of which one is already compounded and the other one is still pending, then it cannot be said that there exist exceptional circumstances which warrant initiation of proceedings against the petitioner under the Adhiniyam, 1990.
14. In the result, the petition filed by the petitioner is hereby allowed, and the impugned orders dated 5.11.2016 (Annexure P-1) and 18.1.2017 (Annexure P-2) are hereby quashed. No cost.
(SubobhAbhyankar) Judge 24/07/2017 Ansari