Chattisgarh High Court
Bhupendra Kishore Vaishnav vs State Of Chhattisgarh on 25 October, 2021
Page 1 of 21
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 315 of 2021
Reserved on : 12.08.2021
Delivered on : 25.10.2021
Bhupendra Kishore Vaishnav, S/o D.D. Vaishnav, Aged About 42 Years,
R/o Near Kali Mandir, Kharsia, Tehsil - Kharsia, District - Raigarh
(C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, through Secretary Home, Department of
Home Affairs, Raipur (C.G.)
2. Additional Chief Secretary, Department of Home (C.G.)
3. District Magistrate, Raigarh, District- Raigarh (C.G.)
4. Superintendent of Police, Raigarh, District- Raigarh (C.G.)
---- Respondents
For Petitioner : Mr. Awadh Tripathi, Advocate.
For State/ respondents : Mr. Gurudev I. Sharan, Govt. Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. ORDER
1. The petitioner has filed writ petition under Article 226 of the
Constitution of India challenging the order dated 24.03.2021
(Annexure P/1) passed by Additional Chief Secretary,
Department of Home/respondent No. 2 by which appeal filed by
the petitioner under Section 9 (1) of the Chhattisgarh Rajya
Suraksha Adhiniyam, 1990 (for short "the Adhiniyam, 1990") has
been dismissed, affirming the order dated 07.12.2020 (Annexure
P/2) passed by District Magistrate, Raigarh/ respondent No. 3
whereby externment of the petitioner for one year from Raigarh
District has been ordered.
2. The brief facts, as projected by the petitioner, are that the
petitioner is an Advocate and also works as a reporter. He has
reported against malifide of coal mafia, gambling mafia, land
mafia and also made some report against Ex-Minister and his
brother. He has also made protest against present MLA in the
year 2014. This act of the petitioner has annoyed the local
administration, therefore, Superintendent of Police, Raigarh has
sent a report on 29.12.2014 to District Magistrate, Raigarh for
externment of the petitioner from Raigarh District alleging that
the petitioner always remains in company of unsocial element
and involved himself in the act of rioting assaulting, criminal
intimidation, political and communal activities, which disturb
peace and tranquility of the area. Such activities of the petitioner
have become danger for maintenance of public order and on
account of these activities the civilians are scared of the
petitioner and fear to make report, which amounting to endanger
to the law and order of the State, therefore, he may be
externment from Raigarh.
3. Learned counsel for the petitioner would submit that in the
complaint, list of five cases which were registered against the
petitioner are as under:-
S.N. Crime No. Offence U/s Status
1 14/2011 294, 506, 323, 34 IPC & (3) Decided by
(1)(x) of SC/ST Act JMFC
2 171/2011 420, 34 of IPC & 3 & 4 Pending before
Negotiable Instruments Act trial Court
3 594/2013 452, 294, 506, 186, 34 IPC Pending at P.S.
4 06/2014 452, 147, 294, 506, 323, Pending at P.S.
395, 354 IPC & (3)(1)(x) of
SC/ST Act
5 88/2014 294, 506, 34 IPC Pending at P.S.
4. On the basis of report submitted by Superintendent of Police,
Raigarh, District Magistrate, Raigarh conducted preliminary
enquiry and after satisfying himself with the contents of the
report submitted by the Superintendent of Police, issued show
cause notice to the petitioner on 31.12.2014. The petitioner filed
reply to the show cause notice on 22.01.2015 stating that the
petitioner belongs to poor family and he has been acquitted from
four criminal cases out of total five criminal cases and one
criminal case is pending and since long he is not involved in any
other criminal cases. It is further contended that the petitioner is
having family members and living peacefully with his family. The
petitioner is a sole bread earning member of his family,
therefore, he is required to take care of his family members, as
such, he may not be externed. It has been further contended
that the alleged cases registered against the petitioner are not in
grievous in nature and baseless, therefore, the complaint filed by
the Superintendent of Police, Raigarh is vague and he prayed
for dropping of the proceeding.
5. Learned counsel for the petitioner would further submit that the
proceedings were initiated on 31.12.2014 and thereafter, it was
kept pending upto 29.10.2020. On 29.10.2020 another Ishtgasha
was served to the petitioner as additional report of
Superintendent of Police, Raigarh. The petitioner has filed reply
to the said Ishtagasha on 09.11.2020 (Annexure P/4) mainly
contending that in the present Ishtagasha, Superintendent of
Police, Raigarh has taken into consideration nine cases, which
have been decided by learned Judicial Magistrate First Class/
Sub Divisional Magistrate, but the Superintendent of Police,
Raigarh has deliberately recorded its finding in pending cases
with intention to destroy his reputation, which amounts to
contempt of Court. The petitioner has submitted applications to
various higher authorities including His Excellency the Governor
and Hon'ble the Chief Minister of Chhattisgarh State. The
Hon'ble Chief Minister enquired into the complaint, but no
enquiry has been conducted. It is further submitted that four
various cases have been registered against the petitioner, out of
three cases, the petitioner has been released on regular bail in
one case and in two cases he has been released on anticipatory
bail and only one matter is still pending for investigation,
therefore, he may not be treated as criminal.
6. The District Magistrate, Raipug without examining the witnesses
fixed the case for final argument and on 23.11.2020 the
petitioner has also submitted written argument. Vide order dated
07.12.2020, District Magistrate, Raigarh has passed the
impugned order directing externment of the petitioner from
Raigarh District for one year as per Section 5 (b) of the
Adhiniyam, 1990. Being aggrieved by this order, the petitioner
preferred an appeal under Section 9 (1) of the Adhiniyam, 1990,
contending that the evidence of the petitioner has not been
recorded and without any material on record, learned District
Magistrate, Raigarh has passed the order without giving
opportunity of hearing to the petitioner and without examining
any of the prosecution witnesses. It has been further contended
that findings have been wrongly recorded that general public are
not ready and willing to record their evidence and due to
continuous criminal activity of the petitioner, law and order has
been disturbed and also adversely affected the public
administration, which is perverse, therefore, the order of
externment dated 07.12.2020 is liable to be quashed by the
appellate authority.
7. The appellate authority vide its order dated 24.03.2021 has
dismissed the appeal. The petitioner has filed Writ Petition (Crl.)
assailing both the orders. This Court vide order dated
18.06.2021 directed learned State counsel to produce record
related to the Appeal No. F-4-03/Grih-C 2021 as well as record
from District Magistrate, Raigarh in Criminal Case No. 04/2015
and in pursuance of this Court's order, State counsel has
produced the records for perusal of this Court.
8. I have heard learned counsel for the parties and perused the
records appended thereto with utmost satisfaction.
9. The records of the proceedings initiated by the District
Magistrate, Raigarh would reflect that the prosecution has
examined witnesses namely Rajesh Sahis on 03.05.2017,
Dhansai Yadav on 20.12.2017, Manendra Nayak on 07.02.2018
& Smt. Krishna Khatik on 20.09.2018. The petitioner appeared
before District Magistrate on 28.03.2016 & 26.04.2016 and
thereafter he remained absent on 24.05.2016, 21.06.2016,
25.07.2016, 30.08.2016, 30.12.2016, 31.01.2017, 29.03.2017,
18.07.2017, 16.08.2017, 13.09.2019, 25.10.2017, 22.11.2017,
20.12.2017, 17.01.2018, 07.12.2018, 14.03.2018, 23.05.2018,
11.07.2018, 01.08.2018, 05.09.2018, 12.09.2018. The
prosecution has examined the witness Rajesh Sahis in presence
of the petitioner, but he has not cross-examined him. When other
witnesses were examined, the petitioner was remained absent.
The petitioner appeared before District Magistrate on
10.10.2018, but he has not made any prayer for any opportunity
to cross-examination of the witnesses, who have already been
examined. The petitioner recorded his statement on 10.10.2018
and closed his right to lead further evidence to substantiate his
defence. On 15.10.2018, the petitioner appeared and sought
time to submit written arguments, therefore, the case was
adjourned to 16.10.2018 and on 16.10.2018 he has submitted
the written arguments.
10. On 22.09.2020, Superintendent of Police, Raigarh has again
submitted additional report wherein, Criminal Case No. 220/2020
has been registered against the petitioner at Police Station-
Kharsia, District- Raigarh for committing offence punishable
under Sections 451, 384, 387, 506-B, 120-B & 34 of I.P.C. On
04.05.2020 another Crime No. 229/2020 has been registered
against the petitioner at Police Station- Kharsia, District- Raigarh
for committing offence punishable under Sections 188, 269, 270
of I.P.C. thereafter, District Magistrate has issued notice to the
petitioner directing him to file reply. In response, petitioner filed
reply and submitted written argument also, thereafter, the
impugned order has been passed. District Magistrate while
directing externment of the petitioner for one year has recorded
its finding, which reads as under:-
"14- छ०ग० रराज्य ससुरकरा अधधिननियम 1990 ककी धिराररा 5(ख) कक
अनिसुसरार "यह नविश्विरास करनिक कक धलिए यसुनक्तियसुक्ति करारण हहै नक ऐसरा व्यनक्ति
नकससी ऐसक अपरराधि कक, धजिसमम बलि यरा नहहिंसरा अहिंतविर धलित हहै, यरा भरारतसीय
दण्ड सहिंनहतरा 1860 कक अध्यराय 12, 16 यरा 17 यरा उसककी धिराररा 506
यरा 509 कक अधिसीनि दण्डनिसीय नकससी अपरराधि कक करनिक मम यरा ऐसक नकससी
अपरराधि कक दष्सु पकरण मम सहिंलिग्न हहै यरा सहिंलिग्न हहोनिक कहो आमरादरा हहै और जिब
धजिलिरा मधजिस्टट कट ककी रराय मम, ऐसक व्यनक्ति कक नविरूद्घ सराकसीगण अपनिक शरसीर
यरा सहिंपधत्ति ककी ससुरकरा कक बरारक मम उसककी ओर सक आशहिंकरा हहोनिक कक करारण,
खसुलिकआम सराक्ष्य दकनिक हकतसु आगक आनिक कक धलिए रजिरामहिंद निहहीं हहै ।"
अनिराविकदक कक ककत्य सक यह नविश्विरास हहो गयरा हहै नक सराकसीगण अपनिक शरसीर
यरा सहिंपधत्ति ककी ससुरकरा कक बरारक मम उसककी ओर सक आशहिंकरा हहोनिक कक करारण
खसुलिकआम सराक्ष्य दकनिक हकतसु आगक आनिक कक धलिए रजिरामहिंद निहहीं हहै । यहसी करारण
हहै नक फररयरादसीगण न्यरायरालिय मम अनिराविकदक कक भय सक उससक रराजिसीनिरामरा
कर रहक हह । अनिराविकदक आपरराधधिक पविकधत्ति करा व्यनक्ति हहै सराथ हसी
मनहलिराओहिं कक पनत भसी उसककी भराविनिरा ठसीक निहहीं हहै । अततः रराज्य ससुरकरा
अधधिननियम कक उक्ति पराविधिरानि कक तहत उसक धजिलिक सक ननिष्कराधसत नकयक जिरानिक
करा पयरारप्त करारण हहै ।"
11. Thereafter, the petitioner preferred an appeal before the
appellate authority i.e. Additional Chief Secretary under Section
5(b) of the Adhiniyam, 1990. The learned appellate authority
while dismissing the appeal has recorded finding that nine cases
have been registered against the petitioner from 2010 and on
eight occasions proceeding for prohibition was done. There is no
improvement in conduct of the petitioner. Learned appellate
authority has recorded finding that the petitioner is an advocate
and journalist, therefore, he has responsibility and involvement
of the petitioner in criminal activities clearly establishes that the
security, peace and tranquility of the area will be jeopardized,
therefore, externment of the petitioner as ordered by the District
Magistrate for one year on 07.12.2020 is legal, justified and not
liable to be interfered with by the appellate authority and
accordingly, the appeal is liable to be dismissed.
12. The petitioner in support of his submission has also filed written
synopsis reiterating the stand taken by him in the appeal and
relied upon the judgment passed by Hon'ble the Supreme Court
in Gulab Mahato @ Santosh Mahato Vs. State of
Chhattisgarh & others1.
1 (2017) 3 CGLJ 280
13. Before adverting to the facts of the case, it is expedient to
examine the relevant provisions of the Adhiniyam.
14. Section 5 of the Adhiniyam, 1990 deals with removal of persons
about to commit offence, Section 6 deals with removal of
persons convicted of certain offences, Section 7 deals with
period of operation of orders under Section 4, 5 or 6 & Section 8
deals with hearing to be given before order under Section 3, 4, 5
or 6 is passed.
15. The relevant provisions of Sections 5 to 10 of the Adhiniyam
1990 are extracted below:-
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, XVI or XVII or under Section 506 or
509 of the Indian Penal Code, 1860 (45 of 1860) or
in the abatement 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 my 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.
6. Removal of persons convicted of certain
offences. - If a person has been convicted-
(a) of an offence,-
(i) under Chapter XII, XVI or XVII or under Section
506 or 509 of the Indian Penal Code, 1860 (45 of
I860); or
(ii) under the Protection of Civil Rights Act, 1955 (22
of 1955); or
(b) twice, of an offence under Suppression of
Immoral Traffic in Women and Girls Act, 1956 (104
of 1956); or
(c) thrice, of an offence within a period of three
years under [Section 3 or 4 or 4-A] of the Public
Gambling Act, 1867 (3 of 1967), in its application to
the State of Madhya Pradesh;
the District Magistrate may, if he has reason to
believe that such person is likely against to engage
himself in the commission of an offence similar to
that for which he was convicted direct such person
by an order to remove himself outside the district or
part thereof or such area and any district or districts
or any part thereof, contiguous thereto by such
route and within such time as the District Magistrate
may order and not to enter or return to the District
or part thereof or such area and such contiguous
district or part thereof, as the case may be, from
which he was directed to remove himself.
Explanation :- For the purpose of this Section, the
expression, "an offence similar to that for which he
was convicted" means :-
(i) in the case of a person convicted of an offence
mentioned in clause (a), tin offence falling under
any of the Chapters or Sections of the Indian Penal
Code, 1860 (45 of 1860), mentioned in that clause
or an offence falling under the provisions of the Act
mentioned in sub-clause (ii) of that clause; and
(ii) in the case of a person convicted of an offence
mentioned in clauses (b) and (c), an offence falling
under the provisions of the Acts mentioned
respectively in the said clauses.
7. Period of operation of orders under Section 4,
5 or 6. - A direction made under Section 4, 5 or 6
not to enter any district or part thereof or such area
and any district or districts or any part thereof,
contiguous thereto, as the case may be, shall be for
such period as may be specified therein and shall in
no case exceed a period of one year from the dale
of which it was made.
8. Hearing to be given before order under
Section 3, 4, 5 or 6 is passed. - (1) Before an
order under Section 3, 4, 5 or 6 is passed against
any person, the District Magistrate shall inform the
person in writing of the general nature of the
material allegations against him and give him a
reasonable opportunity of tendering an explanation
regarding them.
(2) If such person makes an application for the
examination of any witness produced by him, the
District Magistrate shall grant such application and
examine such witnesses unless for reason to be
recorded in writing, the District Magistrate is of
opinion that such application is made for the
purpose of vexation or delay.
(3) Any written statement put in by such person
shall be filed with the record of the case and such
person shall be entitled to appear before the District
Magistrate by any legal practitioner for the purpose
of tendering his explanation and examining the
witnesses produced by him.
(4) The District Magistrate proceeding under sub-
section (1) may. for the purpose of securing the
attendance of any person against whom any order
is proposed to be made under Section 3, 4, 5 or 6
require such person to appear before him and to
execute a security bond with or without sureties for
such attendance during the inquiry.
(5) If the person fails to execute the security bond
as required or fails to appeal before the District
Magistrate during the inquiry, it shall be lawful for
the District Magistrate to proceed with the enquiry
ex parte and thereupon such order, as was
proposed to be passed against him, may be
passed.
9. Appeal. - (1) Any person aggrieved by an order
under Section 3, 4, 5 or 6 made by the District
Magistrate or any other officer specially empowered
under Section 13 may appeal to the State
Government within thirty days from the date of such
order. Such appeal shall be decided as far as
possible within a period of four months of the date
of filing of the appeal.
(2) An appeal under this section shall be preferred
in the form of a memorandum setting forth concisely
the grounds of objection to the order appealed
against, and shall be accompanied by a certified
copy thereof.
(3) On receipt of such appeal, the State
Government may after giving a reasonable
opportunity to the appellant to be heard either
personally or by a legal practitioner and after such
further inquiry, if any, as it may deem necessary
confirm, vary or rescind the order appealed
against :
Provided that the order appealed against shall
remain in operation pending the disposal of the
appeal, unless the State Government otherwise
directs.
(4) In calculating the period of thirty days provided
for an appeal under this Section, the time taken for
granting a certified copy of the order appealed
against shall be excluded.
10. Finality of orders passed for in certain
cases. - Any order passed under Section 3, 4, 5 or
6 shall not be called in question in any Court except
on the grounds-
(i) that the District Magistrate had not followed the
procedure laid down in sub-section (1) of Section 8;
or
(ii) that there was no material before the District
Magistrate upon which he could have based his
order; or
(iii) that the District Magistrate was not of opinion
that witnesses were unwilling to come forward to
give evidence in public against the person in
respect of whom an order was made under Section
5.
16. From bare perusal of the relevant provisions of the Adhiniyam,
1990, the proceedings under the Adhiniyam, 1990 are preventive
in nature and the order of externment cannot be construed to be
an order imposing punishment. The said Adhiniyam, 1990 as is
clear, has been enacted to provide for security of the State,
maintenance of public order and certain other matters connected
therewith. The provisions are intended for taking preventive
actions to counteract activities of anti-social elements and the
Adhiniyam confers on the Government with power to take
appropriate action so that peace and tranquility is not disturbed
and one manner of maintaining peace and tranquility is by
removal of anti-social elements and restriction of their activities.
The Adhiniyam arms the Government with power to make a
restriction order and appropriate orders dealing with dispersal of
anti-social elements and previous convicts and removal of
persons about to commit offences as also removal of persons
convicted of certain offences for which appropriate actions may
be initiated. The action under this provision is not to punish, but
to prevent certain actions which may be prejudicial to the peace
and tranquility in the community. Though, it is no doubt true that
to some extent the order of externment affects the right to
movement of a person (within a certain area) against whom an
order is passed but then this is preventive and not punitive.
Indeed, a citizen has a right to move about freely throughout the
territory of India, but this right is not wholly absolute and the
State has the power to impose reasonable restrictions on such
movement either in the interest of the general public or for the
protection of interest of any Scheduled Tribe. In the case at
hand, the restriction in so far as its prohibits the petitioner's entry
in certain specified districts may be complete, but it cannot be
said that the order amounts to a total prohibition of the
fundamental right of the petitioner guaranteed under Article
19(1)(d) of the Constitution of India. The action of restriction is
with the object of maintaining peace and tranquility and the
action is taken against the person only after giving him a due
opportunity of hearing.
17. The records of the proceedings would clearly establish that
opportunity of hearing has been granted to the petitioner as first
witness was examined by the prosecution on 03.05.2017 in
presence of the petitioner, but he has not cross-examined and
when prosecution examined other witness on 20.12.2017 &
07.02.2018, he has not cross-examined the witnesses. As such,
there is compliance of the procedure as provided in Section 8 of
the Adhiniyam, 1990. It is pertinent to mention here that even
new Ishtagasha was submitted by the Superintendent of Police,
the District Magistrate has provided copy to the petitioner and
the petitioner has submitted his reply and documents.
18. Witness namely- Manendra Nayak has deposed as under:-
"मह, अनिराविकदक भभूपकन्द्र विहैष्णवि कहो जिरानितरा हह हिं विह "स्विक" करान्सकप्ट
मराकरनटहिंग इहिंनडयरा परा.धलि. करा विरर 2010-2011 मम एजिकण्ट थरा तथरा
उसकक दराररा कम्पनिसी कक निराम सक मकरक एविहिं अन्य लिहोगगों सक पहैसक दगसु निरा कर दगहिं भू रा
करकक पहैसक लिकनिक करा करायर करतरा थरा । घटनिरा विरर 2010 कक मरारर मनहनिक
अनिराविकदक कक दराररा मसुझसक 2000 रू. जिमरा करहोगक तहो उसकरा एक विरर मम
26100 रू. हहो जिरायकगरा कहकर बहोलिनिक लिगरा तब मह उसकक बहकराविक मम
आकर उसकक एकराउन्ट निहिंबर 31018073934 मम 1,16,000 रू.
जिमरा कर नदयरा तथ महैनिम उक्ति रकम कक अलिराविरा बसीर-बसीर मम 4000 रू.,
8000 रू., 12000 रू., 80000 रू., 90000 रू., 44000 रू.,
52000 रू., इस तरह कसुलि करसीब 298000 रू. तथरा पभूविर मम नदयरा गयरा
116000 रू कसुलि नमलिराकर 4,00,000 रू. नदयरा नकन्तसु अनिराविकदक निक
उक्ति पहैसक कहो ननिधिरारररत अविधधि मम निहहीं नदयरा धजिसकक करारण मसुझक ठगरा
महसभूस हहोनिक पर अ.नवि.अ. (पसुधलिस) खरधसयरा मम ररपहोटर दजिर कररायरा थरा ।
अनिराविकदक मसुझक तथरा आस-परास कक लिहोगगों कहो छलिपभूविरक पहैसक
पराप्त करतरा थरा तथरा उसकक डर सक आस-परास कक लिहोग उसकक नविरूद्घ
गविराहसी दकनिक सक कतररातक हह । अनिराविदकक बदमराश एविहिं धिहोखकदरार पविकधत्ति करा
आदमसी हहै ।"
19. Witness namely Dhansai Yadav deposed as under:-
"मह अनिराविकदक भभूपमद्र नकशहोर कहो जिरानितरा हह हूॅ विह खरधसयरा करा
ननिविराससी हहै । मह ररायगढ़ सक पकरानशत जिन्मकमर करा पत्रकरार विरर 2014 मम
थरा । घटनिरा 08 मरारर ररानत्र करसीब 11 बजिक ककी हहै घटनिरा नदनिराहिंक कहो
आरतसी विहैष्णवि करा मसुख्य निगर पराधलिक अधधिकरारसी शसीमतसी ककष्णरा खनटक
कक पनत सक कसुछ नविविराद थरा धजिसककी पत्रकरार ककी हहैधसयत सक जिरानिकरारसी
पराप्त करनिक हकतसु मह तथरा रराजिकश शमरार पसुधलिस रचौककी खरधसयरा गयक हह यक थरा
तभसी पसुधलिस रचौककी खरधसयरा कक सरामनिक पहह र
हिं निक पर अनिराविकदक एविहिं उनिकक
सराथसी हम लिहोगगों कहो दकखकर भड़क गयक तथरा मराहिं बहनि ककी गहिंदसी गहिंदसी गरालिसी
गलिचौर दकनिक लिगक तथरा उनि लिहोगगों कक दराररा मसुझक गहगस्टर कहो बसुलिराकर टसु कटक
कर जिरानि सक मरारनिक ककी धिमककी दकनिक लिगक धजिसकक करारण मह तथरा रराजिकश शमरार
भयभसीत हहो गयक तथरा डर कक करारण महनिक रचौककी खरधसयरा मम अनिराविकदक एविहिं
उनिकक नविरूद्घ धलिधखत मम नशकरायत दजिर कररायरा तथरा उक्ति पकरण
न्यरायरालिय मम नविररारराधिसीनि हहै ।
अनिराविकदक खरधसयरा कक स्थरायसी ननिविराससी हहै तथरा उसकक नविरूद्घ
थरानिरा मम कई मरामलिक दजिर हहै एविहिं विह आरराधधिक पविकधत्ति करा आदमसी हहै तथरा
अनिराविदकक सक आम जिनि हमकशरा भयभसीत रहतक हह ।"
20. Witness namely Smt. Krishna Khatik deposed as under:-
"शपथपभूविरक कथनि करतसी हह हूॅ नक मह अगस्त 2012 सक
13.08.2015 तक मसुख्य निगर पराधलिकरा अधधिकरारसी, निगर पराधलिकरा
परररद खरधसयरा कक पद पर पदस्थ थसी । नदनिराहिंक 03.12.2013 कहो
नदनि कक 01:30 बजिक अनिराविकदक भभूपकन्द्र नकशहोर विहैष्णवि अपनिक सराधथयगों कक
सराथ निगर पराधलिक परररद कक ऑनफस मम घसुसकर मकरक सराथ गरालिसी-गलिराहैर
नकयरा गयरा तथरा ऑनफस मम तहोड़ फहोड़ नकयरा गयरा । इस घटनिरा ककी ररपहोटर
महैनिक रचौककी खरधसयरा मम दजिर करराई थसी । धजिस पर अप.क. 594/13
धिराररा 452, 294, 506, 186, 34 भरादनवि दजिर ककी गई थसी ।
नदनिराहिंक 08.03.2014 ककी शराम 07:00 बजिक अनिराविकदक भभूपकन्द्र
नकशहोर विहैष्णवि अपनिक अन्य सराधथयगों कक सराथ एक रराय हहोकर मकरक निगर
पराधलिकरा खरधसयरा सस्थत मकरानि घर कक अन्दर पविकश करकक जिरातसीगत
गरालिसी गलिचौर वि जिरानि सक मरारनिक ककी धिमककी दककर मरारपसीट, छक ड़छराड़ वि
डकहैतसी करा अपरराधि कराररत नकयरा । उक्ति घटनिरा ककी ररपहोटर मकरक दराररा रचौककी
खरधसयरा मम ककी गई धजिस पर अप.क. 06/14 धिराररा 452, 147,
294, 506, 323, 395, 354 तरा. नह. 3(1-10) एस.ससी/
एस.टसी. एक्ट पहिंजिसीबद्घ नकयरा गयरा ।
नदनिराहिंक 03.12.2013 ककी ररपहोटर कक सहिंबहिंधि मम पसुधलिस दराररा
न्यरायरालिय मम ररालिरानि पकश नकयरा गयरा थरा । न्यरायरालिय खरधसयरा मम
अनिराविकदक सक मकररा रराजिसीनिरामरा हहो गयरा थरा । धजिसकक आधिरार पर पकरण
समराप्त नकयरा गयरा ।
नदनिराहिंक 08.03.2014 ककी ररपहोटर कक आधिरार पर पसुधलिस दराररा
नविशकर न्यरायरालिय (एटट होधसटसीजि) धजिलिरा ररायगढ़ मम ररालिरानि पकश नकयरा गयरा
थरा । नविशकर न्यरायरालिय (एटट होधसटसीजि) ररायगढ़ मम अनिराविकदक सक मकररा
रराजिसीनिरामरा हहो गयरा थरा । धजिसकक आधिरार पर पकरण समराप्त नकयरा गयरा ।"
21. Witness namely Rajesh Sahish deposed as under:-
"मह अनिराविकदक भभूपकन्द्र नकशहोर विहैष्णवि कहो जिरानितरा हह हूॅ । घटनिरा विरर जिभूनि 2011
ककी ररानत्र 9.00 बजिक ककी हहै । घटनिरा नदनिराहिंक कहो आरहोपसी निक खरधसयरा सस्थत
अम्बकडकर रचौक कक परास ररास्तरा रहोककर मसुझक हराथ मसुक्करा सक मरारपसीट कर
गरालिसी गलिचौर नकयरा थरा धजिसककी महनिक रचौककी खरधसयरा मम धलिधखत नशकरायत
दजिर कररायरा थरा । धलिधखत नशकरायत पदशर -पसी-1 कक अ सक अ भराग पर मकरक
हस्तराकर हह । उक्ति पकरण मम मकररा अनिराविकदक सक रराजिसीनिरामरा हहो गयरा हहै ।
अनिराविकदक भभूपकन्द्र नकशहोर विहैष्णवि नकस पविकधत्ति करा आदमसी हहै मसुझक
जिरानिकरारसी निहहीं हहै ।"
22. There is sufficient material for the District Magistrate to record a
finding that peace and tranquility of the area is adversely
affected because of the presence of the petitioner. This is the
subjective satisfaction of the authority which should be based
upon some material, which is available in this case, therefore, it
cannot be said that in the case on hand, the restriction imposed
upon the petitioner is arbitrary or of an excessive nature beyond
what was required in the interest of the public as it deprives the
petitioner from his fundamental right of movement throughout
the territory of India.
23. The contention that the order not being a well reasoned order
stands vitiated, cannot also be accepted. As has been observed
above, the order of externment is not an order imposing
punishment and in such cases it cannot be said that the facts on
which the action is based should make out a case beyond all
reasonable doubts as is required to be made out before holding
a person guilty of an offence. Obviously, such orders of
externment of individuals like preventive detention are largely
precautionary and to some extent can be said to be based on
suspicion which should arise from the material placed on record.
An order or externment cannot be passed on the ipse dixit of an
Authority, but founded on material on record and which is
sufficient for arriving at a belief that a person is engaged or
about to be engaged in the commission of offence. Thus, a
satisfaction or a belief has to be arrived at by the Authority
before it takes any action and this satisfaction or belief is to be
based on material placed before him. In the case at hand, it
cannot be said that the Authority-respondent No. 3 herein, has
arrived at a particular conclusion without there being any
material on record or in a routine or a mechanical manner. The
record indicates that a report giving details was received from
the Superintendent of Police. On receiving the report, the
concerned Authority examined the matter, initiated an enquiry in
which statements of some witnesses were examined, who were
not cross-examined by the petitioner for the reason best known
to him. From perusal of the said order, it is clear that the
Authority arrived at that conclusion after appraisal of the facts on
record. In other words, his satisfaction has been recorded
indeed, neither it is necessary nor does the statute require
recording of reasons to make out a case beyond reasonable
doubt like in a criminal trial before passing an order of
externment.
24. It is, not doubt, true and as pointed out by the learned counsel
that in many of the cases, the Court acquitted the petitioner. But
from the orders impugned, it is apparent that in most of these
cases the witnesses had feigned ignorance of the incident and
they have resiled from their statement made during the
investigation and in one case even the complainant had resiled
from their earlier stand. In other words, the complainant also did
not support the prosecution but surprisingly, as is clear from the
order of the authority, many of these persons have deposed
before the Authority pointing out threats against them by the
petitioner and his conduct by which the community is disturbed.
25. From bare perusal of the order passed by the appellate authority,
it is quite clear that the appellate authority after considering the
entire material and evidence on record, has recorded the finding,
which is as under:-
"14. अपसीलिराथर्थी कक नविरूद्घ विरर 2001 मक एक पकरण दजिर हह आ हहै ।
इसकक पश्ररात विरर 2010 सक उसककी अपरराधधिक गनतनविधधियगों कक करारण
उसकक नविरूद्घ 09 अपरराधधिक पकरण दजिर हह ए हहै । 08 अविसरगों पर
उसकक नविरूद्घ अपरराधि सक नविरत रहनिक कक उदकश्य सक पनतबहिंधिरात्मक
करायर विरानहययॉ भसी ककी गई नकहिंतसु ससुधिरार करा अविसर नदयक जिरानिक पर भसी उसकक
आररण मम ससुधिरार निहसी हहोनिक कक तथ्य एविहिं सराक्ष्य उपलिब्धि हहै । अपसीलिराथर्थी
निक स्वियहिं कहो अधधिविक्तिरा बतलिरातक हह ए पत्रकरार भसी हहोनिरा बतलिरायरा हहै । इनि
करारणगों सक समराजि कक पनत उसकरा उत्तिरदरानयत्वि और अधधिक महत्विपभूणर हहो
जिरातरा हहै, नकहिंतसु अपसीलिराथर्थी करा लिगरातरार अपरराधधिक गनतनविधधियराम मम धलिप्त
रहनिरा उस पर अधधिरहोनपत महत्विपभूणर दरानयत्वि कक ननिविर हनि मम असफलितरा
कहो स्थरानपत करतरा हहै । इन्हसी आधिरारगों पर अपसीलिराथर्थी कक अपरराधि करनिक कक
धलिए अमरादरा रहनिक ककी गनतनविधधियगों ककी स्पष्ट एविहिं पमरानणत सराक्ष्य कक
आधिरार पर आम जिनि ककी ससुरकरा एविहिं ककत्र मम शराहिंनत व्यविस्थरा बनिराए रखनिक कक
धलिए धजिलिरा ररायगढ़ एविहिं ससीमरावितर्थी धजिलिगों सक बराहर रहनिक करा ननिरकधिरात्मक
आदकश पराररत नकयरा गयरा हहै । इनि पररसस्थनतयगों मम अपसीलिराथर्थी कक नविरूद्घ
आदकश नदनिराहिंक 07.12.2020 कहो अपसीलि दराररा दसी गई रसुनिचौतसी
आधिरारहसीनि स्थरानपत हहोतसी हहै ।
15. धजिलिरा दण्डराधधिकरारसी ररायगढ़ दराररा अपसीलिराथर्थी कक नविरूद्घ
अधधिननियम ककी धिराररा 5(ख) कक तहत पदत्ति शनक्तियगों करा पयहोग करतक हह ए
पराररत नकए गए ननिरकधिरात्मक आदकश नदनिराहिंक 07.12.2020 मम कहोई
तथ्यरात्मक अथविरा नविधधिक त्रसुअ निहसी हहै । आदकश नदनिराहिंक 07.12.2020
मम हस्तककप करनिक करा कहोई आधिरार निहहीं हहै ।
अपसीलिराथर्थी दराररा पस्तसुत अपसीलि नदनिराहिंक 06.01.2021
अस्विसीकरार ककी जिरातसी हहै ।"
26. This finding is purely appreciation of facts, evidence already
brought on record and as per Section 10 of the Adhiniyam, 1990.
As the order passed under Section 3, 4, 5 & 6 can be called in
question in any Court except on the grounds that the District
Magistrate had not followed the procedure, there was no
material before him upon which he could have based his order
or the District Magistrate was not of the opinion that witnesses
were unwilling to come forward to give their evidence in public
against the petitioner in respect of whom, an order was made
under Section 5 of the Adhiniyam, 1990. From the order passed
by District Magistrate, it is crystal clear that there is no such
ingredients on which, the appellate authority can interfere in the
order, therefore, the appellate authority has rightly rejected the
appeal filed by the petitioner.
27. Hon'ble the Supreme Court in case of Pandharinath Shridhar
Rangnekar Vs. Dy. Commr. of Police, the State of
Maharashtra2, has examined the scope and ambit of Sections
56 to 59 of the Maharashtra Police Act, 1954 with regard to law
relates to externment order, which are extracted below:-
"8. Section 56 of the Act provides, to the extent
material, that whenever it shall appear in Greater
Bombay to the Commissioner: (a) that the
movements of acts of any person are causing or
are 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
2 (1973) 1 SCC 372
punishable under Chapter XII, XVI or XVII of the
Penal Code, 1860, and when in the opinion of such
officer 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, the said officer
may by order in writing direct such person to
remove himself outside the area within the local
limits of his jurisdiction or such area and any district
or districts or any part thereof contiguous thereto,
within such time as the said officer may prescribe
and not to enter or return to the said area from
which he was directed the remove himself. Under
Section 58, an order of externment passed under
Section 56 can in no case exceed a period of two
years from the date on which it was made. The
relevant part of Section 59(1) provides that before
an order under Section 56 is passed against any
person, the officer shall inform that person in
writing "of the general nature of the material
allegations against him" and give him a reasonable
opportunity of tendering an explanation regarding
those allegations. The proposed externee is
entitled to lead evidence unless the authority takes
the view that the application for examination of
witnesses is made for the purpose of vexation or
delay. Section 59 also confers on the person
concerned a right to file a written statement and to
appear through an advocate or attorney.
9. These provisions show that the reasons which
necessitate or justify the passing of an externment
order arise out of extraordinary circumstances. An
order of externment can be passed under clause
(a) or (b) of Section 56, and only if, the authority
concerned is satisfied that witnesses are unwilling
to come forward to give evidence in public against
the proposed externee by reason of apprehension
on their part as regards the safety of their person or
property. A full and complete disclosure of
particulars such as is requisite in an open
prosecution will frustrate the very purpose of an
externment proceeding. If the show-cause notice
were to furnish to the proposed externee concrete
data like specific dates of incidents or the names of
persons involved in those incidents, it would be
easy enough to fix the identity of those who out of
fear of injury to their person or property are
unwilling to depose in public. There is a brand of
lawless element in society which is impossible to
bring to book by established methods of judicial
trial because in such trials there can be no
conviction without legal evidence. And legal
evidence is impossible to obtain, because out of
fear of reprisals witnesses are unwilling to depose
in public. That explains why Section 59 of the Act
imposes but a limited obligation on the authorities
to inform the proposed externee "of the general
nature of the material allegations against him". That
obligation fixes the limits of the co-relative right of
the proposed externee. He is entitled, before an
order of externment is passed under Section 56, to
know the material allegations against him and the
general nature of those allegations. He is not
entitled to be informed of specific particulars
relating to the material allegations.
10. It is true that the provisions of Section 56
make a serious inroad on personal liberty but
such restraints have to be suffered in the larger
interests of society. This Court in Gurbachan
Singh v. State of Bombay[1952 SCR 737 : AIR
1952 SC 221 : 1952 SCJ 279] had upheld the
validity of Section 27(1) of the City of Bombay
Police Act, 1902, which corresponds to Section
56 of the Act. Following that decision, the
challenge to the constitutionality of Section 56
was repelled in Bhagubhai v. Dulldbhabhai
Bhandari v. District Magistrate, Thana. We will
only add that care must be taken to ensure that
the terms of Sections 56 and 59 are strictly
complied with and that the slender safeguards
which those provisions offer are made available
to the proposed externee.
15. As regards the last point, it is primarily for the
externing authority to decide how best the
externment order can be made effective, so as to
subserve its real purpose. How long, within the
statutory limit of two years fixed by Section 58, the
order shall operate and to what territories, within
the statutory limitations of Section 56 it should
extend, are matters which must depend for their
decision on the nature of the data which the
authority is able to collect in the externment
proceedings. There are cases and cases and
therefore no general formulation can be made that
the order of externment must always be restricted
to the area to which the illegal activities of the
externee extend. A larger area may conceivably
have to be comprised within the externment order
so as to isolate the externee from his moorings.
16. An excessive order can undoubtedly be
struck down because no greater restraint on
personal liberty can be permitted than is
reasonable in the circumstances of the case.
The decision of the Bombay High Court in Balu
Shivling Dombe v. Divisional Magistrate,
Pandharpur, is an instance in point where an
externment order was set aside on the ground
that it was far wider than was justified by the
exigencies of the case. The activities of the
externee therein were confined to the city of
Pandharpur and yet the externment order covered
an area as extensive as districts of Sholapur,
Satara and Poona. These areas are far widely
removed from the locality in which the externee
had committed but two supposedly illegal acts. The
exercise of the power was therefore arbitrary and
excessive, the order having been passed without
reference to the purpose of the externment."
28. Hon'ble the Supreme Court in Gazi Saduddin v. State of
Maharashtra & another3, has held that in passing an order of
externment, the authority passing the order must be satisfied of
the expediency of passing the order. If the satisfaction recorded
by the authority is objective and is based on material on record
then the Court would not interfere with the order passed by the
authority, only because another view can possibly be taken.
However, the satisfaction of the authority can be interfered with if
the satisfaction recorded is demonstrably perverse, based on no
evidence, misleading evidence or no reasonable person could
have, on the basis of the materials on record, been satisfied of
the expediency/necessity of passing an order of externment.
29. Hon'ble the Supreme Court in Gazi Saduddin (Supra) held as
under:-
"13. It has not been pointed out that there was any
lapse in following the procedure laid down under
the Act and the Rules in passing the order of
externment. Procedure laid down under the Act
culminating in passing of the order of externment
was duly followed. Primarily the satisfaction has to
be of the authority passing the order. If the
satisfaction recorded by the authority is objective
and is based on material on record then the courts
would not interfere with the order passed by the
authority only because another view possibly can
be taken. Such satisfaction of the authority can be
3 (2003) 7 SCC 330
interfered with only if the satisfaction recorded is
either demonstratively perverse based on no
evidence, misreading of evidence or which a
reasonable person could not form or that the
person concerned was not given due opportunity
resulting in prejudicing his rights under the Act.
30. The judgment cited by learned counsel for the petitioner in
Gulab Mahato (Supra) is not applicable to the facts and
circumstances of the present case as in Gulab Mahato (Supra)
evidence was examined in absence of the petitioner whereas
statement of the petitioner was to be recorded, but despite
knowledge of date of the hearing, the petitioner deliberately had
not appeared before the District Magistrate for cross-
examination of the witnesses, therefore, facts of that case are
distinguishable from the facts and circumstances of the present
case, therefore, the judgment cited by the petitioner is not
applicable in the present facts of the case.
31. Thus, from the above, stated legal provisions and the laid down
by Hon'ble the Supreme Court, it is clear that the authority while
passing the order must be satisfied of the expediency of passing
the order. If the satisfaction recorded by the authority is objective
and is based on material on record then the Court would not
interfere with the order passed by the authority, only because
another view can possibly be taken. Therefore, the order passed
by the District Magistrate does not suffer from perversity as there
is sufficient material to record a finding that witnesses are
compelled to settle their dispute with the petitioner on the ground
of safety and security of the property. The appellate authority has
also given a brief reason for dismissing the appeal which is
legal, justified and not liable to be interfered by this Court.
32. Thus, from the above stated discussion as well as the law laid
down by Hon'ble the Supreme Court, this Court is of the view
that the District Magistrate, Raigarh has not committed any error
in passing order dated 07.12.2020 (Annexure P/2) and the
appellate authority has also rightly rejected the appeal filed by
the petitioner vide order dated 24.03.2021 (Annexure P/1). The
impugned orders do not suffer from any illegality or irregularity
warranting interference by this Court.
33. In view of the above, the instant petition is liable to be and is
hereby dismissed. No order as to cost.
Sd-
(Narendra Kumar Vyas)
Judge
Arun
