Chattisgarh High Court
Taukeeir Ahmed Khan vs State Of Chhattisgarh on 16 September, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 395 of 2022
• Taukeeir Ahmed Khan S/o Late Salauddin Khan Aged About 37 Years
R/o Risdi, Police Station Kotwali, District- Korba, Chhattisgarh.
---- Appellant
Versus
1. State Of Chhattisgarh Through Its Secretary Department Of Home
Affairs, Mahanadi Bhavan, Atal Nagar, Nava Raipur, Distt. Raipur, CG
2. District Magistrate Korba Rampur Road, Rampur, Korba, District
Korba Chhattisgarh.
3. Sub-Divisional Magistrate Katghora Tehsil Premises Katghora Korba,
District Korba Chhattisgarh.
4. State Of Chhattisgarh Through Station House Officer Police Station
Balco Nagar District- Korba, Chhattisgarh
---- Respondent
(Cause-title taken from Case Information System)
For Appellant : Shri R.S. Marhas with Shri Dhiraj Kumar
Wankhede, Advocates
For Respondents : Ms. Meena Shastri, Additional Advocate General.
Date of Hearing : 26/08/2022 & 29/08/2022
Date of Judgment : 16/09/2022
Hon'ble Shri Arup Kumar Goswami, CJ &
Hon'ble Shri Deepak Kumar Tiwari, J
C A V JUDGMENT
Per Deepak Kumar Tiwari, J.
The Appellant has preferred this Appeal challenging the order dated
2.5.2022 passed by the learned Single Judge in WPCR No.78/2022, whereby
the learned Single Judge has repelled/rejected the challenge made by the
appellant to the externment order dated 1.9.2021 passed by the District
Magistrate, Korba under Section 5(b) of the Chhattisgarh Rajya Suraksha
Adhiniyam, 1990 (Henceforth 'the Act').
2. The Appellant had preferred a Writ Petition against the order dated
1.9.2021 passed by the District Magistrate, Korba restraining him to enter
Korba city and other border districts for a period of one year, which was
affirmed in Appeal by the State Government on 6.12.2021. The learned
Single Judge has dismissed the writ petition by observing that 'If the petitioner
has to his credit the number of enlisted cases, then balancing the right of the
public at large of Society to have free fearless atmosphere would be a prime
factor which cannot be ignored as against the rights of the petitioner. Though
it has been stated that the petitioner was acquitted of the cases, but the
inception of cases against the petitioner would demonstrate the gravity of
charges against him and would lead to show the activity mutated from one to
other. The public at large cannot be expected to face real life drama at
unexpected places time and again. The nature of acquittals in criminal cases
also speaks a loud. The state has passed the order of externment considering
the conduct of petitioner with an idea of reforming the society. It is obvious
that serving certain problem requires multi-prolonged approach to balance the
twin need i.e., the right of public at large and that of petitioner. Externment
orders are passed to control anti-social elements under the State Laws, which
provide for specific orders for their inter-state as well as intra-state for a
certain period of time. The power for such removal has been conferred to
administrative authorities, specially to District Magistrates and City
Commissioners whereby liberty of an individual is put to reasonable bounds
for larger good. Therefore, considering the nature of past conduct coupled
with fresh report made against the petitioner, which may be a turbulence alert,
the order passed by the District Magistrate and the order passed by the State
for the safety of general public at large would hold the sway over the
individual right of the petitioner as article 21 would be subject to the law of
land.'
3. The Appellant had challenged the impugned order passed by the District
Magistrate, Korba on 1.9.2021 in Criminal Case No.02/2020 in respect of
proceedings under Section 5(b) of the Act. The Appellant thereafter filed an
Appeal under Section 9 of the Act before the State Government, which was
rejected by the State Government on 6.12.2021. The Appellant had
challenged both the orders on the ground that sufficient material under Section
5(b) of the Act was not available before the learned District Magistrate. The
cases mentioned in the report of Superintendent of Police, Korba on the basis
of which impugned order was passed, were old and stale cases. However, the
learned Single Judge has failed to appreciate the aforesaid grounds while
dismissing the writ petition.
4. Learned counsel for the Appellant would submit that the order dated
2.5.2022 passed by the writ Court is bad in law inasmuch as the same has been
passed without considering the facts, relevant documents and grounds raised
by the appellant. The impugned order has been passed without considering
the provisions of Section 8 and Section 5(b) of the Act. The externment order
was passed in complete violation of Section 8 of the Act, as no opportunity
was granted to the appellant to defend his case and to submit all the certified
copies of acquittal orders and other relevant documents before the District
Magistrate, Korba. The Appellant was completely unaware of the witnesses
who had deposed against him and opportunity to cross-examine the witnesses
was not afforded to the appellant. The Superintendent of Police, Korba had
only submitted a letter dated 27.5.2020 along with list of 7 criminal cases
registered against the appellant. It was submitted that the respondents did not
place any material or document and the judgments passed by the Criminal
Court before the District Magistrate, Korba. The District Magistrate passed
the externment order only on the basis of list of cases registered against the
appellant. It is pertinent to mention here that 6 cases registered under the
preventive action mentioned in the list were too old, as the same were
registered 10-15 years ago.
5. Learned counsel would further submit that neither the Superintendent of
Police, Korba and other officers of the Korba Police Administration had
provided sufficient material to the District Magistrate, Korba nor the appellant
was afforded any opportunity to place the certified copies of the acquittal
orders passed in 6 criminal cases and the anticipatory bail order passed in
Crime No.223/2020. The learned District Magistrate passed the externment
order in the absence of sufficient material, which is against the provisions of
Sections 5(b) and 8 of the Act, and the learned Single Judge has also failed to
consider the aforesaid facts. The District Magistrate considered the report
submitted by the SHO, Police Station Balco Nagar before the SP, Korba on
5.8.2021 concerning the Whatsapp voice recording submitted by one Krishna
Kumar, Ex. Senior Manager at Feedback Power Company alleging that they
received the said voice recording on 12.6.2021 wherein the appellant was
extending threat to said Krishna Kumar. It was submitted that no complaint
has been filed by any person in any police station concerning the aforesaid
threat.
6. Learned counsel for the appellant would further submit that though the
externment order was passed not only in respect of Korba district but also in
respect of bordering districts, however, no material was available on record to
justify it. He would place reliance on the judgments in the matters of Deepak
Laxman Dongre Vs. State of Maharashtra 1, Sandhi Mamad Kala Vs.
State2, Ayub Abdul Sattar Shaikh Vs. Dy. Commissioner of Police, Zone-
VI, Mumbai and Another3, State of NCT of Delhi and Another Vs.
Sanjeev alias Bittoo4, Rahmat Khan alias Rammu Bismillah Vs. Deputy
Commissioner of Police5, Lt. Governor, NCT And Others Vs. Ved
Prakash alias Vedu6 and Pandharinath Shridhar Rangnekar Vs. Dy.
Commr. of Police, The State of Maharashtra7. He would finally submit
that the impugned order was passed in a mechanical and arbitrary manner,
without any just or sufficient cause. So learned counsel prays to allow the
Appeal and set aside the impugned order as well as the orders passed by the
appellate Court.
1 AIRONLINE 2022 SC 70
2 1973 0 GLR 384
3 2013 SCC OnLine Bom 1179
4 (2005) 5 SCC 181
5 (2021) 8 SCC 362
6 (2006) 5 SCC 228
7 (1973) 1 SCC 372
7. On the other hand, learned counsel for the Respondents contended that
while passing the order of externment, the competent authority has recorded
the subjective satisfaction regarding the grounds mentioned in Section 5(b) of
the Act. The State and the writ Court have already examined the grounds of
challenge to the impugned order of externment and the same have been
rejected. She would further submit that the grounds stipulated under Section
10 of the Act are limited and the source of information or communication
received by the State is not required to be disclosed. She submitted that due
procedure has been followed under the Act in passing the order of externment.
Learned State Counsel would place reliance on the judgment in the matter of
Gazi Saduddin Vs. State of Maharashtra and Another 8 to submit that no
interference is called for with the impugned order passed by the learned Single
Judge as also the appellate orders passed under Section 9 of the Act by the
State.
8. We have heard learned counsel for the parties at length and perused the
record.
9. Though the period of externment is over, however, considering the fact
that the issue affects the personal liberty and fundamental rights of a citizen,
this Court is of the view that the matter needs to be examined to see whether
due process of law has been followed in the present matter or not. The
relevant legal provisions of the Act under which the order of externment has
been passed and which also prescribes the proceedings for recording of
satisfaction on reasonable grounds to pass such an order are reproduced
8 (2003) 7 SCC 330
hereunder :-
"S. 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 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 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 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.
S. 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 date of which it was made.
S. 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 for
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, if District Magistrate is of the
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 requires
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.
S. 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.
S. 19. Sources of information not to be disclosed. -
Nothing in this Act shall be deemed to require the State
Government or the officers specially empowered by it
under Section 13 or the District Magistrate or the
Additional District Magistrate or Sub-Divisional
Magistrate empowered under Section 18 as the case
may be to disclose to the person against whom an order
is made under Sections 3, 4, 5, 6 and 13 of this Act or
to any Court of law the source of it or his information
or any fact, the communication of which might, in the
opinion of the State Government or the officer
empowered under Section 13 of the District Magistrate
or the Additional District Magistrate or Sub-Divisional
Magistrate empowered under Section 18 as the case
may be lead to the disclosure of the identity or name of
any informant."
10. Before delving upon the issue, the observations made on the subject in
legal precedents are significant which are being mentioned hereunder:
11. In Rahmat Khan v. State9, while quashing the externment order ,the
following was observed :
"25. The scope and ambit of Sections 56 to 59 of the
Maharashtra Police Act, 1954 was considered in
Pandharinath Shridhar Rangnekar v. State
[Pandharinath Shridhar Rangnekar v. State, (1973) 1
SCC 372 : 1973 SCC (Cri) 341] cited by Mr Patil,
appearing for the State, where this Court held : (SCC
pp. 376-78, paras 8-10 & 15-16) :
"8............................ 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
9 (2021) 8 SCC 362
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 [Gurbachan Singh v. State of Bombay, 1952
SCR 737 : AIR 1952 SC 221 : 1952 Cri LJ 1147] 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 Dullabhabhai
Bhandari v. District Magistrate, Thana [Bhagubhai
Dullabhabhai Bhandari v. District Magistrate, Thana,
AIR 1956 SC 585 : 1956 Cri LJ 1126] . 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 [Balu Shivling Dombe v. Divisional
Magistrate, Pandharpur, 1968 SCC OnLine Bom
20] , 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."
(emphasis supplied)
31. An externment order may sometimes be
necessary for maintenance of law and order. However
the drastic action of externment should only be taken in
exceptional cases, to maintain law and order in a
locality and/or prevent breach of public tranquility and
peace. In this case, it is patently clear that the impugned
externment order was an outcome of the complaints
lodged by the appellant against government officials,
some Madrasas and persons connected with such
Madrasas who later lodged FIRs against the appellant.
The FIRs are clearly vindictive, retaliatory and aimed
to teach a lesson to the appellant and stifle his voice."
12. In Lt. Governor, NCT v. Ved Prakash10 it was observed thus :
"18. The law operating in the field is no longer res
integra which may hereinafter be noticed:
(i) In a proceeding under the Act, all statutory and
constitutional requirements must be fulfilled.
(ii) An externment proceeding having regard to the
purport and object thereof, cannot be equated with a
preventive detention matter.
(iii) Before an order of externment is passed, the
proceedee is entitled to an opportunity of hearing.
(iv) The test of procedural safeguards contained in the
Act must be scrupulously complied with.
(v) The satisfaction of the authority must be based on
objective criteria.
(vi) A proceeding under Section 47 of the Delhi Police
Act stands on a different footing than the ordinary
proceeding in the sense that whereas in the latter the
details of the evidence are required to be disclosed and,
thus, giving an opportunity to the proceedee to deal
with them, in the former, general allegations would
serve the purpose.
22. The High Court and this Court would undoubtedly
jealously guard the fundamental rights of a citizen.
While exercising the jurisdiction rested in them
invariably, the courts would make all attempts to
uphold the human right of the proceedee. The
10 (2006) 5 SCC 228
fundamental right under Article 21 of the Constitution
undoubtedly must be safeguarded. But while
interpreting the provisions of a statute like the present
one and in view of the precedents operating in the field,
the court may examine the records itself so as to satisfy
its conscience not only for the purpose that the
procedural safeguards available to the proceedee have
been provided but also for the purpose that the
witnesses have disclosed their apprehension about
deposing in court truthfully and fearlessly because of
the activities of the proceedee. Once such a satisfaction
is arrived at, the superior court will normally not
interfere with an order of externment. The court, in any
event, would not direct the authorities to either disclose
the names of the witnesses or the number of cases
where such witnesses were examined for the simple
reason that they may lead to causing of further harm to
them. In a given case, the number of prosecution
witnesses may not be many and the proceedee as an
accused in the said case is expected to know who were
the witnesses who had been examined on behalf of the
prosecution and, thus, the purpose of maintaining the
secrecy as regards identity of such persons may be
defeated. The court must remind itself that the law is
not mere logic but is required to be applied on the basis
of its experience.
26. Although it is not possible for us to lay down the
law in precise terms as the facts of each case are to be
considered on their own merit, we have endeavoured to
lay down the broad propositions of law."
13. In State of NCT of Delhi v. Sanjeev 11, it was observed that it is not
the sufficiency of material but the existence of material which is the sine qua
non. The satisfaction of the authority can be interfered with if it is found to be
perverse. So, for examining such issue the propositions which were observed
in paras 15 to 17 and 25 read thus :
15 ".......It is trite law that exercise of power, whether
legislative or administrative, will be set aside if there is
manifest error in the exercise of such power or the
11 (2005) 5 SCC 181
exercise of the power is manifestly arbitrary (see State
of U.P. v. Renusagar Power Co. [(1988) 4 SCC 59 :
AIR 1988 SC 1737] ). .........."
16 "............. One can conveniently classify under three
heads the grounds on which administrative action is
subject to control by judicial review. The first ground is
"illegality", the second "irrationality", and the third
"procedural impropriety". These principles were
highlighted by Lord Diplock in Council of Civil Service
Unions v. Minister for the Civil Service [(1984) 3 All
ER 935 : 1985 AC 374 : (1984) 3 WLR 1174 (HL)]
(commonly known as CCSU case). If the power has
been exercised on a non-consideration or non-
application of mind to relevant factors, the exercise of
power will be regarded as manifestly erroneous. If a
power (whether legislative or administrative) is
exercised on the basis of facts which do not exist and
which are patently erroneous, such exercise of power
will stand vitiated. (See CIT v. Mahindra and
Mahindra Ltd. [(1983) 4 SCC 392 : 1983 SCC (Tax)
336 : AIR 1984 SC 1182] ).................."
17. The court will be slow to interfere in such matters
relating to administrative functions unless decision is
tainted by any vulnerability enumerated above; like
illegality, irrationality and procedural impropriety.
Whether action falls within any of the categories has to
be established. Mere assertion in that regard would not
be sufficient.
25. As observed in Gazi Saduddin case [(2003) 7 SCC
330 : 2003 SCC (Cri) 1637] satisfaction of the authority
can be interfered with if the satisfaction recorded is
demonstratively perverse based on no evidence,
misreading of evidence or which a reasonable man
could not form or that the person concerned was not
given due opportunity resulting in prejudice. To that
extent, objectivity is inbuilt in the subjective
satisfaction of the authority.
14. In Deepak v/s State of Maharashtra and Others12 it was observed that
an order of externment is not an ordinary measure and it must be resorted to
sparingly and in extraordinary circumstances. It was the duty of the
12 2022 SCC OnLine SC 99
Constitutional Court to test the said order within the parameters which are
well-settled by the Supreme Court. The Court can always consider whether
there existed any material on the basis of which a subjective satisfaction could
have been recorded. The restriction imposed by passing an order of
externment must stand the test of reasonableness. Regarding scrutiny of the
material on record, the observations made in paras 10 & 13 are significant,
which are as under :
"10. There cannot be any manner of doubt that an order
of externment is an extraordinary measure. The effect
of the order of externment is of depriving a citizen of
his fundamental right of free movement throughout the
territory of India. In practical terms, such an order
prevents the person even from staying in his own house
along with his family members during the period for
which this order is in subsistence. In a given case, such
order may deprive the person of his livelihood. It thus
follows that recourse should be taken to Section 56
very sparingly keeping in mind that it is an
extraordinary measure. For invoking clause (a) of sub-
section (1) of Section 56, there must be objective
material on record on the basis of which the competent
authority must record its subjective satisfaction that the
movements or acts of any person are causing or
calculated to cause alarm, danger or harm to persons or
property. For passing an order under clause (b), there
must be objective material on the basis of which the
competent authority must record subjective satisfaction
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 offences punishable under Chapter XII, XVI or
XVII of the IPC. Offences under Chapter XII are
relating to Coin and Government Stamps. Offences
under Chapter XVI are offences affecting the human
body and offences under Chapter XVII are offences
relating to the property. In a given case, even if
multiple offences have been registered which are
referred in clause (b) of sub-section (1) of Section 56
against an individual, that by itself is not sufficient
to pass an order of externment under clause (b) of sub-
section (1) of Section 56. Moreover, when clause (b) is
sought to be invoked, on the basis of material on
record, the competent authority must be satisfied that
witnesses are not willing to come forward to give
evidence against the person proposed to be externed by
reason of apprehension on their part as regards their
safety or property. The recording of such subjective
satisfaction by the competent authority is sine qua non
for passing a valid order of externment under clause
(b).
13. Considering the nature of the power under Section
56, the competent authority is not expected to write a
judgment containing elaborate reasons. However,
the competent authority must record its subjective
satisfaction of the existence of one of the grounds in
sub-section (1) of Section 56 on the basis of
objective material placed before it. Though the
competent authority is not required to record reasons
on par with a judicial order, when challenged, the
competent authority must be in a position to show the
application of mind. The Court while testing the order
of externment cannot go into the question of
sufficiency of material based on which the subjective
satisfaction has been recorded. However, the Court
can always consider whether there existed any
material on the basis of which a subjective satisfaction
could have been recorded. The Court can interfere
when either there is no material or the relevant material
has not been considered. The Court cannot interfere
because there is a possibility of another view being
taken. As in the case of any other administrative order,
the judicial review is permissible on the grounds
of mala fide, unreasonableness or arbitrariness.
15. From the aforesaid propositions of law, it is evident that the order
of externment is not an ordinary measure and it must be resorted to
sparingly and in extraordinary circumstance. By passing an order of
externment fundamental right of a person of free movement throughout
the territory of India is curtailed and, therefore, it must withstand the test
of reasonableness. The order of externment should be sparingly used.
16. Reverting back to the facts of the present case, respondent No. 2
vide order dated 01/09/2021 exercised the powers under Section 5(b) of
the Act and directed the appellant to remove himself outside the limits of
District Korba and adjoining districts within 24 hours and he was
externed from District Korba and adjoining districts for a period of one
year from the service of the said order on him. In the impugned order of
externment, the respondent No. 2 has, before recording satisfaction,
relied upon 7 offences registered under the Indian Penal Code against the
appellant & 6 preventive actions which were taken against him, the
details of which were reported by the Superintendent of Police in his
report dated 25.05.2020, which are reproduced hereunder:
Offences registered under the Indian Penal Code
S. No. Name of Crime No. Section Status
Complainant
1. Radheshyam Yadav 266/2007 452, 294, Charge sheet
323, 506 Pt. filed in the Court
II,147 of I.P.C.
2. Bharat Singh Thakur 341/2007 147, 149, Charge sheet
186, 353, 332 filed in the Court
of IPC
3. Santosh Sahu 339/2008 293, 323, Charge sheet
506, 34 of IPC filed in the Court
4. Hemant Kumar 319/2010 294, 506, Charge sheet
Bhatia 147, 148, 427 filed in the Court
of I.P.C.
5. Shambhusharan 114/2011 452, 294, Charge sheet
Prasad 323, 506, 427, filed in the Court
34 of I.P.C
6. Manish Kumar Singh 248/2011 294, 506, Charge sheet
323, 34 of filed in the Court
I.P.C.
7. Lakhan Lal Patel, 223/2020 506, 384, Under
Inspector, S.H.O., 385 of I.P.C. Investigation
P.S.BALCONAGAR (Petitioner was
arrested & sent to
judicial custody)
The cases registered under preventive actions (Prohibitory
orders)
S. No. Istgasha Number Date of Section
Incident.
1 7/2009 22/06/2007 107,116(3) of Cr.P.C.
2 43/2009 13/03/2009 107,116(3) of Cr.P.C.
3 52/2010 25/01/2010 107,116(3) of Cr.P.C.
4 59/2018 29/09/2018 110 of Cr.P.C.
5 03/2012 15/10/2012 110 of Cr.P.C
6 01/2020 25/05/2020 110 of Cr.P.C
17. From the aforesaid chart, it is vivid that there was no offences
under the I.P.C. mentioned or reported from 2012 to 2019 by the S.P.,
and only one offence was registered by the S.H.O himself in the year
2020 which was pending investigation. It is also significant that
preventive action which was last drawn on 25/05/2020, and S. 116(6) of
Cr.P.C. mandates that if the inquiry is not completed within a period of
six months from the date of its commencement, the proceeding shall
stand terminated, unless, for special reasons to be recorded in writing by
the Magistrate. In the facts of the case, the cases which were taken into
consideration for passing the order, were old and stale, and there is no
live link between the said offences and as the order of externment was
passed in the year 2021, it demonstrates that the District Magistrate had
relied upon old and stale cases.
18. The Appellant has taken a specific stand that except the Crime No.
223/2020, which is pending consideration in Court, in all other cases
which have been reported, he had already been acquitted. Learned
counsel for the appellant would further submit that even in crime number
223/2020, the appellant was enlarged on anticipatory bail from the
Sessions Court. So, the proper facts were not brought to the notice of the
Competent Authority, and the copies of the judgment of acquittals were
also filed by the petitioner/appellant, which is not rebutted by the learned
State counsel. It is settled law that order of externment is a serious issue,
in which no casual approach saves such proceedings. In the present
matter, in the report dated 25.05.2020 submitted by the Superintendent of
Police, true facts about the acquittals were not placed. In the complaint
made by Bharat Singh Thakur, the date of incident was 16.11.2007, and
in Cr. Case No. 22/2010, the appellant and 6 others were acquitted on
17.05.2011 by J.M.F.C., Korba. In Cr.C. No. 415/2010, which had been
registered on the complaint of Hemant Kumar Bhatia, judgment of
acquittal was passed on 01.02.2014. On a complaint made by Manish
Kumar Singh, Cr. Case No. 252/2011 was registered wherein a judgment
of acquittal was passed on 05.03.2012. Cr. C. No. 185/2011 had arisen
out of a complaint made by Shambhu Sharan Prasad, wherein judgment
of acquittal was passed on 05.03.2012. From the aforesaid facts, it is
clear that in the impugned order, the District Magistrate had not based
its findings on true facts, and wrongly mentioned that charge sheets
have been filed on such cases though on the date of consideration for
extenment proceedings, the appellant had already been acquitted. So, the
satisfaction which was recorded by the District Magistrate based on such
incorrect and erroneous facts cannot be said to be proper. The report
submitted by the Superintendent of Police without collecting the facts of
acquittal of the appellant, in a very casual manner, was made basis for
initiating the externement proceeding and even in the said proceeding,
the District Magistrate had not called for any report about the result or
status of such cases before passing the order for externment.
19. The appellant has filed the copies of judgment of acquittals. Upon
perusing the said judgments, it is apparent that complainant Bharat Singh
Thakur, Hemant Kumar Bhatia, Shambhu Sharan Prasad, Manish Kumar
Singh were all examined during trial. So, the opinion recorded in the
order that the witnesses are not willing to come forward to give evidence
against the appellant is also not found to be correct from the record. In
the impugned order, the District Magistrate has merely mentioned that
the witnesses are not coming forward because of their apprehension. No
reasons were assigned for arriving such conclusion. Even the nature of
offence alleged against the appellant and their outcome have not been
taken into consideration.
20. Though the show cause notice was issued on 02.06.2020, but the
District Magistrate vide para 5 of the impugned order of externment, has
also taken into consideration the letter of Superintendent of Police dated
31.08.2021, in which it was mentioned that a complaint was made by
Krishna Swamy, Senior Manager of Feedback Power Company to
Station House Officer, Balco Nagar, Korba on 12/06/2021 stating that
he has received threat on his official Mobile Phone for giving petty
contract work in the company and creating pressure for illegal gain,
which is affecting the industrial work in the District Korba. Learned
counsel for the appellant would submit that no offence has been
registered on any such complaint and it was also not part of the show
cause notice issued to the appellant. He has also referred the judgment in
the matter of Shailender Kaur v/s Lt. Governor & others {2001 SCC
OnLine Del. 464} to submit that principles of natural justice must be
complied before passing the externment order against any individual. In
the said matter, the externment order was quashed as the cases were not
part of the notice and the relevant part is para-21 which reads thus :
"21...................Section 50 of the Act has
mandated the Commissioner of Police to give
notice in writing and also inform the person in
question of the general nature and the material
allegations against him. The acts, movements
and criminal cases which were proposed to be
taken into consideration before passing orders
under Section 47 were required to be
mentioned in the notice served on the
petitioner against whom the order of
externment was proposed. It was necessary to
give reasonable opportunity hearing and
tendering her explanation to the show cause
notice. It has not been stated before us that
after the service of the show cause notice
dated 2.4.1997 the Addl. DCP (East Distt.) had
given further notice to the petitioner or during
the hearing had made it known to the
petitioner the other cases in which she was
involved whether under the Punjab Excise Act
or under the IPC and they were also the
material allegations which could be used
against her in the proceedings. Admittedly, it
has not been done in this case. The order of
externment of Addl. DCP (East Distt.) and the
order passed in appeal by the Lt. Governor of
Delhi, therefore, are violative of Section 50 of
the Act. The orders are vitiated and cannot be
sustained."
21. Section 8 of the Act mandates that the District Magistrate 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. Though action was
initiated on 02.06.2020, and the impugned order was passed on
01.09.2021 after more than one year, it can safely be inferred that the
impugned order of externment was passed without due notice. The object
of the Act is to provide extraordinary measure to meet the instant or
emergent situation. An externment order may sometimes be necessary
for maintenance of law and order, but when the order itself was passed
belatedly, it shows that there was no such circumstances to exercise the
powers of extraordinary measure. So, from the facts which were taken
into consideration when it was not part of the show cause notice, the
basic rule of natural justice as engrafted under Section 8 of the Act is
violated, as the appellant was deprived of sufficient opportunity to
defend himself. Therefore, we are of the view that the impugned order is
bad in law on account of violation of the procedure prescribed in Section
8 of the Act.
22. From the foregoing analysis and on close scrutiny of the material
available on record, the following points emerge:-
(i) it can be safely inferred that there was no objective material for
recording subjective satisfaction to pass an order of externment against
the petitioner/appellant.
(ii) it is well settled principle of law that old and stale cases cannot be
taken into consideration while passing the order under Section 5 of the
Act.
(iii) the State has failed to point out the necessity of passing an order of
externment requiring curtailment of liberty of the Appellant as enshrined
under Article 19 of the Constitution of India.
(iv) principles of natural justice must be complied with before passing
the externment order against any individual.
(v) even when the externment order was passed in respect of bordering
district/s, the grounds must be disclosed to the proposed externee, both in
show cause notice as also in the order of externment for justifying it.
This proposition was laid down in the matter of Sandhi Mamad Kala
Vs. State {1973 0 GLR 384} and the power is not to be exercised
mechanically or blindly.
23. In the result, the impugned order of externment dated 01.09.2021, the
order passed in Appeal under Section 9 of the Act by the State on
06.12.2021, as well as impugned order passed in WPCR No.78/2022 on
02.05.2022 by the learned Single Judge are hereby quashed and set aside.
24. The Appeal is accordingly allowed.
Sd/- Sd/-
(Arup Kumar Goswami) (Deepak Kumar Tiwari)
Chief Justice Judge
Barve
