Manish Pratap Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 8427 MP

                                  1
                                                      W.P. No.20176/2021



      THE HIGH COURT OF MADHYA PRADESH
                    Writ Petition No.20176/2021
                       Manish Pratap Singh
                               Versus
              The State of Madhya Pradesh & others

Jabalpur, Dated: 08.12.2021
               Mr. Sharad Singh Baghel, Advocate for the
petitioner.
               Mr. Siddharth Sharma, Panel Lawyer for the
respondents/State.

Since pleadings are complete and learned counsel for the parties are ready to argue the matter finally, therefore, it is heard finally.

2. By means of this petition filed under Article 226 of the Constitution of India, the petitioner calls in question the legality, validity and propriety of order dated 01.02.2021 (Annexure-P/2) passed by respondent No.4/District Magistrate, Satna, whereby the Authority exercising the powers provided under Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (in short the 'Adhiniyam, 1990') has passed the order of the petitioner's externment directing him to be externed for a period of one year from the revenue boundaries of District Satna and its adjoining districts namely Panna, Katni, Umaria, Shahdol, Sidhi and Rewa as also the order dated 27.08.2021 (Annexure-P/3) passed by respondent No.3/Commissioner, Rewa Division, Rewa, whereby in an appeal preferred against the order of externment, the Appellate Authority after affirming the order of respondent No.4, has dismissed the petitioner's appeal.

3. The brief facts as to comprehend the dispute are that respondent No.5/Superintendent of Police, District Satna, vide letter dated 25.07.2020 (Annexure-P/1) had submitted a

W.P. No.20176/2021

report before respondent No.4 mentioning therein that the petitioner since long is involved in the criminal activities which is creating terror in the society and as such, people of the locality is under threat and in fact, they are not lodging the report against him. Respondent No.5 had further informed that the petitioner's involvement in the criminal activities is disturbing law and order situation and also spreading adverse image over the public at large. It was also informed that several offences were registered against the petitioner so as to restrict his criminal activities, but even in the Court nobody is coming forward to get their statement recorded for the reason that due to petitioner's involvement in the criminal activities, they are under threat. Therefore, it was recommended that in the existing facts and circumstances, it would be apt to exercise the powers provided under Section 5 of the Adhiniyam for passing the order of externment against the petitioner restraining him to appear in the revenue boundaries of the District Satna and its adjoining districts. Along with the report, respondent No.5 had also submitted a list describing the details of 16 cases which are registered against the petitioner and the names of the witnesses whose statements have been recorded including the name of one Ramesh Prasad Singh, Station House Officer, Police Station Nagod whose statement has been recorded. (3.1) On receiving the report, respondent No.4 registered a case under the provisions of the Adhiniyam, 1990 against the petitioner and issued a show-cause notice to him on 13.11.2020 asking him to appear before the Court to submit his stand. However, on the date of receiving the notice, the petitioner was in jail and as such, his wife had requested the Authority that since her husband is in jail and is not in a position to submit his reply, therefore, the proceeding of externment may be

W.P. No.20176/2021

kept in abeyance until her husband is released from jail.

(3.2) Subsequently, respondent No.4 after examining the report submitted by respondent No.5; the criminal antecedent of the petitioner and also the cases registered against him, found it appropriate to exercise the powers provided under Section 5 of the Adhiniyam, 1990 against the petitioner and as such, passed the order dated 01.02.2021 (Annexure-P/2) externing the petitioner for a period of one year from the revenue boundaries of District Satna and its adjoining districts namely Panna, Katni, Umaria, Shahdol, Sidhi and Rewa. (3.3) Against the order dated 01.02.2021 (Annexure-P/2), the petitioner preferred an appeal before respondent No.3 and in turn, the said Authority after affirming the finding given by respondent No.4, has dismissed the appeal. Hence, this petition.

4. Mr. Baghel, learned counsel for the petitioner is assailing the order dated 01.02.2021 (Annexure-P/2) mainly on the ground that the same has been issued in violation of principle of natural justice as despite knowing the fact that at the time of service of notice, the petitioner was behind the bars and was not in a position to submit his reply to the show-cause notice issued and the also fact that his wife has also requested the Authority to keep the matter in abeyance so as to make the petitioner comfortable for submitting the reply, but no cognizance was taken on her request and without giving any opportunity of hearing for filing reply to the show-cause notice issued, the impugned order has been passed by the Authority. It is also urged by learned counsel for the petitioner that the order passed by respondent No.4 does not fulfil the requirements of

W.P. No.20176/2021

law as has been laid down by the Division Bench of this Court in the case reported in 2009(4) MPLJ 434 [Ashok Kumar Patel Vs. State of M. P. and others]. He also submits that from the impugned order passed by respondent No.4, it is clear that no witness was recorded by respondent No.5 nor by respondent No.4, but only on the basis of statement of Ramesh Prasad Singh, Station House Officer, Police Station Nagod, it was presumed that the witnesses are not coming forward to get their statement recorded in the Court and as such, the requirements of Section 5(b) of the Adhiniyam, 1990 are frustrated. In support of his contention, learned counsel for the petitioner has also placed reliance upon an order dated 06.11.2020 passed in W.P. No.8065/2021 [Anil Pawar alias Anil Basod Vs. State of Madhya Pradesh and others].

5. On the other hand, learned Panel Lawyer relying upon the reply filed on behalf of respondents/State has submitted that the petitioner is found involved in the criminal activities and as such, various cases have been registered against him. He further submits that since the conduct of the petitioner is spreading the atmosphere of terror in the society, therefore, to maintain the law and order situation, the Authority has rightly passed the impugned order of externment against him.

6. I have heard the arguments advanced by learned counsel for the parties at length and perused the record.

7. From perusal of reply filed on behalf of the respondents/State, it is not clear that as to whether the Authorities have fulfilled the requirements of Section 5(b) of the Adhiniyam, 1990. It is also not clear from the reply that despite knowing the fact that at the time of service of notice upon the petitioner, he was in jail then as to why the Authority could not wait till his release so as to make him comfortable to file reply to the show-cause notice. However, the reply filed is

W.P. No.20176/2021

nothing, but a mechanical draft saying that the Authorities while passing the impugned orders have followed the mandatory requirements of law.

8. In view of the above, I am of the opinion that respondent No.4 has committed a mistake in not answering the request made by the wife of the petitioner whereby she has informed the Authority that her husband is in jail, therefore, it is not possible for him to file reply to the show-cause notice issued. Respondent No.4 even in its order has not bothered to discuss this aspect as to why the request made by the petitioner was not acceded to and why he was not required to give an opportunity to file reply to the show-cause notice. In absence of any specific reasoning given by the Authority, I am of the opinion that respondent No.4 has not followed the principle of natural justice before reaching at a conclusion that powers provided under Section 5(b) of the Adhiniyam, 1990 could be exercised against the petitioner. It is also clear from the order of respondent No.4 that the statement of the witnesses in respect of criminal case registered against the petitioner was not recorded, although, the statement of one Ramesh Prasad Singh, Station House Officer, Police Station Nagod was recorded, but the provision of Section 5(b) of the Adhiniyam, 1990 and also the law laid down by the Division Bench of this Court in the case of Ashok Kumar Patel (supra) provide otherwise wherein it was clearly observed by the Division Bench that the requirements of Section 5(b) of the Adhiniyam, 1990 are fulfilled when the material witnesses relating to the case registered against a person are not coming forward to the Court to get their statement recorded because of terror of that person and if they say so before the Authority, then only the requirements of Section 5(b) of the Adhiniyam, 1990 are fulfilled.

9. This Court in the case of Anil Pawar alias Anil

W.P. No.20176/2021

Basod (supra) relying upon the various judgments of this Court and also of Ashok Kumar Patel (supra) has elaborately discussed this issue and has observed as under:-

"8. The challenge is founded mainly on the ground that the requirements of Section 5(b) of Adhiniyam, 1990 are not fulfilled and there was no such material available on record to establish that the prosecution witnesses were apprehensive for giving evidence against the petitioner and therefore, the impugned order does not fulfill the conditions as enumerated in Section 5(b) of Adhiniyam, 1990 and as such, liable to be quashed. It is contended by the counsel for the petitioner that in maximum cases relating to Public Gambling Act, only fine was imposed against the petitioner. Therefore, those cases cannot be made basis for exercising the power provided under Section 5(b) of Adhiniyam, 1990. It is also contended by the counsel for the petitioner that in the offence relating to Section 25 of the Arms Act and Section 366 of the Indian Penal Code, the petitioner has been acquitted, but this fact has not been taken note of by the authority and accordingly, the orders impugned do not sustain and are liable to be set aside. In support of his contentions, the counsel for the petitioner has placed reliance upon various decisions reported in 2009(4) MPLJ 434 (Ashok Kumar Patel vs. State of M.P. and others), 2011(3) MPLJ 367 (Ashu @ Assu @ Asish Jain @ Ankush vs. State of M.P. and others), 2007(3) MPLJ 115 (Pappu @ Dinesh Gupta vs. State of M.P. and others) and 2017(3) MPLJ 667 (Jahangeer Alvi vs. State of M.P. and others).

9. Per contra, learned Panel Lawyer appearing for the respondents/State has relied upon the stand taken by them in their reply and has supported the action taken by the authority saying that looking to his criminal antecedents as the petitioner has been continuously involved in criminal activities from 2013 to 2019, there was no other way but to take action against him under the respective provisions of Adhiniyam, 1990. He has supported the orders impugned and has contended that nothing illegal has been committed by the authority. The orders impugned being reasoned one, do not call for any interference. He has also submitted that the petitioner did not choose to file reply to the show-cause notice issued to him nor participated in the proceedings pending before the District

W.P. No.20176/2021

Magistrate, therefore, the petitioner has no right to assail the orders impugned. He has also submitted that the petition, infact, has rendered infructuous because the period of externment is already over and deciding the petition is nothing but an academic question and, therefore, it deserves to be dismissed.

10. After considering the rival contentions of the counsel for the parties and perusal of the record, it transpires that as per the petitioner, before passing the order of externment against him, the conditions as enshrined under Section 5(b) of Adhiniyam, 1990 are to be satisfied.

11. In number of occasions so also in cases in which the petitioner has placed reliance, this Court has held that unless the conditions mentioned under Section 5(b) of Adhiniyam, 1990 are strictly satisfied, an order of externment will have to be quashed by the Court.

12. To answer the rival contentions of the counsel for the parties, it is appropriate to take into account the provisions of Section 5 of Adhiniyam, 1990, which provides as under:-

"5.Removal of persons about to commit offence - Whenever it appears to the District Magistrate -

(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property; or

(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abetment of any such offence, and when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property; or

(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant;

the District Magistrate, may by an order in writing duly served on him or by beat of drum or otherwise as the District Magistrate thinks fit, direct such person or immigrant -

W.P. No.20176/2021

(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."

13. From a bare perusal of Section 5(b) of Adhiniyam, 1990, as quoted hereinabove, it is significant that for passing an order of externment against a person, two conditions must be satisfied - (i) there are reasonable grounds for believing that a person is engaged or is about to engage in commission of offence involving force or violence or an offence punishable under Chapters XII, XVI and XVII or under Section 506 and 509 of the Indian Penal Code, 1860 or in the abatement of any such offence, and (ii) in the opinion of District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason or apprehension on their part as regards the safety of their person or property.

14. The Division Bench of this Court in case of Ashok Kumar Patel (supra) has categorically laid down that the District Magistrate before exercising the power provided under Section 5 of Adhiniyam, 1990 has to satisfy himself whether two requirements/conditions, as have been quoted hereinabove, are fulfilled or not.

15. In case of Jahangeer Alvi (supra), this Court has taken note of the said requirements and while placing reliance upon the decision of Division Bench passed in case of Ashok Kumar Patel (supra), has also very categorically observed that if these two requirements are not fulfilled and there is no specific opinion given by the District Magistrate in that regard, the order of externment cannot be sustained.

16. In the instant case, the District Magistrate in its order dated 03.10.2019 (Annexure-P/1), has nowhere mentioned that as to whether these two conditions required as per Section 5(b) of Adhiniyam, 1990 are fulfilled or not. Furthermore, no material has been shown on the basis of which he got satisfied in regard to

W.P. No.20176/2021

fulfillment of these two requirements before passing the order of externment. There is no observation found in the order of the District Magistrate that the prosecution witnesses are not coming forward to give evidence against the petitioner because of any apprehension of threat on the part of the petitioner. Not only this, but the Superintendent of Police has also not shown the name of any of the witnesses of the cases registered against the petitioner who are not coming forward to record their statement due to terror of the petitioner or any threat given by him to them.

17. The State has produced the record of the court of District Magistrate. This Court after carefully perusing the record, has neither seen the name of any of the witnesses nor the statement of any of the witnesses recorded by the authority to show that because of the threat of the petitioner, the witness is not coming to the Court to get his statement recorded. Although, statements of some of the police officers got recorded, but those officers were not the witnesses in criminal cases registered against the petitioner and, therefore, their statement is immaterial and does not satisfy the requirements of Section 5(b) of Adhiniyam, 1990. However, in the order of the appellate authority, it is observed as to under what circumstance the District Magistrate could exercise the power but still the appellate authority has failed to observe as to whether the mandatory requirement to fulfill the conditions enumerated in Section 5(b) of Adhiniyam, 1990 are fulfilled or not.

18. In view of the aforesaid facts and circumstances of the case and also on the basis of material available on record, this Court is of the opinion that the District Magistrate before passing the order of externment has completely failed to get himself satisfied that the required conditions of Section 5(b) of Adhiniyam, 1990 are fulfilled and in absence of such observation, the order impugned passed by the District Magistrate cannot be allowed to stand.

Accordingly, the order passed by the appellate authority also deserves to be quashed.

19. Thus, in the considered opinion of this Court, in the present case, the two conditions which required before passing an order of externment as enumerated in Section 5(b) of Adhiniyam, 1990 do not exist and the order passed by the District Magistrate and also the Commissioner (appellate authority) are liable to be quashed. Since the orders impugned are not sustainable in view of the aforesaid grounds,

W.P. No.20176/2021

therefore, no other ground is required to be dwelled upon by this Court. "

In view of the above, it is clear that the requirements of Section 5(b) of the Adhiniyam, 1990 have to be fulfilled before passing the order of externment against a person and if that is not done, then the powers exercised under Section 5(b) of the Adhiniyam, 1990 cannot be said to be proper and pursuant thereto, if any order of externment is passed, the same is also not sustainable in the eyes of law.

10. Resultantly, this petition is allowed. The orders of the District Magistrate, District Satna dated 01.02.2021 (Annexure-P/2) and also the Commissioner, Rewa Division, Rewa dated 27.08.2021 (Annexure-P/3) are hereby quashed.

(SANJAY DWIVEDI) JUDGE Devashish DEVASHISH MISHRA 2021.12.10 16:04:05 +05'30'