Joyabkha vs The State Of Madhya Pradesh
2021 Latest Caselaw 137 MP

1                                                                    WA No.188/2021


              HIGH COURT OF MADHYA PRADESH
                     BENCH AT INDORE
    (DIVISION BENCH: HON. MR. JUSTICE SUJOY PAUL & HON.
               MR. JUSTICE SHAILENDRA SHUKLA)

                        Writ Appeal No.188/2021

Joyab Khan                                                      .... Appellant

                                    Versus

State of M.P. and others                                     .... Respondents
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       Shri Sachin Parmar, learned counsel for the appellant.
       Shri Bhaskar Agrawal , learned Panel Lawyer for the
respondent/State.

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Whether approved for reporting :


                                    ORDER

(Passed on 24th February, 2021)

Per, Shailendra Shukla, J :-

1/ Being aggrieved with the order passed in Writ Petition No.20525/2020 dated 15.2.2021, the present writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed. By way of relief the aforesaid order as well as the order dated 17.9.2020 passed by the District Magistrate and order dated 10.12.2020 passed by the Commissioner, Division Ujjain have been sought to be set aside in the facts of the case.

2/ Succinctly speaking, the facts of the case are that the respondent No.3, Superintendent of Police, Ujjain had approached the Collector under Section 5(a)(b) of M.P. Rajya Suraksha Adhiniyam for passing an order of externment

against the appellant. The grounds of externment were served to the appellant on 29.11.2017. As per the said grounds, the appellant has been shown to be involved in criminal activities since 2010 in District Shajapur. The Collector, Shajapur (Respondent No.2) vide order dated 17.9.2020 passed the order of externment against the appellant. As per this order, the appellant was externed from the boundaries of District Shajapur for a period of 6 months.

3/ Learned counsel for the appellant submits that while passing the aforesaid order, the Collector had overlooked the reply and the documents filed by the appellant. The aforesaid order was challenged by the appellant before the Commissioner, Ujjain and Commissioner, Ujjain had dismissed the Appeal No.142/0136/Appeal/20-2021 on 10.12.2020. The appeal was dismissed solely on the ground that the acquittal of the appellant is on the basis of compromise, which cannot be considered to be clean acquittal.

4/ Learned counsel for the appellant has submitted that the externment proceedings were initiated after an inordinate delay of 2 years and 10 months and the very purpose of externment has been rendered vitiated. It is further submitted that while passing the impugned order the old cases have been considered but the result of the old cases has not been taken into account and order of externment after a period of 20 months is per-se illegal. It is further submitted that the Commissioner has observed that acquittal of the appellant was on account of lack of effort of prosecution, regarding which appellant had no control. Hence, it has been prayed that the appeal be allowed and aforesaid orders be set aside.

5/ No written reply has been filed of this writ appeal. 6/ Submissions were heard and material was

perused.

7/ Undisputedly the District Magistrate, Shajapur has passed the order of externment on 17.9.2020 on the basis of recommendation of Superintendent of Police, Shajapur dated 29.11.2017. In the aforesaid order it has been observed that criminal activities of the appellant has resulted in breach of communal harmony and peace and is causing distress to general public and people are reluctant to come forward to depose as witnesses and the peace and public order of the city has also been dented.

8/ Learned counsel for the appellant has laid stress on the fact that there is an inordinate delay committed by respondent No.3 in passing the order dated 17.9.2020. He has referred to an order of coordinate Bench in the case of Rajesh Singh Vs. State of M.P. and others passed in WP No.12445/2019 dated 4.10.2019, Para-7 of which is of relevance and reads as under:-

"7. In view of the aforesaid, in the considered opinion of this Court, in the present case also the recommendation by the S.P. was made on 25.11.2016 and the notice to show cause was issued to the petitioner only on 24.09.2018 i.e. almost after a period of one year and 10 months and thereafter the final order was passed on 05/11/2018 i.e. after more than two years from the date of recommendation, thus, this Court has no hesitation to hold that the initiation of the externment proceeding was merely a ritual which has been performed by the District Magistrate without application of mind after the recommendation was made by the Superintendent of Police on 25.11.2016."

9/ In the aforesaid order, reference has been made of yet another order dated 2.8.2019 passed in WP No.12446/2019 in the case of Manish Pratap Singh Vs. State of M.. and others, wherein it has been held that:-

"9. Above all, this Court also finds that the Superintendent of Police has recommended the

proceedings to be initiated against the petitioner on 22.04.2016, the evidence of only one police witness has been recorded that too on 23.01.2017 i.e. after around 8 months whereas the order was passed by the District Magistrate on 26.11.2018 i.e. after one whole year after the witness was examined. Thus, a substantial period of more than 2 ½ years had already been elapsed when the order of externment was passed.

10. This Court, time and again has emphasized that an order of externment has to be passed soon after the notice to show cause is served on the petitioner. Of course, the principles of natural justice cannot be bygone while proceeding further but inordinate delay in disposing of such applications clearly defeat the very purpose for which the Adhiniyam of 1990 has been enacted. In this context, it would be apt to refer to the statement of object and reasons of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 which reads as under:

"STATEMENT OF OBJECT AND REASONS

For want of adequate enabling provisions in existing laws for taking effective preventive action to counteract activities of anti-social elements Government have been handicapped to maintain law and order. In order to take timely and effective preventive action it is felt that the Government should be armed with adequate power to nip the trouble in the bud so that peace, tranquility and orderly Government may not be endangered.

(2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx"

(emphasis supplied)

11. Thus, a bare perusal of the same reveals that very purpose of the Adhiniyam of 1990 is to take timely and effective action which is preventive in nature. As has been discussed above, more than 2 ½ years have already been trifled away for no apparent reasons and during this entire period, no offense was registered against the petitioner. In view of the aforesaid, it is held that the order passed by the District Magistrate and affirmed by the Commissioner cannot be sustained in the eyes of law as the order itself has been passed by the D.M. after undue delay and thus, is a stale order passed against the petitioner for offences committed by him at an earlier period of time having no proximity with the order of externment."

10/ Further, Court's attention has been drawn to yet another order dated 8.8.2019 passed in WP No.12634/2019 in the case of Deepu Chourasiya Vs. State of M.P. and others, in which it has been observed in Para-8 as under:-

"8. In view of the same, in the considered opinion of this Court, the order of externment and its affirmation by the Commissioner cannot be sustained as apparently both the authorities below have not taken into consideration the extenuating facts that only three cases were registered against the petitioner out of which he was already acquitted in two cases when the recommendation was made by the S.P. and otherwise also those cases were not serious or heinous in nature and were registered against him in the year 2015-16 only, i.e. around two years prior to the recommendation by the S.P, thus, they were also not in close proximity to the impugned order of externment. It is a trite law that an order of externment has to be passed in close proximity of time when the offences are committed by the accused. As already observed above, the evidence was also not recorded to arrive at a satisfaction regarding the petitioner's menacing demeanor in public."

11/ In the case in hand, no explanation has been shown for the delay caused in passing of order by respondent No.3. It is not the case of respondents that the appellant was involved in criminal activities during the period from 2017 to 2020. It would be appropriate to depict the criminal history of the appellant in tabular form as under:-

S.No. Crime No. Case No. Result Annexure 1 4/2010 74/2010 Acquittal P/5 8/8/2018 2 6/2010 1750/2010 Acquittal P/6 2/2/2019 (Appeal) 3 11/2010 13/2011 Acquittal P/7 18/10/2016 4 14/2010 2054/2010 Acquittal P/8 16/1/2012 5 15/2010 1812/2010 Acquitted P/9 2/11/2011 6 319/2010 1755/2010 Acquitted P/10 9/6/2011

7 32/2015 438/15 Acquittal P/11 22/6/2015 8 54/2016 95/2016 Compromise P/12 9 284/2017 127/2017 100 Rs. fine 10 4/2010 Istagasa 11 4/2015 Istagasa 12 8/2016 Istagasa

12/ The appellant has been acquitted in all the cases registered against him. The learned Single Judge considering the aforesaid acquittal, has observed in Para-6 as under:-

"6. As per list furnished by the Superintendent of Police, Ujjain from 2010 till 2017 as many as 8 cases including preventive actions has been registered against the petitioner. He has been acquitted in criminal cases either on the basis of compromise or the witnesses have turned hostile, which establishes that because of terror of the petitioner no one has come forward to give evidence against him. There is no improvement in his criminal activities, therefore, no interference is warranted."

13/ Regarding such observation, learned counsel for the appellant has again drawn the Court's attention to Section 5(b) of M.P. Rajya Suraksha Adhiniyam, 1990 and has submitted that there is no ground to believe that witnesses are not willing to come forward to give evidence in public against such a person due to apprehension regarding safety to their person and property. It is submitted that there is nothing on record to show that the judgments had resulted into acquittal because of witnesses are not coming forward. The acquittals were on merits.

14/ It would be appropriate to reproduce Section 5(b) of M.P. Rajya Suraksha Adhiniyam, 1990, which reads as under:-

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

(a) **********************

(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) ************************ "

15/ A bare perusal of this provision shows that an order can be passed under this provision when either "the person is engaged or is about to be engaged in the commission of an offence" AND "when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public".

16/ As it can be seen that all the cases have resulted in acquittal and the appellant was not engaged in any criminal activity when the order of externment was passed on 17.9.2020 and there is nothing on record to suggest that the appellant was about to be engaged in the commission of any offence. Regarding the second clause of Section 5(b) of M.P. Rajya Suraksha Adhiniyam i.e. "when in the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public", learned counsel for the appellant has submitted that there is no material on record to show that the witnesses are not willing to come forward to give evidence. He has cited the judgment in the case of Anil Vs. State of M.P. reported in 2018(I) MPWN 2, the following extracts of which are relevant :-

"10. In the instant case, the District Magistrate has in the impugned order only baldly stated that the list of offences registered against the petitioner reflects that he is a daring habitual criminal and because of this there is fear and terror in the public and has not recorded any

clear opinion on the basis of materials, that in his opinion witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of their person or property. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reasons of apprehension to danger to their person or property to give evidence against the petitioner in respect of the alleged offences, an order under Section 5(b) of the Act of 1990 cannot be passed by the District Magistrate by merely repeating the language of Section 5(b) of the Act of 1990.

11. In the present case, from the record, it is not in dispute that after 2014, not a single case has been registered against the petitioner nor any material was available with the authorities to pass the order. The registration of a criminal case is not a condition precedent to implicate the petitioner under the provisions of the Act of 1990. The two conditions for an order of externment stated in Section 5(b) of the Act of 1990 do not exist in this case and the order passed by the District Magistrate and the appellate order of the Commissioner are liable to be quashed."

17/ The coordinate Bench in the aforesaid order has drawn its conclusion from a Division Bench judgment pronounced in the case of Ashok Kumar Patel Vs. State of M.P. and others reported in 2009(4) MPLJ 434, in the following manner:-

"9. The Division Bench of this Court at Principal Seat Jabalpur in the case of Ashok Kumar Patel vs. State of M. P. & others reported in 2009 (4) MPLJ 434 has held that unless the conditions mentioned under Section 5(b) of the M. P. Rajya Suraksha Adhiniyam, 1990 are strictly satisfied, an order of externment will have to be quashed by the Court. The two conditions, for passing an order of externment against a person, to be satisfied are :-

(i) There are reasonable grounds for believing that a person is engaged or is about to be engaged in 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 or in the abetment of any such offence; and

(ii) 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."

18/ Reverting back to the facts of the present case, there has been a huge delay of 2 years and 10 months between the date of recommendation of S.P. i.e. 29.11.2017 and order of externment dated 17.9.2020 and there is no material on record to suggest that witnesses were not coming forward to depose due to fear of the appellant and lastly that there is no material to suggest that the appellant was involved in any criminal activity from the year 2017 to the date of passing of order of externment i.e. 17.9.2020.

19/ In view of the aforesaid findings, this writ appeal deserves to be allowed and is accordingly allowed. The impugned order dated 17.9.2020 passed by the District Magistrate as well as the order dated 10.12.2020 passed by the Commissioner, Division Ujjain are set aside and it is directed that the appellant be set free immediately, if not required in any other case.

C.C. as per rules.

               (Sujoy Paul)                            (Shailendra Shukla)
                  Judge                                       Judge


Trilok/-




                Digitally signed by Trilok Singh
                Savner
                Date: 2021.02.25 18:51:35 +05'30'