Madhya Pradesh High Court

Kartarsingh vs The State Of Madhya Pradesh on 31 July, 2021

Author: Subodh Abhyankar

                                         1
                                                                 WP No.7486/2021

         High Court of Madhya Pradesh, Jabalpur
                     Bench at Indore
                  Writ Petition No.7486/2021
                       (Kartar Singh s/o Amar Singh Gandhi
                         R/o Jawahar Marg, Barwani (MP)
                      [Presently residing at Sant Kripa Dairy,
                     Khamgaon, District Buldana Maharashtra]
                                       Versus
                           The State of Madhya Pradesh
                      Through Secretary, Home Department,
                          Vallabh Bhawan, Bhopal (MP)

                                  Commissioner,
                                 Indore Division.,
                                      Indore

                                District Magistrate,
                                 District Barwani

                             Superintendent of Police,
                                     Barwani

                               Station House Officer,
                          Police Station Barwani District)

                                   *****
Shri Anuj Bhargava, learned counsel for the petitioner.
Shri Valmik Shakargayen, learned Panel Lawyer for the respondent / State
of Madhya Pradesh..
                                   *****
                          ORDER

(Passed on this 31st day of July, 2021)

This petition under Article 226 of the Constitution of

India has been filed by the petitioner against order dated 15.03.2021

(Annexure P/1) passed by the Commissioner, Indore Division,

Indore (MP) in an appeal arising out of the externment order dated

28.01.2021 (Annexure P/2) passed by the District Magistrate,

District Barwani (MP) in Criminal Case No.0040/ JILA BADAR /

2020, whereby the petitioner has been ordered to remove himself for

a period of one year beyond the territory of District Barwani and

neighbouring districts namely Dhar, Jhabua, Alirajpur, Khargone,

Khandwa, Burhanpur and Indore. The aforesaid order has been

WP No.7486/2021

passed by the Commissioner in an appeal under Section 9 of the

Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (herein after

referred to as the Adhiniyam of 1990), affirming the order passed by

the District Magistrate.

2. In brief, the facts of the case are that the petitioner is a

resident of District Barwani (MP) and against him, as many as eight

criminal cases have been registered under various provisions of law

during the year 2018 to 2020. As a result of which, the

Superintendent of Police, District Barwani has recommended, that

the petitioner being a threat to "Public Peace" and "Harmony to the

Society" is liable to be externed under the provisions of Section 5 (a)

(b) of the Adhiniyam of 1990. On this recommendation dated

07.08.2020 (Annexure P/20), a show cause notice was issued to the

petitioner on 14.09.2020 (Annexure P/21); and thereafter final order

has been passed by the District Magistrate, District Barwani (MP) on

28.01.2021 (Annexure P/2), ordering the externment of the petitioner

from the District Barwani and adjoining Districts, as already noted

above.

3. An appeal preferred by the petitioner against the

aforesaid externment order has also been affirmed by the

Commissioner, Indore Division, Indore (MP) vide order dated

15.03.2021 (Annexure P/1) passed in Case No.0011/ JILA BADAR /

2021.

WP No.7486/2021

4. Counsel for the petitioner has submitted that the

petitioner has been falsely proceeded against under the provisions of

the Act on the ground of mala fide intentions of the respondents; and

the criminal background of the petitioner in itself cannot be a ground

to pass an order of externment, as all the cases registered against him

are minor in nature and has no impact on the "Public Peace" and

"Harmony of the Society".

5. Counsel for the petitioner has further submitted that

none of the residents of Barwani have come forward to depose

against the petitioner, because they have been no such threat

perception; and thus, in absence of such evidence on record, the

District Magistrate, Barwani should not have passed the order of

externment only on the basis of the recommendations made by the

Superintendent of Police, Barwani.

6. Counsel has further submitted that there is no close

proximity of the offence to the date on which the order of externment

is proposed to be passed. Thus, it is submitted that the impugned

orders being bad in law are liable to be quashed.

7. Counsel for the respondent / State of Madhya Pradesh,

on the other hand, has opposed the prayer.

8. A reply has also been filed by the State, refuting the

objections raised by the petitioner in the petition.

9. Counsel has submitted that in all eight cases are pending

WP No.7486/2021

against the petitioner. He is actively involved in criminal activities

since 2019 and hence, no case for interference is made out. Every

time, the petitioner is granted bail by the Court and he again indulges

himself in the similar activities. His actions have resulted in fear in

the mind of public, who are not coming forward to depose against

him.

10. Counsel has further submitted that the externment order

has been rightly passed by the District Magistrate by invoking

powers under Section 3 of the Act, as the acts of the petitioner are

prejudicial to the society and maintenance of public order.

11. Heard learned counsel for the parties and perused the

record.

12. From the record, it is found that there are as many as

eight cases registered against the petitioner. The details of which are

as under:-

Date Crime No. Section and Act Description 23/11/18 751/18 34(1) M.P. Excise Act 22 Bulk liters 18/01/19 51/19 34(1) and 42 M.P. On the basis of memo Excise Act 13/02/19 123/19 M.P. Excise Act On the basis of memo 27/09/18 584/18 34(2) M.P. Excise Act On the basis of memo 21/04/20 117/20 34(2), 36 and 42 M.P. Anticipatory bail was granted in Excise Act M.Cr.C. No.12371/20 dated 07/07/20.

15/07/20 599/19 M.P. Excise Act Indicating the petitioner as owner of New Janta Panjab Hotel whereas according to the petitioner he is not the owner.

      02/04/18      208/18     294, 323, 506 and 34 of Aquittal of the petitioner           by
                               the IPC                 judgment dated 09/01/2019.
      25/07/20      244/20     209 and 506 IPC            Pending

                                                                      WP No.7486/2021

13. A perusal of the aforesaid table of cases registered

against the petitioner clearly reveals that out of eight cases, six cases

are registered against the petitioner under the provisions of Madhya

Pradesh Excise Act, 1915 only and only two cases are under Sections

294, 323, 506 and 34 of the IPC as well as under Sections 209 and

506 IPC. Thus, it is now to be seen that whether the acts of the

petitioner falls within the scope of the s.5(a) and (b) of the

Adhiniyam of 1990 which reads 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 reasonably grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or vio- lence 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 Magis- trate witnesses are not willing to come forward to give evidence in public against such person by reason of ap- prehension on their part as regards the safety of their person or property.

14. So far as the finding recorded by the Collector, Barwani

in paragraph No.7 of the impugned order to extern the petitioner is

concerned, the same reads as under: -

"7- izdj.k esa iqfyl v/kh{kd ftyk cM+okuh }kjk izLrqr izfrosnu ,oa vfHk;kstu lk{kh fujh{kd Fkkuk cM+okuh] lgk;d mifujh{kd Fkkuk cM+okuh ds dFku rFkk vukosnd }kjk izLrqr rdksZa ds izdk'k esa izdj.k dk voyksdu fd;k x;kA vukosnd o"kZ 2018 ls vkijkf/kd xfrfof/k;ksa esa lafyIr gS vkSj mlds fo:) iqfyl Fkkus ij vke ukxfjdksa ds lkFk ekjihV dj pksaV

WP No.7486/2021 iqagqpkuk ,oa tku ls ekjus dh /kedh nsuk] 'kkldh; vkns'kksa dh vogsyuk djuk rFkk voS/k 'kjkc ds dkjksckj esa lafyIr gksdj vijk/k ?kfVr djuk tSls vijk/k iathc) gq, gSA vukosnd dh vkijkf/kd ,oa fgald izo`fRr o ckgqcy ds dkj.k vketu Hk;Hkhr gSA vukosnd dh vkijkf/kd xfrfof/k;ksa ij vadq'k yxkus ds fy;s iqfyl }kjk dbZ iz;kl fd;s x;s ysfdu vukosnd ds vkpj.k esa dksbZ lq/kkj ugh gksdj tu lk/kkj.k dks yxkrkj Hk;Hkhr ,oa vkrafdr dj jgk gS ftlds dkj.k tulkekU; O;fDr vius lkekU; thou ,oa nSfud dk;Zdyki lqpk: :i ls ugh dj ik jgk gSA vukosnd dh vkijkf/kd xfrfof/k;ksa dks n`f"Vxr j[krs gq, orZeku esa ;fn vukosnd dks bl ftys ,oa ftys ds lehiorhZ ftyksa dh jktLo lhek ls ugh gVk;k x;k rks vukosnd iqu% vijk/k ?kfVr dj yksd O;oLFkk ,oa yksd ifj'kkafr dks xaHkhj :i ls ladVkRiUu dj ldrk gSA vukosnd dh vkijkf/kd xfrfof/k;ksa ij izHkkoh fu;a=.k j[kus ds fy;s ftyk cnj dh dk;Zokgh djus ds vfrfjDr vU; dksbZ fodYi u gksus ds dkj.k e-iz- jkT; lqj{kk vf/kfu;e 1990 dh /kkjk&5¼d½¼[k½ ds rgr ftyk cnj dk;Zokgh dh tkuk vko';d gks x;k gSA"

15. It is also found that to record such findings, that the

public in general is living under fear and is terrorized by the act of

the petitioner, there is no material available on record in the form of

any deposition by any person to say that he is living under fear or is

afraid to depose against the petitioner on account of his criminal

antecedents.

16. The aforesaid table also reveals that six out of eight

cases registered against the petitioner are under the provisions of

Madhya Pradesh Excise Act, 1915, meaning thereby, they are against

the State of Madhya Pradesh only, and as such, public in general is

not directly connected with the offence.

17. So far as the case under Section 294, 323, 506 and 34 of

IPC at Crime No.208/2018 is concerned, it has already resulted in

acquittal of the petitioner on 09.01.2019 and the other case under

WP No.7486/2021

Sections 209 and 506 IPC is pending. Thus, this Court is of the

considered opinion, that the order of externment, in the facts and

circumstances of the case is too harsh an order and was not