Sonu @ Nilesh vs The State Of Madhya Pradesh
2021 Latest Caselaw 5377 MP

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                                                                W.P. No. 6792/2021



HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
     (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                            W.P. No. 6792 of 2021
Sonu @ Nilesh S/o. Umesh Koli, Aged 19 years, Occ. Business, R/o. Ward
No.2, Khalwadi Mohalla, Sendhwa, District Barwani.
                                                             ---Petitioner.
                                    Versus
1. State of M.P. through its Secretary, Vallabh Bhawan, Bhopal.
2. Commissioner, Indore Division, District Indore.
3. District Magistrate/Collector, Barwani, Distt. Barwani.
4. Superintendent of Police, Barwani, Distt. Barwani.
5. S.H.O. Police Station, Sendhwa City, Distt. Barwani.
                                                            ---Respondents.
Date: 14.09.2021 :
      Shri Shivendra Pandey, learned counsel for the petitioner.
      Shri    Siddharth        Jain,      learned    Panel     Advocate       for
respondent/State.
      Heard the learned counsel for the parties.
                                    ORDER

The petitioner has filed the present petition being aggrieved by order dated 1.12.2020 passed by the District Magistrate/Collector, District Barwani u/s. 5(a) (b) of the M.P. Rajya Suraksha Adhiniyam, 1990 hereinafter "the Act of 1990" for short) and order 2.3.2021 passed by the Commissioner, Indore Division, Indore u/s. 9 of the Act of 1990.

Facts of the case, in brief, are as under:

1. The petitioner is permanent resident of Ward No.2, Khalwadi Mohalla, Sendhwa, District Barwani. He is involved in various criminal activities since 2017. During the period from 2017 to 2019 as many as six criminal cases have been registered against, the details of criminal cases are as under :

S.No. Crime No. Offence under Case No. Judgment Status.

IPC/Arms Act.

1 106/2017 294, 323, 506, 34 413/2017 Compromised.

of IPC.

2     288/2017    307,      120-B   of 16/2018                  Pending.
                  IPC,      25-27   of
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                                                             W.P. No. 6792/2021



                  Arms Act.
3      247/2018   294,      323,   506, 1346/2018 25/06/19   Acquitted.
                  325, 34 of IPC
4      149/2019   341, 94, 323, 506 1448/2019                Pending.
                  of IPC.
5      298/2019   294, 323, 506 of 01/12/20                  Pending
                  IPC
6      302/2019   336, 506, 34 of                            Pending.
                  IPC

2. In view of the increasing day by day criminal activities of the petitioner, the Superintendent of Police Barwani has requested the District Magistrate/Collector, Barwani for initiation of the proceedings u/s. 5(a) and 5(b) of the Act of 1990. Along with the aforesaid request letter, the Superintendent of Police has sent the list of criminal cases registered against the petitioner supported by necessary documents. The District Magistrate registered the case against the petitioner and issued show-cause notice to him as to why he be not externed from the territory of District Barwani and nearby border districts for a period of one year. The petitioner was directed to appear on Date 8.9.2020. The petitioner appeared along with his counsel on 6.10.2020 and filed the reply. According to him, compromise has been arrived at in Crime No.106/2017 and he has been acquitted in Crime No.247/2018. The remaining four cases are pending against him, and he is likely to be acquitted in all these cases because the police have falsely implicated him.

3. On the basis of material available and the evidence the District Magistrate vide order dated 1.12.2020 exercising the powers conferred u/s. 5 (a) & (b) of the Act of 1990 has externed the petitioner for a period of one year by directing him to leave Barwani and nearby districts viz. Dhar, Jhabua, Alirajpur, Khargone, Khandwa, Burhanpur and Indore within 24 hours.

Being aggrieved by the aforesaid order, the petitioner preferred an appeal before the Commissioner, Indore Division u/s. 9 of the Act

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of 1990, which too has been dismissed, hence the present petition before this Court.

4. Learned counsel for the petitioner submits that the District Magistrate has wrongly exercised the powers u/s. 5 (a) & (b) of the Act of 1990 merely on the basis of number criminal cases registered against the petitioner. The petitioner is aged about 19 years, and he has not been convicted so far in any of the criminal cases. One cases has been ended into compromise and in one case he has been acquitted. The remaining four cases are pending, and he is likely to be acquitted in those cases, therefore, he cannot be branded as a hardcore criminal. The powers u/s. 5(a) & (b) have wrongly been exercised in contravention of the law laid down by the Division Bench of this Court in the case of Ashok Kumar Patel vs State of MP : 2009 (4) MPLJ

434. The petitioner has already undergone 8 months externment out of one year, hence impugned orders may kindly be quashed.

5. On the other hand, learned Panel Advocate appearing for the respondents/State opposes the prayer by submitting that after considering the criminal activities of the petitioner based upon the report submitted by the Superintendent of Police, the District Magistrate has rightly found that the petitioner is acting in a manner prejudicial to the security of the State or the maintenance of public order. The Superintendent of Police has provided enough material against the petitioner for passing an order u/s. 5(a) & (b) of the Act of 1990. The petitioner is continuously involved in the criminal activities, hence he has become a habitual offender. He is regularly involved in committing violence, beating persons belonging to lower caste, robbery, and other offences. There is terror amongst general public and therefore, the witnesses are not willing to come forward to give evidence against him. The procedure prescribed in Section 8 of the Act of 1990 has been followed by the District Magistrate, hence the petition is liable to be dismissed.

I have heard the learned counsel for the parties and perused the

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record.

It is not in dispute that at the age of 19 years as many as 6 criminal cases have been registered against the petitioner and out of which one is u/s. 307 of the IPC and also under the Arms Act. Twice the proceedings have been initiated on 9.9.2018 and 1.1.2020 u/s. 110 and 122 of the Cr.P.C. against the petitioner. Vide order dated 15.10.2019 he was directed to give bond of Rs.7,000/- for a period of three years. On 8.10.2019 along with his associates the petitioner has fired the gunshot in front of the complainant's house and accordingly offence u/s. 336, 506, 34 of the IPC and u/s. 25A of the Arms Act has been registered against him. The other offences are also relating to threatening, abusing, terrorising the residents. Despite registration of criminal cases, there is no curtailment in the criminal activities of the present petitioner. Twice the prohibition proceedings have been initiated against the petitioner and despite that he has committed the offences continuously. The authorities have no personal enmity with the petitioner but looking continuous involvement in the criminal activities, the Superintendent of police requested the District Magistrate for initiation of the externment proceedings against the petitioner. There was enough material available against the petitioner for initiation of the externment proceedings.

It is settled law that order under Section 5(a) & 5(b) of the Act of 1990 cannot be passed mechanically just because the number of criminal cases are registered against any person.

So far as the requirement of Section 5(a) of the Act of 1990 is concerned, whenever it appears to the District Magistrate that the movements or act of any person are causing or calculated to cause alarm, danger or harm to a person or property, the District Magistrate may by an order in writing direct such person to conduct himself to prevent violence or to remove himself outside the district or any part thereof or such area and not to enter or return to the said district from which he was directed to remove himself. Therefore, before passing an

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order under section 5(a) District Magistrate is required to record its satisfaction that the movement or act of any person because of his past and present criminal activities may cause danger or harm to person or property.

Likewise before passing any order under section 5(b) of Act of 1990 is concerned, two conditions must be satisfied. Firstly, there are reasonable grounds for believing that such person is engaged in or is about to be engaged in the commission of an offence involving force or violence or in the abatement of such offence. Secondly, in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence against such person by reason of apprehension of their safety of person or property.

While passing the impugned order the District Magistrate did not record its satisfaction as per the requirement of section 5(b) of the Act of 1990. The district magistrate has passed the order under Section 5 without specifying that the case of the petitioner falls under section 5(a) or 5(b) because the requirement of passing the order under aforesaid provisions are altogether different, therefore, the material available before the district magistrate and the evidence came to the effect that the order is to be treated under section 5(a) of the Act of 1990. No satisfaction has been recorded as required under section 5(b) of the Act of 1990, therefore, the period of one-year externment is reduced to the period already undergone by the petitioner.

The writ petition is accordingly partly allowed to the extent indicated above. No order as to cost.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2021.09.16 18:12:30 +05'30'