Madhya Pradesh High Court
Nitin @ Nitu vs The State Of Madhya Pradesh on 23 April, 2022
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 23rd OF APRIL, 2022
WRIT PETITION No. 1780 of 2022
Between:-
NITIN @ NITU S/O RAMESH TULSANI ,
AGED ABOUT 35 YEARS, OCCUPATION:
LABOURER SINDHI BASTI LAALBAGH
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI MUKESH SINJONIA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
1. PRINCIPAL SECRETARY VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
COMMISSIONER INDORE DIVISION
2.
(MADHYA PRADESH)
DISTRICT MAGISTRATE BURHANPUR
3.
DIST BURHANPUR (MADHYA PRADESH)
SUPERINTENDENT OF POLICE
4. BURHANPUR DIST BURHANPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RANJEET SEN - GOVT. ADVOCATE)
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This petition coming on for admission this day, the court passed the
following:
Signature Not VerifiedDigitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.04.23
17:12:34 IST
2
ORDER
The present petition is filed under Article 226 of the Constitution of
India being aggrieved by the order dated 14.01.2022 passed by the
respondent No.2 whereby the appeal preferred by the petitioner has been
dismissed affirming the order dated 24.08.2021 passed by the District
Magistrate, Burhanpur whereby the petitioner has been externed from
Burhanpur district and the other adjoining districts for a period of one
year under the provisions of Section 5 of Madhya Pradesh Rajya
Suraksha Adhiniyam, 1990 (hereinafter referred to the Act 1990).
2) The facts adumbrated in nutshell are that a report was submitted by
the Superintendent of Police, Burhanpur to the District Magistrate,
Burhanpur, who in turn issued a show cause notice dated 31.12.2019 to
the petitioner calling his explanation as to why he will not be externed
from the limits of Burhanpur districts and the other adjoining districts for
a period of one year. A reply was filed to the aforesaid show cause notice,
however, the order of externment was passed after 1 & 1/2 years on
21.08.2021. It is also submitted that in the report of the Superintendent of
Police, the old and stale cases have been mentioned. There are 16 cases
mentioned mentioned in the said list from the year 2002 to 2014 except
one case of Excise Act under Section 34(2) of year 2019. Apart from that
they have mentioned 13 cases of preventive proceedings. The cases are
old and stale and majority of the cases are only in the nature of preventive
action taken by the police.
3) Learned counsel for the petitioner further submits that the order of
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externment has been passed without compliance of provision of section 5-
SAN SOUMYA RANJAN
DALAI
Date: 2022.04.23
17:12:34 IST
B of the Act, 1990. It is argued that the District Magistrate has not
recorded his satisfaction that the witnesses are not willing to come
forward to give evidence in public due to apprehension of their safety and
therefore, the order of externment is bad in law. In support of his
submission, he places reliance of the judgment of Division Bench in the
case of Ashok Kumar Patel Vs. State of MP and Ors reported in 2009
(4) MPLJ 434 and also the judgment passed by the co-ordinate bench in
the case of Meena Sonkar Vs. State of MP and Ors reported in 2017 (2)
MPLJ 565 and in the case of Jahangeer Alvi Vs State of MP and Ors
reported in 2017 (3) MPLJ 667 and also the judgment in the case of
Istfaq Mohammad Vs. State of MP and Ors reported in 2018 (3) MPLJ
4) Per contra, learned counsel for the respondent/state denied the
submissions of the learned counsel for the petitioner and submitted that
the externment order and the appellate order passed on the basis of
material available against the petitioner. He relied on the report of the
Superintendent of Police.
5) Before adverting to the contentions of the counsel for the petitioner
as discussed earlier and examining them on the anvil of the law prevailing
in the field of externment, it is apt to refer the provisions of the
Adhiniyam, 1990. Section 5 of the Act under which the order of
externment has been passed is quoted hereinbelow:-
"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
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causing or calculated to cause alarm, danger or
harm to person or property; or
SAN SOUMYA RANJAN
DALAI
Date: 2022.04.23
17:12:34 IST
(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, 4 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
(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 of 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."
6) A plain reading of Section 5 (b) of the Act quoted above, would
show that for passing an order of externment against a person, two
conditions must be satisfied:-
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SAN SOUMYA RANJAN
DALAI
Date: 2022.04.23
17:12:34 IST
(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.
7) At this stage, I think it condign to survey the authorities on the
legal issues canvassed on behalf of the petitioner.
8) Division Bench of this Court in the case of Ashok Kumar Patel vs.
State of M.P. & others, 2009(4) MPLJ 434 after considering Section 5 of
the Act held thus:
"8. The expression is engaged or is about to be
engaged" in the commission of 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, shows that the commission of the
offence or the abetment of such offence by the
person must have a very close proximity to the
date on which the order is proposed to be
passed under Section 5(b) of the Act of 1990.
Hence, if a person was engaged in the
commission of offence or in abetment of an
offence of the type mentioned in section 5 (b),
several years or several months back, thee
cannot be any reasonable ground for believing
that the 6 person is engaged or is about to be
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SAN SOUMYA RANJAN
DALAI
engaged in the commission of such offence."
Date: 2022.04.23
17:12:34 IST
9) In the case of Ramgopal Ragjhuvanshi vs. State of M.P. and
others, 2014(4) MPLJ 654 this Court after considering the earlier
judgments in respect of Section 5 of the Act held that the order of
externment cannot be passed on the basis of old and stale cases. A co-
ordinate Bench of this Court at Indore in the case of Bhim @ Vipul vs.
Home Department, (W.P. No.4329/2015, decided on 14-09-2015) has
also considered the judgments rendered in the cases of Ashok Kumar
(supra) and Ramgopal Ragjhuvanshi (supra) and held that the
expression "engaged or is to be engaged" used in Section 5(b)(i) shows
that commission of offence or the abetment of such offence by the person
must have close proximity to the date on which the order is proposed to
be passed under Section 5(b) of the Act. 12. In the case of Sanju @
Sanjay Ben Vs. State of M.P. and others, 2005 (4) MPHT 102 while
considering the provisions of the Adhiniyam, 1990, the court held that the
provision is not punitive in its nature and a person cannot be externed for
his past acts. Although past activities of a person may afford a guide as to
his behaviour in future, they must be reviewed in the context of the time
when the order is proposed to be made. The past activities must be 7
related to the situation existing at the moment when the order is to be
passed. In the present case from the facts it is noted that the same cases
were being repeatedly considered by the authority and on earlier
occasions, he found that the same material cannot formed a basis for
passing an order of externment but by the impugned order is passed on
the basis of most of the same cases which are old and stale which has
already been held by this Court in number of cases as discussed above
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SAN SOUMYA RANJAN
DALAI
that the old and stale activities cannot be grounds of externment.
Date: 2022.04.23
17:12:34 IST
10) Upon perusal of the list of cases against the petitioner, it manifest
that the cases of year 2002, 2003, 2004, 2006, 2008, 2010, 2011, 2012,
2013, 2014 and have been registered for commission of offences under
the Indian Penal Code. One case was registered in the year 2019 under
the Excise Act in Section 34(2). As per the list, there are 13 proceedings
under Sections 107, 110, 116 of the Code of Criminal Procedure which
are preventive in nature. Thus, the cases registered against the petitioner
shows that there are old and stale and further most of the cases are in the
nature of preventive proceedings.
11) In the instant case, upon perusal of the impugned orders, it is also
found that the District Magistrate has only baldly stated the list of the
offences registered against the petitioner to reflect that the petitioner is a
daring habitual criminal but he did not record any opinion on the basis of
the materials that in his opinion witnesses are not willing to come forward
to give evidence in public against the petitioner by reason of
apprehension as regards to their safety. Hence, in absence of any
existence of material to show that witnesses are not coming forward by
reason of apprehension to give evidence against the petitioner in respect
of the alleged offences, an 11 order u/s 5 (b) of Adhiniyam, 1990 cannot
be passed by the District Magistrate as held in the case of Ashok Kumar
Patel Vs. State of M.P. by the Division Bench that for a passing an order
of externment against the person both the conditions mentioned under
section 5 (b) (i) and (ii) have to be satisfied.
12) This Court in the case of Meena Sonkar vs. State of M.P. and
others, 2017(2) MPLJ 565 and also in the case of Anek alias Anil
Signature Not VerifiedDigitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.04.23
17:12:34 IST
Nageshwar vs. State of Madhya Pradesh & four others [W.P.
No.9297/2017, decided on 8-8-2017] held as under:
"The second requirement is also necessitated to
pass an order of externment that on account of
the activities of a person, who is externed, the
witnesses amongst public are not coming forth
to depose in the criminal cases against him
either under apprehension of person or property.
But in the order impugned existence of such
material is not on record, more so, no such
finding has been recorded by the competent
authority to record satisfaction. Therefore, the
order impugned do not fulfill the second
requirement of Section 5(b) of the Adhiniyam."
13) In the present case there is no satisfaction of the District Magistrate
in the impugned order regarding second requirement of Section 5(b) of
the Act 1990. He has not recorded his satisfaction on the basis of
materials that witnesses are not willing to come forward to give evidence
in the public against the petitioner by the 12 reasons of apprehension as
regards to their safety. The authority has not discarded the nature of cases,
the date of registration of cases and their present status. Most of the cases
are old and stale.
14) Under the provision of Section 5 of the Act, if a detention order
has to be passed, there has to be sufficient material for passing the order
as fundamental right of freedom of a person is involved. The order passed
by the appellate Authority is nothing but repetition of the order passed by
the District Magistrate without any application of mind.
15) In the aforesaid circumstances, the impugned order of externment
and affirmation thereof in the appeal are unsustainable having been found
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SAN SOUMYA RANJAN
DALAI
Date: 2022.04.23
17:12:34 IST
in violation of the requirements of the Act 1990 and the judgments passed
by this Court which have been noted hereinbefore.
16) Accordingly, the writ petition is allowed. The impugned order
dated 24.08.2021 passed by the District Magistrate, Burhanpur and the
order dated 14.01.2022 passed by the Commissioner, Indore are quashed.
No order as to costs.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.04.23
17:12:34 IST
