Madhya Pradesh High Court
Prem Narayan Sharma vs The State Of Madhya Pradesh on 4 July, 2022
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 4th OF July, 2022
WRIT PETITION NO.14962 OF 2022
Between:-
PREM NARAYAN SHARMA S/O
LATE SHRI BRIJMOHAN SHARMA,
AGED- 45 YEARS, OCCUPATION-
AGRICULTURIST, R/O- GRAM AND
POST BARHAD, TEHSIL
MEHGAON, DISTRICT BHIND
(MADHYA PRADESH)
........PETITIONER
(BY SHRI NIRMAL SHARMA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH,
THROUGH PRINCIPAL
SECRETARY, DEPARTMENT OF
HOME, VALLAB BHAWAN, BHOPAL
(MADHYA PRADESH)
2. COMMISSIONER, CHAMBAL
DIVISION, MORENA (MADHYA
PRADESH)
3. ASHISH SAXENA,
COMMISSIONER, GWALIOR
DIVISION, GWALIOR (MADHYA
PRADESH)
4. DISTRICT MAGISTRATE/
COLLECTOR, BHIND, DISTRICT
BHIND (MADHYA PRADESH)
2
5. LALLA @ PRABHAT KISHORE
DUBEY S/O SHRI HARNARAYAN
DUBEY, R/O- VILLAGE BARHAD,
POLICE STATION MEHGAON,
DISTRICT BHIND (MADHYA
PRADESH)
........RESPONDENTS
(BY SHRI N.S.TOMAR - GOVERNMENT ADVOCATE)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has
been filed against the order dated 24/06/2022 passed by Commissioner,
Chambal Division, Morena in Case No.80/2022/externment/appeal by
which the order dated 22/06/2022 passed by District Magistrate, Bhind
was set aside.
It is submitted by the counsel for the petitioner that the petitioner
made an application to the Collector/Election Officer on 31/05/2022
making a complaint that the respondent No.5 has a criminal history and
accordingly, nobody is ready to report against him or to give evidence
against him and even in the Panchayat election, he will be having an
adverse pressure and accordingly, srious action may be taken against him
under the National Security Act or under any other law for the time
being.
It is submitted that the Superintendent of Police, Bhind made a
recommendation 10/06/2022, seeking externment of the respondent No.5.
Accordingly, the District Magistrate, Bhind issued a show cause notice,
which was duly replied by the respondent No.5.
In reply, he submitted that he had received the copy of show cause
notice on 20/06/2022 and he also pointed out that trial in only five cases
are pending and even closure report has been filed in some of the cases. It
was further pleaded that the wife of the respondent No.5 is a candidate
for the post of Sarpanch of Gram Panchayat Barhad, Tehsil Mehgaon,
District Bhind. It was further mentioned that in Crime No.274/2018, the
name of the respondent No.5 was deleted by the police after due
investigation. It was further pleaded that on earlier occasion also he had
never effected the election.
After considering the written reply, filed by the respondent No.5,
the District Magistrate came to conclusion that from year 1989 till 2022
total 22 criminal cases were registered against him, as a result, the
activities of the petitioner has raised serious question mark on the public
law and order. Because of the terror of the petitioner, nobody is coming
forward to depose against him, which is evident from the details of the
criminal cases registered against him. It was also mentioned that due to
presence of the respondent No.5, it may not be possible to conduct the
election in a free and fair manner and accordingly, on 22/06/2022 an
order of externment under Section 5 (a) and (b) of M.P. Rajya Suraksha
Adhiniyam was issued by directing the respondent No.5 to remove
himself from the District Bhind as well as from its adjoining districts
Gwalior, Morena and Datia for a period of three months.
Being aggrieved by the said order of externment, the respondent
No.5 preferred an appeal, which was allowed by the Commissioner,
Chambal Division, Morena by order dated 24/06/2022.
Heard the learned counsel for the petitioner.
Locus standi of the petitioner:-
The counsel for the petitioner was directed to address this Court on
the question of locus standi to file a writ petition for challenging the
order passed by the Commissioner, Chambal Division, Morena. It is
fairly conceded that in M.P. Rajya Suraksha Adhiniyam, 1990 a
complainant has no role to play. Recommendation was made by the
Superintendent of Police.
Old and Stale Cases:-
The list of criminal cases is as under:-
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1 92/89 341]294]]506ch Hkknfo
2 23/91 341]294]323 Hkknfo
3 32//92 342]294]506 Hkknfo
4 30/93 384 Hkknfo
5 49/93 147] 148]506 Hkknfo
6 90/93 341] 392 Hkknfo
7 23/95 336]506ch 147]148]149 Hkknfo
8 91/95 307]34 btkQk /kkjk 451]323 Hkknfo
9 [email protected] 306]147 Hkknfo
10 88/99 341]294]506ch 34 Hkknfo
11 135/2003 294]336]506ch 34 Hkknfo
12 152/05 294]506ch Hkknfo
13 [email protected] 336]506ch] 147]148]149]294]427]34 Hkknfo
14 43/07 341]294]323]506 ch Hkknfo
15 228/10 302]307]147]148]149]120ch Hkknfo 25]27
vkElZ ,DV
16 320/15 341]323]294]506]34 Hkknfo
17 245/13 323]452]427]34 Hkknfo
18 411/15 323]294]506]336]147 Hkknfo
19 324/16 353]294]323]506]34 Hkknfo 3¼1½¼vkj½]
3¼1½] ,llh,lVh ,DV
20 274/18 394 Hkknfo 11]13 ,eihMhihds ,DV
21 376/19 323] 294]506]34 Hkknfo
22 34/22 323]294]506]147]148 Hkknfo
If the list of criminal cases, which were registered against the
petitioner is considered, then it is clear that the District Magistrate, Bhind
had relied upon old and stale cases. As per the list, the first case was
registered against the petitioner in the year 1989 and till year 2019 in all
21 cases were registered. There must be a live link between the date of
offences committed by the person with the necessity of passing an order
of externment.
The order of externment is not an ordinary measure and it must be
resorted to sparingly and in extraordinary circumstance. By passing an
order of externment fundamental right of a person of free movement
throughout the territorial of India is curtailed and, therefore, it must with
stand the test of reasonableness. The order of externment should be
sparingly used. The Supreme Court in the case of Deepak S/o Laxman
Dongre Vs. The State of Maharashtra & Ors. by judgment dated
28/01/2022 passed in CRA No.139/2022 has held as under:-
4. We have given careful consideration to the
submissions. Under clause (d) of Article 19(1) of the
Constitution of India, there is a fundamental right
conferred on the citizens to move freely throughout
the territory of India. In view of clause (5) of Article
19, State is empowered to make a law enabling the
imposition of reasonable restrictions on the exercise of
the right conferred by clause (d). An order of
externment passed under provisions of Section 56 of
the 1951 Act imposes a restraint on the person against
whom the order is made from entering a particular
area. Thus, such orders infringe the fundamental right
guaranteed under Article 19(1)(d). Hence, the
restriction imposed by passing an order of externment
must stand the test of reasonableness.
6. As observed earlier, Section 56 makes serious
inroads on the personal liberty of a citizen guaranteed
under Article 19(1)(d) of the Constitution of India. In
the case of Pandharinath Shridhar Rangnekar v. Dy.
Commr. of Police, State of Maharashtra1 in paragraph
9, this Court has held that the reasons which
necessitate or justify the passing of an extraordinary
order of externment arise out of extraordinary
circumstances. In the same decision, this Court held
that care must be taken to ensure that the requirement
of giving a hearing under Section 59 of the 1951 Act
is strictly complied with.
7. There cannot be any manner of doubt that an order
of externment is an extraordinary measure. The effect
of the order of externment is of depriving a citizen of
his fundamental right of free movement throughout
the territory of India. In practical terms, such an order
prevents the person even from staying in his own
house along with his family members during the
period for which this order is in subsistence. In a
given case, such order may deprive the person of his
livelihood. It thus follows that recourse should be
taken to Section 56 very sparingly keeping in mind
that it is an extraordinary measure. For invoking
clause (a) of sub-section (1) of Section 56, there must
be objective material on record on the basis of which
the competent authority must record its subjective
satisfaction that the movements or acts of any person
are causing or calculated to cause alarm, danger or
harm to persons or property. For passing an order
under clause (b), there must be objective material on
the basis of which the competent authority must
record subjective satisfaction 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 offences punishable
under Chapter XII, XVI or XVII of the IPC. Offences
under Chapter XII are relating to Coin and
Government Stamps. Offences under Chapter XVI are
offences affecting the human body and offences under
Chapter XVII are offences relating to the property. In
a given case, even if multiple offences have been
registered which are referred in clause (b) of sub-
section (1) of Section 56 against an individual, that by
itself is not sufficient to pass an order of externment
under clause (b) of sub-section (1) of Section 56.
Moreover, when clause (b) is sought to be invoked, on
the basis of material on record, the competent
authority must be satisfied that witnesses are not
willing to come forward to give evidence against the
person proposed to be externed by reason of
apprehension on their part as regards their safety or
their property. The recording of such subjective
satisfaction by the competent authority is sine qua non
for passing a valid order of externment under clause
(b).
Section 5 of M.P. Rajya Suraksha Adhiniyam 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 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) 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
duty 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 my
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.
Thus, in order to attract the provisions of Section 5 of M.P. Rajya
Suraksha Adhiniyam, 1990, the respondents must proof that the
movements or acts of any person are causing or calculated cause alarm,
danger or harm to persons or property or there is a reasonable ground for
believing that such person is engaged in or is about to be engaged in the
commission of offence involving force or violants or offence punishable
under Chapter XII, XVI or XVII or under Section 506 or 509 of the
Indian Penal Code and in the information of the District Magistrate, the
witnesses are not ready to come forward to give evidences in public
against such person by reason of apprehension on their part as regards
safety of their person or property. In the impugned order, the District
Magistrate, Bhind has merely mentioned that the witnesses are not
coming forward because of their apprehension. No reasons were assigned
for coming to such conclusion. Even the nature of offence alleged against
the petitioner and their outcome have not been taken into consideration.
The counsel for the petitioner could not point out anything from
the record, which may fulfill the ingredients of Section 5 (a) and (b) of
M.P. Rajya Suraksha Adhiniyam.
Since, it is well settled principle of law that old and stale cases
cannot be taken into consideration while passing the order under Section
5 of M.P. Rajya Suraksha Adhiniyam, this Court is of the considered
opinion that even otherwise, the petitioner has failed to point out the
necessity of passing an order of externment requiring curtailment of
liberty of respondent No.5 as enshrined under Article 19 of the
Constitution of India.
Accordingly, this Court is of the considered opinion that no case is
made out for interfering in the mater.
Accordingly, the order dated 24/06/2022 passed by Commissioner,
Chambal Division, Morena is hereby affirmed, although, on a different
ground.
The petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
Pj'S/-
Digitally signed by
PRINCEE BARAIYA
Date: 2022.07.05
18:25:32 -07'00'
