Madhya Pradesh High Court
Mayank Sharma vs The State Of Madhya Pradesh on 12 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 12th of JULY, 2022
WRIT PETITION NO. 12150 OF 2022
Between:-
MAYANK SHARMA S/O SHRI JAI
PRAKASH SHARMA, AGED 26
YEARS, OCCUPATION PRIVATE
JOB, R/O ADARSH COLONY,
THANA CANTT., DISTRICT GUNA,
PRESENT R/O RAJGHAT COLONY,
DATIA (MADHYA PRADESH)
........PETITIONER
(BY SHRI S.S. RAJPUT - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH,
THROUGH PRINCIPAL
SECRETARY, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. ZILA DANDADHIKARI
(COLLECTOR), GUNA, DISTRICT
GUNA (MADHYA PRADESH)
3. SUPERINTENDENT OF POLICE,
GUNA, DISTRICT GUNA (MADHYA
PRADESH)
........RESPONDENTS
2
(BY SHRI P.S. RAGHUVANSHI - 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 seeking following relief:-
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2. According to the petitioner, necessary facts for disposal of present
petition in short are that a show cause notice under Section 8(1) of
Madhya Pradesh Rajya Suraksha Adhiniyam was issued by the District
Magistrate, Guna thereby calling upon the petitioner to explain as to why
an order of externment be not passed against him as he is involved in
criminal activities from the year 2014. The petitioner submitted his reply
on 07.09.2021 and clarified that in Crime Nos.75/2014, 168/2014 and
251/2014 he has already been acquitted, whereas in Crime Nos.101/2021
and 312/2021 he has been falsely implicated. However, without giving
any opportunity to lead evidence and without considering reply filed by
the petitioner, an order of externment was passed by District Magistrate,
Guna on 27.01.2022 thereby externing the petitioner from the limits of
District Guna as well as adjoining Districts Bhopal, Rajgarh, Shivpuri,
Vidisha and Ashoknagar for a period of one year.
3. Being aggrieved by the order of District Magistrate, Guna, the
petitioner preferred an appeal before the Commissioner, Gwalior
Division, Gwalior which was registered as Appeal No.
5/Externment/2022 and the said appeal has also been dismissed by order
dated 06.05.2022.
4. It is submitted by the counsel for the petitioner that the District
Magistrate, Guna has relied upon old and stale cases. According to list of
criminal cases, which were registered against him, three cases of minor
offences were registered in the year 2014 and in all those three cases, he
has been acquitted. Fourth case was registered in Crime No.101/2021 for
offence under Sections 294, 323, 506, 34 of IPC and fifth case was
registered in Crime No. 312/2021 for offence under Section 336 of IPC.
One preventive measure under Section 110 of CrPC was also undertaken
against the petitioner in the year 2021. It is submitted that there is no
evidence on record to show that the witnesses are afraid of the petitioner
or they are not ready to come forward to depose against him. The
petitioner is working in Bajaj Finance Private Limited and the Police
Station Cantt. had also issued a character certificate, in which Police
Station Cantt, itself had disclosed that the petitioner has been acquitted in
four cases and no criminal case is registered against him. It is submitted
that it is well established principle of law that old and stale cases having
no live link with necessity of passing an externment order, cannot be
taken into consideration.
5. Per contra, the petition is vehemently opposed by the counsel for
the State. It is submitted that the petitioner has a criminal history and as
many as five criminal cases were registered against him and no
respectable member of the society is ready to come forward to depose
against the petitioner. Registration of criminal cases did not put a check
on the criminal activities of the petitioner.
6. Heard the learned counsel for the petitioner.
7. As per the show cause notice/impugned order, the petitioner has
following criminal antecedents: -
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8. In the case of Arvind Singh @ Pappu Vs. State of Madhya
Pradesh and Others reported in 2017 (4) MPLJ 579, the Co-ordinate
Bench of this Court has held as under:-
"8. A plain reading of section 5(b) of the
Act of 1990 quoted above, would show that for
passing an order of externment against a person,
two conditions must be satisfied :-
(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."
9. 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).
10. This Court in the case of Rajjan Yadav Vs. State of M.P. and
others (Principal Seat) reported in ILR (2021) MP 1512 held as
under :-
"7. It is well established principle of law that
two conditions are required to be satisfied for passing
an order of externment:
9. Secondly, there has to be some material to
show that the witnesses were not coming forward to
give statement against the proposed externee.
13. Thereafter, in para 13, the District
Magistrate, Jabalpur, without considering the nature
of criminal cases registered against the petitioner, its
outcome, as well as without considering that whether
the stale cases can be taken into consideration for
passing the order of externment, directly jumped to
the conclusion that since, one more criminal case was
registered against the petitioner in the year 2020,
therefore, his activities have made him liable for his
externment from the District Of Jabalpur and its
neighboring Districts Mandla, Dindori, Narsinghpur,
Seoni, Katni, Damoh and Umaria. In para 13, except
by mentioning that he has gone through the various
orders passed by the Courts, nothing has been
discussed as to why the activities of the petitioner are
detrimental to the law and order requiring him to
remove him from the District of Jabalpur and its
neighboring District. It is well established principle
of law that reasons are heartbeat of an order. The
Supreme Court in the case of Kranti Associates (P)
Ltd. Vs. Masood Ahmed Khan, reported in (2010) 9
SCC 496 has held as under :
46. The position in the United States has been indicated
by this Court in S.N. Mukherjee in SCC p. 602, para 11 :
AIR para 11 at p. 1988 of the judgment. This Court held
that in the United States the courts have always insisted
on the recording of reasons by administrative authorities
in exercise of their powers. It was further held that such
recording of reasons is required as "the courts cannot
exercise their duty of review unless they are advised of
the considerations underlying the action under review".
In S.N. Mukherjee this Court relied on the decisions of
the US Court in Securities and Exchange Commission v.
Chenery Corpn. and Dunlop v. Bachowski in support of
its opinion discussed above.
47. Summarising the above discussion, this Court
holds:
(a) In India the judicial trend has always been to
record reasons, even in administrative decisions, if
such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons
in support of its conclusions.
(c) Insistence on recording of reasons is meant to
serve the wider principle of justice that justice
must not only be done it must also appear to be
done as well.
(d) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of
judicial and quasi-judicial or even administrative
power.
(e) Reasons reassure that discretion has been
exercised by the decision-maker on relevant
grounds and by disregarding extraneous
considerations.
(f) Reasons have virtually become as indispensable
a component of a decision-making process as
observing principles of natural justice by judicial,
quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial
review by superior courts.
(h) The ongoing judicial trend in all countries
committed to rule of law and constitutional
governance is in favour of reasoned decisions
based on relevant facts. This is virtually the
lifeblood of judicial decision-making justifying the
principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these
days can be as different as the judges and
authorities who deliver them. All these decisions
serve one common purpose which is to
demonstrate by reason that the relevant factors
have been objectively considered. This is
important for sustaining the litigants' faith in the
justice delivery system.
(j) Insistence on reason is a requirement for both
judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not
candid enough about his/her decision-making
process then it is impossible to know whether the
person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent,
clear and succinct. A pretence of reasons or
"rubber-stamp reasons" is not to be equated with a
valid decision-making process.
(m) It cannot be doubted that transparency is the
sine qua non of restraint on abuse of judicial
powers. Transparency in decision-making not only
makes the judges and decision-makers less prone
to errors but also makes them subject to broader
scrutiny. (See David Shapiro in Defence of
Judicial Candor.)
(n) Since the requirement to record reasons
emanates from the broad doctrine of fairness in
decision-making, the said requirement is now
virtually a component of human rights and was
considered part of Strasbourg Jurisprudence. See
Ruiz Torija v. Spain EHRR, at 562 para 29 and
Anya v. University of Oxford, wherein the Court
referred to Article 6 of the European Convention of
Human Rights which requires, "adequate and
intelligent reasons must be given for judicial
decisions".
11. Thus, it is clear that the competent authority must record its
subjective satisfaction of the existence of the ground mentioned in
Section 5 of Rajya Suraksha Adhiniyam, 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 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."
12. Therefore, a specific finding is to be given to the effect that the
movements or acts of any person are causing or calculated to cause
alarm, danger or harm to person or property or there are reasonable
grounds for believing that such person is engaged or is about to engage in
the commission of offence involving force or violation or offence
punishable under Chapter XII, XVI or XVII or under Sections 506 and
509 of IPC and the witnesses are not willing to come forward to give
evidence in public against any such person by reason of apprehension on
their part as regards the safety of their person or property. If the reasons
assigned by the authorities are taken into consideration, then it is clear
that the order under challenge has been passed on the ground that 5
criminal cases were registered against the petitioner apart from
preventive measures on one occasion.
13. If the criminal cases which were registered against the petitioner
are considered, then it is clear that out of five criminal cases, three cases
were registered in the year 2014 and thereafter there is a complete pause
and after seven years, two more offences under Sections 294, 323, 506,
34 of IPC and under Section 336 of IPC were registered. The District
Magistrate could not have taken note of the criminal cases, which were
registered in the year 2014 because not only, they do not have any live
link with the necessity to pass an order of externment, but all those
offences were simple in nature. There is a difference between public
order and ordinary law and order. Therefore, by no stretch of
imagination, it can be said that the offences, which were registered in the
year 2021, were in any manner prejudicial to the maintenance of the
public order. Furthermore, there is no material on record to show that the
act of the petitioner is causing or calculated to cause an alarm, danger or
harm to the person or property. There is no material to show that the
witnesses are not coming forward to give evidence in public by reason of
apprehension on their part as regards the safety of person or property.
14. Since the order of externment does not satisfy the test of
reasonableness and has been passed without coming to the conclusion as
to whether Section 5 of Rajya Suraksha Adhiniyam are applicable to the
activities of the petitioner or not, this Court is of the considered opinion
that the order of externment cannot be give stamp of approval. As a
consequence thereof, the orders dated 27.01.2022 and 06.05.2022 are
hereby set aside.
15. Accordingly, the petition succeeds and is hereby allowed.
(G.S. AHLUWALIA)
JUDGE
Abhi
ABHISHEK
CHATURVEDI
2022.07.15
19:08:29 +05'30'
