Madhya Pradesh High Court
Santosh Soni vs The State Of Madhya Pradesh on 9 May, 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 9th OF MAY, 2022
WRIT PETITION No. 4141 of 2022
Between:-
SANTOSH SONI S/O SHRI CHAGGANLAL SONI ,
AGED ABOUT 52 YEARS, R/O VILLAGE
DHANORA POLICE STATION SENDHWA
GRAMIN, DISTRICT BARWANI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AMIT RAJ-ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. DIVISIONAL COMMISSIONER INDORE
DIVISION INDORE (MADHYA PRADESH)
3. DISTRICT MAGISTRATE BADWANI (MADHYA
PRADESH)
4. SUPERINTENDENT OF POLICE BADWANI
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SHANTANU CHOURASIA-GOVT.ADVOCATE)
This petition coming on for admission this day, the court passed the
following:
ORDER
In the present petition filed under Article 226 of the
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SAN MUKTA
CHANDRASHEKHA
Constitution of India, the petitioner has challenged the order
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dated 31.08.2021 passed by District Magistrate, Burhanpur
whereby the petitioner has been externed from district Barwani
and 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).
The petitioner has also challenged the order dated
12.01.2022 passed by respondent No.2 whereby the appeal filed
against the order of externment has been dismissed and the
order of externment has been affirmed.
Facts adumbrated in nutshell are that a report was
submitted by the Superintendent of Police, Barwani to the
District Magistrate, Barwani on 29.01.2021 with a request to
pass an order of externment against the petitioner taking into
consideration the number of criminal cases against the
petitioner, who in turn issued a show cause notice dated
15.02.2021. The petitioner filed reply to the show cause notice
explaining the nature of offences registered against the
petitioner. It is submitted that in the report of the
Superintendent of
Police, there are 12 cases registered against the petitioner right
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from 1998 to year 2021.
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Counsel for the petitioner submits that all the cases are
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registered under Gambling Act and one case is registered under
sections 294, 325, 506 and 452 r/w sec. 34 of IPC. Apart from
the said case, all the cases are under Gambling Act and the
petitioner submits that out of 12 cases, in 11 cases the petitioner
has been fined and one case is under investigation.
Learned counsel for the petitioner further submits that the
order of externment has been passed without compliance of
provision of section 5- 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
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Mohammad Vs. State of MP and Ors reported in 2018 (3)
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CHANDRASHEKHA
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MPLJ 349.
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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.
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 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,
4 XVI, or XVII or under Section 506 or
509 of the Indian Penal Code, 1860 (45 of
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1860) or in the abetment of any such
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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.ÂÂ
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:-
(i) There are reasonable grounds for
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believing that a person is engaged or is
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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.
At this stage, I think it condign to survey the authorities on
the legal issues canvassed on behalf of the petitioner.
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:
€ÂÂ
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
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CHANDRASHEKHA
type mentioned in section 5 (b), several
years or several months back, thee cannot
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be any reasonable ground for believing
that the 6 person is engaged or is about to
be engaged in the commission of such
offence.
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 "€œengaged 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 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 that the old and stale activities cannot
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be grounds of externment.
Upon perusal of the list of cases against the petitioner, it
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CHANDRASHEKHA
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manifest that the cases of year 1998, 1999, 2007, 2013, 2016,
2018, 2019, 2020 and 2021 have been made basis for passing
the order of externment. All the cases are under the Gambling
Act in which the petitioner has been fined except one case
which is still under investigation. Thus, the cases registered
against the petitioner are not of serious nature and most of the
cases are of trivial nature.
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.
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 Nageshwar vs. State of Madhya Pradesh &
four others [W.P. No.9297/2017, decided on 8-8-2017] held
as under:
"€œThe 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
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either under apprehension of person or
property. But in the order impugned
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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.€ÂÂ
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.
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.
In the aforesaid circumstances, the impugned order of
externment and affirmation thereof in the appeal are
unsustainable having been found in violation of the
requirements of the Act 1990 and the judgments passed by this
Court which have been noted hereinbefore.
Accordingly, the writ petition is allowed. The impugned
order dated 31.08.2021 passed by the District Magistrate,
Barwani and the order dated 12.01.2022 passed by the
Commissioner, Barwani are quashed.
No order as to costs.
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SAN MUKTA
CHANDRASHEKHA (VIJAY KUMAR SHUKLA)
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JUDGE
MK
