Madhya Pradesh High Court
Prakash Barfa vs The State Of Madhya Pradesh on 11 October, 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 11 th OF OCTOBER, 2022
WRIT PETITION No. 19333 of 2022
BETWEEN:-
PRAKASH BARFA S/O SHRI BABULAL BARFA, AGED
ABOUT 40 YEARS, OCCUPATION: AGRICULTURE R/O
NAGALWADI (MADHYA PRADESH)
.....PETITIONER
(SHRI ANSHUMAN SHRIVASTAVA, LEARNED COUNSEL FOR THE
PETITIONER )
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY VALLABH BHAWAN DISTRICT
BHOAPL (MADHYA PRADESH)
2. COMMISSIONER INDORE DIVISION. INDORE
(MADHYA PRADESH)
3. COLLECTOR / DISTRICT MAGISTRATE
COLLECTOR OFFICE, DISTRICT BARWANI
(MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE (EAST) S.P. OFFICE.
DISTRICT BARWANI. (MADHYA PRADESH)
.....RESPONDENTS
(SMT. VINITA PHAYE APPEARING ON BEHALF OF ADVOCATE
GENERAL)
This petition coming on for orders this day, the court passed the following:
ORDER
With the consent of the parties, the matter is heard finally.
This is a petition filed under Article 226 of the Constitution of India
challenging the order of externment passed by the respondent no.2, District
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YADAV
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Magistrate, Badwani, whereby, the petitioner has been externed from entering in
the District of Barwani and adjustent district for the period of six months.
Against the said order, an appeal was preferred which has also been dismissed
by the Appellate Authority.
On the basis of a report dated 28.10.2021 forwarded by the respondent
no.3 Superintendent of Police, Barwani to the respondent no.2, District
Magistrate, Badwani, the proceedings under MP Rajya Suraksha Adhiniyam,
1990 (hereinafter referred as Adhiniyam) were initiated against the petitioner. A
show cause notice dated 07.06.2022 was issued to the petitioner. The petitioner
filed the reply to the said show cause notice thereafter, the order of externment
was passed against the petitioner against which an appeal was preferred which
was also dismissed.
In the report submitted by the Superintendent of Police, it is alleged that
four criminal cases were registered against the petitioner. First case was
registered vide crime no.52/2009 under section 147, 294, 323 of the IPC.
Thereafter, vide crime no.136/2020 another case was registered under section
294, 323, 506, 34 of the IPC. Thereafter, in the year 2021, another two cases
were registered against the petitioner in crime nos.181/2021 and 284/2021 under
section 4(a) of the Public Gambling Act against the petitioner.
Learned counsel for the petitioner submits that the order passed by the
competent authority is contrary to the provisions of section 5(A) and 5(B) of
the Adhiniyam, 1990 and the order is passed on the old and stale cases. There
is no objective consideration by the competent authority. The order is contrary
to the law laid down by the Division Bench of this Court in the case of Ashok
Kumar Vs. State of MP reported in 2009(4) MPLJ 434 and the other
judgments decided in the case of Chandra Pakash @ Tinku Pandey Vs.
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State of MP reported in 2022(1) MPLJ 556, Meena Sonkar Vs. State of
MP reported in 2017(2) MPLJ 565 and Vinod Vs. State of MP reported in
2016 (2) MPLJ 650 and also the judgment passed in the case of Lacchu @
Laxman Vs. State of MP reported in 2022 (2) MPLJ 362. He further relied
on a recent judgment by the Apex Court in the case of Deepak Vs. State of MP
reported in AIR 2022 SC 1241 while considering the para-materia provision
of Maharashtra Police Act, the Apex Court held that the order of externment
restraining the accused from entering a particular area infringes his fundamental
right guaranteed under Article 19(1)(d) of the Constitution of India. Hence,
restriction imposed by order of externment must stand test of reasonableness.
It is further held that the competent authority must record its satisfaction
of existence of the grounds for externment on the basis of objective material
placed before it.
He further submitted that that the authorities have failed to record
satisfaction in the impugned order regarding second requirement of section 5(B)
of the Adhiniyam, 1990. He has not recorded his satisfaction on the basis of
material that the witnesses are not willing to come forward to give evidence in
the judgment against the petitioner by a reason and apprehension as regards to
their safety. The order passed by the Appellate Authority on merit is nothing but
repetition of the order passed by the District Magistrate without any application
of mind.
Per contra, learned counsel for the respondent/state supported the order
passed by the respondent and submitted that the petitioner is a habitual offender
and has considered four criminal cases registered against the petitioner.
It is submitted that the District Magistrate after objective consideration of
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the material has passed the impugned order. There is no illegality in the same
warranting any interference in the writ petition.
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 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
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(b) to remove himself outside the district or any part
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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."
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 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.
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:
"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
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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 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 "€ÂÂœengaged 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
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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 be grounds of
externment.
In the light of the aforesaid authoritative pronouncement of judgments,
the contentions of the petitioner have to be examined on the anvil of facts of the
present case and the law as discussed above.
Upon perusal of the aforesaid cases, it is found that the one case was
registered in the year 2009 for commission of offence under section 147, 294,
323 of the IPC, which was compromised before the Court. Another case was
registered in the year 2020 for commission of the offence under section 294,
323, 506, 34 of the IPC. In the year 2021, another case was registered under
section 4(a) of the Public Gambling Act. The other case was similar in nature
and was registered in the year 2021 under the provisions of Public Gambling
Act. Upon perusal of the aforesaid cases, it is clear that the cases are of petty
nature and do not involve any serious cases. Except the cases under the Public
Gambling Act, the other cases are old and stale.
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
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YADAV
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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:
"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."
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
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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 orders passed by
the District Magistrate, Badwani and the order passed by the Commissioner,
Indore are quashed.
No order as to costs.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
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Signed by: SOURABH
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