Sunil Soni vs The State Of Madhya Pradesh
2022 Latest Caselaw 12227 MP

                                                         W.P.No.17311/2022
                               1


 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                           BEFORE

    HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI


                ON THE 14th OF SEPTEMBER, 2022


              WRIT PETITION NO.17311 OF 2022

Between:-
SUNIL SONI S/O SHRI KISHANLAL SONI,
AGED ABOUT 30 YEARS, OCCUPATION:
BUSINESS R/O SADAR BAZAR, NARMADAPURAM,
P.S. KOTWALI NARMADAPURAM,
DISTRICT NARMADAPURAM, (MADHYA PRADESH)

                                                   ....PETITIONER
(BY SHRI B. K. UPADHYAY, ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH
   THROUGH THE SECRETARY HOME DEPARTMENT
   VALLABH BHAWAN BHOPAL M.P. (MADHYA PRADESH)

2. THE COMMISSIONER NARMADAPURAM
   NARMADAPURAM DIVISION
   NARMADAPUARM M.P. (MADHYA PRADESH)

3. DISTRICT MAGISTRATE/COLLECTOR NARMADAPURAM
   DISTRICT NARMADAPUARM (MADHYA PRADESH)

4. THE SUPERINTENDENT OF POLICE NARMADAPURAM
   DISTRICT NARMADAPUARM M.P. (MADHYA PRADESH)

                                                 .....RESPONDENTS

(BY SHRI PRAVEEN NAMDEO- GOVERNMENT ADVOCATE )
                                                                           W.P.No.17311/2022
                                          2


        This petition coming on for admission and I.R. this day, the court passed the

following:

                                     ORDER

Heard finally with the consent of both the parties.

Invoking extraordinary jurisdiction of this Court under Article 226 of

the Constitution of India, the petitioner has prayed for issuance of writ in the

nature of certiorari for quashing the impugned order order dated 25.02.2022

passed by respondent No.3 in exercising powers conferred under Section

5(a)(b) of the Madhya Pradesh Rajya Suraksha Adhiniyam (hereinafter shall

be referred to as "Adhiniyam") wereby the petitioner has been externed from

revenue districts Narmadapuram, Harda, Betul, Chhindwara, Narsinghpur,

Sehore and Raisen for a period of one year. Being aggrieved, the petitioner

preferred an appeal under Section 9 before the respondent No.2. The

respondent No.2 vide order dated 10.06.2022 (Annexure P/5) affirmed the

order passed by the respondent No.3.

2. Brief facts leading to filing of this case are that the respondent No.3

had issued a show cause notice to the petitioner on 25.11.2021 seeking reply

that as to why proceeding of externment may not be initiated against him.

Reply was filed on 13.12.2021 with the prayer that cases registered against

the petitioner is false and has been registered due to personal enmity. He also W.P.No.17311/2022

submitted that neither offence under Section 506 of IPC is registered against

the petitioner nor any witness have stated against him that he has given

threat. Earlier also, same proceedings have been initiated against the

petitioner in the year 2016 and after perusing of evidence, respondent No.3

found that necessary ingredients of Section 5(b) of the Act are missing

therefore he was exonerated from the charges by giving warning to improve

his conduct.

3. Learned counsel for the petitioner submitted that thereafter only one

case has been registered under the IPC against the petitioner. However, vide

the impugned order, the respondents have initiated the proceeding against the

petitioner on the same set of evidence, which amounts to violation of

personal life and liberty of the petitioner as also the fundamental and

constitutional rights as guaranteed by the Constitution of India.

4. According to the recommendation of the respondent No.3, 27 cases

have been registered against the petitioner so far. In the reply to show cause,

the petitioner had categorically stated :

1. That, cases which have been cited in the application for

recommendation, are old and stale cases, in which the petitioner

has already been acquitted.

W.P.No.17311/2022

2. That the proceeding of externment against the petitioner has

been initiated in vindictive manner and the same is politically

motivated.

5. Learned counsel for the petitioner submitted that the impugned order

has been passed in exercise of powers under Section 5(b) of the Adhiniyam

solely on the false claim that the recent criminal activity of the petitioner is

dangerous to the society at large. The petitioner is not indulged in any recent

criminal activity. In most of the cases, the petitioner has already been

acquitted. As per the procedure, the authority is required to be mandatorily

record a finding in its order that witnesses are not willing/coming forward to

adduce their evidence and in absence of there being an specific finding with

respect to the same, the order of externment is bad and perverse in law,

therefore, the same is liable to be set aside.

6. Learned counsel for the petitioner also contended that a plain reading

of Section 5(b) of the Act would show that for passing an order of

externment, two conditions must be satisfied, which are not satisfied in the

present case. The two conditions are reproduced below:-

"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 offences; and W.P.No.17311/2022

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. Secondly, learned counsel for the petitioner contended that reply to the

show cause notice was not at all considered by the District Magistrate. No

witnesses have deposed that the petitioner has been threatening them. No

reasons have been assigned in the impugned order and the same has been

based on the version of the prosecution. It is further submitted that before

passing order under Section 5 of the Act, the petitioner was entitled for

opportunity of hearing as provided under Section 8 of the Act. Lastly, it is

submitted that no opportunity to cross examine the witnesses was afforded to

the petitioner, therefore, the impugned order being non-speaking deserves to

be set aside.

8. Learned counsel for the petitioner has placed reliance on the judgment

of the Apex Court in the case of Ashok Kumar Vs. State of M.P. as

reported in 2009(4) MPLJ 434, in which it is held as under :

"10. The second condition which must be satisfied for passing of an order of externment against a person is that in the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of person or property. Construing a pari materia provision in section 27 of the City of Bombay Police Act, 1902 in Gurbachan Singh vs. W.P.No.17311/2022

The State of Bombay and another, AIR 1952 SC 221, the Supreme Court observed:-

"The law is certainly an extraordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety or the public residing therein."

11. In the instant case, the District Magistrate has in the impugned order only baldly stated that the list of offences registered against the petitioner reflects that he is daring habitual criminal and because of this there is fear and terror in the public and has not recorded any clear opinion on the basis of materials, that in his opinion witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of their person or property. In most of the cases, Challans have been filed by the Police in Court obviously after examination of the witnesses under section 161 of Criminal Procedure Code and the cases are pending in the Court. There is no reference in the order of District Magistrate that witnesses named in the Challans filed by the Police are not coming forward to give evidence against the petitioner in Court. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reason of apprehension to danger to their person or property to give evidence against the petitioner in respect of the alleged offences, an 11. In the instant case, the District Magistrate has in the impugned order only baldly stated that the list of offences registered against the petitioner reflects that he is daring habitual criminal and because of this there is fear and terror in the public and has not recorded any clear opinion on the basis of materials, that in his opinion witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of their person or property. In most of the cases, Challans have been filed by the Police in Court obviously after examination of the witnesses under section 161 of Criminal Procedure Code and the cases are pending in the Court. There is no reference in the order of District Magistrate that witnesses named in the Challans filed by the Police are not coming W.P.No.17311/2022

forward to give evidence against the petitioner in Court. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reason of apprehension to danger to their person or property to give evidence against the petitioner in respect of the alleged offences, an order under section 5(b) of the Act of 1990 cannot be passed by the District Magistrate by merely repeating the language of section 5(b) of the Act of 1990."

9. On the other hand, learned Government Advocate for the

respondents/State submits that there is no infirmity in the order of

externment and the same has been passed to the satisfaction of the District

Magistrate. Therefor on this ground alone, the petition deserves to be

dismissed. The action is justified in the public interest and to avoid any

unwanted incident. The petitioner is habitual offender. The satisfaction

recorded by the District Magistrate that the petitioner was engaged or was

about to engage in commission of the offence as alleged causing danger and

harm to the safety to their person or property is unassailable and is based on

the material available on record. He placed reliance on the judgment

rendered by the Division Bench of this Court in the case of Taarik @ Bablu

Vs. State of M.P. and others passed in W.P. No.8689/2022 on 13.05.2022,

wherein the order of externment was upheld. Reliance is also placed on the

order dated 07.07.2022 passed in Writ Appeal No.660/2022 (Taarik @

Bablu Vs. State of M.P. and others), in which the order passed in

W.P.No.8689/2022 has been upheld. Learned Division Bench dismissed the W.P.No.17311/2022

writ appeal on the ground that the orders of externment are subject to

satisfaction of the authority. Whether the satisfaction exercised is mala fide

or not, would be the only ground for interference by the Writ Court. Since

the decision taken by the authority is based on the material available with

them, it was held that the order of externment does not lack either any

jurisdiction or it is issued with any mala fide and rejected the appeal.

10. Heard the learned counsel for the parties.

11. On perusal of the order passed by the District Magistrate, it reflects

that the authority has taken note of the report of respondent No.4 but has not

recorded any objective satisfaction in respect of requirement of section 5 (b)

of the Adhiniyam. There is no compliance of mandatory requirement of

Section 5(b) of the Adhiniyam. The Hon'ble Apex Court has considered the

importance of compliance of Section 5(b) of the Adhiniyam in the case of

Kala Vs. State of M.P. and another as reported in 2004(4) MPLJ 234, in

which it is held as under:

"8. It is necessary under section 5(b) that if a person is involved in an offence punishable under Chapter XII, XVI or XVII or under section 506 and 509 of the Indian Penal Code or in the abetment of any such offence, or is about to be engaged in such an offence, an action of externment can be taken. However, condition precedent is that the opinion has to be formed by the District Magistrate as "witnessess are not willing; to come forward to give evidence and W.P.No.17311/2022

proceed against such person by reason of apprehension on their part as regard to safety of their 'person or property'. In order (P/1), Addl. District Magistrate has mentioned that the persons are not lodging report and have the apprehension of safety on giving evidence against petitioner in the Court. But, the name of even single witness who has been given threat or who has apprehension of appearing in the Court due to fear of the petitioner, has not been referred to in the order. On specific query being made as to name of the witness, who has stated that he has apprehension of petitioner in deposing in the Court or in public, it has fairly been stated by the respondents counsel that there is nothing on record to suggest the name. Thus, in my opinion, satisfaction which has been recorded under section 5(b) by the Addl. District Magistrate lacks objective consideration of the matter. Thus, the order of externment based on section 5(b) has no legs to stand. Moreso, in view of the fact that the cases are of the year 2003 and it is reached the evidence stage in the trial Court, thus, I find force in the submission raised by Shri H.S. Ruprah, learned Senior Counsel appearing for the petitioner that is criminal cases the stage of evidence has not yet reached, it is 'premature' to infer that any of the witness has any apprehension in deposing in public against the petitioner or has any kind of apprehension of person or property, thus, I find that the order of externment based on section 5(b) is liable to be quashed as essential ingredient to attract same does not exist in the instant case."

12. As per the order passed by the Hon'ble Court considering the mandatory

requirement of condition prescribed under Section 5(b) of the Adhiniyam, it W.P.No.17311/2022

is clear that in the present case even the District Magistrate has not shown

name of any of the witnesses, who has been called to give statement against

the petitioner but due to threat and terror of the petitioner, he is not coming

forward to record his statement. It is also clear that the District Magistrate in

its entire order has not been able to record satisfactory condition mentioned

under Section 5(b) of the Adhiniyam. Merely because in the report of

respondent No.3 it is shown, but that could not be the basis for recording

objective satisfaction by the District Magistrate even without recording any

statement of any of the witnesses, who has stated that on account of the

threat and terror of the petitioner, he is hesitating to come to the Court for

recording his statement.

13. I have also perused the record submitted by the Government Advocate

but even in the record, nothing is found to substantiate as to on what basis

the District Magistrate proceeded in the matter relying upon the

recommendation made by respondent No.3 against the petitioner. The second

requirement of Section 5(b) of the Adhiniyam, necessitates to pass an order

of externment considering the activities of person, who is externee, such as

the witnesses among public are not coming to the Court to depose in the

criminal cases against him under apprehension of person or property. But in

the order impugned, if such a requirement and material to substantiate such W.P.No.17311/2022

requirement does not exist, the finding recorded by the competent authority

to reach the satisfaction cannot be considered to be fulfilling of requirement

of such a mandatory provision. The order has been passed taking into

consideration the same set of cases, which were taken into consideration at

the time of first order. Thus, considering the above aspect, in my opinion, the

order dated 25.02.2022 (Annexure p/4) of externment of the petitioner

passed by the respondent No.3/District Magistrate/Collector Narmadapuram

relying upon the report of respondent No.4/Superintendent of the Police,

Narmadapuram, is without application of mind and without recording the

proper satisfaction as provided under Section 5(b) of the Adhiniyam and

thus, is not sustainable and is hereby set aside.

Accordingly, this petition succeeds and is hereby allowed.

(S. A. DHARMADHIKARI) JUDGE

vinay* Digitally signed by VINAY KUMAR BURMAN Date: 2022.09.16 18:53:09 +05'30'