Madhya Pradesh High Court
Prem @ Gotiya vs The State Of Madhya Pradesh on 10 August, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 10 th OF AUGUST, 2023
WRIT PETITION No. 8934 of 2023
BETWEEN:-
PREM @ GOTIYA S/O DEVCHAND MALI, AGED ABOUT
27 YEARS, OCCUPATION: LABOR R/O IN FRONT OF
MALI TEMPLE JAISINGHPURA THANA MAHAKAL
DISTT. UJJAIN (MADHYA PRADESH)
.....PETITIONER
(BY SHRI VIJAY SHARMA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. C O M M I S S I O N E R OFFICE OF DISTRICT
MAGISTRATE UJJAIN (MADHYA PRADESH)
3. DISTRICT MAGISTRATE OFFICE OF DISTRICT
MAGISTRATE UJJAIN (MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE OFFICE OF
SUPERINTENDENT OF POLICE UJJAIN (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI TARUN PAGARE - G.A.)
This petition coming on for admission this day, the court passed the
following:
ORDER
In the instant petition filed under Article 226 of the Constitution of India
challenging the order dated 13.1.2023 and order dated 13.9.2022 by which the
petitioner has been ordered to be externed from district Ujjain and its adjoining
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 10-08-2023
17:02:15
districts for period of one year. The said orders are passed under the
provisions of M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter called
"Adhiniyam"). The order of externment was challenged before the
Commissioner in appeal and the appeal has been dismissed by maintaining the
order of externment.
2. The facts of the case are that on 19.3.2022, the Superintendent of
Police, Ujjain submitted a report against the petitioner alleging that the petitioner
is involved in various criminal activities and in criminal cases since 2009. It is
alleged that the petitioner is doing the said activities which are against the
maintenance of law and order and, therefore, the proceedings of externment
was drawn against him. A show cause notice u/S.8 of Adhiniyam was issued to
the petitioner. The petitioner filed reply and thereafter the order of externment
has been passed and the appeal against the said order also remained
unsuccessful.
3. Counsel for petitioner submits that the District Magistrate has passed
an order on the basis of the report of Superintendent of Police and taking into
consideration seven cases against the petitioner which are old and stale. It is
further argued that out of seven cases in five cases he has been acquitted and
there was no sufficient material to form an opinion to pass the order of
externment.
4. Learned counsel for the petitioner further submits that the order of
externment has been passed without compliance of provision of section 5-B 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
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externment is bad in law. In support of his submission, he places reliance of the
Signed by: VARGHESE
MATHEW
Signing time: 10-08-2023
17:02:15
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 Mohammad Vs. State of MP and Ors reported in 2018
(3) MPLJ 349.
5. 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.
6. 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
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Signed by: VARGHESE
MATHEW
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17:02:15
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."
7. 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.
8. At this stage, I think it condign to survey the authorities on the legal
issues canvassed on behalf of the petitioner.
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 10-08-2023
17:02:15
9. 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
P enal 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 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."
10. 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 ''ÃÂÃÂengaged 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
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Signed by: VARGHESE
MATHEW
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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
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.
11. In the light of the aforesaid authoritative pronouncement and
judgments, the contention of the petitioner had to be examined on the anvil of
the facts of the present case and the law as discussed above. The order is
passed on the report of the Superintendent of Police, Ujjain which contains
following cases:-
Police Criminal Case
Sl.No Crime No. Section Challan No. Remark
Station No.
572/19-08- 580/27-10- Juvenile Court
1 Mahakal 457,380 of IPC
09 09 263/30-10-09
431/16-06- 147, 148, 149, 496/03-10-
2 Mahakal 7322/02-11-11
11 307 of IPC 11
141/24-03-
3 Mahakal 379 IPC 90/31-03-12 1881/03.05.12
349/27-06- 327, 324/34
4 Mahakal 305/25-8-12 5046/31-10-12
12 IPC
416/11-07- 354/23-07-
5 Mahakal 435, 34 IPC 7038/07-08-14
354,294,506,34
6 Mahakal113/10.02.20 61/14.02.20 1726/05.03.20
IPC
354, 354D,
323,
294,506/34 ST
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Signed by: VARGHESE
MATHEW
Signing time: 10-08-2023
17:02:15
7 Mahakal800/20.11.21 IPC and 790/24.12.21 No.17/28.12.201 Pending
Sec.7/8
POCSO Act
Criminal
Police
Sl.No. Crime No. Section Challan No. Case Remark
Station
No
Section
Istha Case
No.17/11.02.20 No.37/18.02.20
Ja.Fo
12. Upon perusal of the impugned order and the aforesaid list, it is
noted that the case at Sl.No.1 relates to year 2009 for offence u/Ss.457, 380 of
IPC and was submitted to the judicial court. As per the order of the District
Magistrate the same is still pending. The case No.2 relates to year 2011 for
commission of offence u/Ss.147, 148, 149, 307 of IPC and the same is shown
to be pending whereas as per the petitioner he has been acquitted. Case No.3
relates to year 2012 for commission of offence u/S.379 of IPC which is
mentioned to be pending. Case at Sl.No.4 relates to year 2012 for commission
of offences u/Ss.327, 324/34 of IPC which is stated to be pending by the
District Magistrate whereas according to the petitioner he has been acquitted.
Case No.5 relates to year 2014 for commission of offences u/Ss.435/34 of IPC
which is said to be pending as per the order of Magistrate whereas the petitioner
submits that he has been acquitted in the said case. Case at Sl.No.6 relates to
year 2020 for commission of offence u/Ss.354, 294, 506/34 of IPC which is
said to be pending by the Magistrate whereas the petitioner submits that he has
been acquitted. The case at Sl.No.7 relates to year 2021 for commission of
offence u/Ss.354, 354-D, 323, 294, 506 of IPC and Sec.7 and 8 of POCSO Act
which is pending. The other case is of preventive proceedings u/S.110 of
Cr.P.C.
13. As per the aforesaid discussions, out of seven cases, five relates to
year 2009 to 2014, one case is of year 2020 in which the petitioner has been
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Signed by: VARGHESE
MATHEW
Signing time: 10-08-2023
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acquitted and one case is of year 2021 which is pending. Thus, most of the
cases are old and stale cases.
14. Upon perusal of the impugned order, it is found that the Magistrate
has stated as per the report of the Superintendent of Police that because of the
terror of the petitioner being habitual offender, the witnesses are not coming
forward. However, upon perusal of the record, it is found that there is no
material in this regard to show that the witnesses are not coming forward
because of the terror of the petitioner. The police has not recorded the
statements of persons of the locality to show that witnesses are not coming
forward because of the terror of the petitioner. In absence of material along
with the police report, the same cannot be relied upon and the requirement of
Sec.5-B of Adhiniyam is not complied with. In the case of Ashok Kumar Patel
Vs. State of MP and Ors 2009(4) MPLJ 434 and in the judgment passed by
co-ordinate bench in the case of Meena Sonkar Vs. State of MP & Ors.
2017(2) MPLJ 565, Jahangbeer Alvi Vs. State of MP & Ors. 2017(3) MPLJ
664 and in the case of Istfaq Mohammad Vs. State of MP & Ors 2018(3)
MPLJ 349, the court has held that for passing an order of externment u/S.5 of
Adhiniyam both the requirements of Sec.5-A and 5-B have to be complied with.
15. Upon perusal of Sec.5 of the Act, the requirement is that the
detention order has to be passed when there is sufficient material for passing
of the order as fundamental right of freedom of a person is involved. In the
aforesaid, the impugned order of externment and its affirmation thereof in the
appeal are unsustainable having been found in violation of requirement of
Adhiniyam and the judgments passed by the court which have been noted
herein before.
16. Accordingly, the writ petition is allowed. The impugned orders
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Signed by: VARGHESE
MATHEW
Signing time: 10-08-2023
17:02:15
dated 13.9.2022 passed by the District Magistrate, Ujjain Annexure A/2 and
order passed by the appellate authority dated 13.1.2023 Annexure A/1 passed
by Commissioner, Ujjain Division, Ujjain are quashed.
17. No order as to costs.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 10-08-2023
17:02:15
