Madhya Pradesh High Court
Amjad vs The State Of Madhya Pradesh on 15 June, 2023
Author: Vijay Kumar Shukla
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 15th OF JUNE, 2023
WRIT PETITION No. 7646 of 2023
BETWEEN:-
AMJAD S/O YUSUF MANSURI, AGED ABOUT 38
YEARS, OCCUPATION: BUSINESS R/O GALI
NO.04, LOHA GATE ROAD, CHANDAN NAGAR,
INDORE DISTRICT INDORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AYUSH AGRAWAL - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH HOME SECRETARY
DEPARTMENT OF HOME VALLABH
BHAWAN, BHOPAL (MADHYA
PRADESH)
2. COMMISSIONER INDORE DIVISION
INDORE, M.G. ROAD, DISTRICT INDORE
(MADHYA PRADESH)
3. COMMISSIONER OF POLICE SHIVAJI
MARKET, DISTRICT INDORE (MADHYA
PRADESH)
4. COLLECTOR INDORE (MADHYA
PRADESH)
5. DEPUTY COMMISSIONER OF POLICE
ZONE NO. 4 INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI A.S. PARIHAR - P.L.)
This petition coming on for orders this day, the court
passed the following:
ORDER
The present petition is filed under Article 226 of the
Constitution of India challenging the order dated 29/2/2022
passed by Commissioner of Police whereby the petitioner has
been externed under the provisions of Madhya Pradesh Rajya
Suraksha Adhiniyam, 1990 (hereinafter referred to as
Adhiniyam, 1990) for a period of one year on account of being
involved in criminal activities from district Indore and contiguous
districts Ujjain, Dewas, Dhar, Khandwa and Khargone. The said
order was challenged in appeal under Adhiniyam, 1990. By order
dated 28/2/2023, the appeal has also been dismissed.
2. The facts of the case are that a show-cause notice was
issued to the petitioner for initiating proceedings under
Adhiniyam, 1990 for externment under Section 8 of the
Adhiniyam. The petitioner filed reply to the aforesaid show-cause
notice and also filed an application under Section 311 of Cr.P.C
for summoning the material, however, the said application was
rejected on 27/10/2021. It is alleged that against the applicant, as
many as, 9 criminal cases are registered. Apart from that, six
proceedings for furnishing security and bond to keep for
maintaining peace and tranquility. The list of the criminal cases
against the petitioner is reproduced as under:-
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1. panuxj 636 2002 341 506
34 Hkknfo
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279 337
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2. csVek 196 2005 338
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3. panuuxj 394 2007 22405/18.07.2007 U;k- fopkjk/khu
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4. panuuxj 508 2008 148 149 586/2008
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353 332
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5. panuuxj 381 2016 294 506 34680/14.09.2016
Hkknfo bUnkSj fopkjk/khu
379 411 ts,e,Qlh U;k;k-
6. ghjkuxj 731 2020 4591/04.11.2020
34 Hkknfo bUnkSj fopkjk/khu
452 323
294 506
7. panuuxj 331 2021 34 188 iqfyl foospuk esa
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341 147
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3. Counsel for the petitioner submits that the cases from serial
Nos.1-5 relates to the period of year 2002, 2005, 2007, 2008 and 2016
which are old and stale cases. He further submits that in crime
No.636/2022, at serial no.-1 he has already been acquitted. In the cases at
serial No.3 and 4 also he has been acquitted. The remaining cases are
pending either before the Trial Court or for investigation.
4. Learned counsel for the petitioner submits that the orders passed
by the competent authority is contrary to the provisions of Section 5(A)
and 5(B) of the Adhiniyam, 1990 and the orders are passed on the old and
stale cases. There is no objective consideration by the competent
authority. The orders are 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. 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.
5. 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.
6. He further submitted that that the authorities have failed to record
satisfaction in the impugned orders 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.
7. 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 9 criminal cases registered against him. He is
actively involved in the criminal activities since 2002.
8. It is submitted that the District Magistrate after objective
consideration of the material has passed the impugned order. There is no
illegality in the same warranting any interference in the writ petition.
9. 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
(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.
10. 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.
11. At this stage, I think it condign to survey the authorities on the
legal issues canvassed on behalf of the petitioner.
12. 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 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.
13. 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 Raghuvanshi (supra) and held that the expression
"engaged 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. 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 form a basis for passing an order of
externment but 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.
14. 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.
15. Upon perusal of the list of criminal cases, it is evident that cases
from serial No.1-5 are from the year 2002 to 2016. In 3 cases, he has
already been acquitted. The cases at serial No. 5&6 are pending before the
Magistrate for trial and the cases at serial No.7,8,9 are pending for
investigation.
16. 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
order u/s 5 (b) of Adhiniyam, 1990 cannot be passed by the District
Magistrate as held in the case of Ashok Kumar Patel (supra) 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.
17. 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.
18. In the present case there is no satisfaction of the District
Magistrate in the impugned order regarding second requirement of Section
5(b) of Adhiniyam, 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 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.
19. The order of externment has also been passed in respect of
district Khandwa. The petitioner has filed copy of map to show that the
district Khandwa is not contiguous to the boundaries of the district Indore.
The impugned order of externment suffers from application of mind.
20. Under the provisions of Section 5 of the Adhiniyam, 1990 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.
21. 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 Adhiniyam, 1990 and the
judgments passed by this Court which have been noted hereinbefore.
22. Accordingly, the writ petition is allowed. The impugned order
dated 29.9.2022 passed by the Police Commissioner, Indore and the order
dated 28.02.2023 passed by the Commissioner, Indore are hereby quashed.
No order as to costs.
Digitally signed by (VIJAY KUMAR SHUKLA)
PRAMOD KUSHWAHA JUDGE
Date: 2023.06.16
18:16:53 +05'30'
Pramod
