Dilawar Khan vs The State Of Madhya Pradesh
2023 Latest Caselaw 18630 MP

                                                              1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                    BEFORE
                                    HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                              ON THE 6 th OF NOVEMBER, 2023
                                              WRIT PETITION No. 26538 of 2023

                           BETWEEN:-
                           DILAWAR KHAN S/O LATE SHRI FIRDOUS KHAN, AGED
                           ABOUT 57 YEARS, OCCUPATION: AGRICULTURIST
                           VILLAGE CHIKLANA, P.S. KALUKHEDA, DISTRICT
                           RATLAM (MADHYA PRADESH)

                                                                                           .....PETITIONER
                           (SHRI MAKBOOL AHMAD MANSOORI, LEARNED COUNSEL FOR THE
                           PETITIONER .

                           AND
                           1.    THE STATE OF MADHYA PRADESH PRINCIPAL
                                 SECRETARY HOME DEPARTMENT VALLABH
                                 BHAWAN, BHOPAL (MADHYA PRADESH)

                           2.    THE DISTRICT MAGISTRATE RATLAM, DIST.
                                 RATLAM (MADHYA PRADESH)

                           3.    SUPERINTENDENT OF POLICE RATLAM DIST.
                                 RATLAM (MADHYA PRADESH)

                           4.    THE POLICE STATION KALUKHEDA THROUGH
                                 TOWN INSPECTOR P.S. KALUKHEDA, DIST.
                                 RATLAM (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (SHRI SUDHANSHU VYAS - G.A. FOR STATE)



                                 This petition coming on for admission this day, the court passed the
                           following:
                                                               ORDER

The present petition is filed under article 226 of the Constitution of India

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 06-11-2023 17:50:52

challenging the legality and validity of the order dated 3.10.203 passed by the District Magistrate, Ratlam under section 5 of MP Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'the act,1990') externing the petitioner from the boundaries of District Ratlam, Ujjain, Agar, Dhar, Jhabua and Mandsaur for a period of one year.

2. Counsel for the petitioner submits that on the basis of list of same cases in the year 2019, the District Magistate Ratlam issued show-cause notice for initiating the proceedings under section 5-A of the Adhiniyam. The Superintendent of Police submitted a list of 9 criminal cases against the petitioner till the year 2017, however Magistrate opined that there is no

reasonable possibility that the movements of acts of the petitioner are causing or calculated to cause alarm, danger or harm to person or property. The petitioner was directed to furnish the personal bond for securing good behaviour and peace for one year and no order of externment was passed. After a period of 3 years, again on 27.4.2022, on the basis of same list of criminal cases, the District Magistrate, Ratlam issued show-cause notice to the petitioner for initiating the proceedings under section 5(a) and 5(b) of the Adhiniyam. The order of externment was passed on 16.6.2022. Appeal was preferred before the Commissioner, Ujjain and the Commissioner, Ujjain found that District Magistrate was not justified in passing the order on the basis of same list of cases and reduced the period of 6 months externment to the period already undergone. On 29.1.2023, a criminal case was registered against the petitioner bearing crime No. 17/2023 under section 294, 447 and 506 of IPC and sec. 3(1)

(r), 3(1)(s) and 3(2)(va) of SC & ST (PA) Act. On the basis of that, the S.P. requested the District Magistrate to pass order of externment and the District Magistrate passed the impugned order.

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 06-11-2023 17:50:52

3. It is argued that the order of externment is nothing but abuse of process of law. The respondent No.2 has acted arbitrarily and almost on the same set of criminal cases, earlier two times proceedings for externment were initiated. Now only when there is one criminal case, the proceeding of externment has been initiated. Further the petitioner is intending to contest the ensuing Assembly Election. By virtue of interim order passed by this Court on 18.10.2023 he was permitted to fill up the nomination form of Assembly Election. He has filled nomination paper and same has been accepted and he is a candidate for ensuing Assembly Election. The order also suffers from malafide. In support of his submission, counsel has placed reliance on the following judgments :-

(i) Ashok Kumar Patel Vs. State of M.P and others, 2009(4) MPLJ 434 (II) Jamnalal Vs. Home Department and others, (2023) 2 MPLJ 125 (III) Hafiz Soldier Vs. State of M.P. and another, WP 15807/2020 (IV) Deepak Vs. State of Maharashtra and others, 20 SCC Online SC 99 (V) Kiran Dattatraya Vs.State of Maharashtra and others, Cr.WP NO.

6391/2021

4. Per contra, learned counsel for the respondent/state supports the order impugned and submits that petitioner is a habitual offender and mere acquittal

in the criminal case would not be a ground for quashment of the externment proceedings. He raises a preliminary objection regarding maintainability of the petition on the ground that petitioner has alternative and efficacious remedy available under section 9 of the Adhiniyam to file an appeal.

5. Learned counsel for State despite opportunity could not produce any

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record to show that the statement of witnesses were recorded that they were not coming forward because of the torture of the petitioner.

6. After hearing learned counsel for parties and taking into consideration that the impugned order is based on a list of 10 criminal cases, out of which 9 criminal cases are those which were earlier considered in the externment proceedings. Thus on the basis of same material, the order of externment could not have been passed. Apart from that the respondents have failed to comply with the provisions of section 5(a) and 5(b) of the Adhiniyam, 1990 as the same has been held to be mandatory for authorities to comply with in the case of Ashok Kumar (supra). Considering the facts of the present case that on the basis of same material, earlier two times order of externment was passed in one case and in one case in appeal, the period of 6 months externment was reduced to the period already undergone. The order of externment cannot be passed in an arbitrary manner by the respondent as it concerns with the liberty to a citizen. There is no absolute bar of exercising jurisdiction under Article 226 of the Constitution of India if an order is apparently issued in abuse of process of law and is arbitrary.

7. 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 "engaged or is to be engaged" used in Section 5(b)(i) shows that commission of offence or the abetment of such Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 06-11-2023 17:50:52

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.

8. 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 be grounds of externment.

9. 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.

10. In the instant case, upon perusal of the impugned order, 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.

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 06-11-2023 17:50:52

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 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. Despite grant of time, counsel for the State could not produce record to show the statement of witnesses.

11. 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 reasons of apprehension as regards to their safety. The authority has not considered the nature of cases, the date of registration of cases and their present status. Most of the cases are old and stale.They were

also considered in the earlier externment proceedings. In one proceeding, no order of externment was passed and in other case, period was reduced to the period already undergone by the appellate Authority.

12. In the aforesaid circumstances, the impugned order of externment is 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.

13. Accordingly, the writ petition is allowed. The impugned order dated 3.10.2023 passed by the District Magistrate, Ratlam is quashed.

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 06-11-2023 17:50:52

(VIJAY KUMAR SHUKLA) JUDGE MK

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 06-11-2023 17:50:52