Madhya Pradesh High Court
Dashrath vs The State Of Madhya Pradesh on 1 April, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 1st OF APRIL, 2024
WRIT PETITION No. 4024 of 2024
BETWEEN:-
DASHRATH S/O RATANLAL, AGED ABOUT 36
YEARS, OCCUPATION: LABOUR ADDRESS:
RASALPURA MOHALL P.S. MAHIDPUR, DISTRICT
UJJAIN (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SARANSH JAIN- ADVOCATE )
AND
1. HOME DEPARTMENT THROUGH
PRINCIPAL SECRETARY, HOME
DEPARTMENT, VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. POLICE COMMISSIONER UJJAIN
SAMBHAG (MADHYA PRADESH)
3. COLLECTOR/ DISTRICT MAGISTRATE
UJJAIN (MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE UJJAIN
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI A.S. PARIHAR - PANEL LAWYER )
This petition coming on for admission this day, the court passed
the following:
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 15-04-2024
17:14:03
2
ORDER
This petition under Article 226 of the Constitution of India has
been preferred by the petitioner being aggrieved by order dated
18.04.2023 (Annexure P/1) passed by the District Magistrate, District
Ujjain externing him for a period of one year with effect from the date of
order from the revenue limits of the District Ujjain in exercise of powers
under Section 5 (a) (b) of M.P. Rajya Surakhsha Adhiniyam, 1990 (herein
after referred to as „the Adhiniyma‟). The petitioner has also challenged
the order dated 23.01.2024 (Anneuxre P/2) passed by the Commissioner,
Ujjain Division, Ujjain whereby his appeal preferred against the order
dated 18.04.2023 under Rule 9 of the Adhiniyam has been dismissed.
2. The facts of the case are that on the basis of report of
Superintendent of Police, District Ujjain dated 14.03.2022, a show cause
notice for externment was issued to the petitioner by the District
Magistrate under Section 8(1) of the Adhiniyam. The petitioner filed his
reply to the said notice after which the District Magistrate passed his
order dated 18.04.2023 which has been affirmed by the Commissioner by
the impugned order.
3. It is submitted on behalf of the petitioner that the impugned
order of externment has been passed only on the basis of old and stale
cases registered against the petitioner. No satisfaction has been recorded
of existence of grounds of externment on the basis of the available
material. The externment order is contrary to the provision of Adhiniyam.
Proceedings were instituted against the petitioner on the basis of old and
stale cases. There is no objective consideration by the competent
authority. The order is contrary to law laid down by the Division Bench
of this Court in Ashok Kumar Vs. State of MP 2009(4) MPLJ 434 and
various other decisions on the same point. The authorities have failed to
record satisfaction in the impugned orders regarding the requirement of
Section 5 of the Adhiniyam.
4. Per contra, learned counsel for the respondents/State has
supported the externment order of the petitioner and has submitted that
the petitioner is a habitual offender and has sixteen cases registered
against him. He is actively involved in criminal activities since the year
2001. Recently, an FIR was lodged against the petitioner at Police station
Mahidpur, District Ujjain and on as many as four occasions prohibitory
proceedings have been taken against him for keeping the peace under
Section 107, 110, 116(3) and 122 of the Cr.P.C. It is submitted that the
District Magistrate after objective consideration of the material on record
had passed the externment order which has rightly been affirmed in
appeal. There is no illegality in the same warranting interference in this
petition.
5. I have considered the submissions of learned counsel for the
parties and have perused the record.
6. It would firstly be apt to refer to the provisions of the
Adhiniyam particularly Section 5 under which the order of externment
has been passed against the petitioner. The same is as under:
"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."
7. On a perusal of the record and the impugned order, I find that
petitioner's externment order has been passed invoking Section 5 (a) of
the Adhiniyam. For passing such an externment order there must be a
clear and present danger based upon credible material which makes the
movements and acts of the person in question alarming or dangerous or
fraught with violence. There must be sufficient reason to believe that the
person proceeded against is so desperate and dangerous that his mere
presence in the locality or any part thereof is hazardous to the community
and its safety. A stringent test must be applied in order to avoid easy
possibility of abuse of this power to the detriment of the fundamental
freedom. This has been so held in Abdul Mannan V/s. State of M.P. and
Others 2008 (III) MPJR 100.
8. It may also be noticed that in order to pass a restriction order
under Section 3 of the Adhiniyam there should be satisfaction that the
person is acting or is likely to act in a manner prejudicial to the security
of the State or the maintenance of public order and to prevent him it is
necessary in the interest of the general public to pass restriction order.
9. A close scrutiny of the impugned order passed by the District
Magistrate shows that there is no satisfaction recorded by him in regard to
the fulfillment of requirement of Section 5(a) & (3) of the Adhiniyam.
The reasons assigned by the District Magistrate to extern the petitioner
and to pass a restriction order against him do not satisfy the basic
requirements of the said provisions. It has merely been observed that the
petitioner has been involved in criminal cases from 2001 up to 2022
which are sixteen in number but the results thereof have not been taken
into consideration nor has any finding been recorded specifically to the
effect that the movements or acts of the petitioner are causing or are
calculated to cause alarm, danger or harm to person or property. It has
merely been observed that his acts may cause breach of public order but
nothing further has been recorded. Thus, the justification given by the
respondents in the return for passing of the externment order against the
petitioner under Section 5(a) of the Adhiniyam does not hold ground.
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. It would be profitable to refer to some of the decisions of this
Court in this regard at this stage.
12. Division Bench of this Court in the case of Ashok Kumar Patel
(Supra) has 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 Ramgopal Raghuvanshi 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 Adhiniyam held that the order of externment
cannot be passed on the basis of old and stale cases. A co-ordinate Bench
of this Court in the case of Bhim @ Vipul vs. Home Department, (W.P.
No.4329/2015, decided on 14-09-2015) has considered the judgments
rendered in the cases of Ashok Kumar (supra) and Ramgopal
Raghuvanshi (supra) and has 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. 12. In Sanju @ Sanjay Ben Vs. State of M.P. and others, 2005
(4) MPHT 102 while considering the provisions of the Adhiniyam 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 behavior 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.
14. In the light of the aforesaid authoritative pronouncements and
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. The respondent/District Magistrate has considered sixteen cases
registered against the petitioner and four prohibitory proceedings. In the
return filed by the respondents another case has been mentioned to have
been subsequently registered against the petitioner. The list of the
criminal cases is reproduced as under:
आपराधधक ररकार्ड सूची
दशरथ धपता रतनलाल चमार उम्र. 36 साल धनवासी रसूलपुरा मोहल्लाg थाना
मधहदपुर थाना मधहदपुर धिला उज्जैuन
क्र. अपराध क्र. धारा चालान क्र. फौ.मु.न. धनर्डय
01 375/24.12.2001 323,506,294,34 318/26.12.2001 491.26.2001 --
भादवि
02 249/20.06.2004 323,294,506,34 216/17.07.2004 550/26.07.2004 --
भादवि
03 101/19.03.2006 379,411,108 87/30.03.2006 2181/13.04.2006 अंतररत सी.जे .
भादवि फस्टि
04 32/03.02.2009 384 भादवि 68/08.05.2009 354/30.06.2009 दोष मुक्त.
05 178/23.05.2008 509,506 भादवि 138/27.05.2008 347/02.08.2008 राजीनामा
06 201/09.06.2009 452,324,294,506 120/26.06.2009 376/02.07.2009 दोष मुक्त.
भादवि
07 13/10.01.2009 336,427,34 63/06.05.2009 387/06.07.2009 दोष मुक्त.
भादवि
08 383/16.12.2009 25 आर्म्स 6 एक्ट0 283/20.12.2009 862/21.12.2009 सं /दे ह का लाभ
दे ते हुिे दोष
मुक्तह
09 74/20.03.2010 294,506 भादवि 43/25.03.2010 140/29.03.2010 दोष मुक्त.
10 202/22.06.2012 34(2) आबकारी 176/21.07.2012 558/31.07.2012 दोष मुक्त.
एक्ट)
11 15/12.01.2015 353,506 भादवि 30/02.02.2015 83/03.02.2015 दोष मुक्त2
12 16/13.01.2015 507 भादवि 31/02.02.2015 147/13.02.2015 दोष मुक्त.
13 71/05.03.2018 294,323,506,34 63/13.02.2018 213/16.03.2018 उन्मु 6क्ती वकया
भादवि गया
14 01/01.01.2019 323, 294,506,34 05/18.01.2019 55/29.01.2019 विचाराविन
भादवि
15 49/17.02.2021 323,294,506,34 55/10.03.2021 551/21.09.21 विचाराविन
भादवि
16 466/13.11.21 294,506 भादवि 492/3.12.21 133/23.12.21 विचाराविन
17 14/13-1-23 323,294,506,34 12/19-1-2023 1390/23-12-23 विचाराविन
भादवि
सूची प्रधतबंधात्म2क कायडवाही
क्र. इस्ताbगासा क्र. धारा कायमीकताड धववरर्
01 42/17.02.2019 110 िाफौ सउधन आरसी बाउं र् ओवर
दलोददया
02 159/28.07.2020 110, 116(3) सउधन आरसी --
िाफौ दलोददया
03 87/19.07.2020 110 िाफौ उधन दीपक भोण्र्े) --
04 01/02.03.2021 122 िाफौ पउधन कु सुम --
सुमन
To add four prohibitory proceedings
16. Upon perusal of the aforesaid list, it is clear that in most of the
criminal cases the petitioner has been acquitted and one case has been
disposed off on the basis of compromise. These cases are from the year
2001 up to 2018. The case at serial No.14 is for an offence punishable under
Section 323, 294, 506, 34 of the IPC and was registered on 01.01.2019. The
case at serial No.15 is also for the aforesaid offences and was registered on
17.02.2021. The case at serial No.16 is for an offence punishable under
Section 294, 506 of the IPC and was registered on 13.11.2021. The case at
serial No.17 was registered on 13.01.2023 i.e. during pendency of the
proceedings and subsequent to the issuance of notice to the petitioner hence
cannot be taken aid of by the respondents in supporting the impugned order
of externment. The cases at serial No.16 & 17 have even otherwise not been
taken into consideration by the District Magistrate while passing the
externment order. Four prohibitory proceedings under Section 107, 110, 116
and 122 of the Cr.P.C have been taken by way of Istaghasa in the year
2019, 2022 and 2021. The offence in close proximity is only in the nature of
prohibitory proceedings for keeping peace and good behavior.
17. Upon perusal of the impugned order, it is also found that the District
Magistrate has only baldly enumerated the list of the offences registered
against the petitioner to hold that he is a daring habitual criminal but he has
not recorded any finding upon satisfaction on the basis of the material that
in his opinion witnesses are not willing to come forward to give evidence
in public against the petitioner in respect of the alleged offences by reason
of apprehension as regards to their safety. Hence, in absence of any such
finding, an order under Section 5 (b) of Adhiniyam could not have been
passed by the District Magistrate since for passing an order of externment
against a person both the conditions under Section 5 (b) (i) and (ii) have to
be satisfied. It may also be noted that the authority has not discussed the
nature of cases, the date of registration of cases and their present status.
Most of the cases are old and stale.
18. In the aforesaid fact situation it would also be apt to refer to the
decision of this Court in Meena Sonkar vs. State of M.P. and others,
2017(2) MPLJ 565 and also in Anek alias Anil Nageshwar vs. State of
Madhya Pradesh & four others [W.P. No.9297/2017, decided on 8-8-
2017] in which it has been 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."
19. Under the provision of Section 5 of the Adhiniyam, if a
detention order has to be passed, there has to be sufficient material for the
same as fundamental right of freedom of a person is involved. The order
passed by the appellate Authority is also nothing but repetition of the
order passed by the District Magistrate without any application of mind.
In such circumstances, the impugned order of externment and affirmation
thereof in appeal is unsustainable being in violation of the requirements
of the Adhiniyam and the judgments passed by this Court.
20. Accordingly, the writ petition deserves to be and is hereby
allowed. The impugned order dated 18.04.2023 passed by the District
Magistrate, Ujjain and the order dated 23.01.2024 passed by the
Commissioner, Ujjain Division, Ujjain is hereby quashed. No order as to
costs.
(PRANAY VERMA)
JUDGE
jyoti
