Madhya Pradesh High Court
Rajesh Nigwal vs The State Of Madhya Pradesh on 21 February, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 21st OF FEBRUARY, 2024
WRIT PETITION No. 582 of 2024
BETWEEN:-
RAJESH NIGWAL S/O BHARAT NIGWAL, AGED
ABOUT 28 YEARS, OCCUPATION: LABOR R/O
VILLAGE RODDA TEHSIL GANDHWANI DHAR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI VIBHOR KHANDELWAL - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH PRINCIPAL
1. SECRETARY HOME DEPARTMENT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
COMMISSIONER DIVISION INDORE
COMMISSIONER OFFICE, 518, MAHATMA
2.
GANDHI ROAD, NEW SIYAGANJ, INDORE
(MADHYA PRADESH)
DISTRICT MAGISTRATE DISTRICT DHAR,
3.
PRAKASH NAGAR, DHAR (MADHYA PRADESH)
SUPERINTENDENT OF POLICE DISTRICT
4. DHAR PRAKASH NAGAR, DHAR (MADHYA
PRADESH)
.....RESPONDENTS
( BY SHRI BHUWAN DESHMUKH - GOVT. ADVOCATE)
This petition coming on for admission this day, the court passed
the following:
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 23-02-2024
10:56:44
2
ORDER
1. With consent of learned counsel for the parties matter is finally
heard.
2. By this petition preferred under Article 226 of the Constitution of
India the petitioner has prayed for the following reliefs :-
"7.1 That, the instant petition may kindly be allowed
and the impugned order dated 28.12.2023 passed by the
respondent No.2 and all its subsequent and consequential
proceedings may kindly be quashed and set aside;
7.2 The instant petition may kindly be allowed and the
impugned order dated 14.11.2023 passed by the
respondent No.3 and all its subsequent and consequential
proceedings may kindly be quashed and set aside;
7.3 That, as the impugned order dated 28.12.2023 and
14.11.2023 passed by the respondent No.2 and 3 are
illegal and void since inception the petitioner may kindly
be awarded monetary compensation from the respondents
because the impugned order dated 28.12.2023 and
14.11.2023 has violated legal and fundamental rights of
the petitioner materially;
7.4 That, the cost of instant petition may also be
awarded to the petitioner and any other relief which this
Hon'ble Court may considers appropriate in the interest
of justice, equity and good conscience, may also be
granted in favour of the petitioner."
3. The grievance of the petitioner is that he was issued a show cause
notice by the District Magistrate, District Dhar under the provisions of
M.P. Rajya Suraksha Adhiniyam, 1990 (here-in-after referred to as "the
Adhiniyam, 1990") alleging his continuous involvement in criminal
activities enumerating as many as 10 offences registered against him.
4. In the aforesaid proceedings an application was filed by the
petitioner for permitting him to examine witnesses on his part on
03.11.2023. Though a prayer was also made for permission to cross-
examine the witnesses of the prosecution, but for the purpose of
decision of this petition, it is only the prayer as regards production of
witnesses of the petitioner which is material hence is being considered.
5. Learned counsel for the petitioner has submitted that under
Section 8 (2) of the Adhiniyam, 1990 it is the valuable right of the
petitioner to produce witnesses in his support and if the said opportunity
is denied to him, it results in violation of his fundamental rights as
enshrined under Article 19 and 21 of the Constitution of India. Though
the application was considered by the District Magistrate but he has
rejected the same on the ground that it is necessary to do so in the
interest of security. That is not a reason contemplated under Section 8
(2) of the Adhiniyam, 1990 for rejection of such an application. Thus
rejection of the application has greatly prejudiced the petitioner in view
of which the entire proceedings stand vitiated.
6. Per contra, learned counsel for the respondents/State has
submitted on the basis of the reply filed in this petition and also on the
basis of the original record produced before this Court that the
application of the petitioner though was decided by order dated
10.11.2023 but thereafter in the very same order he was permitted to
produce "Praman" in support of his case but he did not do so and
instead on the next day appeared before the District Magistrate and
advanced final arguments after which the final order in the matter was
passed. It hence cannot be said that the petitioner has been denied the
opportunity as contemplated under Section 8 (2) of the Adhiniyam,
1990 in view of which the submission of the petitioner does not deserve
to be accepted.
7. I have considered the submissions of the learned counsel for the
parties and have perused the record.
8. Upon being issued the show cause notice, the petitioner had filed
his reply before the District Magistrate and on 03.11.2023 had filed an
application specifically stating that he desires to produce witnesses on
his part and to get their statements recorded though other reliefs were
also claimed for by him therein. The said application was considered by
the District Magistrate on 10.11.2023 who rejected it by relying upon
Section 19 (2) of the Adhiniyam, 1990 observing that it is necessary to
do so in the interest of security. Though thereafter he fixed the case for
advancement of final arguments/ "Praman" of the petitioner but it
cannot be said that he had fixed the case for permitting the petitioner to
produce witnesses on his part. This could not be said so particularly
when the entire application preferred by the petitioner on 03.11.2023
had been rejected the effect of which would be that each and every
prayer as made therein stood rejected including that of production of
witnesses for their examination. Thus merely because subsequently the
case was fixed for bringing evidence, it cannot be presumed that the
same was a permission granted to the petitioner to produce his
witnesses when specific prayer in that regard had already been rejected.
9. In Nyaju @ Niyaj Mohammed S/o Gulla Kha V/s. State of
M.P. (2000) 1 MPLJ 348 relied upon by the learned counsel for the
petitioner it has been categorically held by this Court in paragraph No.5
as under :-
"5. Section 8 of the Adhiniyam indicates that if a person
against whom such proceeding is initiated, if makes an
application for examination of any witness produced by
him, the D.M. shall grant such application and examine
such witnesses unless for reasons to be recorded in
writing, the District Magistrate is of the opinion that such
application is made for the purpose of vexation or delay,
or for defeating the ends of justice. The said proceedings
are to be conducted so far as possible in accordance with
the procedure laid down by the Criminal Procedure Code,
1973 (hereinafter referred to as 'the Code'). Same words
have been used in sub-section (3) of section 233 of the
Code. It deals with the right of the accused who has been
called upon to enter on his defence. Sub-section (3)
provides that if the accused applies for the issue of the
process for compelling the attendance of any witness, the
Judge shall issue such process unless he considers for
reasons to be recorded, that such application should be
refused on the ground that he has made it for the purpose
of vexation or delay or for defeating the ends of justice. In
section 254 of the Code, same sort of words are used in
sub-section (1) that 'if the Magistrate does not convict the
accused under section 252 or section 253, the Magistrate
shall proceed to hear the prosecution and take all such
evidence as may be produced in support of the
prosecution and also to hear the accused and take all such
evidence as he produces in his defence. In a proceeding
which intends to eclipse the fundamental right of liberty
of citizens, rules of natural justice have to be followed
and full opportunity has to be given to a person against
whom such proceeding is initiated and it is likely to be
resulted into infringement of his fundamental right of
liberty or to have specific place as his residence. While
doing so D.M. cannot forget that in all cases it is not
possible for such persons to produce witnesses to whom
he wants to examine. The D.M. cannot treat himself to be
aloof from the normal experience of human life in society.
Unfortunately, the time has come when the persons do not
assist the Court for the purpose of deposing as witnesses.
It happens frequently in cases of the prosecution that
prosecution wants witnesses to be examined or prove its
case or for proving guilt of a person who has been
charged for commission of an offence. When it is so, how
it cannot be accepted reasonably that such a person would
always be able to produce all such witnesses. It is not
possible for a single person to exercise influence or power
over a number of persons making them to come to Court
for giving evidence without their being due assistance
from the Court. Therefore, if such person intends to
examine some witnesses an opportunity has to be given in
any such proceeding by issuing summons for attending
the Court for giving evidence if such person so prays.
Therefore, if it has been indicated in the reply to show
cause notice that such person intends to examine some
witnesses, the Magistrate has to ask him whether he wants
such summonses, whether he is capable of producing
them physically in the Court for being examined in the
said proceedings. It cannot be forgotten by Magistrate that
in such proceedings the material has been collected
behind the back of a person against whom such
proceedings are initiated. Even he does not have right to
cross-examination those witnesses. If that is so, denial of
assistance by Court in the nature of issuing the summons
or summonses would be definitely against the procedure
established by law, as contemplated by Article 21 of the
Indian Constitution."
10. In the present matter also it is evident that the petitioner has been
denied his fundamental rights as enshrined under Article 19 and 21 of
the Constitution of India which in view of the aforesaid judgment is
wholly impermissible. Thus the contention of the learned counsel for
the petitioner as regards violation of provisions of Section 8 (2) of the
Adhiniyam, 1990 deserves to be upheld. In view of the same it is not
necessary for this Court to dwell into the other grounds raised by the
petitioner in this petition for assailing the impugned orders.
11. As a result, the impugned order dated 14.11.2023 (Annexure P/5)
passed by the District Magistrate as affirmed by order dated 28.12.2023
(Annexure P/8) passed by the Divisional Commissioner, Indore
Division, Indore, cannot be sustained and are hereby set aside.
12. The respondents shall however have the liberty of proceeding
afresh against the petitioner in accordance with law.
(PRANAY VERMA)
JUDGE
ns
