Dadu vs The State Of Madhya Pradesh
2024 Latest Caselaw 12129 MP

Madhya Pradesh High Court

Dadu vs The State Of Madhya Pradesh on 1 May, 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 1 st OF MAY, 2024
                                              WRIT PETITION No. 4666 of 2024

                           BETWEEN:-
                           DADU S/O GAJANAND MALVIYA, AGED ABOUT 44
                           YEARS, R/O GRAM ASRAWAD BUJURG DISTT.INDORE
                           (MADHYA PRADESH)

                                                                                         .....PETITIONER
                           (BY SHRI KAILASH CHANDRA KABRA- ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH POLICE ADHIKSHAK
                           (GRAMIN) DISTT.INDORE (MADHYA PRADESH)

                                                                                       .....RESPONDENT
                           (BY SHRI KAPIL MAHANT - PANEL LAWYER)

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

This petition under Article 226 of the Constitution of India has been

preferred by the petitioner being aggrieved by the order dated 14.11.2023 passed by the District Magistrate, District Indore externing him from the revenue limits of Districts Indore and all contiguous Districts namely; Ujjain, Dewas, Dhar, Khargone and Khandwa for a period of six months with effect from the date of order in exercise of powers under Section 5(a)(b) of M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as the Adhiniyam). The petitioner has also challenged the order dated 24.01.2024 (Annexure P/2) passed by the Commissioner, Indore Division, Indore whereby his appeal

preferred against the order dated 14.11.2023 has been dismissed.

2. The facts of the case are that on the basis of a report of Superintendent of Police, District Indore dated 26.02.2023 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 14.11.2023 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 respondent/State has supported the externment order of the petitioner and has submitted that he is a habitual offender and has seven cases registered against him. He is actively involved in criminal activities since the year 2006. Recently, two FIRs have been registered against the petitioner at Indore itself for offences punishable under Section 353, 147, 149, 427 of the IPC and under Section 323, 294, 506, 34 of the IPC respectively. On as many as three occasions prohibitory proceedings have been taken against him for keeping the peace under Section 110 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 2006 up to 2023 which are seven 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. Upon perusal of the criminal cases registered against the petitioner, it is apparent that the results of the same are not available on record. The petitioner has submitted that the records of the cases have been destroyed in a fire which occurred in the record room of the District Court. In support of the said contention he has produced the certified copies of the applications preferred by him before the Copying Section of the record room of the district

Court for supply of certified copies to him of the judgments of the cases registered against him. On such applications it has been reported by the copying department that the record of the cases have been destroyed. The respondents have also not produced any document to show that in any of those cases the petitioner has been convicted. The cases are quite old and are of the year 2006- 2007 and 2013. Thus after lapse of such a long period, it can be presumed that those cases have been decided. One case registered in the year 2013 under Section 341, 294, 323, 427, 506, 34 of the IPC is stated to be pending. The other two cases which have been registered in the year 2023 are dated 02.05.2023. The same however do not appear to be in relation to any serious or grave offence. Even the charge sheet in those matters does not appear to have been filed and the cases are stated to be under investigation. Three prohibitory proceedings under Section 110 of the Cr.P.C. have been taken by way of Istaghasa in the year 2023. The offence in close proximity is only in the nature of prohibitory proceedings for keeping peace and good behavior.

16. 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.

17. 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."

18. 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.

19. Accordingly, the writ petition deserves to be and is hereby allowed. The impugned order dated 14.11.2023 passed by the District Magistrate, District Indore and the order dated 24.01.2024 passed by the Commissioner, Indore Division, Indore is hereby quashed. No order as to costs.

(PRANAY VERMA) JUDGE jyoti