Madhya Pradesh High Court
Ashraf @ Bheru vs State Of M.P. on 1 October, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 1 st OF OCTOBER, 2024
WRIT PETITION No. 25930 of 2024
ASHRAF @ BHERU
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Akash Rathi - Advocate for the petitioner.
Shri Rajesh Joshi - Govt. Advocate for the respondent/State.
ORDER
This writ petition under Article 226 of the Constitution of India is filed
assailing the order dated 20.08.2024 passed by the District Magistrate, Distt.
Dewas in Case No. 0043/Jila Badar/2024, whereby the petitioner is
prohibited from entering the local limits of revenue District Dewas and the
adjoining districts for the period of one year.
2. The exposition of facts giving rise to the present petition is as
under:
1. The District Magistrate Distt. Dewas in Case No. 0004/Jila
Badar/2018 passed an order of externment dated 18.06.2018 against the
petitioner/respondent - Ashraf alias Bheru. The petitioner is prohibited to
enter the local limits of District Dewas and adjoining districts of Indore,
Ujjain, Shajapur, Sehore, Harda, Khandwa and Khargone for the period of
one year, considering the criminal antecedents of 17 cases.
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2. The Superintendent of Police vide report dated 11.03.2024
submitted 17 criminal antecedents of the respondent - Ashraf alias Behru
from the year 2012 to 2022 requesting for externment order u/S 5(a) and (b)
of the M.P. Rajya Suraksha Adhiniyam, 1990(referred to as "the Act of
1990" hereinafter). It was further alleged that FIR at Crime No. 950/2023 is
registered at P.S. Dewas for offence punishable u/S 341, 294, 323, 506 and
34 of IPC against Asharf alias Bheru.
3. The District Magistrate issued show cause notice calling upon the
respondent Ashraf to explain his criminal antecedents after affording
opportunity of hearing. Learned District Magistrate, Dewas vide impugned
order dated 20.08.2024 accepted the report of Superintendent of Police,
Distt. Dewas and passed externment order u/S 5(b) of the Act of 1990.
3. The externment order dated 20.08.2024 is assailed in this petition
mainly on the ground that:
(i) The FIR bearing Crime No. 950/2023 was registered on false and
baseless accusation. The final report has not been submitted till date.
(ii) The externment order dated 18.06.2018 was passed in Case No.
0004/Jila Badar/2018 considering 11 criminal cases registered against the
petitioner from the year 2012 to 2018. The impugned order of externment
has been passed on the basis of same offences.
(iii) The learned District Magistrate in Case No. 169/Jila Badar/2022
vide order dated 16.01.2023 on Istigasa No. 15/2022 had directed the
petitioner to mark his attendance at police station concerned once in a week
for the period of one year. The order was complied by the petitioner.
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Therefore, the impugned order of externment on same offences is illegal and
bad in law. The petitioner cannot be externed twice on the basis of same
offences. Thus, the impugned order is liable to be quashed on the principle of
double jeopardy.
(iv) The wife of petitioner is pregnant for 08 months. There is no one
to look after her and she accidentally fell down and got admitted in the
hospital. Therefore, she needs care and protection of the petitioner. The
petitioner is a driver. His family is dependent on his income. He has to take
care of his minor children. There is no emergency or danger to the public by
the petitioner requiring action under the Act of 1990.
(v) The District Magistrate has not recorded the findings to the effect
that the witnesses are not coming forth to depose in criminal cases against
the petitioner. Thus, the impugned order does not fulfill the requirement of
Section 5(b) of the Act of 1990.
(vi) Mere registration of case against the petitioner is not sufficient
ground for passing of impugned order. There must be clear and present
danger based on credible material, which makes the movement of petitioner
alarming danger or fraught with violence.
4. On these grounds, it is requested that the impugned externment
order dated 20.08.2024 to be quashed.
5. Learned counsel for the petitioner referring to earlier externment
order submits that the impugned order was passed on the basis of offences,
for which, the petitioner has already undergone an externment order.
Petitioner cannot be made to suffer externment on the basis of old and stale
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cases. Learned counsel referring to the judgments of Division Bench as well
as Coordinate Bench of this Court in the case of Sanjay alias Sanju Vs. State
of M.P. reported in AIR Online 2019 MP 643 a nd Meera Sonkar Vs. State
of M.P. reported in 2017 Cr.LJ 565 and order dated 06.11.2020 passed in
W.P. No. 26538/2020(Dilawar Khan Vs. State of M.P.) contends that unless
a specific finding is recorded that the witnesses are not willing to come
forward to give evidence by reason of apprehension with regard to their
safety, the order u/S 5(b) of the Act of 1990 cannot be passed by the District
Magistrate. For passing an order of externment, both the conditions
mentioned u/S 5(b) (i) and (ii) have to be satisified. The learned counsel
further referring to the FIR at Crime No. 950/2023 submits that it was a
mutual altercation between the parties, which was given colour of criminal
prosecution. The public order was not disturbed, therefore, it cannot be made
basis for punitive action of externment.
6. Per contra, learned counsel for the State opposes the petition and
submits that petitioner is constantly indulging in criminal activities. 05 cases
were registered and are under prosecution against the petitioner after last
externment order. Further, one proceeding u/S 110 of Cr.P.C. and one
proceeding u/S 5 of the Act of 1990 was prosecuted against the petitioner.
Despite these proceedings, the petitioner again committed offence for which
FIR at Crime No. 950/2023 was registered. The allegations contained in the
FIR show criminality and conduct of the petitioner which has bearing on
public order. Learned counsel further submits that the petitioner has not
availed the equal efficacious remedy of appeal provided u/S 9 of the Act of
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1990. Therefore, no case is made out for interference in exercise of writ
jurisdiction.
7. Heard, both the parties and perused the record.
8. The impugned order dated 20.08.2024 was passed on
consideration of report submitted by the Superintendent of Police, Distt.
Dewas, inter-alia stating that the petitioner is indulging in criminal activities
since the year 2012. The public is frightened. People fear to lodge report
against the petitioner. The police had proposed prohibitory actions against
the petitioner/respondent Ashraf alias Bheru. Still, there is no change in his
criminal conduct. Therefore, report is submitted u/S 5(a) and (b) of the Act
of 1990 requesting externment of Ashraf alias Bheru. The list annexed
alongwith the report shows following offence and proceedings undertaken
against the petitioner after previous externment order dated 18.06.2018:
अ; अपराध
धारा ववरण
; मांक
चालान यायालय पेश कया
12 481/2020 294, 323,506,34 भा.द. व
गया ।
चालान यायालय पेश कया
13 637/2021 294, 323,506 भा;.द; व.
गया।
294,323,427,506,34 चालान यायालय पेश कया
भा;द; व. गया।
341, 294ख ्, 323,506,34 चालान यायालय पेश कया
भा.द. व. गया।
16 51/2022 110 जा फैा. स म यायालय म तुत।
म य दे श रा य सुर ा
17 15/2022 ितवेदन तुता
अिधिनयम
9. Learned District Magistrate after giving opportunity of hearing
and considering the evidence submitted by the, State, passed the order
concluding that:
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"अनावेदक को वष 2016 तक दज अपराध के आधार इस यायालय ारा
करण मांक 0004/ जला बदर/2018 म पा रत आदोश दनाँ क 18.06.2018 अनुसार
एक वष क कालाविध के िलए जलाबदर कया गया था, इसके प ात वष 2022 तक
दज अपराध के आधार पर करण मांक 0169/ जलाबदर/2022 म पा रत आदे श
दनॉंक 16.01.2023 अनुसार सदाचार बनाये रखने हे तु एक वष तक पुिलस थाना
कोतवाली दे वास पर स ाह म एक दन अपनी उप थित दज कारने हे तु आदे िशत
कया गया थाा पुिलस ितवेदन के अनुसार अनावेदक उ आदे श के पालन म कभी
भी पुिलस थाने म उप थत नह ं हुआ है तथा इसी आदे श के पशचात ् ह अनावेदक के
व पुिलस थाना कोतवाली दे वास पर अपराध मांक 950/2013 धारा 341, 294,
323, 506, 34 भा.द. व का पंजीबत हुआ है । अनावेदक ारा अपने जवाब म य
कये गए त य क पु म ऐसे कोई द तावेजी माण तुत नह ं कये गए ह,
जससे यह िन कष िनकाला जा सके क अनावेदक पुिलस ितवेदन म उ ल त
आपरािधक गित विधय म संिल नह ं रहा है ा इससे पुिलस ितवेदन के इस त य क
पु होती है क अनावेदक पुिलस ितवेदन म उ ल त आपरािधक गित विधय म
संिल रह होकर वतमान म भी संिल है ा यह भी प होता है क अनावेदक के क़ य
समाज और यव था के लोक मू य को व त करने के िलए जन हत क से
विध व है ।
उपयु ववेचना के उपरांत म इस िन कष पर पहुच
ं ा हूँ क अनावेदक ारा
अपने जवाब म य कये गये त य संतोष द नह ं ह तथा े क लोकश
यव था को कायम रखने के िलये अनावेदक अशरफ उफ भै पता छोटे खां घोसी ,
उ 32 साल, िनवासी 25 भगतिसंह माग दे वास, जला दे वास के व म य दे श
रा य सुर ा अिधिनयम,1990 क धारा 5(ख) के अंतगत िन कासन ( जलाबदर ) क
कायवाह क जाने के अलावा कोई वक प नह ं रह गया है । ऐसा नह ं करने पर लोक
शांित को खतरा उ प न हो सकता है ा"
10. This conclusion is assailed on the ground that the learned District
Magistrate has not recorded any finding to the effect that witnesses are not
willing to come forward to give evidence by reason of apprehension with
regard to their safety. Learned counsel submits that in absence of such
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finding, the order of externment would be bad in law.
11. Section 5 of the Act of 1990 reads 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, XVI or XVII or under Section 506 or 509 of
the Indian Penal Code, 1860 (45 of 1860) or in the abatement 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 duty 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 my 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 or 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.
12. Thus, Section 5 of the Act of 1990 has two limbs. The first part
deals with the factor to be considered for taking appropriate actions and the
second part deals with the action which the learned District Magistrate may
take considering the material before him relating to the first part of the
Section.
13. The impugned order shows that learned District Magistrate on
consideration of material on record reached to the conclusion that the acts of
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the petitioner are causing alarm, danger and harm to the public. Thus, the
conclusion falls within the first part of Section 5 of the Act of 1990. On
being satisfied with regard to the necessary condition u/S 5(a) of the Act of
1990, learned District Magistrate proceeded to issue the impugned order
under second part of Section 5 of the Act of 1990 i.e. 5(b). The Section 5(a)
and (b) are disjuncted by use of "OR". Thus, it is not necessary to record the
opinion that the witnesses are not willing to come forward to give evidence
against the petitioner, in case, the District Magistrate has concluded that the
requirement of first part i.e. 5(a) is fulfilled from the material on record.
14. The orders of Division Bench and Coordinate Bench of this
Court in the cases of Sanjay( s u p r a ) , Meera Sonkar(supra) and
Dilawar(supra) referred by the petitioner are distinguishable on facts. The
externment orders in those cases are not available for consideration. In the
present case, the conclusion of District Magistrate with regard to condition in
first part i.e. 5(a) of the Act is based on the material submitted alongwith the
report of Superintendent of Police.
15. The report of Superintendent of Police shows prosecution of four
new cases against the petitioner after last externment order in 2018. Further,
two prohibitory actions were taken against the petitioner. Therefore, the
impugned order does not suffer from sheer disregard of evidence on record
or any violation of principles of natural justice. In such a scenario, the
impugned order is not amenable to writ jurisdiction, especially, in view of
the fact that equally efficacious alternative remedy of appeal u/S 9 of the Act
is available. (The law laid down by the Hon'ble Supreme Court in the case of
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Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Ors .
reported in AIR 1999 SC 22 relied).
16. Consequently, the writ petition, sans merits, is hereby dismissed.
(SANJEEV S KALGAONKAR)
JUDGE
sh
