[Cites 26, Cited by 0]
Madhya Pradesh High Court
Zeeshan Khan vs The State Of Madhya Pradesh on 15 December, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:36881
IN THE HIGH COURT OF MADHYA PRADESH
AT Indore
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 15th OF DECEMBER, 2025
WRIT PETITION No. 47064 of 2025
ZEESHAN KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Akash Rathi - Advocate for the petitioner.
Shri Amit Raval - Govt. Advocate for the respondent/State.
ORDER
The present petition under Article 226 of the Constitution of India is
filed, assailing the order dated 18.08.2025 in Case No. 20/Jila Badar/2025
passedby the District Magistrate, Distt. Shajapur directing the externment of
the petitioner from the local limits of Distt. Shajapur and adjoining revenue
districts of Dewas, Ujjain, Agar Malwa, Rajgarh and Sehore for the period of
one year and the order dated 19.11.2025 in Case No. 103/Appeal/2025-26
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passed by the Commissioner, Ujjain Division by which the order dated
18.08.2025 passed by the District Magistrate was affirmed.
2. The exposition of facts giving rise to the present petition, in brief,
are as under:
a. The Superintendent of Police, Shajapur submitted a report dated
02.06.2025 requesting for externment of petitioner u/S 5 of the
Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (for short,
referred to as the ''Adhiniyam, 1990'' hereinafter) from the local
limits of Distt. Shajapur and adjoining revenue districts of
Dewas, Ujjain, Agar Malwa, Rajgarh and Sehore for his criminal
and anti-social activities. The Superintendent of Police enclosed
list of criminal prosecution and anti-social activities of the
petitioner alongwith the report.
b. The District Magistrate, Shajapur considered the report and after
affording an opportunity of hearing to the petitioner, directed his
externment for a period of one year from the local limits of
District Shajapur and revenue districts Dewas, Ujjain, Agar
Malwa, Rajgarh and Sehore vide order dated 18.08.2025.
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c. The petitioner submitted an appeal u/S 9 of the Adhiniyam, 1990
before the Commissioner, Ujjain Division, Ujjain. The
Commissioner, Ujjain Division, Ujjain vide impugned order
dated 19.11.2025 passed in Case No.103/Appeal/2025-26, after
hearing both the parties, rejected the appeal and confirmed the
order dated 18.08.2025 of the District Magistrate, Shajapur.
3. Feeling aggrieved by these orders, the present writ petition has
been filed on the following grounds:
(i) The order of externment dated 18.08.2025 passed by the
District Magistrate is illegal, unlawful and erroneous.
(ii) The petitioner has been acquitted in most of the cases. There
was no complaint by general public to the Superintendent of Police against
the petitioner in recent past.
(iii) The old and stale activities cannot be considered for externment
of the petitioner, which is against his right to liberty.
(iv) The District Magistrate has passed the order dated 01.05.2024
u/S 3(1)(a) of the Adhiniyam, 1990, directing him to appear before the
Tehsildar, Shajapur every month for a period of one year. Petitioner could
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not appear before the Tehsildar. Therefore, offence u/S 14 of the
Adhiniyam, 1990 was registered. The petitioner was sentenced to fine.
Thereafter, the petitioner was again directed to appear before Tehsildar for
period of one year vide order dated 29.11.2024. On the basis of same
antecedents, the order of removal was passed. No further criminal activity
or new prosecution is reported against the petitioner. The order of removal
on same grounds is illegal.
On these grounds, it is requested that the impugned order be set aside.
4. Learned counsel for the petitioner, in addition to the grounds
mentioned in the petition submits that the removal order was passed
considering the old and stale criminal antecedents of the petitioner. No serious
or heinous offence was registered against the petitioner in the recent past,
especially, after passing of the order u/S 3(a) of the Adhiniyam, 1990. The
impugned order suffers from impropriety and deserves to be set aside.
5. Per contra, learned counsel for the State referring to the list of
criminal antecedents submits that petitioner is continuously involved in
criminal activities. The District Magistrate committed no error in passing the
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removal order in view of criminal antecedents reported against the petitioner.
The petition is meritless.
6. Heard, learned counsel for the parties and perused the record.
7. For the sake of convenience, Section 3 and 5 of the Adhiniyam,
1990 are reproduced below:
"3. Power to make restriction order. -
(1) If a District Magistrate is satisfied with respect to any persons that he is acting
or is likely to act in a manner prejudicial to the security of the State or the
maintenance of public order and that, in order to prevent him from so acting it is
necessary in the interest of the general public to make an order under this Section,
the District Magistrate, may make an order,-
(a) requiring him to notify movements or to report himself or both to notify his
movements and report himself in such manner at such times and to such authority
or persons as may be specified in the order;
(b) imposing upon him such restrictions as may be specified in the order, in respect
of his association or communications with such persons as may be mentioned in the
order;
(c) prohibiting or restricting the possession or use by him of any such Article or
articles as may be specified in the order.
(2) A restriction order made Under Sub-section (1) shall remain in operation for
such period as may be specified therein and shall in no case exceed a period of one
year from the date of the order.
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 duty
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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.
8. The Section 5 of the Adhiniyam, 1990 has two limbs. The first
part deals with factors to be considered for taking appropriate action and the
second part deals with the action, which the District Magistrate may take
considering the material before him regarding the first part of the Section. The
District Magistrate may issue an order for removal under the following
circumstances:
1. When the movements or actions of any person are causing or are likely
to cause alarm, danger, or harm to persons or property.
2. When there are reasonable grounds to believe that a person is engaged or
is about to engage in the commission of an offense involving force,
violence, or offenses punishable under specific chapters of the Indian
Penal Code, 1860 and witnesses are unwilling to testify publicly due to
safety concerns.
The order may direct the concerned to take necessary actions to prevent
violence or alarm or to remove themselves from specified Districts or areas
within a specified time frame.
9. The Division Bench of High Court of M.P. in the case of Ashok
Kumar Patel Vs. State of M.P. reported in 2009 (4) MPLJ 343 observed as
under:
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6. A plain reading of Section 5 (b) of the Act of 1990 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.
7. In State of N. C. T. of Delhi and another Vs. Sanjeev alias Bittoo (supra), the
Supreme Court had the occasion to interpret Section 47 of the Bombay Police Act,
1978, which contains provisions similar to Section 5 of the act of 1990 and has
referred to these essential conditions for passing an order under Section 47 of the
Delhi Police Act in Para 10 of the judgment as reported in the AIR thus :-
"section 47 consists of two parts. First part relates to that satisfaction of the
Commissioner of Police or any Authorised officer reaching a conclusion that
movement or act of any person are causing alarm and danger to person or property
or that there are reasonable grounds for believing that such person is engaged or is
about to be engaged in commission of enumerated offences or in the abetment of
any such offence or is so desperate and dangerous as to render his being at large
hazardous to the community. Opinion of the Concerned Officer has to be formed
that witnesses are not willing to come forward in public to give evidence against
such person by reason of apprehension on their part as regards safety of person or
property. After these opinions are formed on the basis of materials forming
foundation therefore the Commissioner can pass an order adopting any of the
available options as provided in the provision itself. The three options are-
(1) to direct such person to so conduct himself as deemed necessary in order
to prevent violence and alarm or
(2) to direct him to remove himself outside any part of Delhi or
(3) to remove himself outside whole of Delhi. "
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, there cannot be any reasonable ground for believing that the person is
engaged or is about to be engaged in the commission of such offence.
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10. The second condition which must be satisfied for passing of an order of
externment against a person is that in the opinion of the District Magistrate,
witnesses are not willing to come forward to give evidence in public against such
person by a reason of apprehension on their part as regards safety of person or
property. Construing a parimateria provision in Section 27 of the city of Bombay
Police Act, 1902 in Gurbachan Singh Vs. The State of Bombay and another, AIR
1952 SC 221, the Supreme Court observed: -
"the law is certainly an extra-ordinary one and has been made only to meet
those exceptional cases where no witnesses for fear of violence to their
person or property are willing to depose publicly against certain bad
characters whose presence in certain areas constitute a menace to the safety
or the public residing therein. "
11. In the instant case, the District Magistrate has in the impugned order only
baldly stated that the list of offences registered against the petitioner reflects that he
is a daring habitual criminal and because of this there is fear and terror in the public
and has not recorded any clear opinion on the basis of materials, that in his opinion
witnesses are not willing to come forward to give evidence in public against such
person by a reason of apprehension on their part as regards safety of their person or
property. In most of the cases, challans have been filed by the Police in Court
obviously after examination of the witnesses under Section 161 of Cr. PC and the
cases are pending in the Court. There is no reference in the order of District
Magistrate that witnesses named in the challans filed by the Police are not coming
forward to give evidence against the petitioner in Court. Hence, in the absence of
any existence of material to show that witnesses are not coming forward by a
reason of apprehension to danger to their person or property to give evidence
against the petitioner in respect of the alleged offences, an order under Section 5
(b) of the Act of 1990 cannot be passed by the District Magistrate by merely
repeating the language of Section 5 (b)of the Act of 1990.
12. In State of N. C. T. of Delhi and another Vs. Sanjeev alias Bittu (supra), the
Supreme Court interpreting Section 47 of the Bombay Police Act, 1978, which is
similarly worded as Section 5 of the Act of 1990, has held in Para 25 :-
"it is true that some material must exist but what is required is not an
elaborate decision akin to a judgment. On the contrary, the order directing
externment should show existence of some material warranting an order of
externment. While dealing with question mere repetition of the provision
would not be sufficient. Reference to be made to some material on record and
if that is done the requirements of law are met. As noted above, it is not the
sufficiency of material but the existence of material which is sine qua non. "
13. The Act of 1990 certain serious restrictions on the fundamental right to
freedom under Article 19 (1) of the Constitution and the fundamental right to
personal liberty under Article 21 of the Constitution and unless the conditions
mentioned under Section 5 (b) of the Act of 1990 are strictly satisfied, an order of
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externment, will have to be quashed by the Court. While considering a case under
Section 56 of the Bombay Police Act, which also empowered the police to pass an
order of externment, the Supreme Court observed in pandharinath Shridhar
Rangnekar Vs. Dy. Commissioner of Police, State of maharashtra (supra), as
under:-
"it is true that the provisions of Section 56 make a serious inroad on personal
liberty but such restraints have to be suffered in the larger interests of society.
This Court in Gurbachan Singh Vs. The State of Bombay, 1952 SCR 737 =
(AIR 1952 SC 221) had upheld the validity of Section 27 (1) of the City of
Bombay Police Act, 1902, which corresponds to Section 56 of the Act.
Following that decision, the challenge to the constitutionality of Section 56
was repelled in 1956 SCR 533 = (AIR 1956 SC 585). We will only add that
care must be taken to ensure that the terms of Sections 56 and 59 are strictly
complied with and that the slender safeguards which those provisions offer
are made available to the proposed externee. "
14. We are thus of the considered opinion that the two conditions for an order of
externment stated in Section 5 (b) of the Act of 1990 do not exist in this case and
the order passed by the District Magistrate and appellate order of the Commissioner
are liable to be quashed. Since the impugned order of externment passed by the
District Magistrate and the appellate order passed by the Divisional Commissioner
are liable to be quashed on this ground alone, it is not necessary for us to deal with
the other grounds raised by the petitioner in this writ petition. In the result, we
quash the impugned order dated 18-11-2008 passed by the District Magistrate
Rewa in Cr. Case No. 227/08 as well as the appellate order dated 13-1-2009 passed
by the Commissioner, Rewa Division. No costs.
10. In the case of State of Maharashtra &Anr vs Salem Hasan Khan
reported in AIR 1989 SC 1304, it has been held by the Supreme Court that:-
"On behalf of the appellant reliance has been placed on the decision of this Court in
Pandarinath Sridhar Rangnekar vs. Deputy Commissioner of Police, [1973] 3 SCR
63, wherein a similar plea was taken by the appellant before this Court. It was
contended that the failure on the part of the State Government indicated non-
application of mind. The appellant had also urged that the allegations contained in
the show cause notice were too vague in absence of details to afford him reasonable
opportunity to defend himself. Rejecting the argument, this Court held that a full and
complete disclosure of particulars, as is requisite in an open prosecution, will
frustrate the very purpose of an externment proceeding. There is a brand of lawless
elements in society which it is impossible to bring to book by established methods of
judicial trial because in such trials there can be no conviction without legal evidence.
And legal evidence is impossible to obtain, because out of fear of reprisal witnesses
are unwilling to depose in public. While dealing with the contention that the State
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Government was under a duty to give reasons in support of its order dismissing the
appeal, the point was rejected in the following terms:--
"Precisely for the reason for which the proposed externee is only entitled to
be informed of the general nature of the material allegations, neither the
externing authority nor the State Government in appeal can be asked to write
a reasoned order in the nature of a judgment."
As observed, if the authorities were to discuss the evidence in the case, it would be
easy to fix the identity of the witnesses who were unwilling to depose in public
against the proposed externee. A reasoned order containing a discussion would
probably spark off another round of harassment. We are, therefore, of the view that
the High Court was in error in quashing the order as confirmed by the State
Government in appeal."
11. In the case of Wasiuddin Ahmed vs. District Magistrate, Aligarh
reported in AIR 1981 SC 2166. the Apex Court observed thus:-
"24. The past conduct or antecedent history of a person can appropriately be taken
into account in making a detention order. It is indeed usually from prior events
showing tendencies or inclination of a man that an inference is drawn whether he is
likely in the future to act in a manner prejudicial to the maintenance of public order.
Of course, such prejudicial conduct or antecedent history should ordinarily be
proximate in point of time and should have a rational connection with the conclusion
that the detention of the person is necessary."
12. In the case of Manoj vs. State of M.P. and others, reported in
2017(2) MPLJ 294, it has been held as under :-
"11. The requirement of law is that there must be clear and present danger based
upon credible material which makes the movements and acts of person in question
alarming of dangerous or fraught with violence and that for removing a person from
a District there must exist a reasonable ground for believing that the person is
engaged or is about to be engaged in commission of offence involving force or
violence or in the abetment of any such offence. It is the reach effect and potentiality
of overt commission of an offence which lend support to cause reasonable
apprehension would be the basis for valid exercise of power by the Authority under
these provisions. The antecedents of a person also plays an important role in forming
an opinion. It is indeed usually prior events showing tendencies or inclination of a
man that an inference is drawn whether he is likely to act in a manner prejudical to
the maintenance as would cause alarm, danger or harm to person or property."
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13. A Co-ordinate Bench of this Court in the case Sanju alias Sanjay
Ben Vs. State of M.P. and Others reported in 2005(4) MPHT 102 observed that a
person cannot be directed removal for his past act. Although past criminal
activities of a person may afford a guide as to his behavior in future, they must be
reviewed in context of the time, when the order is passed.
14. In the case of Ramgopal Raghuwanshi Vs. State of M.P. and
Others reported in 2014(4) MPLJ 654, this Court on consideration of precedents
held that an order of externment cannot be passed on the basis of old and stale
criminal activities. The commission of offence must have close proximity to the
date on which the order u/S 5 (b) of the Act is proposed to be passed.
15. The factual scenario of the matter in hand is considered in the
light of aforestated propositions of law.
16. Learned District Magistrate, although referred to criminal
antecedents, but reasons for the opinion that the movement and acts of the
petitioner are causing or calculated to cause alarm, danger or harm to person
or the property have not been recorded. The District Magistrate relied on the
report of the Superintendent of Police to conclude that he is prima-facie
satisfied that the petitioner is involved in criminal activities. His criminal
activities are growing day-by-day, therefore, there is danger to the security of
State and public order, whereas the material on record suggests otherwise. The
apprehension raised by the District Magistrate is without substance and basis.
The last prosecution for an offence was registered against the petitioner at
Crime No. 654/2023 (in the year 2023) u/Ss 323, 294, 506 and 34 of IPC. In
the year 2024, an order u/S 3 of the Adhiniyam, 1990 was passed by the
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District Magistrate. The petitioner failed to comply with the order. Therefore,
he was subjected to prosecution for offence punishable u/S. 14 of the
Adhiniyam, 1990. No criminal prosecution for any other offence was alleged
against the petitioner in year 2024. As stated in reply to removal notice and the
petition, the petitioner/accused was acquitted in Crime No. 652/2023 vide order
dated 24.04.2024 passed in RCT No. 1/2024 and in Crime No. 654/2023 vide
order dated 11.05.2024 passed in National Lok Adalat in view of compromise
between the parties (the copies of orders are filed on record). Therefore, there
was no reasonable apprehension that the petitioner is engaged or is about to be
engaged in commission of any offence, provided u/S 5(b)(1) of the Adhiniyam,
1990. This Court is of the considered opinion that the twin conditions for order
of removal laid down in Section 5 (a)(b) of the Adhiniyam, 1990 did not exist.
The Appellate Authority affirmed the order of District Magistrate without
appreciating the material properly. .
18. The impugned orders suffers from manifest impropriety, therefore,
the order dated 18.08.2025 passed by the District Magistrate and the
affirmation order dated 19.11.2025 passed by the Commissioner, Ujjain
Division, Ujjain are set aside being in apparent violation of the requirement of
relevant provisions of the Adhiniyam, 1990.
19. Accordingly, the writ petition is allowed.
(SANJEEV S KALGAONKAR)
JUDGE
sh
SEHAR
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OF MADHYA PRADESH BENCH AT
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postalCode=452007, st=Madhya
Pradesh,
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HASEEN
Date: 2025.12.16 10:39:19 +05'30'
