Beere vs The State of M.P.

K.K. Trivedi, J.—The petitioner by way of filing this petition under Article 226 of the Constitution of India essentially has called in question the order dated 21.11.2013 passed by the District Magistrate under the provisions of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as ''the Act'') as also has challenged the order dated 26.5.2014 by which the appeal preferred by the petitioner against the said order has been dismissed by the Commissioner, Rewa Division, Rewa.

Brief facts giving rise for filing of this writ petition are that, upon submitting a report by the Superintendent of Police, Sidhi, action was initiated against the petitioner and a show cause notice was issued to him as to why an order be not issued for his removal from the area concerned. A reply was filed by the petitioner stating that the action has been initiated against him on a report given by the Superintendent of Police on 1.11.2008 whereas right from the year 2002 no offence was committed by the petitioner nor any case was registered against him by the police. The cases registered against the petitioner were decided by the Courts and he has been acquitted. Therefore, the action against the petitioner was not called for under the provisions of the Act. However, without considering the aforesaid reply, the order was passed on 21st November, 2013 in exercise of powers under Section 5(b) of the Act. The petitioner preferred an appeal against the said order, but the same was dismissed. The said order was affirmed by the Appellate Authority. Hence, this writ petition was required to be filed.

Upon service of the notice of the writ petition, the respondents have filed their return contending inter alia that though the report was made on 1.11.2008, but facts were brought to the notice of the District Magistrate that right from the year 1993 cases were registered against the petitioner. There was a threat and apprehension of dire consequences, therefore, the witnesses were not coming forward to give evidence against the petitioner. After recording the statements of some of the witnesses, the District Magistrate reached to the conclusion that removal of the petitioner was necessary and, therefore, the order was rightly passed. These aspects have been considered by the appellate authority and the appeal of the petitioner has rightly been dismissed. Therefore, interference in the order passed by the District Magistrate is not called for.

Heard learned counsel for the parties at length and perused the original record.

The order sheet in the original record indicates that on 1.12.2008 action was initiated by the District Magistrate on the report of the Superintendent of Police, Sidhi made on 1.11.2008. Direction was given to produce five witnesses so that their statements could be recorded. Further, order sheet indicates that on certain dates the witnesses were not produced or the Presiding Officer-the District Magistrate was not available. Therefore, no proceedings could be done. However, after a long time, on 7.9.2013, some of the witnesses were examined. Their statements were recorded. On 11.10.2013, the District Magistrate directed issuance of the show cause notice to the petitioner.

From these order sheets it is clear that for a long period of about four years no action was taken by the District Magistrate even to record the statements of witnesses to ascertain whether there was any threat or apprehension in the mind of the witnesses for dire consequences on the behest of petitioner and therefore they were not coming forward to adduce the evidence against the petitioner in the criminal trial. After recording the statements, notices were issued to the petitioner, but again this fact was not stated that those witnesses were already examined and they have deposed that there was apprehension that they will suffer the dire consequences at the behest of the petitioner if they disclose true facts against the petitioner in criminal trials. Even the petitioner was not granted an opportunity to cross-examine those witnesses. From the perusal of the statements so recorded, it is clear that barring for one, all other persons were police officers or police employees and their evidence, which was earlier recorded, remained unchanged, even in the year 2013. Only one independent witness was examined on 29.8.2013, but he too was not put for cross-examination by the petitioner. The statement of the petitioner was recorded on 20.11.2013. Only on the basis of this material, the District Magistrate reached to the conclusion that sufficient material was available to hold that because of the criminal activities of the petitioner, the witnesses are not coming forward to give evidence against the petitioner.

There was no subjective satisfaction recorded by the District Magistrate that there were reasonable grounds for believing that the petitioner is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence under Chapter XII, XVI or XVII of the Act or under Section 506 or 509 of the Indian Penal Code or in the abetment of such offence. Without there being any reasonable satisfaction, it was not correct on the part of the respondent-District Magistrate to hold that the petitioner was one who was required to be removed in exercise of powers under Section 5(b) of the Act. A Division Bench of this Court in the case of Ashok Kumar Patel Vs. State of M.P. and Others, has categorically held that unless there is a definite finding recorded regarding the subjective satisfaction of the District Magistrate, in context to the provisions of Section 5(b) of the Act, the powers under Section 5, 6 or 13 of the Act is not to be exercised for removal of any such person. This particular aspect is considered by this Court in the case of Massu alias Musheer Mohammad Vs. Sub-Divisional Magistrate and Others, wherein also it is held that without there being any subjective satisfaction, the order cannot be passed for removal of any person. This view is further expressed in the case of Munna @ Rajendra Singh @ Lalmuha vs. The State of M.P. and others - W.P. No.9742/2014 decided on 25.9.2014.

Considering the various provisions of law as also the law laid down by this Court in the case of Ashok Kumar (supra), it has been held that the order of externment is bad in law. Similar are the circumstances in the present case, but more glaring fact is that in a matter where a report was submitted against the petitioner on 1.11.2008 for the offences which the petitioner has committed in the past, proceedings were kept pending for such a long period of five years when almost in all the cases registered against the petitioner, he was acquitted. This being so, neither the District Magistrate has applied his mind properly nor the Commissioner being the appellate authority has passed the order in appropriate manner in appeal of the petitioner.

Consequently the writ petition is allowed. The order dated 21.11.2013 passed by the District Magistrate for removal of the petitioner from the area concerned as also the order dated 26.5.2014 passed by the Commissioner, Rewa Division, Rewa in appeal of the petitioner under the Act are hereby quashed. The petitioner is set at liberty to move within the area from where he was removed by the aforesaid order.

The writ petition is allowed to the extent indicated hereinabove. However, there shall be no order as to cost.