Devendra Singh vs State of MP

Sujoy Paul, J.—This petition filed under Article 226 of the Constitution challenges the order of District Magistrate, dated 23.11.2013, whereby the order of externment was passed. The appellate order dated 11.2.2014 is also under challenge in this petition.

Shri R.S. Bansal, learned counsel for the petitioner, assailed the orders on the ground that externment order is based on five crime numbers mentioned in the order, Annexure P-2. In Crime No. 107/2005, the petitioner is already acquitted. The attention is drawn on the judgment dated 21.8.2008 in Criminal Case No. 912/2006 (Page 30). It is submitted that petitioner is also exonerated in Crime No. 88/2007. Case mentioned in Item 3 is not of serious nature. Case No. 43/2013 is not pending at Bhind and it is pending at Gwalior. Thus, it cannot be reason for externment at Bhind. In addition, it is submitted that the statement of petitioner''s wife obtained by post is taken into consideration without affording opportunity to the petitioner. No material is shown to establish that nobody was willing to become witness against the petitioner. He relied on certain judgments.

Prayer is opposed by Shri Choubey. Shri Choubey submits that the orders are in accordance with law and full opportunity is given to the petitioner.

I have heard learned counsel for the parties and perused the record.

This is trite that power u/s 5 (b) of M.P. Rajya Suraksha Adhiniyam, 1990 (for brevity, the ''Adhiniyam'') can be exercised only when following two conditions are 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 u/s 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.

The externment order cannot be passed as a matter of routine because it hits Articles 14 and 21 of the Constitution of India.

The document at page 30 shows that the petitioner was acquitted from Crime No. 107/2005. Thus, this offence could not have been a reason for petitioner''s externment. Similarly, the offences registered against the petitioner in other districts cannot be a ground for externment from Bhind. Paragraph 3 of order, Annexure P-2, shows that the District Magistrate has received the affidavit of petitioner''s wife by post and considered the averments of that affidavit while passing the externment order. Her statement was neither recorded in presence of the petitioner nor petitioner was given any opportunity to cross-examine her. This is clearly against the principle of natural justice. It is further recorded in Annexure P-2 that nobody is ready to depose against the petitioner. However, no details of the same are given.

This Court in Kala Sahib Vs. State of M.P. and another, , opined that if the name of even a single witness is not given, who is not willing to appear before the court, the conditions of Section 5(b) of the Adhiniyam are not satisfied. This view is taken by this Court also in Writ Petition No. 3297/2012 (Raju Rathor vs. State of MP). A Division Bench of this Court in Ashok Kumar Patel Vs. State of M.P. and Others, opined as under:-

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. 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 u/s 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. 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 the appellate order of the Commissioner are liable to be quashed.

The appellate authority has also mechanically affirmed the order of the District Magistrate. On the basis of aforesaid analysis, in my opinion, impugned order cannot be permitted to stand. The impugned orders dated 23.11.2013 and 11.2.2014 are set aside. Liberty is reserved to the respondents to take action against the petitioner in accordance with law.

Petition is allowed to the extent indicated above. No costs.