Gopal vs State of Madhya Pradesh and Others

S.C. Sharma, J.—The petitioner before this Court has filed this present petition being aggrieved by order dt. 7.11.2013 passed by the District Magistrate Mandsaur, exercising the powers conferred under Section 5 of M.P. Rajya Suraksha Adhiniyam, 1990. He is also aggrieved by order dt. 3.11.2014 passed by the Commissioner Ujjain Division Ujjain by which the petitioners appeal preferred under Section 9 of the M.P. Rajya Suraksha Adhiniyam, 1990 has been rejected.

The facts of the case reveal that a show-cause notice was issued by the learned District Magistrate on 3.11.2012 for initiating proceedings under the Act of 1990 and the petitioner did submit a reply in the matter. The learned District Magistrate has concluded the proceedings by an order dt. 3.1.2013 meaning thereby no order of externment was passed.

The learned District Magistrate has again issued a notice dt. 3.10.2013 and all the offences enumerated in the first notice dt. 3.11.2012 were also included in the second show-cause notice. There were three additional offences mentioned in the second show-cause notice. The petitioner did submit a reply and informed the Authorities that he has been acquitted in the case which was under the Arms Act and the second case was in respect of violation of the provisions of the Adhiniyam, 1990 and the third case relates to proceedings under Section 101 and Section 44 of the Cr.P.C. The petitioner did submit a reply informing the past history of the proceedings which took place under the Act of 1990. However, the learned District Magistrate has passed an order of externment dt. 7.11.2013. The order passed by the learned District Magistrate in paragraph 6 reads as under:-

A reply has been filed in the matter and the respondents have made an attempt to justify the order passed by the learned District Magistrate. It has been stated that learned District Magistrate is empowered to pass an appropriate order based upon a report received by the Superintendent of Police and keeping in view the offences registered against the petitioner, the order has rightly been passed. It has also been stated that opportunity of hearing has been given to the petitioner and the question of interference by this Court does not arise.

This Court has carefully gone through the order passed by the learned District Magistrate and the relevant statutory provisions under which the order of externment has been passed.

Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 reads as under:-

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 duly served on him or any 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 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.

The aforesaid order makes it very clear that the learned District Magistrate has passed the order under Section 5 (a) and Section 5 (b). An attempt has been made before this Court to demonstrate that the order has been passed under Section 3 of the Act of 1990.

This Court has also carefully gone through Section 3 and the same reads as under:-

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.

The learned District Magistrate has passed an order directing the petitioner to submit a FDR of Rs. 25,000/- failing which he will be externed for a period of one year.

In the considered opinion of this Court, such an externment order cannot be passed as has been done by the learned District Magistrate. If a person who does not have financial means to submit the FDR before the learned District Magistrate, he has to be externed automatically meaning thereby the impugned order has been passed in clear contraventions to the statutory provisions of the Act of 1990. Either a person has to be externed or no order can be passed for externment because he fails to submit the FDR.

Resultantly, the impugned order passed by the learned District Magistrate Mandsaur, dt. 7.11.2013 and the order passed by the learned Commissioner dt. 3.11.2012 are hereby, set-aside.

The writ petition stands allowed.