Kamal Singh vs State of Madhya Pradesh

K.K. Trivedi, J.—On receipt of a report from the Superintendent of Police, Sagar, case was registered by the District Magistrate, Sagar under the provisions of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (herein after referred to as ''Act'') for removal of the petitioner from the area concerned. Allegations were made in the report that there were cases registered against the petitioner right from the year 1994 and his presence in the area was creating disturbance in maintaining law and order. It was alleged that the petitioner was threatening the persons, was acting in unsocial manner and, therefore, his removal was necessary. Upon receipt of the said report, a show cause notice was issued to the petitioner. From the record it is averred that despite service of the show cause notice, no response was filed by the petitioner.

The District Magistrate thereafter conducted an enquiry, recorded the statements of certain witnesses, obtained certain reports from the police and reached to the conclusion that petitioner was one, who was liable to be removed from the area under the provisions of Section 5(b) 2 of the Act and passed the order of externment on 11.04.2014. The petitioner preferred an appeal against the said order before the Commissioner, Sagar Division, Sagar, which too has been dismissed on 28.07.2014. Hence this writ petition is required to be filed.

Upon service of notices of the writ petition, the respondents have filed their return and under the direction of the Court, have produced the original record. It is contended that statements of witnesses were recorded, who have deposed that the petitioner was threatening them and, therefore, involvement of the petitioner in the crime was proved. After recording these facts, the District Magistrate has found that the petitioner was one who was to be removed from the area under the provisions of Section 5(b) of the Act and, therefore, order is rightly passed. It is contended that the appeal preferred by the petitioner was properly considered by the Appellate Authority and the same has been dismissed. In view of the aforesaid, it is contended that no ground is made out to exercise extraordinary power of judicial review of such action of the respondents and as such the petition is liable to be dismissed.

After hearing learned Counsel for the parties at length and perusal of the record, the fact is clear that respondent District Magistrate has not recorded his categorical findings about the satisfaction that there were chances of commission of offences mentioned under sub-section (b) of Section 5 of the Act. There is no recording of reason that because of the threats extended by the petitioner, the witnesses were not coming forward to give evidence against the petitioner in offences registered against him. That being so, the power under sub-section (b) of Section 5 of the Act was not to be exercised by the respondent District Magistrate.

The law is well settled in this respect. The Division Bench of this Court in the case of Ashok Kumar Patel Vs. State of M.P. and Others, has categorically recorded the circumstances in which the power under sub-section (b) of Section 5 of the Act is required to be exercised. The findings recorded by the Division Bench in this respect in paragraphs 8, 9, 10 and 11 reads thus :

�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.

We will therefore have to examine the impugned order dated 18.11.2008 passed by the District Magistrate, under section 5(b) of the Act of 1990 to find out whether the petitioner was engaged in the commission of an offence or was about to be engaged in the commission of an offence mentioned in section 5(b) of the Act of 1990, or in the abetment of such offence, which was very close in proximity to 18.11.2008 when the impugned order of externment was passed. The first offence mentioned is alleged to have been committed by the petitioner on 9.4.1995 when the petitioner and his other associates forcibly took possession of ''Mahuwa'' of Tilakdhari Tripathi, son of Indramani Tripathi and collected the same, and Crime No. 46/95 under Sections 447 and 379 of the Indian Penal Code was registered and the petitioner was arrested and produced before the Court. The second offence is alleged to have been committed by the petitioner on 14.3.2007 when the petitioner is alleged to have written a letter to Shivshankar Tripathi, son of Tilakdhari Tripathi, giving threats regarding construction of new building of Shiksha Guarantee School, and Crime No. 42/2007 under Sections 353, 294, 506 read with section 34 of the Indian Penal Code has been registered and a challan has been filed in the Court in Case No. 729/2008. The third act which has been mentioned in the impugned order is not an offence alleged to have been committed but a Prohibitory Proceeding No. 22/2007 under Sections 107 and 116(3) of the Code of Criminal Procedure instituted against the petitioner on 9.4.2007 and the petitioner has been produced in Court. The fourth offence alleged to have been committed by the petitioner is in July, 2008 when the petitioner along with 6 or 7 others is alleged to have caused hindrance in Government work during the election of Palak Shikshak Sangh and created disturbances in election work and committed ''Marpeet'' on the basis of which Crime No. 216/2008 for offences under sections 253, 294, 323, 325 and 506-B read with section 34 of Indian Penal Code has been registered. In our considered opinion, these offences alleged to have been committed by the petitioner in the years 1995 to 2007, cannot be the foundation of an order under Section 5(b) of the Act of 1990 as the alleged offences have no proximity at all to the order of externment passed on 18.11.2008. Even, the offence alleged to have been committed by the petitioner along with 6 or 7 other persons in July, 2008, cannot constitute a reasonable ground to believe on 18.11.2008 that the petitioner is engaged or is about to be engaged in offence mentioned in section 5(b) of the Act of 1990.

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 pari materia provision in section 27 of the City of Bombay Police Act, 1902 in Gurbachan Singh Vs. The State of Bombay and Another, , 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."

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 Criminal Procedure Code 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.�

On the anvil of the aforesaid findings if the record is tested, no material was made available in respect of such facts. The independent witnesses examined by the District Magistrate were not put for cross-examination by the petitioner. Their statements also do not make out a case that the petitioner was threatening such persons for dire consequences in case they give evidence against the petitioner. The facts as have been recorded by the District Magistrate are nothing but the statements made in the said enquiry by the witnesses and even then conclusion has been drawn to show that the District Magistrate was satisfied that there was likelihood of continuance of such offences as mentioned in Section 5(b) of the Act. There is nothing recorded in the order expressing satisfaction of the District Magistrate that because of presence of the petitioner in the area, the witnesses were not coming forward to adduce evidence against him. On the other hand, from the perusal of the record it is found that in a criminal case the petitioner was tried under Section 307 of I.P.C. by the Sessions Court, was found guilty of commission of offence and was sentenced. The said judgment and sentence has been challenged before this Court in Criminal Appeal No. 1925/2006 in which bail has been granted to the petitioner. The said appeal is still pending consideration. Therefore, in absence of clear finding that witnesses were not coming forward to depose against the petitioner because of his threats of dire consequences and as such removal of the petitioner from the area was necessary, the power under Section 5(b) of the Act was not to be exercised by the District Magistrate. The Appellate Authority has not looked into these circumstances nor has examined the order passed by the District Magistrate in the anvil of the law settled by this Court and as such the appellate order is also not just and proper. Most of the cases registered against the petitioner were nothing but prohibitory actions under Sections 107 and 116(3) of the Code of Criminal Procedure. That being so, the order of externment issued against the petitioner cannot be sustained.

As a result, the writ petition is allowed. The orders dated 11.04.2014 and 28.07.2014 are hereby quashed. There shall be no order as to costs.