Raju Rathore vs State of M.P.

Hon''ble Shri Justice Sujoy Paul, J.—By filing this petition under Article 226 of the Constitution, the petitioner has challenged the validity and legality of the order Annexure A/2 dated 16.3.2012 whereby the competent authority has passed an externment order. The order dated 30.4.2012 whereby appeal of the petitioner is rejected by the Commissioner is also called in question in this petition. Brief facts necessary for adjudication of this petition are as under :

(i) The petitioner was served with a show-cause notice in the year 2009. By stating his criminal antecedents, he was noticed as to why he should not be subjected to externment u/s 6 of the M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter shall be referred to as ''the Adhiniyam''). He submitted his reply and thereafter by order dated 29.12.09 the competent authority opined that the allegations against the petitioner are not found proved and he is not convicted in two criminal cases instituted against him in the year 2009.

(ii) The petitioner was again subjected to a show-cause notice and he submitted his reply. The competent authority by order dated 16.3.2012 passed the order of externment. This order is affirmed in appeal by Annexure A/3.

(iii) The competent authority and the appellate authority have reproduced number of cases which are registered against the petitioner. Most of the cases are registered under the Gambling Act and for other petty offences.

The learned counsel for the petitioner submits that in none of the cases registered against the petitioner under Public Gambling Act, he is convicted, on the contrary, in most of the cases, he has been acquitted and merely on the basis of pendency of certain cases, he cannot be subjected to externment. The learned counsel further submits that there is no material on record to show that nobody is willing to depose against the petitioner.

The competent authority in Annexure A/2 opined that although on 29.12.2009 (Annexure A/1), no action was taken against the petitioner for externment, yet after that from 2009 to 2011, five criminal cases bearing case Nos. 53/10, 279/10, 104/11, 156/11 and 321/11 were instituted against the petitioner. The petitioner is acquitted in two cases i.e. 53/10 and 279/10 and in other cases which are registered under Sections 323, 294, 324, 506 and 34 IPC, the petitioner has not been acquitted till date. On the basis of aforesaid, it is opined that the petitioner was involved in cases under the Gambling Act as well as other criminal cases and activity. Considering the aforesaid record, it is opined that the petitioner may get involved again in similar nature of crime. On the basis of report of Superintendent of Police (S.P.), it is opined that because of conduct of the petitioner, there is a general fear amongst the citizens and common man cannot dare to lodge report against the petitioner and depose against him in the Court.

The appellate authority again reproduced number of criminal cases which were lodged against him and upheld the order of the competent authority on the ground that from 1987 to 2011 total 12 criminal cases were registered against the petitioner and the petitioner has not been acquitted in all the cases. The appellate authority affirmed the order on the ground that various criminal cases are lodged against the petitioner, and therefore, for maintaining peace and tranquility and with a view to ensure safety of the people, no interference is warranted against the order Annexure A/2.

Before dealing with the merits of the matter, it is apt to quote certain provisions of the Adhiniyam.

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 u/s 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) xxx

Removal of persons convicted of certain offences.-

If a person has been convicted-

(a) xxx

(b) xxx

(c) thrice, of an offence within a period of three years under (Section 3 or 4 or 4-A) of the Public Gambling Act, 1867 (3 of 1967), in its application to the State of Madhya Pradesh;

the District Magistrate may, if he has reason to believe that such person is likely against to engage himself in the commission of an offence similar to that for which he was convicted direct such person by an order to remove himself outside the district or part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route and within such time as the District Magistrate may order and not to enter or return to the District or part thereof or such area and such contiguous district or part thereof, as the case may be, from which he was directed to remove himself.

It is profitable to deal with certain matters in which this Court has interpreted those provisions in the judgment. In Kala Sahib Vs. State of M.P. and another, this Court opined as under in para 8 and 9:-

It is necessary u/s 5(b) that if a person is involved in an offence punishable under Chapter XII, XVI or XVII or u/s 506 and 509 of the Indian Penal Code or in the abetment of any such offence, or is about to be engaged in such an offence, an action of externment can be taken. However, condition precedent is that the opinion has to be formed by the District Magistrate as "witnesses are not willing; to come forward to give evidence and proceed against such person by reason of apprehension on their part as regard to safety of their ''person or property''. In order (P/1), Addl. District Magistrate has mentioned that the persons are not lodging report and have the apprehension of safety on giving evidence against petitioner in the Court. But, the name of even single witness who has been given threat or who has apprehension of appearing in the Court due to fear of the petitioner, has not been referred to in the order. On specific query being made as to name of the witness, who has stated that he has apprehension of petitioner in deposing in the Court or in public, it has fairly been stated by the respondents counsel that there is nothing on record to suggest the name. Thus, in my opinion, satisfaction which has been recorded u/s 5(b) by the Addl. District Magistrate lacks objective consideration of the matter. Thus, the order of externment based on section 5(b) has no legs to stand. More so, in view of the fact that the cases are of the year 2003 and it is not the case set up that any of the case has reached the evidence stage in the trial Court, thus, I find force in the submission raised by Shri H.S. Ruprah, learned Senior counsel appearing for the petitioner that is criminal cases the stage of evidence has not yet reached, it is ''premature'' to infer that any of the witness has any apprehension in deposing in public against the petitioner or has any kind of apprehension of person or property, thus, I find that the order of externment based on section 5(b) is liable to be quashed as essential ingredient to attract same does not exist in the instant case.

Coming to the sustainability of the order; u/s 5(a) of the Adhiniyam which requires that the movement or acts of any person are causing or calculated to cause alarm, danger or harm to person or property can be externed from the District, considering the petty nature of cases, which have been registered against the petitioner, it cannot be said that his movements are such that his removal was warranted, not only from Bhopal, but, also from other adjoining Districts. Cases are petty in nature. Particularly, considering the fact that if a person is convicted thrice of an offence under the Public Gambling Act, he can be externed u/s 6. Even three cases have not been registered of Gambling Act against the petitioner as required u/s 6. Action has not been taken u/s 6. This Court in Pappu @ Zahirudding vs. State of M.P., 1999 (1) MPLJ SN 21 has laid down that in case of a person has not been convicted of offence u/s 6(a)(i)(ii), (b) or (c) of Adhiniyam, merely because he had reputation of satoriya "Gambler" is no ground to expel him u/s 5 or section 6 of Adhiniyam. In Bala @ Iqbal vs. State of M.P., 1996 Cri.L.R. (M.P.) 72, this Court has laid down that on the ground of petty offences action cannot be taken, stage of cases has to be considered. Action has not been taken u/s 6.

In Pappu @ Dinesh Gupta Vs. State of M.P. and Others, this Court opined as under :-

No doubt that the past conduct or antecedent history of a person can appropriately be taken into account in making an order of externment. However, the criminal background of a person by itself is not sufficient to empower the authorities to pass order of externment, unless it is found that the criminal background of the proposed externee is causing or calculated to cause alarm, danger or harm to person or property. It was not found that the movements or acts of the petitioner were causing or calculated to cause alarm, danger or harm to person or property. Petitioner was convicted with fine in seven cases registered under Public Gambling Act. Mere conviction in seven cases u/s 4-A of the Public Gambling Act by itself is not sufficient to pass an order of externment. It is the reach effect and potentiality of the acts of the petitioner which it supports would cause or calculated to cause alarm, danger or harm to person or property, which could have provided a basis for externment. In the absence of any such finding the impugned orders are not sustainable in law and hence set aside.

The Division Bench of this Court in Ashok Kumar Patel Vs. State of M.P. and Others, opined as under in para 6 and 7 :-

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 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 given evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property.

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 u/s 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 authorized 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.

In Gurbachan Singh Vs. The State of Bombay and Another, the Apex Court opined as under:

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 State of N.C.T. of Delhi and Another Vs. Sanjeev @ Bittoo, , the Apex Court opined as under:-

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.

Applying the aforesaid tests laid down by this Court on the present facts will show that the impugned orders are not in consonance with the provisions of the Adhiniyam. As held in Kala (supra) that a bald statement that witnesses are not wiling to come forward to give evidence is not sufficient. There has to be some material to show that witnesses are not willing to come forward and there is a likelihood of danger to the safety of the ''person or property''. In absence of even quoting a single witness who has been given threat or who is scared in appearing in the Court due to fear of the petitioner, in Kala (supra) the order of externment was disapproved.

In Pappu @ Dinesh Gupta (supra), this Court opined that in absence of convincing material that criminal background of externee is causing or calculated to cause alarm, danger or harm to person or property order cannot be upheld. This Court in Pappu @ Dinesh Gupta (supra) even opined that mere conviction in seven cases under Public Gambling Act by itself is not sufficient to pass an order of externment. The Division Bench in Ashok Kumar Patel (supra) held that the conditions mentioned u/s 5(b) of the Adhiniyam are required to be strictly satisfied and then only an order of externment can be upheld. The conditions are mentioned in para 6 quoted above of the said judgment. In State of NCT of Delhi (supra), it is held by the Supreme Court that opinions are required to be formed on the basis of material forming foundation and then only an order can be passed.

Unless conditions of Section 5 of the Adhiniyam are strictly fulfilled, the orders cannot be upheld. It cannot be forgotten that in absence of establishing a clear case u/s 5(b), the fundamental right of freedom guaranteed under Article 19(1) of the Constitution and the right to personal liberty guaranteed u/s 21 of the Constitution cannot be taken away. In the considered opinion of this Court, there is no material to show that the persons are not coming forward to lodge report against the petitioner or depose against him in the Courts because of any threat or pressure of petitioner. Thus, in view of Kala (supra) the order cannot be upheld because it is without any sufficient material in this regard. Apart from this, the petitioner has not been convicted in any of the cases registered against him under the Gambling Act and Public Gambling Act, and therefore, conditions of the other relevant provision are not satisfied. Mere pendency of the cases is not a reason for a valid externment. On the basis of aforesaid reasons, the impugned orders cannot be upheld. Consequently, the impugned orders, A2 and A3, are set aside. However, it is made clear that it will be open for the respondents/administration to take action against the petitioner in accordance with law. Petition is allowed. No costs.