Ramesh vs State Of Madhya Pradesh And Others

The petitioner has filed the present petition challenging the orders dated 08.12.2017 and 24.07.2017 passed by respondents No. 2 and 3.

The petitioner is permanent resident of Village Ner, Police Station Shahpur, District Burhanpur. On 13. 02.2017, respondent No. 4 has submitted a

report before respondent No. 3 stating that the criminal activities of the petitioner continued since 2006. It was alleged that the criminal acts of the

petitioner are seriously affecting the law and order and against the petitioner no person is coming forward to lodge a report and give evidence in police

station and, therefore, the public tranquility and peace of Burhanpur City is likely to be seriously effected due to the act of the petitioner. Therefore he

requested respondent No. 2 to pass an order under Section 5(b) of Madhya Pradesh Rajya Suraksha Adhiniyam 1990 (herein after referred to as the

'Adhiniyam') against the petitioner regarding his externment. Along with the said report, respondent No. 4 has also submitted the list of offences

registered against the petitioner which has been committed by the petitioner since 26.11.2006 to 10.02.2017. On the basis of the said report,

respondent No. 3 has initiated criminal case against the petitioner and started proceedings against him for externment. In furtherance thereto, a show

cause notice was issued to the petitioner under Section 8 of the Adhiniyam on 13.02.2017 calling him to show cause about his involvement in the

criminal activity since 2006 till date. On the basis of these criminal activities why an order of externment should be passed against him.

The petitioner has filed reply to the said show cause notice and denied the allegations made in the said show cause notice. He stated that the report

submitted by respondent No. 4 is baseless. The offence contained in the report relates to year 2006 and 2017. The police on the basis of false and

frivolous facts has registered an offence against the petitioner and most of the criminal cases have already been finally adjudicated. Along with the

reply, the petitioner has filed an affidavit under Order 18 Rule 4 of the C.P.C. The petitioner has further alleged that the respondents neither given any

opportunity to the petitioner to cross-examine the aforesaid witnesses nor produced any adverse material to establish the charges against him.

Thereafter, respondent No. 4 passed an order of externment dated 24.07.2017 by exercising the powers given under Section 5(b) of the Act from

District Burhanpur and contagious Revenue District Khandwa, Khargone, Harda, Badwani and directed him to went out from the aforesaid area.

Being aggrieved by that order, the respondent No. 3 preferred an appeal under Section 9 of the Act before respondent No. 2. Respondent No. 2 after

hearing the arguments has dismissed the appeal preferred by the petitioner vide order dated 08.12.2017. Being aggrieved by that orders, the petitioner

has filed the present petition.

Learned counsel for the petitioner argues that the orders dated 08.12.2017 and 24.07.2017 are illegal and bad in law. He submits that respondent

No. 2 without considering all the facts and circumstances as well as law wrongly dismissed the appeal of the petitioner. He further submits that the

allegations made against the petitioner does not comes under the provisions of Section 3(b) and 5(b) of the Act, therefore, the order of externment is

not legally just and proper. The offences mentioned in the impugned order of respondent No. 3 are old offences which has been registered since 2006

to 2017 and these offences are simple in nature and out of most of the offences finally decided by the competent Court by acquitting the petitioner. In

some criminal cases, the petitioner has been acquitted because of compromise with the complainant party. The offences in which the petitioner has

already been acquitted by the Court of law cannot be made basis to take any action against the petitioner under the Act of 1990. No offences of any

serious nature has been ever lodged against the petitioner. He further submits that any activity or movement of the petitioner is not of such a nature

which may cause any danger or harm to property or person. Further, there is no reasonable ground to hold that the petitioner is engaged in commission

of serious nature. He further submits that the petitioner was not given any opportunity to cross-examine the witnesses. He relied on the judgement

passed by this Court in the case of Meera Sonkar Vs. State of Madhya Pradesh and Others, 2017 CRI. L.J. 5005 and the judgement passed by the

Division Bench of this Court in the case of Ashok Kumar Patel Vs. State of M.P. and Others, 2009 (4) MPLJ 434.

The respondents have field their return and in the return the respondents have stated that the Act of 1990 has been enacted to provide for security

of the State, maintenance of public order and certain other matter connected therewith. The provisions are intended for making preventive actions to

counteract activities of anti-social elements and the Adhiniyam confers on the Government the power to take appropriate action so that peace and

tranquility is not disturbed and one of the manner of maintaining peace and tranquility is by removal of anti-social elements and restriction of their

activities. The action under this provisions is not punitive in nature but is preventive. The respondents have submit that respondent No. 4 has submitted

his report on 13.02.2017 and recommended for initiating the proceeding against the petitioner under the Act of 1990. On the basis of the said report, a

show cause notice was issued to the petitioner and the petitioner has filed reply to the said show cause notice.

On the basis of the material available on record, it is prima facie made out that the petitioner had engaged in commission of offence and causing

apprehension and threat to other persons and property of public. The petitioner is involved inasmuch as 16 cases from 1996 to 2017. Hence, it is clear

that the petitioner is a habitual offender. After considering the reply submitted by the petitioner, the District Magistrate has passed an order of

externment against the petitioner under Section 5 (b) of the Adhiniyam. Against the said order, an appeal was preferred which was also dismissed.

The respondents have stated that before passing the impugned order, a show cause notice was issued and after following the due procedure,

impugned order has been passed. He relied on the judgement passed by this Court in the case of Guddu @ Amit Sahu Vs. State of M.P. & Ors., ILR

[2009] M.P. 1917.

Heard learned counsel for the parties and perused the record.

The petitioner has filed the present petition challenging the order of externment dated 24.07.2017 as well as the appellate order dated 08.12.2017. In

the present case, respondent No. 4 has submitted his report to respondent No. 3 making recommendation for passing an order of externment against

the petitioner. On the basis of the report submitted by respondent No. 4, a show cause notice was issued by respondent No. 3 to the petitioner. The

petitioner filed reply to the said show cause notice along with an affidavit. The Collector, thereafter, examining the witnesses has passed the order of

externment dated 24.07.2017. Against the said order, the petitioner has preferred an appeal before the Commissioner and the said appeal was also

dismissed by order dated 8. 12.2017. Being aggrieved by that order, the petitioner has filed the present petition.

From perusal of the record, it reveals that as many as 16 cases have been registered against the petitioner under the various Acts. These cases are

related

from the year 1996 to 2017. Out of 16 cases, the petitioner has been convicted in respect of Crime No. 41/1996 registered under Section 34A of

Excise Act and has been convicted with fine of Rs. 350/-, Crime No. 173/1997 under Section 34A of Excise Act and has been sentenced till rising of

the Court with fine of Rs. 350/-. He was also convicted in respect of Crime No. 342/2008 which has been registered against the petitioner under

Sections 279 of I.P.C. and has been sentenced with fine only. Thereafter on 03.02.2017 a criminal case was registered against the petitioner under

Sections 153-A, 431, 432, 447, 143 of the IPC vide Crime No. 56/2017, which is pending under investigation.

Section 5 of the Act of 1990 provides for removal of persons about to commit offence. The Section 5(b) gives the powers to the Magistrate to pass

an order of externment if there are reasonable 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 or

in the abetment 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.

The Division Bench of this Court in the case of Ashok Kumar Patel (supra) interpreted the Section 5(b) of the Act. In para 5 of the said

judgement the Division Bench of this Court has held that before exercising the powers given under Section 5(b) of the Act of 1990 two conditions

must be satisfied:

(i) There are reasonable grounds for believing that a person is engaged or is about to be engaged in commision 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 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.

In the present case it is required to be seen whether these two conditions are fulfilled.

In the present case, from perusal of the impugned order as well as the records produced by the respondents, it reveals that respondent No. 3 in the

impugned order has taken into consideration the offence which has been registered against the petitioner since 1996. In offences which has been

registered prior to 03.02.2017, the petitioner has been acquitted and in some cases he was convicted. After 2008 a case has been registered against

the petitioner on 03.02.2017, which is under investigation. Thus, on the basis of which an order of externment is passed which are more than 3 years

old.

So far as, the evidence given by the public is concerned, the Collector in its order has stated that due to the danger created by the petitioner, the

public is not coming forward to give the evidence against the petitioner.

So far as, the contention of learned counsel for the petitioner that an opportunity of cross-examination of the witnesses has not been given to the

petitioner is concerned, this Court in the case of Guddu @ Amit Sahu (supra) has held that the right of hearing under the Act cannot stretched to

cross-examine witnesses. Thus, the petitioner has no right to cross-examine the witnesses under the Act.

This Court in the case of Meera Sonkar (supra) in para 28 and 29 has held as under:-

“28. In the instant case, upon perusal of the impugned orders, it is also found that the District Magistrate has only baldly stated the list of the

offences registered against the petitioner to reflect that the petitioner is a daring habitual criminal but he did not record any opinion on the basis of the

materials that in his opinion witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension as

regards to their safety. Hence, in absence of any existence of material to show that witnesses are not coming forward by reason of apprehension to

give evidence against the petitioner in respect of the alleged offences, an order u/s 5 (b) of Adhiniyam, 1990 cannot be passed by the District

Magistrate as held in the case of Ashok Kumar Patel Vs. State of M.P. (Supra) by the Division Bench that for a passing an order of externment

against the person both the conditions mentioned under section 5 (b) (i) and (ii) have to be satisfied.

…............. It is also held that the externment order cannot be sustained on account of old and stale activities alleged to have been committed by

the person. Further, the authority has failed to show application of mind that in the number of cases the respondent no.6 has already been acquitted.

The cumulative effect of the aforesaid spectrum would go to a long way to expose the error in the order passed by the respondents.â€​

In the present case also as already observed that the Collector has not recorded in his opinion that witnesses are not coming forward to give the

evidence.

Thus, in light of the aforesaid, the present writ petition is allowed and the order of externment dated 24. 07.2017 and appellate order dated

08.12.2017 are hereby set aside.