Satyanarayan vs State Of Madhya Pradesh & Others

The petitioner before this Court has filed this present petition being aggrieved by the order dated 21.11.2019 passed by the District Magistrate under the provisions of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred as the Adhiniyam of 1990) in the matter of externment. The petition is also against the order dated 08.06.2020, by which, the appeal of the petitioner has been dismissed.

Learned counsel for the petitioner has argued before this Court that the petitioner is a law abiding citizen, he is Ex-Up-sarpanch of Gram Panchayat Khasrsrod Khurd and his wife is also Ex- Sarpanch. At the present, the daughter of the petitioner is Sarpanch of the village in question.

It has further been argued that on account of political rivalry, a notice was issued under the Adhiniyam of 1990 and the petitioner did submit a reply to the show-cause notice. He was directed to remain present before the District Magistrate on 12.11.2018 and a reply was filed by him on 16.01.2009. The petitioner has stated that he submitted an application for examining the witnesses, however, the District Magistrate, without granting him opportunity of examination / cross-examination, has passed the impugned order.

Learned counsel for the petitioner has stated before this Court that there is a violation of Section 8(2) of the Adhiniyam of 1990 and there was no reason to believe that the petitioner is going to be a threat to law and order. The petitioner has given details of the criminal cases reflected in the show-cause notice and the same is reproduced as under:-

Sr. No.

Offence

Case Number

Result

1.

294, 506 of IPC

159/15.06.1998

Acquit vide order dated 05.01.03.

2.

341, 294, 323 506/34 & 325 of IPC

183/09.07.1998

Fine of Rs.200/- vide order dated05.12.03

3.

341, 294, 506/34 of IPC

337/10.08.2000

Compromised

4.

323, 294, 506/34 of IPC

642/27.12.2002

Compromised / Fine

5.

147, 148, 149, 307, 429, 201 of IPC

1091/24.11.2008

Acquittal vide order dated   22.12.09 in ST 29/09

6.

323, 451, 336, 294, 506 of  IPC

263/14.03.2014

Acquittal vide order dated 30.11.15 in ST 263/14

7.

147, 341 of IPC

1933/26.12.2015

Pending

8.

294, 506/34 of IPC

1937/26.12.2015

Pending

9.

188 of IPC, 14, 15 of M.P. Rajya Suraksha Adhiniyam, 1990

1085/29.07.2016

10.

232, 294, 506/34 of IPC3(1)(R), 3(1)(3)(2) of VA SC/ ST Act

Pending

The petitioner has raised various grounds before this Court and his contention is that the order has been passed by the District Magistrate without application of mind externing the petitioner from Dewas, Ujjain, Shajapur, Indore, Ratlam, Mandsaur and Agar Malwa for a period of one year and the impugned order is violative of Fundamental Right guaranteed under the Constitution of India. It has also been argued that the first date fixed by the District Magistrate was 15.04.2019 and on 19.04.2019, there was a vacation and the petitioner later on inquired about about the matter and he came to know that on 18.04.2019, he was proceeded ex parte. The District Magistrate has again issued a notice to the petitioner to appear on 01.08.2019 and the petitioner did appear before the District Magistrate on the aforesaid date being a law abiding person.

Learned counsel for the petitioner has placed reliance upon several judgments delivered in the cases of Laik v/s Principal Secretary The State of Madhya Pradesh reported in 2012 SCC OnLine MP 5473, Nawab Khan Abbas Khan v/s The State of Gujrat reported in (1974) 2 SCC 121, Hukumdev Narain Yadav v/s Lalit Narain Mishra reported in (1974) 2 SCC 133, Pappu @ Pramod v/s The State of Madhya Pradesh reported in 2014 (2) M.P.L.J. 621, Ramgopal Raghuvanshi v/s The State of Madhya Pradesh & Others reported in 2014 (4) M.P.L.J. 654, Ashok Kumar Patel v/s The State of Madhya Pradesh reported in 2009 (4) M.P.L.J. 434. He has prayed for quashment of the impugned orders.

On the other hand, learned Government Advocate has vehemently argued before this Court that the orders passed by the respondents under the Adhininiyam of 1990 do not warrant any interference. The petitioner's past antecedent reflects that he is a threat to the society and a report was submitted to the Superintendent of Police on 3. 09.2018 for taking action against the petitioner under the Adhiniyam of 1990. Based upon the report submitted by the Superintendent of Police, action was initiated by the District Magistrate and the order has been passed after following the due process of law.

The respondents have also stated that the previously on 27.01.2016 also, an order was passed in respect of externment for a period of six months. The respondents have stated that no case for interference is made out in the matter and the petition deserves to be dismissed as proper opportunity of hearing has been granted to the petitioner.

Heard learned counsel for the parties at length and perused the record.

This Court has carefully gone through the order passed by the District Magistrate which is impugned in the present writ petition. Paragraph - 5 of the order passed by the District Magistrate reads as under:-

"5- सम्पूर्ण प्रकरण का गुण-दोष के आधार पर अवलोकन किया गया। प्रकरण में Not legible युक्ति-युक्त सुनवाई का समुचित अवसर प्रदान किया गया है। अनावेदक की आरे से Not legible सुनवाई के समय कोई उपस्थित नहीं हुआ है, किन्तु न्यायालय बोर्ड समाप्ति के पश्चात्  Not legible ओर से जवाब प्रस्तुत किया है। प्रस्तुत जवाब का अवलोकन किया गया । अनावेदक ने Not legible में उसके विरूद्ध लगाये गये आपराधिक प्रकरणों के संबंध में कोई ऐसा दस्तावेज प्रस्तुत नहीं किया जिससे यह प्रतीत हो कि अनावेदक को मान. न्यायालय द्वारा दोषमुक्त किया गया है केवल छवज समहपइसम ने अपने जबाव में मौखिक कहानीस्वरूप बातें लिखी है, जो बिना प्रमाण एवं सबूत के छवज समहपइसम परिलक्षित हुआ है, क्योंकि अनावेदक के विरूद्ध अपराध क्रमांक 124/98 धारा 234, 506 भा.द.वि.के अंतर्गत पंजीबद्ध हुआ है, दूसरा प्रकरण प्रकरण अपराध क्रमांक 132/98 धारा 341, 294, 323, 506, 34 छवज समहपइसम इजाफा धारा 325 भा.द.वि. के अंतर्गत पंजीबद्ध हुआ है, चौथा प्रकरण 460/02 धारा 323, 294, 506ए 34 Not legible अंतर्गत पंजीबद्ध हुआ है, आठवां प्रकरण 468/15 धारा 294, 506, 34 भा.द.वित्र के अंतर्गत पंजीबद्ध हुआ है प्रकरण 466/16 धारा 188 भा.द.वि. 14.15 म.प्र. राज्य सुरक्षा अधिनियम 1990 के अंतर्गत Not legible हुआ है, तथा दसवां प्रकरण 140/18 धारा 323.294.506.34 भा.द.वि. 3(1)(आर), 3(1)(3)(1) एससी एसटी एक्ट के अंतर्गत पंजीबद्ध हुआ है। यह समस्त प्रकरण आपराधिक Not legible अनावेदक ने सुनवाई का अवसर देने के पश्चात् ऐसा कोई तथ्य प्रस्तुत नहीं कर सका Not legible पर पुलिस द्वारा प्रस्तुत प्रतिवेदन असत्य सिद्ध हो सके अर्थात पुलिस द्वारा प्रस्तुत Not legible रहा है। प्रकरण के संलग्न अपराधिक रिकार्ड के अवलोकन सेयह भी विदित होता है Not legible आपराधिक प्रवृत्ति का व्यक्ति है एवं अनावेदक के विरूद्ध थाने में विगत वर्षो से Not legible प्रकरण दर्ज हुये हैं, जिनसे स्पष्ट होता है कि अनावेदक अपराध करने का आदी है। पुलिस द्वारा अनावेदक की आपराधिक गतिविधियों में सुधार लाने के प्रयास किये गये लेकिन दुराचारी आपराधिक गतिविधियों को छोड़ने के बजाय उनमें वृद्धि करता ही जा रहा है तथा अनावेदक की उक्त गतिविधियों से जनशांति भंग होने की संभावना होने से पुलिस अधीक्षक, उज्जैन के प्रतिवेदन अनुसार अनावेदक को जिलाबदर जनहित, में किया जाना न्याय संगत परिलक्षित होता है।

अतः राजपत्र दिनांक 05/0321991 में प्रकाशित अधिसूचना क्रमांक/एफ-35/116वी।/1 दिनांक 05/0322003 एवं मध्यप्रदेश राज्य सुरक्षा अधिनियम-1990 की धारा-5(क), (ख) के तहत अनावेदक- सत्यनारायण पिता पूनमचंद पाटीदार, आयु-45 वर्ष, निवासी-ग्राम खरसौदखुर्द, पुलिस थाना इंगोरिया, तहसील बड़नगर, जिला उज्जैन को आगामी एक वर्ष के लिए उज्जैन से जिला बदर किया जाता है। अनावेदक को निर्देषित किया जाता है कि वह जिला उज्जैन से 24 घंटे के अंदर बाहर चला जाये तथा बिना अनुमति के जिला उज्जैन व उससे लगे राजस्व जिले की सीमाओं में प्रवेश न करे। यदि कोई प्रकरण न्यायालय में चल रहा हो तो वह पेशी दिनांक को न्यायालय में उपस्थित हो सकेगा, किन्तु इसके पूर्व संबंधिसत थाना क्षेत्र को लिखित सूचना देनी होगी।

आदेश  मेरे हस्ताक्षर एवं न्यायालय की परमुद्रा से जारी किया गया।"

Against the aforesaid order, an appeal was preferred and the same has also been dismissed.

The Division Bench of this Court in the case of Ashok Kumar Patel (supra) in paragraphs - 6, 9, 11, 13 and 14 has held as under:-

"6. 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 under section 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.

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.

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.

The Act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and the fundamental right to personal liberty under Article 21 of the Constitution and unless the conditions mentioned under section 5(b) of the Act of 1990 are strictly satisfied, an order of externment, will have to be quashed by the Court. While considering a case under section 56 of the Bombay Police Act, which also empowered the police to pass an order of externment, the Supreme Court observed in Pandharinath Page: 441Shridhar Rangnekar v. Dy. Commissioner of Police, State of Maharashtra (supra), as under:-

"It is true that the provisions of section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society. This Court in Gurbachan Singh v. The State of Bombay, 1952 SCR 737 : AIR 1952 SC 221 had upheld the validity of section 27(1) of the City of Bombay Police Act, 1902, which corresponds to section 56 of the Act.

Following that decision, the challenge to the constitutionality of section 56 was repelled in 1956 SCR 533 : AIR 1956 SC 585. We will only add that care must be taken to ensure that the terms of sections 56 and 59 are  strictly  complied  with  and  that  the slender safeguards which those provisions offer are made available to the proposed externee."

In the aforesaid case, the writ petition was allowed on the ground that the District Magistrate, in the impugned order, has baldly stated that the list of offences registered against the petitioner therein reflects that he is a daring habitual criminal and because of this there is a fear and terror in the public and has not record any opinion on the basis of material 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 their safely and person of property.

In the present case also, there is no discussion of any material to show that the witnesses are not coming forward by a reason of apprehension to danger to their person or propety to give evidence against the petitioner in respect of alleged offences, and therefore, the District Magistrate could not have passed the order by merely repeating the language of Section 5(b) of the Adhiniyam of 1990. Resultantly, the impugned orders are bad in law and liable to be quashed by this Court.

This Court in the case of Laik (supra) in paragraphs - 7 to 10 has held as under:-

"Learned Counsel for the petitioner has placed reliance upon a judgment delivered by this Court in the case of Dharmendra Singh vs. State of M.P. and others reported in 2007(2) MPLJ page 108. This Court in the aforesaid case in paragraph 7 has held as under: -

"7. Learned Government Advocate has made available the original record of the case of externment. It also depicts in favour of the petitioner. On 14.2.2003, the prosecution examined its witnesses and disclosed that no further evidence would be

produced. Case was reserved for consideration. Thereafter, no order was passed for more than 2 years and 10 months and again a report from the S.P. Satna dated 12.9.2005 was placed on record. Prior to it, the earlier report of the S.P. Satna dated

2.7.2002 was already on record. There is no material in the file as to how, when and why the second report was requisitioned.

Similarly, it is not clear from the file as to who did requisition the second report. Thus, the contention of the learned counsel for the petitioner is strengthened that on the basis of the earlier report dated 2.7.2002 there was no sufficient material to form an opinion against the petitioner that he was liable to be externed and the material available on record was insufficient for he subjective satisfaction. There is no explanation in the return as to why and in what circumstances the order was withheld for more than 2 years and 10 months and what caused the District Magistrate, Satna to withhold the proceedings for more than 2 years and 10 months. Inaction for a period of 2 years and 10 months in a case of externment clearly suggests that the order of externment was not warranted during the said period. It being  not  the  case  of  respondents  that subsequent  events  or  the  record  of  the petitioner (after exclusion of the cases of acquittal) has provided a basis to form an opinion about subjective satisfaction with regard to externment of the petitioner, this Court  in  view  of  the  Supreme  Court's decision (supra) holds that the authorities have failed to make application of mind to the attending facts and circumstances and the same coupled with the non- onsideration of effect of acquittal in so many cases has vitiated  the  subjective  satisfaction  about externment of the petitioner rendering the  externment order invalid. Consequently, the impugned orders contained in Annexure P-9 and P-10 are not liable to be sustained.

In the present case also no explanation has been offered in the return for the delay in passing the impugned order of externment. The order of externment has been passed keeping in view Section 5 (a) and (b) of the M.P. Rajya Suraksha Adhiniyam, 1990. Section 5 (a) and (b) of the Adhiniyam of 1990 reads as under:-

Removal of persons about to commit offence.- Whenever it appears to the DistrictMagistrate- (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

Keeping in view the aforesaid statutory provisions of law it is true that the learned Additional District Magistrate has passed the impugned order keeping in view the fact that there were reasonable grounds for believing that the petitioner is engaged or is about to be engaged in the commission of offences as mentioned in paragraph 5(b) but the fact remains that in respect of crime numbers mentioned in paragraph 2 the petitioner was either acquitted or the matter was closed. The petitioner has submitted copies of the judgments delivered in respect of Item No. 1,2,3,4,5 and 6 before the Additional District Magistrate and the Additional District Magistrate has not taken into account the judgments of acquittal while passing the impugned order. This Court in the case of Sanju @ Sanjay Ben vs. State of M.P. & ors. Reported in 2005(4) M.P. High Court page102 in paragraph 8, 9 and 10 has held as under:-

It is also contended by him that old and stale activities can not be grounds of externment, but in the case at hand, such cases have formed the base. Learned Counsel has commended me to the decisions rendered in the cases of Premchand Vs. Union of India and others, AIR 1981 SC 613, Ayubkhan Vs. State of M.P. and another, 1994 (1) Vibh 168, Bala @ Iqbal Vs. Additional Collector, Indore and another, 1995 Cr.LJ (MP) 72, Nyaju alias Niyas Mohd. Vs. State of M.P., 2000(1) JLJ 321, Jokhu Vs. District Magistrate, Ujjain 2000(1) M.P.H.T. 554 = 2000(1) MPWN 96.

In the case of Bala (supra) this Court has laid down as under:- 12. Perusal of the said provision establishes that activities on the basis of which an order of externment can be made against any person must be those as existing at the time when the order is proposed to be made. All expressions in clauses (a) and (b) of Section 5 of the Adhiniyam can not present time. The provision is not punitive in its nature and a person can not be externed for his past acts. Although past activities of a person may afford a guide as to his behaviour in future, they must be reviewed in the context of the time when the order is proposed to be made. The past activities must be related to the situation existing at the moment when the order is to be passed.

Though as many as 8 offences are alleged to have been committed by him starting from the period 23.6.1989 to 29.7.1993. The offences alleged to have been committed by him are under Sections 151, 107, 116(3), 110, 379 and 324, IPC and

25 of the Arms Act. All these are petty offences, which are still being investigated. No details of other offences have been given.

Thus in the view of this Court the externment order can not be sustained on account of old and stale activities alleged to have been committed by the petitioner.

Since the mandate of the section is that a person must be involved in the activities committed in the present time, in the instant case there are no activities committed either at the time of the issuance of notice or during the enquiry, on the basis of which externment order could have been passed.  Thus,  on  this  ground  alone  the petition deserves to be allowed.

It may also be pointed out that the respondents have failed to give details of the offences and the stage at which the same are pending against the petitioners."

In the case of Niyaju (supra), it has been observed that all opportunities should be given to person whose liberty is likely to be affected by the State.

If the present factual matrix is tested on the anvil of the aforesaid judgments, there remains no iota of doubt that the order of externment does not show the application of mind inasmuch as in the number of cases, the petitioner had been acquitted. That apart petitioner was not granted proper opportunity as is evincible from the show cause. In addition, certain aspects have been taken into consideration, which are no more valid. The cumulative effect of the aforesaid spectrum would go to a long way to expose the error in the order passed by the respondents. The very fact that the learned Additional District Magistrate has not given any finding and opinion in respect of the judgment of acquittal establishes that there was no application of mind in passing the order of externment. On the contrary, it has been passed in a most mechanical and casual manner. In case there was an urgency to pass an order of externment, the Authorities would have acted promptly in the matter and should not have slept over the matter that too after hearing the matter for a year. This Court is of the view that the respondents have violated the provisions of the Adhiniyam, 1990 while passing the order of externment and, therefore, the impugned order of externment deserves to be quashed and is, accordingly, quashed. The order dt. 16.12.2011 and the consequential order dt. 28.2.2012 passed by the Appellate Authority are hereby, set-aside and the writ petition is allowed."

In light of the aforesaid judgment, as no opinion was formed by the District Magistrate, he has mechanically passed an order of externment based upon the report of Superintendent of Police, no witness has been examined by him nor there is any statement of any witnesses on the basis of which opinion has been formed, this Court is of the considered opinion that impugned orders dated 21.11.2019 and 08.06.2020 deserve to be quashed and are accordingly quashed.

With the aforesaid, the present Writ Petition stands allowed.

No order as to costs.