Vijay Singh vs The State of Madhya Pradesh

K.K. Trivedi, J.—This writ petition under Article 226 of the Constitution of India is directed against order dated 06.11.2013 passed by the Collector/District Magistrate, Sagar removing the petitioner within the area in exercise of powers under Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (herein after referred to as the ''Act'') as also the order dated 08.01.2014 by which appeal preferred by the petitioner against the said order has been dismissed by the Commissioner, Sagar Division, Sagar.

It is contended by the petitioner that reasonable opportunity of hearing was not extended to him inasmuch as after issuing him a show cause notice, relevant orders passed by the Trial Court in cases launched against the petitioner, though produced before the Collector, were not looked into, nor taken into consideration and holding that the cases were going on against the petitioner for a long time, right from the year 1996 up to the year 2011, the order impugned was passed. It is also contended that there was no subjective satisfaction of the authority from the facts as reported to it regarding the exercise of power under Section 5(b) of the Act and, therefore, the order impugned is bad in law.

Upon service of notice of this writ petition, a return has been filed by the respondents denying all the allegations and it is contended that there was a history in respect of the criminal activities of the petitioner and upon complaints made by several persons, offences were registered against him. These facts were verified and after making application of mind, the authority reached to the conclusion that the petitioner was involved in unsocial activities and his continuance in the society will endanger the peaceful maintenance of law and order. The order so passed against the petitioner was affirmed by the appellate authority after due consideration of the material placed before the said authority. That being so, it is contended that the writ petition is wholly misconceived and deserves to be dismissed.

This Court has directed for production of the original record in which the case of the petitioner was considered. The said record is produced by the Govt. Advocate. On perusal it is found that a report was made against the petitioner on 18.05.2011 by the Superintendent of Police after obtaining complaints from the Station House Officer of the local Police Station where the petitioner ordinarily resides. It was stated that in terms of the record maintained in the Police Station, there were 16 cases registered against the petitioner. However, the result of the said criminal cases were not indicated. Certain independent witnesses were also referred to and the statements of those witnesses were recorded. The District Magistrate thereafter issued a show cause notice to the petitioner on 19.07.2011 indicating the report submitted by the Superintendent of Police. The petitioner filed an application seeking copies of certain documents and thereafter submitted his detailed reply. It was categorically contended by the petitioner that in none of the cases registered against him, he was found guilty of any such offences. It was the stand of the petitioner that most of the offences were registered only because complaints were made by those, who were keeping grudge against the petitioner as he is involved in the business of public transportation. It was the defence of the petitioner that he was made to oblige the police personnels and since the complaint was made against those persons by the petitioner and in enquiry one of the Constable was found guilty, such an action was initiated against the petitioner to grind the axe by the Police Officers. The petitioner annexed as many as 12 orders passed in the cases registered against him and stated that he would like to cross-examine the independent witnesses.

For the said purpose, application was made by the petitioner and by the order of the District Magistrate, those witnesses were recalled for the purposes of cross- examination. The said persons in their cross- examination admitted that they have made the complaints against the petitioner on the police pressurization and because of the rivalry. In those statements also it was said that the petitioner was not behaving or acting in any manner so as to cause any danger to social life of the people at large.

After recording of these statements, the District Magistrate proceeded to decide the matter after hearing the petitioner. Though the documentary evidence with respect to the acquittal of the petitioner in most of the cases, 12 in number as has been pointed out herein above, was produced but while passing the order, the District Magistrate contended in respect of each and every case as if the said case was pending consideration before the Court. Not a single word is said about the appreciation of evidence produced by the parties, more particularly by the prosecution itself nor any reference to the cross-examination of the independent witnesses was made. The entire order passed by the District Magistrate contains the description of the cases registered against the petitioner and in the last of each para recording that the said case is pending consideration. This is how the District Magistrate reached to the conclusion that continuance of the petitioner in the society was not desirable and that he was to be removed from the district and the adjoining districts.

The appellate authority also did not consider all these aspects and affirmed the order passed by the District Magistrate. From the records, thus, it is clear that in fact there was no application of mind by the District Magistrate nor the essential ingredients of Section 5(b) of the Act were fulfilled to issue the order impugned against the petitioner. In the case of Ashok Kumar Patel Vs. State of M.P. and Others, , the Division Bench of this Court has categorically held that it is very essential to record a subjective satisfaction with respect to the commission of offences or an intention to continue to remain engaged in commission of such offences. Unless such a satisfaction is recorded, the competent authority is not authorized to curtail the right to live freely of any citizen. After due examination, the Division Bench of this Court has reached to the conclusion that in terms of the law laid-down by the Apex Court in the case of Gurbachan Singh Vs. The State of Bombay and Another, , unless it is evidently proved with certainty that an exceptional circumstance is made out where on account of threats or use of muscles power, no witnesses for fear of violence to their person or property are willing to depose against certain bad characters, whose presence in certain area constitute a menace to the safety of public residing therein, this power is not required to be exercised.

From the analysis of the material available on record, it is clear that there was no case made out, specially when the independent witnesses themselves have deposed that the complaints made against the petitioner were out of the business rivalry otherwise there was no occasion to make such complaints against him and that the statements were made in the police only on the threats by the police, the order of externment could not have been issued against the petitioner.

Consequently, the writ petition is allowed. The order dated 06.11.2013 (Annexure P-2) and 08.01.2014 (Annexure P-1) are hereby quashed. In the facts and circumstances of the case, there shall be no order as to costs.