Vindheshwari Patel vs State of M.P. & others

In the instant petition filed under Article 226 of the Constitution of India the legality and validity of the order of externment passed by the District,,

Magistrate, Katni dated 04-01- 2016 under the provisions of Section 5(a) and (b) of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990",,

[hereinafter referred to as ''the Act 1990''] and also the order passed by the Divisional Commissioner, Jabalpur, respondent No.4 rejecting the",,

appeal preferred by the petitioner.,,

The factual expose'' adumbrated in a nutshell are that the Superintendent of Police, Katni submitted a report dated 29-01-2017 against the",,

petitioner along with a list of 27 criminal cases registered against him, for initiation of externment proceeding under the provisions of Act 1990. A",,

notice was issued to the petitioner of which he filed his reply stating that on the basis of the same list of cases registered against him, earlier also",,

proceedings for externment was initiated vide Case No.7/SSA/2015. In the said case the District Magistrate passed an order on 4-01-2016 and,,

had ordered the petitioner to be externed from District Katni and its contiguous districts for a period of one month. It is also submitted that out of,,

20 cases, the petitioner has been acquitted in 14 cases and 5 cases are pending. In some cases fine has been imposed. It is further submitted that",,

the proceedings under the Act 1990 are being initiated against the petitioner repeatedly at the instance of political persons.,,

It is further contended that the petitioner is District President of the Lok Tantrik Party and, therefore, in order to prevent him from participating",,

in the meeting, an adroit attempt has been made to harm the petitioner. Learned counsel appearing for the petitioner also submitted that the",,

Superintendent of Police, Katani has again submitted a report dated 29-10-2017 along with list of cases out of which 26 cases are common in the",,

list which was submitted in the year 2015 and thereafter only one offence under Section 151 of the Cr.P.C. has been instituted against him. It is,,

assiduously urged by him that the order of externment has been in contrary to the provision envisaged under Section 5(a) and (b) of the Act 1990,,

and also runs counter to the judgment passed by this Court in Jahangeer Alvi vs. State of M.P. and others, 2017(3) MPLJ 667 and also Ashok",,

Kumar Patel vs. State of M.P. & others, 2009(4) MPLJ 434.",,

Per contra, counsel for the State submitted that the impugned order has been passed taking into consideration the report of the Superintendent",,

of Police. The petitioner was served a show cause notice and the District Magistrate has passed the order of externment after recording his,,

satisfaction in accordance with law.,,

Before adverting to the contentions of the counsel for the petitioner as discussed earlier and examining them on the anvil of the law prevailing in,,

the field of externment, it is apt to refer the provisions of the Adhiniyam, 1990. Section 5 of the Act under which the order of externment has been",,

passed is quoted hereinbelow:-,,

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 under Section 506 or 509 of the Indian Penal Code, 1860 (45 of",,

1860) 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; or,,

(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant; the District Magistrate, may by an order in",,

writing duly served on him or by beat of drum or otherwise as the District Magistrate thinks fit, direct such person or immigrant",,

(a) so as to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease; or,,

(b) to remove himself outside the district or any part thereof or such area and any district or districts or any part thereof, contiguous thereto by",,

such route within such time as the District Magistrate may specify and not to enter or return to the said district of part thereof or such area and such,,

contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself.""",,

A plain reading of Section 5 (b) of the Act 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.,,

At this stage, I think it condign to survey the authorities on the legal issues canvassed on behalf of the petitioner.",,

Division Bench of this Court in the case of Ashok Kumar Patel vs. State of M.P. & others, 2009(4) MPLJ 434 after considering Section 5 of",,

the Act held thus:,,

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, thee cannot be any reasonable ground for believing that the",,

person is engaged or is about to be engaged in the commission of such offence.""",,

In the case of Ramgopal Raghuvanshi vs. State of M.P. and others, 2014(4) MPLJ 654 this Court after considering the earlier judgments in",,

respect of Section 5 of the Act held that the order of externment cannot be passed on the basis of old and stale cases. A co-ordinate Bench of this,,

Court at Indore in the case of Bhim @ Vipul vs. Home Department, (W.P. No.4329/2015, decided on 14-09-2015) has also considered the",,

judgments rendered in the cases of Ashok Kumar (supra) and Ramgopal Ragjhuvanshi (supra) and held that the expression ""engaged or is to be",,

engaged"" used in Section 5(b)(i) shows that commission of offence or the abetment of such offence by the person must have close proximity to the",,

date on which the order is proposed to be passed under Section 5(b) of the Act.,,

Sr.

No.",Crime Number/Offence,"Date of

incident

01.,"Crime No.419/92 under sections 353, 332 and 294 IPC.",8-8-1992

02.,Crime No.670/92 under section 25 Arms Act.,"11-11-

1992

03.,"Crime No.62/93 under sections 25 and 27 of the Arms Act, 1959.","04-02-

1993

04.,Crime No.262/94 under sections 324 and 506/34 IPC.,25-5-1994

05.,Crime No.353/94 under sections 399 and 402 IPC and under sections 25 and 27 of the Arms Act.,11-6-1994

06.,"Crime No.421/95 under sections 341, 147 and 149 of IPC.",24-6-1995

07.,"Crime No.824/95 under sections 354, 506-II and 323/34 of IPC and under Section 3(1)(xi) of the Scheduled Castes and

Scheduled (Prevention of Atrocities) Act, 1989.","22-11-

1995

08.,Crime No.158/98 under section 4(a) of Gambling Act.,"27-03-

1998

09.,"Crime No.543/98 under sections 147, 341, 294 and 506 of the IPC.",25-9-1998

10.,"Crime No.997/2002 under sections 341, 147 and 506 of IPC.","23-12-

2002

11.,Crime No.587/2004 under section 309/34 of the IPC,29-9-2004

12.,Crime No.656/2004 under sections 325/34 of IPC.,"21-10-

2004

13.,"Crime No.510/2005 under sections 323, 294, 506-II/34 of the IPC.","24-8-

2005.

14.,"Crime No.703/2005 under sections 341, 147, 353, 332 and 186 of the IPC.","19-11-

2005

15.,"Crime No.355/2006 under sections 341, 294, 506, 327, 323 of IPC.",19-6-2006

16.,"Crime No.80/2008 under sections 294, 323 and 5406/34 of IPC","02-02-

2008

17.,Crime No.371/2009 under sections 341 and 147 of the IPC.,10-6-2009

18.,"Crime No.349/10 under sections 147, 149, 307, 353, 186 and 188 of IPC.","21-12-

2010

19.,"Crime No.340/13 under sections 294, 323 and 506/34 of the IPC.",13-4-2013

20.,"Crime No.368/2006 under sections 420, 467, 471 and 474/34 of IPC.","29-11-

2006

21.,"Crime No.140/2010 under sections 294, 323 and 506/34 of the IPC.","06-05-

2010

22.,Crime No.166/2006 under sections 341/34 of the IPC.,12-9-2006

23.,"Crime No.466/2008 under sections 353, 294 and 506/34 of the IPC.",29-9-2008

24.,"Crime No.349/2010 under sections 147, 149, 307, 353, 186 and 188 of the IPC.","21-12-

2010

25.,"Crime No.209/2011 under sections 147, 451, 294, 506 and 427 of the IPC.",19-9-2011

26.,"Crime No.262/92 under sections 147, 249, 297, 323, 294 and 506 of the IPC.","15-11-

2012

27.,"Crime No.201/2015 under sections 294, 323, 427 and 506/34 of the IPC.",31-5-2015

,,

,,

28.,Instgasa No.05/17 under section 151 of the CrPC.,"12-01-

2017

29.,"Crime No. / under sections 294, 323 and 506 of the IPC.","23-03-

2017