Zoef. vs State Of Madhya Pradesh And Others.

This petition under Article 226 of the Constitution of India has been filed by the petitioner against the order dated 25.6.2019 (Annexure P-5) passed by the respondent No.3/District Magistrate, Burhanpur as also the order dated 5.9.2019 (Annexure P-7) passed by the respondent No.2/ Commissioner, Indore in an appeal preferred under Section 9 of the M.P. Rajya Suraksha Adhiniyam, 1990 (for short "Adhiniyam, 1990"). Vide order dated 25.6.2019, the District Magistrate, Burhanpur has externed the petitioner for a period of six months for entering into the revenue limits of District Burhanpur and the adjoining districts whereas in the appeal the said order has been affirmed by the Commissioner vide order dated 05.09.2019.

The brief facts of the case are that a proceeding under Sections 5(a) and 5(b) of the Adhiniyam, 1999 was initiated against the petitioner on a recommendation dated 9.5.2019 made by the Superintendent of Police, Burhanpur whereby referring to the eight criminal cases registered against the petitioner, the petitioner is sought to be externed from the district Burhanpur as also the adjoining districts. The District Magistrate issued a show cause notice on the same day i.e. 9.5.2019 to the petitioner as to why he should not be externed, referring to eight criminal cases registered against him. After receiving reply from the petitioner, the District Magistrate has passed the impugned order of externment on 25.6.2019. The aforesaid order has been assailed by the petitioner on the ground that out of 8 criminal cases he has already been acquitted in 6 cases which are around 10 years old and only in two cases which were registered in 2018-19 respectively he is facing the criminal case/criminal trial.

Learned counsel for the petitioner has submitted that the six cases on which the respondents have relied upon have already been resulted in his acquittal and these cases are state as they refer to the year 2005 till 2008, and as such those cases ought not to have been considered while passing the impugned order of externment specially taking note of the fact that the petitioner has already been acquitted in those cases. Learned counsel for the petitioner has further submitted that in Crime No.237/2018 the petitioner has been charged under Section 13 of the Gambling Act, 1867 and the latest criminal case of Crime No.66/2019 the offences are under Sections 324, 307, 506 of IPC. Thus it is submitted that admittedly the petitioner is alleged to have committed the offence after a period of 10 years and out of the subsequent two offences one is a minor case and as such registration of one case under Section 307 of IPC cannot be a ground to extern the petitioner. It is further submitted that no independent witnesses have been examined by the respondents that the petitioner is threatening any person so that he is not able to come forward to depose against him

A return to the writ petition has also been filed by the respondents refuting the objections raised by the learned counsel for the petitioner. It is submitted that no illegality has been committed by the District Magistrate in passing the order of externment. It is further submitted that the order of externment was only for a period of six months and as such no interference is called for.

On due consideration of the submissions made by the learned counsel appearing for the respective parties and on perusal of the record this Court is inclined to allow the petition for a simple reason that the District Magistrate has taken into consideration the six stale cases which were registered against him from 2005 till 2008 and in all of which he has already been acquitted. So far as other two cases are concerned, i.e. Crime No.237/2018 which refers to the Gambling Act, 1867 and Crime No.66/2019 which refers to Sections 324, 307, 506 of IPC, the same cannot be made a basis to come to a conclusion that the provisions of Section 5(a) and (b) of the Adhiniyam, 1990 can be invoked. In the considered opinion of this Court if the petitioner has committed an offence under Section 307 of IPC, then proper course for the police would be to prosecute the petitioner in accordance with law and ensure his conviction instead resorting to a shortcut measure to keep the petitioner away for a period of six months only by invoking the provisions of the Adhiniyam, 1990, which in the considered opinion of this Court cannot be invoked in cases like these for the reason that so far as sub clause (a) of Section 5 of the Adhiniyam, 1990 is concerned, merely because after ten years of registration of an earlier offence, a case under Section 307 of IPC has been registered against the petitioner, it cannot be said that his movements or acts are causing or calculated to cause alarm, danger or harm to person or property. Sub clause (b) of Section 5 of the Adhiniyam, 1990 is also not applicable in the present case which provides that an order of externment can be passed when 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 certain sections of IPC 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 or apprehension on their part as regards the safety of their person or property. Admittedly, in the present case the District Magistrate has not recorded any statement of any independent witness to say that he apprehends the safety of his/her person or property in respect of any offence committed by the petitioner, whereas the statements of only police personnel have been recorded which is apparent from the impugned order but to base of the order of externment solely on the statements of police personnel cannot be said to be the proper exercise of powers conferred under the Adhiniyam, 1990.

As a result, petition stands allowed and the impugned orders dated 25.6.2019 (Annexure P-5) and 5.9.2019 (Annexure P-7) are hereby quashed. No cost.