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Madhya Pradesh High Court · body

1967 DIGILAW 94 (MP)

Brijlal v. District Magistrate Damoh

1967-09-13

P.V.DIXIT, R.J.BHAVE

body1967
ORDER P.V. DIXIT, J. 1. By this application under Articles 226 and 227 of the Constitution the petitioners seek a writ of certiorari for quashing an order passed by the District Magistrate, Damoh, on 2.11.1966 under section 3 (b) of the Madhya Pradesh maintenance of Public Order Act, 1965 (hereinafter referred to as the Act) directing the petitioners and two other persons to disperse themselves outside the revenue district of Damoh or any part thereof and contiguous revenue districts namely Sagar, Panna, Chhatarpur, Jabalpur and Narsimhapur of Madhya Pradesh or any part thereof within a period of seven days from the date of the order for a period of one year and not to enter the aforesaid district or part thereof and the said contiguous districts or part thereof and not to return to the place from which they have been directed to remove themselves. This order or the District Magistrate was upheld by the State Government on 15.4.1967 in an appeal preferred by the "externees". The petitioners pray that a writ of certiorari be issued also for quashing the order of the State Government passed in appeal. 2. Section 3 of the Act provides:– "3. Dispersal of gang and bodies of persons. Whenever it appears to the District Magistrate that the movement or encampment of any gang or body of persons in the district is causing or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such gang or body or by members thereof, the District Magistrate may, by order addressed to the persons appearing to be the leaders or chief-men of such gang or body and published by beat of drum or otherwise, as the District Magistrate thinks fit, direct the members of such gang or body:– (a) To conduct themselves in such manner as may be necessary in order to prevent violence and alarm or (b) To disperse and each of them to remove himself outside the district or any part thereof or such area and any district or districts or any part thereof contiguous thereto within such time as the District Magistrate may specify and not to enter the district or part thereof or such area and such contiguous districts or part thereof, as the case may be or return to the place from which each of them was directed to remove himself." 3. Before making an order under section 3 against any person "the District Magistrate is required to inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them." If such person makes an application for the examination of any witnesses produced by him, the District Magistrate has to grant the application and examine the witnesses unless for reasons to be recorded in writing he is of opinion that the application for examination of witnesses has been made far the purpose of vexation or delay. 4. On 15.9.1966 the District Magistrate purported to pass a "preliminary order" under section 7 of the Act. It was addressed to the three petitioners and two other persons, namely, Kanchhedi and Hiralal. It first stated:– "Whereas information is laid before me that a gang of dacoits under the leadership of Mooratsingh of district Chhatarpur is operating in this district for over 15 years. It consists of 15 to 20 hardened criminals. Their field of operation is spread over the areas of district of Damoh, Sagar, Chhatarpur, Panna, Jabalpur of Madhya Pradesh and Lalitpur-Jhansi of Uttar Pradesh. The gang has been continuously operating due to the active support of helpers, barbourer and sympathisers. A large number of heinous offences like murders, dacoities, kidnapping, arsons and also offences under Chapters XVI and XVII of the Indian Penal Code are being committed and a terror has been created in this district. You as one of the chief man of Mooratsingh and his gang in this district has been rendering active support in the said unlawful designs of the said dacoit gang and have got the following overt acts and offences committed in this district." The order then narrated the overt acts and offences alleged to have been committed by the addressees. Then it proceeded to say in the end:– "Now, therefore, in exercise of the powers conferred on me under section 3 of Madhya Pradesh Maintenance of Public Order Act, 1966. Then it proceeded to say in the end:– "Now, therefore, in exercise of the powers conferred on me under section 3 of Madhya Pradesh Maintenance of Public Order Act, 1966. I. N. P. Konher, District Magistrate, Damoh, hereby call upon you to show cause within seven days from the receipt of this order, why an order under section 3 (b) of the Madhya Pradesh Maintenance of Public Order Act, 1965, should not be passed against each of you to disperse and each of you to remove yourself outside the revenue district of Damoh or any part thereof and contiguous revenue districts namely Sagar, Panna, Chhatarpur, Jabalpur and Narsimhapur of Madhya Pradesh or any part thereof within a period of seven days for a period of one year and not to enter the aforesaid district or part thereof and the said contiguous districts or part thereof and not to return to the place from which each of you was directed to remove himself." Each of the petitioners gave his explanation in reply to the show cause notice issued to him. He also filed an application for examination of certain witnesses on his behalf. On 2.11.1966 the District Magistrate passed the final that is the impugned, order. The concluding portion of the order is as follows:– "On weighing the evidence led by the non-applicants before me and on the veracity of the information laid before me, I am convinced that all the non- applicants are responsible for commission of the activities, as detailed in the preliminary order. I, therefore, confirm my preliminary order passed on 15.9.1966. Now, in exercise of the powers conferred on me under S. 3 (b) of M.P. Maintenance of Public Order Act, 1965. I direct all the non applicants namely Brijlal son of Kanhaiyalal Chirolia Shyamlal son of Kanhaiyalal Chirolia, Shyamlal son of Pannalal alias Permanand Chirolia Kanchhedi son of Raghubar Kori and Hiralal son of Mahadeo Choube to disperse themselves outside the revenue district of Damon or any part thereof and contiguous revenue districts namely Sagar, Panna, Chhatarpur, Jabalpur and Narsimhapur of Madhya Pradesh or any part thereof within a period of seven days from this date for a period of one year and not to enter the aforesaid district or part thereof and the said contiguous districts or part thereof, and not to return to the place from which they are directed to remove themselves." 5. Shri Dharmadhikari, learned counsel appearing for the petitioners argued that the order passed by the District Magistrate was mala fide as the applicants were never the members of any gang or body of persons, the movement or encampment of which in the Damoh district was causing or was calculated to cause danger or alarm or reasonable suspicion about any unlawful design that they were also neither the leaders nor the chief-men of any such gang or body. It was said that under section 3 (b) the District Magistrate had no power to direct any individual person to remove himself outside any district or any contiguous districts that he could only direct the members of a gang or body of the type described in section 3 "to disperse and each of them to remove himself outside any district or any part thereof and from any contiguous district or districts or any part thereof." and that the impugned order passed by the District Magistrate, Damoh, was utterly contrary to the terms of section 3 (b) and therefore, illegal. Learned counsel further submitted that the grounds on which the impugned order was passed against the petitioners were foreign or extraneous to section 3. He also made the grievance that the petitioners were not given a reasonable opportunity of tendering their explanation against the allegations made in regard to them that the District Magistrate did not examine the persons whom they desired to examine on their behalf and that the persons who gave evidence in support of the allegations made against them were examined in the absence of the petitioners. 6. In our opinion, in making an order against the petitioners under section 3 (b) of the Act directing them to remove themselves from Damoh District and the contiguous districts, namely Sagar, Panna, Chhatarpur, Jabalpur and Narsimhapur, the District Magistrate purported to exercise power not given to him by section 3 (b) or any other provision of the Act. Section 3 deals with "dispersal of gangs and bodies of persons." It is not concerned with the externment of an individual as such irrespective of his association with any gang or body of persons of the type described in section 3. Section 3 deals with "dispersal of gangs and bodies of persons." It is not concerned with the externment of an individual as such irrespective of his association with any gang or body of persons of the type described in section 3. That section is intended to hit at the activities of persons who go about together or act in concert and are thus members of a gang or a body having an objectionable community of purpose and intention. It aims at breaking up of any gang or body of persons described in section 3 by providing for the dispersal of the members of the gang or body and for the removal of the members from any district or part thereof and from any contiguous district or districts. It is plain enough that any gang or body of persons having a particular objectionable community of purpose and intention can be weakened or broken up only by the dispersal of the members thereof and not by merely isolating or externing the leader or chief-men of the gang or the body. The externment of a leader can only lead to a change in the leadership of the gang or the body. But the change in leadership mayor may not result in the demoralization of the gang or the body and its ultimate dissolution. The change may even strengthen and consolidate the gang or the body and may lead to an intensification of its activities. But when the strength of a gang or a body lies in action in concert, then it is by the dispersal of the members of the gang or the body that its activities can be effectively arrested or weakened. This is precisely what section 3 intends to achieve. 7. But when the strength of a gang or a body lies in action in concert, then it is by the dispersal of the members of the gang or the body that its activities can be effectively arrested or weakened. This is precisely what section 3 intends to achieve. 7. Now, it is clear from the plain language of section 3 that the power given to the District Magistrate by that provision can be exercised only in relation to any gang or the body of persons whenever "it appears to the District Magistrate that the movement or encampment of any gang or body of persons in the district is causing or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such gang or body or by members thereof." It will be noted that section 3 does not speak of movements or acts of any person causing or calculated to cause danger or alarm etc. It refers to the movement or encampment of any gang or body of persons causing or calculated to cause alarm, danger etc., thus indicating that section 3 is directed not against any individual person but against any gang or body of persons or members thereof. When it appears to the District Magistrate that any gang or body of persons should be dealt with under section 3, then he may by order "addressed to the persons appearing to be the leaders or chief-men of the gang or body and published by beat of drum or otherwise" direct the members of such gang or body to conduct themselves in such manner as may be necessary in order to prevent violence and alarm or to disperse and each of them to remove himself outside the district or any part thereof and contiguous district or districts. The provision in section 3 that the District Magistrate's order should be addressed to the persons who appear to be chief-men of the gang or body and that it should be published by beat of drum or otherwise again unmistakably shows that when a direction under clause (a) or clause (b) is made by the District Magistrate, then it affects each and every member of the gang or body. The District Magistrate's order is addressed to the leader or the chief-man because the leader or the chief-man is the spokesman or the organiser of the gang or the body. It is required to be published by beat of drum or otherwise so that not only the leader or the chief-man, the addressee, should know of the order but that even the members of the gang or the body should also be made aware of it. The order that the District Magistrate can make under section 3 (b) is one directing the members of the gang or body in question "to disperse and each of them to remove himself outside the district." The use of the expressions in section 3, namely, "direct the members of such gang or body" and "to disperse and each of them to remove himself outside the district" again emphasize the position that it is the gang or the body or members of the gang or the body that can be directed to disperse. There can be no question of directing an individual person "to disperse". The word "disperse" means "break up from an assembled state. The District Magistrate cannot, therefore, pick out some individual members of a gang or body and make an order under section 3 in regard to them directing them to disperse. It will be noted that under section 3 whenever the District Magistrate directs the members of a gang or body to disperse, he has also to direct that each of them shall remove himself outside the district or any part thereof and contiguous district or districts. It is no doubt true that when an order in regard to a gang or a body is made: under section 3 (b) every member of the gang or the body has to remove himself from the prohibited area. This is only the consequence of an order made under section 3 (b) in regard to the gang or the body or members thereof. But from this it does not follow that the District Magistrate can make an order under section 3 (b) in regard to an individual member or member of a gang or body leaving the gang or the body untouched. 8. But from this it does not follow that the District Magistrate can make an order under section 3 (b) in regard to an individual member or member of a gang or body leaving the gang or the body untouched. 8. Section 7 (1) of the Act no doubt provides that before an order under section 3 is passed against any person, the District Magistrate shall inform the person of the general nature of the material allegations against him. This provision cannot be read as indicative of the fact that under section 3 an order can be made in regard to an individual person. An order under section 3 has to be addressed to the persons appearing to be leaders or chief-men of such gang or body and it is such a leader or the chief-man who under section 7 (1) has to be informed in writing of the general nature of the material allegations against the gang or the body intended to be dealt with under section 3. As the leader or the chief- man of the gang or the body is the spokesman of the gang or the body, it is sufficient to give him a reasonable opportunity to explain to the material allegations against the gang or the body before making any order against the gang or the body and the members thereof under section 3. 9. Here, what the District Magistrate, Damoh, did was to make directions under section 3 (b) in regard to five persons including the three petitioners before us. As was narrated in the preliminary order passed by the District Magistrate on 15.9.1966, the petitioners and two other persons were supposed to be chief men of Mooratsingh, a leader of a gang of dacoits operating in Chhatarpur district. The gang was said to consist of "15 to 20 hardened criminals". But the District Magistrate made no order whatsoever directing the members of Mooratsingh's gang of dacoits to disperse and each of them to remove himself outside the Damoh district and the contiguous districts. The gang was said to consist of "15 to 20 hardened criminals". But the District Magistrate made no order whatsoever directing the members of Mooratsingh's gang of dacoits to disperse and each of them to remove himself outside the Damoh district and the contiguous districts. This is clear from the Impugned order which only, directed the three petitioners and two other persons "to disperse themselves outside the revenue district of Damoh and contiguous revenue districts of Sagar, Panna, Chhatarpur, Jabalpur and Narsimhapur." When in the preliminary order it was expressly mentioned that the petitioner were the chief-men of Mooratsingh leader of a gang of decoits consisting of 15 to 20 persons, it cannot be argued with any degree of force that the three petitioners and the two other persons were the only members of the gang or the body and therefore, the impugned direction made by the District Magistrate was in effect a direction in regard to a gang or a body or the members thereof. In our judgment, the impugned order made against the petitioners is against the language and terms of section 3 and against the very intention and object of that provision. It cannot, therefore, be sustained. 10. Learned Advocate-General referred us to the decisions of the Supreme Court in Gurbachan Singh vs. State of Bombay, AIR 1952 SC 221 and Bhagubhai vs. District Magistrate, AIR 1956 SC 585 . In our opinion those decisions which dealt with the provisions of the City of Bombay Police Act, 1902 and the Bombay Police Act, 1951, permitting the competent authority to direct any person to remove himself outside the State or certain area are not in point here. Those are not provisions for dispersal of any gang or body or members thereof. 11. In the view we have taken of the matter, it is not necessary to deal with the other contentions put forward by Shri Dharmadhikari appearing in support of the petition. 12. For these reasons, the order dated 2.11.1966 of the District Magistrate, Damoh and dated 15.4.1967 of the State Government upholding the District Magistrate's order are quashed. The petitioner shall have costs of this application. Counsel's fee is fixed at Rs. 300/-. The outstanding amount of the security deposit shall be refunded to the petitioners.