Research › Search › Judgment

Madhya Pradesh High Court · body

2004 DIGILAW 694 (MP)

Yunus v. District Magistrate, Dewas

2004-08-24

A.M.SAPRE

body2004
JUDGMENT By filing this writ under Article 226/227 of the Constitution of India, the petitioner seeks quashing of an appellate order, dated 14.10.2003 (Annexure P-4) passed by State in exercise of its appellate powers conferred under section 9 of M.P. Rajya Suraksha Adhiniyam (for short called Adhiniyam) which in turn affirms the order, dated 5.8.2003 (Annexure P-3), passed by District Magistrate, Dewas in Case No.6 of 2002 (Criminal). Facts of the case lie in a narrow compass. They need to be taken note of in brief infra. . On 17.7.2003, the District Magistrate, Dewas issued a show cause notice (Annexure P-l) under section 6 of the Adhiniyam calling upon the petitioner as to why he should not be externed from the district of Dewas. In the show cause, it was alleged that on 28.10.2002, the petitioner was convicted for an offence punishable under section 4 of Gambling Act, 1867, then again on 25.11.2002 petitioner was convicted for an offence punishable under section 4-A of the Gambling Act and lastly again on 29.4.2003 the petitioner was convicted for an offence punishable under section 4-A of the Act. It was alleged that since in last two years, i.e. between 28.10.2002 to 29.4.2003, the petitioner has not only found indulging in gambling activities but suffered three successive conviction and hence, he has rendered himself liable to be externed out of the concerned district as provided in section 6(c) of the Act. In other words, the only ground on which the petitioner was asked to suffer an extemment was that he has suffered conviction under the Gambling Act thrice in three years as contemplated under section 6(c) of the Adhiniyam. It is this ground which found favour to D.M. as also by the appellate Court, the petitioner was externed from Dewas district. It is against these orders; the petitioner has come up in writ and questioned its legality. The State has been noticed. Reply is taken on record. Heard Smt. V. Phaye, learned counsel for the petitioner and Shri Sunil Jain, learned Government Advocate for respondent-State. Having heard learned counsel for the parties and having perused record of the case. I am inclined to allow the writ and quash the impugned orders. Section 6(c) of the Adhiniyam which alone is relevant for the disposal of this writ and made basis in the impugned show cause, reads as under: "S. 6. Having heard learned counsel for the parties and having perused record of the case. I am inclined to allow the writ and quash the impugned orders. Section 6(c) of the Adhiniyam which alone is relevant for the disposal of this writ and made basis in the impugned show cause, reads as under: "S. 6. Removal of persons convicted of certain offences -- If a person has been convicted - (a) of an offence, - (i) under chapter XII, XVI or XVII or under section 506 or 506 of the Indian Penal Code, 1860 (45 of 1860); or (ii) under the Protection of Civil Rights Act, 1955 (22 of 1955); or (c) thrice, of an offence within a period of three years under section 3 or 4 of the Public Gambling Act, 1867 (3 of 1867), in its application to the State of Madhya Pradesh; the District Magistrate may, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted direct such person by an order to remove himself outside the district or part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route and within such time as the District Magistrate may order and not to enter or return to the District or part thereof or such area and such contiguous district or part thereof, as the case may be, from which he was directed to remove himself." Mere perusal of aforequoted sub section (c) would indicate that the same can be invoked against any person, if he is - "found convicted thrice of an offence within three years under sections 3 and 4 of Public Gambling Act in its application to State of M.P." In other words, in order to invoke powers under section 6(c) what is material is conviction of a person of an offence punishable under section 3 or 4 of Public Gambling Act and that too within three years. It thus t follows that conviction even if found under the Gambling Act of any other offence punishable under some other sections (i.e. other than 3 or 4) would not be, nor can be made basis for taking any action under section 6(c) ibid. It thus t follows that conviction even if found under the Gambling Act of any other offence punishable under some other sections (i.e. other than 3 or 4) would not be, nor can be made basis for taking any action under section 6(c) ibid. It is thus, clear that if any person is found convicted of an offence punishable under section 4-A of the Act, then the same cannot be made basis for invoking power under section 6(c) because section 4-A is not mentioned in section 6(c). If the legislature wanted to include conviction of section 4-A then section 6(c) should have been amended by including section 4-A as well alongwith section 3 or 4 mentioned in section 6(c) ibid. So long as therefore section 6(c) is not amended thereby including therein conviction imposed under section 4-A of Gambling Act, the District Magistrate has no jurisdiction to take action against any person under section 6(c) by making basis the conviction made section 4-A ibid. It is not in dispute and is indeed clear by mere reading of impugned show cause (Annexure 1) that petitioner was convicted twice for an offence punishable under section 4-A and once for an offence under section 4. In this view of the matter, the D.M. had no jurisdiction to invoke powers conferred under section 6(c). It is for the simple reason that in order to invoke powers under section 6(c), the person must suffer conviction under section 4 thrice in three years. In this case, the petitioner suffered only one so far as section 4 is concerned and hence, there did not arise any cause of action to take action against the petitioner under section 6(c) ibid. This aspect was not taken note of by the two authorities while issuing an impugned show cause and while passing the impugned orders resulting in an error of law touching the very jurisdiction of an authority in issuing an order under section 6(c) ibid. Such an order thus cannot sustain and has to be set aside. It is accordingly, set aside. Accordingly and in view of aforesaid discussion, the petition succeeds and is allowed. Impugned order, dated 5.8.2003 (Annexure P-3) and order dated 14.10.2003 (Annexure P-4) passed by District Magistrate (respondent No.1) and State (respondent No.2) are quashed by writ of certiorari. Such an order thus cannot sustain and has to be set aside. It is accordingly, set aside. Accordingly and in view of aforesaid discussion, the petition succeeds and is allowed. Impugned order, dated 5.8.2003 (Annexure P-3) and order dated 14.10.2003 (Annexure P-4) passed by District Magistrate (respondent No.1) and State (respondent No.2) are quashed by writ of certiorari. However, it is made clear that the quashing of impugned orders would not come in the way of D.M. to issue any fresh notice if any case is made out against the petitioner under section 6(c) ibid. In other words, the conviction of petitioner under section 4 of the Act can always be counted for the purpose of taking any action against the petitioner under section 6(c) if it is found that petitioner has also suffered 2 more conviction either under section 3 or 4 of the Act within 3 years. No costs.