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2004 DIGILAW 703 (MP)

Kala v. State of M. P.

2004-08-25

A.K.MISHRA

body2004
ORDER 1. In this petition, petitioner has assailed order (P-1) and appellate order (P-3). Order (P-1) was passed by the Additional District Magistrate. Order (P-3) has been passed by the State of Madhya Pradesh rejecting an appeal preferred by the petitioner. Petitioner's externment has been ordered for one year as per order dated 1.11.2003 from the Districts of Bhopal, Raisen, Sehore, Rajgarh and Hoshangabad, under M.P. Rajya Suraksha, Adhiniyam. 2. It is averred in the petition that petitioner is a businessman and involved in the sale of spectacles. Police has never recorded any FIR against the petitioner in any police station. Petitioner has earned displeasure of the Town Inspector in the year 2003. He has registered two cases in the year 2003 against him. Firs information report dated 14.2.2003 was registered on the complaint of one Annu @ Anwar on the allegation that the petitioner had abused him. On 7.4.2003 another complaint regarding satta (gambling) has been registered. On 9.5.2003, another case of gambling was registered in the same police station Petitioner pleaded guilty in one of the cases. Fine was imposed. On 11.6.2003 another complaint lodged by one Santosh has been registered on the ground that the petitioner had abused him. Against Santosh, several criminal cases are pending. On 28.7.2003, one Virender Jain also made a report against the petitioner in the same police station on the allegation that the petitioner had abused him. On 28.7.2003 another complaint has beer registered and a case has been registered u/s 110, CrPC. Yet another complaint has been registered on 3.10.2003, that he hurled abuses and created scene in front of liquor shop. 3. Superintendent of Police had sent, report to Additional District Magistrate for taking action against the petitioner under section 5 of the M.P. Rajya Surkasha, Adhiniyam, 1990 (hereinafter referred to as the 'Adhiniyam'). No evidence was recorded against the petitioner in his presence. The witnesses to be produced by the petitioner were not examined. The Additional District Magistrate, as per order dated 21.11.2003, has ordered his externment from the above districts Appeal has also been dismissed by State Government. Action taken is arbitrary Action could have been taken by the ‘District Magistrate', not by the Additional District Magistrate. There were no grounds to attract the provisions of section 5 of the Adhiniyam. The Additional District Magistrate, as per order dated 21.11.2003, has ordered his externment from the above districts Appeal has also been dismissed by State Government. Action taken is arbitrary Action could have been taken by the ‘District Magistrate', not by the Additional District Magistrate. There were no grounds to attract the provisions of section 5 of the Adhiniyam. There was no material to record satisfaction as contemplated under sections 5 (a) and 5 (b) of the Adhiniyam. 4. A return has been filed by the respondents. It is submitted that several cases were registered against the petitioner relating to gambling, satta and rioting. Petitioner is a habitual offender. It is denied that the petitioner was not allowed to cross-examine the witnesses. Petitioner was given ample opportunity to examine the witnesses. The statements of Ali Hussain, Mukhir Jamadar were recorded Order passed by Additional District Magistrate is proper. Additional District Magistrate is conferred with the powers as per notification (R-2) to exercise the powers under sections 3, 4, 5 and 6 of the Adhiniyam. Hence, no interference is called for. 5. Shri H.S. Ruprah, learned senior counsel appearing on behalf of the, petitioner, has submitted that the, impugned orders are illegal. There was no material to form an opinion as provided u/s 5 (a) and 5 (b) of the Adhiniyam. Except in one case of gambling, conviction has no been recorded. He has further submitted that conviction incase of Gambling Act is immaterial as action has not been taken u/s 6 of the Adhiniyam, even otherwise in any other case, petitioner has not been convicted. Cases are petty in nature. It is not the allegation that the petitioner ha inflicted any serious injury to anybody Thus, the formation of opinion that the activity of the petitioner is to cause alarm danger or harm to person or property is without basis. Name of any of the witnesses who may not have come forward to depose against petitioner has not been disclosed by the Additional District Magistrate in the order (P-I). Thus, the order has not been passed in objective manner. Same is arbitrary, deserves to be quashed. He has further submitted that the Additional District Magistrate was no competent to take an action. District Magistrate could have taken the action and passed the order (P-I) of externment under the Adhiniyam. 6. Thus, the order has not been passed in objective manner. Same is arbitrary, deserves to be quashed. He has further submitted that the Additional District Magistrate was no competent to take an action. District Magistrate could have taken the action and passed the order (P-I) of externment under the Adhiniyam. 6. Shri Kumaresh Pathak, GA, appearing on behalf of the respondents has supported the order. He has submitted that considering the number of cases/complaints which were lodged in the year 2003, action taken is proper. Satisfaction as mandated in section 5 (a) and 5 (b) has been recorded. Thus, no interference is called for. 7. Out of seven offences which have been mentioned in the impugned order (P-I), two relate to the Gambling Act win respect to incident dated 7.4.2003 and 9.5.2003. With respect to offence dated 7.4.2003, conviction has not been recorded so far. Three of incidents dated 14.2.2003, 11.6.2003, 28.7.2003 are with respect to giving threats to complainants. The allegations mainly relate to giving threat. It is not the case set up that the petitioner has inflicted serious kind of injury to any of the persons. The incident dated 3.10.2003 is of abusing in front of liquor shop, he allegedly ran away when the police reached there. In five of the cases out of seven, trial is pending. 8. It is necessary u/s 5 (b) that if person is involved in an offence, punishable under Chapter XII, XVI or XVII or u/ss 506 and 509 of the Indian Penal Code or in the abetment of any such offence, or is about to be engaged in such an offence, an action of externment can be taken. However, condition precedent is that the opinion has to be formed by the District Magistrate as "witnesses are no willing" to come forward to give evidence and proceed against such person by reason of apprehension on their part as regard to safety of their "person or property". In order (P-l), Additional District Magistrate has mentioned that the persons are no lodging report and have the apprehension of safety on giving evidence against petitioner in the Court. But the name of even a single witness who has been given threat or who has apprehension of appearing in the Court due to fear of the petitioner, has not been referred to in the order. But the name of even a single witness who has been given threat or who has apprehension of appearing in the Court due to fear of the petitioner, has not been referred to in the order. On specific query being made as to name of the witness who has stated that he has apprehension of petitioner in deposing the Court or in public, it has fairly been stated by the respondents counsel that there is nothing on record to suggest the name. Thus, in my opinion, satisfaction which has been recorded u/s 5 (b) by the Additional District Magistrate lacks objective consideration of the matter. Thus, the order of extenment based at section 5 (b) has no legs to stand. More so in view of the fact that the cases are of the year 2003 and it is not the case set up that any of the cases has reached the evidence stage in the trial Court, thus I find force in the submission raised by the Shri H.S Ruprah, learned senior counsel appearing for the petitioner, that in criminal cases the stage of evidence has not yet reached, it is premature to infer that any of the witness has any apprehension in deposing in public against the petitioner or has any kind of apprehension of person or property, thus I find that the order of externment based on section 5 (b) is liable to be quashed as essential ingredient to attract same does not exist in the instant case. 9. Coming to the sustainability of the order, u/s 5 (a) of Adhiniyam, which requires that the movement or acts of any person are causing or are calculated to cause alarm, danger or harm to person or property can be externed from the district considering the petty nature of cases which have been registered against the petitioner it cannot be said that his movements an such that his removal was warranted, no only from Bhopal but also from other adjoining districts. Cases are petty in nature Particularly, considering the fact that if a person is convicted thrice of an offence under the Public Gambling Act, he can be externed u/s 6. Even three cases have not been registered of Gambling Act against the petitioner as required u/s 6 Action has not been taken u/s 6. Cases are petty in nature Particularly, considering the fact that if a person is convicted thrice of an offence under the Public Gambling Act, he can be externed u/s 6. Even three cases have not been registered of Gambling Act against the petitioner as required u/s 6 Action has not been taken u/s 6. This Court in Pappa @ Zabiruddin v. State of M.P. [1999 (1) MPLJ SN 21], has laid down that in case a person has not been convicted of offence u/s 6 (a) (i), (ii), (b) or (c) of Adhiniyam, merely because he had reputation of satoriya 'gambler', is no ground to expel him u/s 5 or section 6 of Adhiniyam. In Bala @ Iqbal v. State of M.P. [1996 CrLR (MP) 72], this Court has laid down that on the ground of petty offences, action cannot be taken, stage of cases has to be considered. Action has no been taken u/s 6. 10. Resultantly, writ petition is allowed Order (P-1) is quashed. Consequently, appellate order (P-3) is also quashed. Parties to bear their own costs.