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Madhya Pradesh High Court · body

2007 DIGILAW 40 (MP)

Dharmendra Singh v. State of M. P.

2007-01-15

A.M.NAIK

body2007
ORDER 1. Petitioner is a sitting Corporator of Municipal Corporation, Satna for second consecutive term and is also leading a public life in different capacities. He is also entrusted with the work of disbursement of pension under the "Nirashrit Pension Scheme" in his constituency. A show cause notice under section 8 of the Madhya Pradesh (Rajya) Suraksha Adhiniyam, 1990 was issued to the petitioner on 28.12.2005. He submitted a detailed reply vide Annexure P-4 and 16.1.2006. An application was also submitted seeking transfer of the case on the ground that the petitioner had submitted a memorandum for transfer of Shri Umakant Umrao (repondent No.3) to the then Chief Minister. The prayer was declined. It was stated in the reply that in 25 of the cases referred to in the' recommendation Annexure P-2, the petitioner was already acquitted. The proposed action of extemment was tainted with mala fides and political vengeance. The petitioner is a law abiding respected member of the society and is not involved in any unlawful activity. However the respondent No.3, vide his order dated 6.3.2006, passed an order of extemment of the petitioner under sections 5(b) and 6(a) of the said Act from the district of Satna and surrounding districts for a period of one year. This order is contained in Annexure P-9 which was challenged in appeal unsuccessfully. Hence, this petition for quashment of the orders of extemment (Annexure P-9) and confirmation by the appellate authority (Annexture P-10]. 2. In the return, it has been stated that the City Superintendent of Police had submitted his report that 52 cases of mar-peer, extortion, theft, kidnapping and murder are pending against the petitioner who was " indulged in such offences. Witnesses are not coming forward to give evidence against the petitioner due to his terror. Thus, he is creating a continuing obstruction in the district administration and maintenance of law and order. It has been denied that the District Collector Shri Umakant Umrao has personal prejudice against the petitioner. Thus, it is contended that the order of externment has been rightly passed purely in the interest of public and is not tainted with personal prejudice. 3. Shri A.K. Soni, learned counsel for the petitioner and Shri Vinod Mehta, learned Government Advocate made their respective submissions. 4. Thus, it is contended that the order of externment has been rightly passed purely in the interest of public and is not tainted with personal prejudice. 3. Shri A.K. Soni, learned counsel for the petitioner and Shri Vinod Mehta, learned Government Advocate made their respective submissions. 4. Shri Soni, learned counsel strongly contended that the petitioner was although already acquitted in number of cases, the effect of such acquittal was not taken into consideration while passing the order of externment. The petitioner has stated on oath and has also substantiated that the various cases described in the report of the Superintendent of Police, Satna dated 12.9.2005 (Annexure P-2) at serial Nos. 3, 5, 6, 7,8, 10, 12, 13, 16, 17, 18, 19, 22, 24, 27, 31, 33, 34, 36, 37, 38, 39, 40, 41 and 45 stood terminated in acquittal on various dates. The case at serial No.3 was decided in favour of the petitioner on 17.5.1990. Similarly, the crime case described at serial No.16 terminated in his favour in the year 1995. The cases described at serial Nos. 5, 8, 10, 31 and 33 terminated in favour of the petitioner in the year 1996. Similarly, certain other cases were also decided in favour of the petitioner much before the report of the Superintendent of Police dated 12.9.2005 contained in Annexure P-2. Shri Soni, learned counsel contended that the fact of acquittal in 25 cases was not taken into consideration by the learned District Magistrate while forming an opinion about subjective satisfaction in the matter of externment of the petitioner which amounted to non-application of mind and the order of externment is liable to be quashed. 5. In the return, the allegation pertaining to non-consideration of the effect of acquittal in the said cases has not been denied. On the contrary, it has been mentioned in paragraph 6 of the return as under: "The contention of the petitioner that some of the cases mentioned by him were converted into acquittal yet the City SP has informed that the same are pending does not help the petitioner. There may be cases for which the information might not have been incorporated in the official record due to the delay in the office in compiling of records." 6. There may be cases for which the information might not have been incorporated in the official record due to the delay in the office in compiling of records." 6. It is not the case of the respondents that apart from the cases wherein the petitioner was acquitted there was sufficient material which formed basis of satisfaction of the authority to pass the order of externment. Hon'ble Supreme Court of India in the case of Dharamdas Shamlal Agrawal v. The Police Commissioner and another reported as 1989(2) Crimes 53 has held: "From the above decisions it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced its mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the' detaining authority before issuing the detention order. It is clear to our mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittal of the detenu in cases Nos. mentioned at serial Nos.2 and 3 have not been brought to its notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. The explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the non-placing of the material fact namely the acquittal of detenu in the abovesaid two cases resulting in non-application of mind of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid." 7. Learned Government Advocate has made available the original record of the case of externmerit. It also depicts in favour of the petitioner. On 14.2.2003, the prosecution examined its witnesses and disclosed that no further evidence would be produced. Case was reserved for consideration. Thereafter, no order was passed for more than 2 years and 10 months and again a report from SP, Satna dated 12.9.2005, was placed on record. Prior to it, the earlier report of the SP, Satna, dated 2.7.2002 was already on record. Case was reserved for consideration. Thereafter, no order was passed for more than 2 years and 10 months and again a report from SP, Satna dated 12.9.2005, was placed on record. Prior to it, the earlier report of the SP, Satna, dated 2.7.2002 was already on record. There is no material in the file as to how, when and why the second report was requisitioned. Similarly, it is not clear from the file as to who did requisition the second report. Thus, the contention of the learned counsel for the peitioner is strengthened that on the basis of the earlier report dated 2.7.2002 there was no sufficient material to form an opinion against the petitioner that he was liable to be externed and the material available on record was insufficient for the subjective satisfaction. There is no explanation in the return as to why and in what circumstances the order was withheld for more than 2 years and 10 months and what caused the District Magistrate, Satna, to withheld the proceedings for more than 2 years and 10 months. Inaction for a period of 2 years and 10 months in a case of exterment clearly suggests that the order of externment was not warranted during the said period. It being not the case of the respondents that subsequent events or the record of the petitioner (after exclusion of the cases of acquittal) has provided a basis to form an opinion about subjective satisfaction with regard to externment of the petitioner, this Court in view of the Supreme Court's decision (supra) holds that the authorities have failed to make application of mind to the attending facts and circumstances and the same coupled with the non-consideration of effect of acquittal in so many cases has vitiated the subjective satisfaction about externment of the petitioner rendering the externment order invalid. Consequently, the impugned orders contained in Annexure P-9 and P-10 are not liable to be sustained. 8. Accordingly, the petition is allowed and the impugned orders contained in Annexure P-9 and P-10 are hereby quashed. ..........................