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Madhya Pradesh High Court · body

2007 DIGILAW 824 (MP)

Jittu alias Jitendra Bhavsar v. State of M. P.

2007-07-31

SHANTANU KEMKAR

body2007
ORDER 1. By filing this petition under Article 226 of the Constitution of India the petitioner has challenged the order dated 28.8.2006 passed by the District Magistrate, Hoshangabad in Criminal Case No. 16/06 by which the petitioner has been externed from District Hoshangabad and its contiguous Districts for a period of one year under sections 5 (b) and 6(c) of the M.P. Rajya Suraksha Adhiniyam, 1990 (for short, the Adhiniyam) and also the order dated 4.1.2007 passed by the Commissioner, Bhopal and Hoshangabad Division dismissing the petitioner's appeal No. 16/crimina1l2005-06. 2. The petitioner was issued a notice by the District Magistrate under section 8 (1) of the Adhiniyam. He submitted reply of the same and denied the allegations levelled against him. After recording the evidence and affording opportunity of hearing to the petitioner, the District Magistrate passed the impugned order dated 28.8.2006 by which the petitioner has been externed. The petitioner's appeal against the said order has also been dismissed by the Divisional Commissioner on 4.1.2007. 3. The petitioner contends that the cases shown against him from serial No.1 to 29 of the impugned order being old and stale on the basis of the said cases, pertaining to years 1986 to 2000, the action of externment in the year 2006 is not sustainable. As regards, cases referred at serial No. 30 it has been pointed out by the petitioner that the same is with regard to some other person and he is not at all involved in it. As regards cases at serial No. 30, 31 and 33, he submits the same do not constitute any offence against him. As regards, cases referred in another set shown at S.No. 1 to 9 of which reference has been made in the impugned order on the basis of report dated 1.8.2006 received from the Additional Superintendent of Police he submits that these cases are not mentioned in the show cause notice issued to him under section 8 (1) of the Adhiniyam, therefore, these cases could not have been considered by the District Magistrate for passing the impugned order. He further submits that in none of the cases shown from serial No.1 to 7 of these set of cases which are under Public Gambling Act, 1867 he has been convicted. He further submits that in none of the cases shown from serial No.1 to 7 of these set of cases which are under Public Gambling Act, 1867 he has been convicted. As regards cases shown at serial No.8 and 9 he submits that they are of the same incident of which FIR was lodged belatedly to falsely implicate him. He further submits that even assuming the said cases have been registered against him it cannot be said that he is a person who has to be externed invoking powers under section 5 (b) or 6 (c) of the Adhiniyam. 4. On the basis of the return and the record of the case the learned Government Advocate could not point out that the petitioner has ever been convicted for offence under section 4 of the Public Gambling Act, 1867. In order to extern a person invoking section 6 (c) of the Adhiniyam the person should have been convicted thrice within a period of three years of an offence under section 3 or 4 of the Public Gambling Act, 1867, but the said requirement is missing in the present case. In the circumstances the petitioner's externment under section 6 (c) of the Adhiniyam also cannot be sustained. {See Asaf Ali v. State of M.P. and another [ 2006 (III) MPWN 30 = 2006 (3) MPLJ 592 ]}. 5. To examine the validity of petitioner's externment under section 5(b) of the Adhiniyam I find that the case referred to at serial No.1 to 29 are from the year 1989 to 2000. On the basis of such old and stale cases, the proceedings and order of externment in the year 2006 cannot be said to be justified. There is no denial to the contention of the petitioner and also it is clear from the record that there is no involvement of petitioner in the cases at serial No. 30, 31 and 33. 6. So far as cases shown at serial No. 1 to 9 on the basis of report received from the Additional Superintendent of Police, referred to in the impugned order, admittedly these cases were not mentioned in the show cause notice issued to the petitioner. In the circumstances these cases cannot form the basis for passing of the externment order against the petitioner only on the basis of some stray case of Public Gambling Act shown at Item No. 32. In the circumstances these cases cannot form the basis for passing of the externment order against the petitioner only on the basis of some stray case of Public Gambling Act shown at Item No. 32. In the absence of any credible material to form clear danger making the movement of the petitioner alarming or dangerous and in the absence of sufficient reason to believe that the petitioner is so dangerous that his mere presence in the locality is hazardous to the community and its safety, the impugned order invoking section 5 (b) of the Adhiniyam cannot be sustained. {See Ayub Khan v. State of M.P. and another [1994 (1) Vidhi Bhasvar 168]}. 7. In view of the aforesaid facts and circumstances of the case in my considered view the impugned order of petitioner's externment being not fulfi1ing the criteria necessary for invoking powers under sections 5 (b) and 6 (c) of the Adhiniyam, is liable to be quashed. 8. Accordingly, the petition is allowed. The impugned externment order and the appellate order are quashed. C.C. by tomorrow.