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Madhya Pradesh High Court · body

2008 DIGILAW 1402 (MP)

GUDDU ALIAS AMIT SAHU v. STATE OF M P

2008-12-04

SANJAY YADAV

body2008
Judgment ( 1. ) THE extent and expanse of principle of natural justice implicit in Sections of the M. P. Rajya Suraksha Adhiniyam (Act of 1991) (refereed to as Adhiniyam) has been raked up for consideration in the present writ petition filed against the order of externment passed by the District Magistrate Sagar on 19. 3. 2008 and the order dated 3. 6. 2008 passed in Appeal, affirming the order of externment. ( 2. ) THE facts not in dispute are that, the petitioner was subjected to a show cause notice under section 8 of the Adhiniyam which was on the basis of the report furnished by the Superintendent of Police Sagar, reporting therein - about existence of 14 cases under Section 147,148,149,294,3 23,324,3 41,347,427,506,34 ipc and apprehending that the stay of the petitioner within District Sagar and the adjoining district will not be congenial to the public peace and safety of persons property. Consequent thereof, proceedings were initiated. The petitioner appeared either personally or through counsel, when on 14. 2. 2008 the matter was posted for 25. 2. 2008. However, die authorities after preponing and without informing the petitioner of the preponed date examined the independent witnesses on 15. 2. 2008 and thereafter went on to take final decision of externment, ( 3. ) CRITICISING the aforesaid action of the respondent, it is urged on behalf of the petitioner that, the action of respondent is dehors the protection granted under section 8 which ensures a right of bearing which imbibes within its fold a right to cross-examine the witnesses which forms the basis to arrive at a finding that the stay of the petitioner would not be in larger public interest, ( 4. ) INTERCEPTING the submissions pat forth by the petitioner, it is urged, on behalf of the respondent State, that the action cannot be found fault with because cross-examination being not contemplated under Section 8 of the Adhiniyam the same cannot be claimed as a matter of right. Furthermore, it is urged that it is in order to protect the life and property of the independent witnesses that they sure examined in camera and no right to cross examine is given to the person against whom the proceedings under Adhiniyam initiated. The learned counsel for the state places reliance on the Single Bench Judgment of this Court, viz, Biknu basor V. State of MP. The learned counsel for the state places reliance on the Single Bench Judgment of this Court, viz, Biknu basor V. State of MP. and others: W. P. No. 11639/2006 dated 28. 9. 2006 and sanjay @ Oondar Vs. Stats of M. P. (2005) 4 MPLJ 521 . ( 5. ) IN Sanjay @ Oondar (supra) it was held in paragraphs 5,6 and 7: "5. After having heard learned counsel for parties at length and going through the material available on record, in the considered opinion of this Court, there is no merit and substance in the writ petition. Perusal of section 5 of the Act reveals that statements of witnesses can be recorded in-camera proceedings if in the opinion of the DM. those witnesses are unwilling to come forward to give evidence in public against the petitioner. Obviously giving evidence in public; means giving evidence in the open Court of Law. In the present case the DM on this account, cannot be scrutinized by this Court as an appellate Court. 6. So far as right to cross-examine witnesses is concerned, in the context of provisions of the Act, the right of hearing cannot be stretched to cross-examine witnesses otherwise the very purpose of the Act to provide security and maintenance of public order, would be defeated. The Act is directed against the anti social and criminal elements in society who have placed themselves beyond the pale of rule of law. 7. In view of the above, it cannot he said-that right of hearing would include right of cross-examining of the witnesses who were examined in camera before passing the order of removal. The right of movement enshrined in Art. (19) (1) (d) is subject to the reasonable restriction and is not absolute. The law in this regard is very well settled. " Whereas, in the case of Biknu Basor (supra), it was observed in; "21. The M. P. (Rajya) Suraksha Adhiniyam, 1990, has been enacted with the following preamble -"an Act provided for the security of the State, maintenance of public order and certain other matter connected therewith". Thus, there could be no doubt that the Act has been made in the interest of the general public and to protect" them against dangers and bad characters whose presence in the locality may jeoparadise and cause disturbance to peace and safety of the citizens. Thus, there could be no doubt that the Act has been made in the interest of the general public and to protect" them against dangers and bad characters whose presence in the locality may jeoparadise and cause disturbance to peace and safety of the citizens. The restrictions imposed by this law upon the right of free movements are reasonable being within the purview of Clause (5) of Article 19 of the Constitution of India which empowers a State to legislate in such matters. While passing the order of externment under the said Act, the satisfaction primarily has to be of an authority passing the order. The satisfaction recorded by the authority must be objective and must be based on the material on record. The Supreme Court of india in the case of State of NCT of Delhi and another Vs. Sanjeev alias Bittoo [ (2005) 5 SCC 181 ] has held that while passing an order of externment, it is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary, the order directing externment should show existence of some material warranting an order of externment. It is not the sufficiency of material but the existence of material which is the sine qua non. I do not further comment on the sufficiency of material in the present ease because that may prejudice the Appellate proceedings in either way. 22. As regards the contention of Shri Sheel Nagu, learned counsel for the petitioner, that the petitioner ought to have been permitted to cross-examine Sub Divisional Magistrate, Kotma, it may be seen from various sub-sections of Section 8 of the m. P. (Rajya) Suraksha Adhiniyam, that the District Magistrate was obliged to inform a person in Writing of the changed nature of the material allegation against him and give him a reasonable opportunity of tendering an explanation regarding them. No right of cross-examination has been given to the petitioner. Under sub-section (2) of Section 8 of the said Act. a right has been given to the petitioner to make an application for the examination of any witness produced by him. This provision also does not confer a right on the petitioner to cross examine on the basis of the material before the District Magistrate. The Honble Supreme Court of india in the case of A. K. Roy Vs. a right has been given to the petitioner to make an application for the examination of any witness produced by him. This provision also does not confer a right on the petitioner to cross examine on the basis of the material before the District Magistrate. The Honble Supreme Court of india in the case of A. K. Roy Vs. Union of India : ( AIR 1982 SC 710 ) while dealing a matter under the National Security Act, has held that: "99. We do not suggest that the principles of natural justice, vague and variable as they may be, are not worthy of preservation. As observed by Lord Reid in Ridge V Baldwin, (1964) AC 40,64-65, the view that "natural justice is so vague as to be practically meaningless" is tainted by "the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist". But the importance of the realisation that the rules of natural justice are not rigid norms of unchanging content consists in the fact that the ambit of those rules must vary according to the context, and they have to be tailored to suit the nature of the proceeding in relation to which the particular right is claimed as a component of natural justice. Judged by this test, it seems to us difficult to hold that that a detenu can claim the right of cross-examination in the proceeding before the Advisory board. First and foremost, cross-examination of whom? The principle that witnesses must be confronted arid offered for cross-examination applied generally to proceedings in which witnesses are examined or documents are adduced in evidence in order to prove a point. Cross examination then becomes a powerful weapon for showing the untruthfulness of that evidence. In proceedings before the Advisory Board, the question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is sufficient cause for the detention of the person concerned, the detention, it must be remembered is based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects. The proceedings of the Advisory Board has therefore to be structured differently from the proceeding of judicial or quasi-judicial tribunals, before which there is a lis to adjudicate upon. loo. Apart from this consideration, it is a matter of common experience that in cases of preventive detention, witnesses are either unwilling to come forward or the sources of information of the detaining authority cannot be disclosed without detriment to public interest. Indeed, the disclosure of the identity of the informant may abort the very process of preventive detention because, no one will be willing to come forward to give information of any prejudicial activity if his identity is going to be disclosed, which may have to be done under the stress of cross-examination. It is, therefore, difficult in the very nature of things, to give to the detenu the full. panoply of rights, which an accused is entitled to have in order to disprove the charges against him. That is the importance of the statement that the concept of what is just and reasonable is flexible in its scope and calls for such procedural protections as the particular situation demands. Just as there can be an effective hearing without legal representation even so, there can be an effective hearing without the right of cross examination, The nature of the inquiry involved in the proceeding in relation to which these rights are claimed determines whether these rights must be given as components of natural justice. Thus, in the absence of any specific enabling provision, it cannot be said that the principle of natural justice has been violated for want of opportunity to the petitioner to cross examine Sub Divisional Magistrate, Kotma. ( 6. ) THE learned counsel for the petitioner was at loss to persuade this Court to take a view different than as taken in the aforesaid two cases, holding therein that a noticee under the Adhiniyam was no right to cross-examination. Therefore, it is held that there is no illegality in the action of the respondent in relying upon the evidence of witnesses examined ex-parte and not allowed to be cross examined. ( 7. ) IN result, petition fails and is hereby dismissed. Therefore, it is held that there is no illegality in the action of the respondent in relying upon the evidence of witnesses examined ex-parte and not allowed to be cross examined. ( 7. ) IN result, petition fails and is hereby dismissed. No costs. Petition dismissed.