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Madhya Pradesh High Court · body

2009 DIGILAW 837 (MP)

ASHOK KUMAR PATEL v. STATE OF M P

2009-07-22

A.K.PATNAIK, P.K.JAISWAL

body2009
Judgment ( 1. ) IN this writ petition under Article 226 of the Constitution, the petitioner has challenged the orders passed against him for externment under the State security Act, 1990 (for short the Act of 1990), by District Magistrate, Rewa, and the appellate order of the Commissioner, Rewa Division, rejecting the appeal of the petitioner against the order of externment. ( 2. ) THE relevant facts briefly are that the Superintendent of Police, district Rewa (M. P.), submitted a report dated 31-10-2008 to the District magistrate, District Rewa, about the criminal activities of the petitioner. In the report, the Inspector of Hanumana Police Station, District Rewa, had given the details of the chain of criminal offences alleged to have been committed by the petitioner from 1995 to 2008 and had made a request that an externment order be passed against the petitioner in exercise of powers under Sections 3 and 4 of the Act of 1990. The District Magistrate then issued a notice dated 31-10-2008 to the petitioner to show cause why a proceeding for order of externment from district Rewa as also the districts touching the revenue limits of adjacent districts, namely, Sidhi, Shahdol, Satna, Umariya and Anuppur should not be initiated against him, and asked the petitioner to submit his reply on 11-11-2008. The petitioner appeared before the District Magistrate on 11-11-2008 and prayed for time to submit his reply and the District Magistrate fixed the case for reply to 12-11-2008. The petitioner submitted his reply on 12-11-2008 denying that he had committed offences alleged in the show-cause notice. The petitioner also stated in his reply that he was a candidate contesting the Vidhan Sabha election from Mauganj Constituency No. 71, and if, a proceeding for externment is initiated against him, he cannot contest the election. The District magistrate heard the Counsel for the petitioner on 12-11-2008 and posted the case for orders to 18-11-2008, and on 18-11-2008 passed the impugned order in criminal Case No. 227/08 directing externment of the petitioner from District rewa as also the districts touching the revenue limits of adjacent districts, namely, Sidhi, Shahdol, Satna, Umariya and Anuppur for a period of one year. Aggrieved, the petitioner preferred an appeal under Section 9 of the Act of 1990, before the Commissioner, Rewa Division, but by order dated 13-1-2009, the Commissioner dismissed the appeal. ( 3. ) MR. Aggrieved, the petitioner preferred an appeal under Section 9 of the Act of 1990, before the Commissioner, Rewa Division, but by order dated 13-1-2009, the Commissioner dismissed the appeal. ( 3. ) MR. Sanjay Patel, learned Counsel for the petitioner submitted that there was no material before the District Magistrate for passing the order of externment under Section 5 (b) of the Act of 1990. He submitted that Section 5 (b) of the Act of 1990, makes it clear that there must be reasonably grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XIV or XVII or under Section 506 or 509 of the Indian penal Code, 1860, or in abetment of any such offence, but the show-cause notice and the order passed by the District Magistrate under Section 5 (b) would show that offences alleged to have been committed mostly of the years 1995 to 2007, have been mentioned. He submitted that, therefore, there was no satisfaction whatsoever of the District Magistrate that the petitioner is engaged or is about to be engaged in the commission of offences. He also submitted that all the six cases mentioned in the show-cause notice and the order of the District magistrate are pending before the Trial Court and in not a single case, the petitioner has been convicted. He further submitted that Section 8 (1) of the Act of 1990 provides that before an order Section 5 is passed against any person, the district Magistrate shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. He submitted that the materials in support of the allegations, such as the statement of SHO referred to in the order sheet, on the basis of which the externment order was passed, was not furnished to the petitioner. He further submitted under Section 8 (3) of the Act of 1990 also provides that the person against whom the order is proposed to be passed, will be given an opportunity to examine witnesses, but no such opportunity was given to the petitioner because the case was fixed on 11-11-2008 and the reply was filed by the petitioner on 12-11-2008 and the case was closed on 12-11-2008. He submitted that this is, therefore, a fit case in which the impugned orders passed by the District Magistrate and the Commissioner should be quashed for contravention of different provisions of the Act of 1990. ( 4. ) MR. Vivek Awasthy, learned Govt. Advocate, appearing for the respondents submitted that the order passed by the District Magistrate would show that the petitioner has committed a series of offences right from the years 1995 to 2008, on account of which the District Magistrate had to pass the order of externment under Section 5 (b) of the Act of 1990. He submitted that Section 8 (1) of the Act of 1990 is very clear that the District Magistrate shall inform the person in writing of the general nature of the material allegations against him and is not required to disclose materials on the basis of which the material allegations are made. In support of this submission, he cited the decision of the supreme Court in Pandharinath Shridhar Vs. Dy. Commissioner of Police, State of Maharashtra ( AIR 1973 SC 630 ) in which pari materia provisions of Section 56 of Bombay Police Act were interpreted and it was held that only the general nature of material allegations against whom the order of externment is proposed to be passed are to be furnished to the person concerned and not the full particulars on the basis of which the allegations are made. He submitted that a similar view has been taken by the Supreme Court in State of Maharashtra and another Vs. Salem Hasan Khan ( AIR 1989 SC 1304 ). He further submitted that in a recent decision in State of NCT of Delhi and another Vs. Sanjeev alias Bittoo ( AIR 2005 SC 2080 ), the Supreme Court has also taken a view that sufficiency of material to pass an externment order under Section 47 of the Delhi Police act, cannot be gone into by the Court while exercising the power of judicial review. ( 5. ) SECTION 5 of the Act of 1990 under which the order of externment has been passed is quoted herein below:- "5. ( 5. ) SECTION 5 of the Act of 1990 under which the order of externment has been passed is quoted herein below:- "5. Removal of persons about to commit offence.- Whenever it appears to the District Magistrate- (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property; or (b) that there are reasonably grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abetment of any such offence, and when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property; or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant; the District Magistrate, may by an order in writing duly served on him or by beat of drum or otherwise as the District Magistrate thinks fit, direct such person or immigrant- (a) so as to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease; or (b) to remove himself outside the district or any part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route within such time as the district Magistrate may specify and not to enter or return to the said district or part thereof or such area and such contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself. " ( 6. " ( 6. ) A plain reading of Section 5 (b) of the Act of 1990 quoted above, would show that for passing an order of externment against a person, two conditions must be satisfied:- (i) There are reasonable grounds for believing that a person is engaged or is about to be engaged in commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 or in the abetment of any such offence; and (ii) In the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. ( 7. ) IN State of N. C. T. of Delhi and another Vs. Sanjeev alias Bittoo (supra), the Supreme Court had the occasion to interpret Section 47 of the bombay Police Act, 1978, which contains provisions similar to Section 5 of the act of 1990 and has referred to these essential conditions for passing an order under Section 47 of the Delhi Police Act in Para 10 of the judgment as reported in the AIR thus :-"section 47 consists of two parts. First part relates to that satisfaction of the Commissioner of Police or any Authorised officer reaching a conclusion that movement or act of any person are causing alarm and danger to person or property or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in commission of enumerated offences or in the abetment of any such offence or is so desperate and dangerous as to render his being at large hazardous to the community. Opinion of the Concerned Officer has to be formed that witnesses are not willing to come forward in public to give evidence against such person by reason of apprehension on their part as regards safety of person or property. After these opinions are formed on the basis of materials forming foundation therefore the Commissioner can pass an order adopting any of the available options as provided in the provision itself. After these opinions are formed on the basis of materials forming foundation therefore the Commissioner can pass an order adopting any of the available options as provided in the provision itself. The three options are- (1) to direct such person to so conduct himself as deemed necessary in order to prevent violence and alarm or (2) to direct him to remove himself outside any part of Delhi or (3) to remove himself outside whole of Delhi. " ( 8. ) THE expression "is engaged or is about to be engaged" in the commission of offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian penal Code, 1860 or in the abetment of any such offence, shows that the commission of the offence or the abetment of such offence by the person must have a very close proximity to the date on which the order is proposed to be passed under Section 5 (b) of the Act of 1990. Hence, if a person was engaged in the commission of offence or in abetment of an offence of the type mentioned in section 5 (b), several years or several months back, there cannot be any reasonable ground for believing that the person is engaged or is about to be engaged in the commission of such offence. ( 9. ) WE will therefore have to examine the impugned order dated 18-11-2008 passed by the District Magistrate, under Section 5 (b) of the Act of 1990 to find out whether the petitioner was engaged in the commission of an offence or was about to be engaged in the commission of an offence mentioned in Section 5 (b) of the Act of 1990, or in the abetment of such offence, which was very close in proximity to 18-11-2008 when the impugned order of externment was passed. The first offence mentioned is alleged to have been committed by the petitioner on 9-4-1995 when the petitioner and his other associates forcibly took possession of mahuwa of Tilakdhari Tripathi, son of Indramani Tripathi and collected the same, and Crime No. 46/95 under Sections 447 and 379 of the indian Penal Code was registered and the petitioner was arrested and produced before the Court. The second offence is alleged to have been committed by the petitioner on 14-3-2007 when the petitioner is alleged to have written a letter to shivshankar Tripathi, son of Tilakdhari Tripathi, giving threats regarding construction of new building of Shiksha Guarantee School, and Crime no. 42/2007 under Sections 353, 294, 506 read with Section 34 of the Indian penal Code has been registered and a challan has been filed in the Court in Case no. 729/2008. The third act which has been mentioned in the impugned order is not an offence alleged to have been committed but a prohibitory proceeding no. 22/2007 under Sections 107 and 116 (3) of the Code of Criminal Procedure instituted against the petitioner on 9-4-2007 and the petitioner has been produced in Court. The fourth offence alleged to have been committed by the petitioner is in July, 2008 when the petitioner along with 6 or 7 others is alleged to have caused hindrance in Government work during the election of Palak shikshak Sangh and created disturbances in election work and committed marpeet on the basis of which Crime No. 216/2008 for offences under Sections 253,294,323,325 and 506-B read with Section 34 of Indian Penal Code has been registered. In our considered opinion, these offences alleged to have been committed by the petitioner in the years 1995 to 2007, cannot be the foundation of an order under Section 5 (b) of the Act of 1990 as the alleged offences have no proximity at all to the order of externment passed on 18-11-2008. Even, the offence alleged to have been committed by the petitioner along with 6 or 7 other persons in July, 2008, cannot constitute a reasonable ground to believe on 18-11-2008 that the petitioner is engaged or is about to be engaged in offence mentioned in Section 5 (b) of the Act of 1990. ( 10. ) THE second condition which must be satisfied for passing of an order of externment against a person is that in the opinion of the District magistrate, witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of person or property. Construing a pari materia provision in Section 27 of the city of Bombay Police Act, 1902 in Gurbachan Singh Vs. Construing a pari materia provision in Section 27 of the city of Bombay Police Act, 1902 in Gurbachan Singh Vs. The State of Bombay and another, AIR 1952 SC 221 , the Supreme Court observed:-"the law is certainly an extra-ordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety or the public residing therein. " ( 11. ) IN the instant case, the District Magistrate has in the impugned order only baldly stated that the list of offences registered against the petitioner reflects that he is a daring habitual criminal and because of this there is fear and terror in the public and has not recorded any clear opinion on the basis of materials, that in his opinion witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of their person or property. In most of the cases, Challans have been filed by the Police in Court obviously after examination of the witnesses under Section 161 of Cr. PC and the cases are pending in the Court. There is no reference in the order of District Magistrate that witnesses named in the challans filed by the Police are not coming forward to give evidence against the petitioner in Court. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reason of apprehension to danger to their person or property to give evidence against the petitioner in respect of the alleged offences, an order under Section 5 (b) of the Act of 1990 cannot be passed by the District Magistrate by merely repeating the language of Section 5 (b)of the Act of 1990. ( 12. ) IN State of N. C. T. of Delhi and another Vs. Sanjeev alias Bittu (supra), the Supreme Court interpreting Section 47 of the Bombay Police Act, 1978, which is similarly worded as Section 5 of the Act of 1990, has held in Para 25 :- "it is true that some material must exist but what is required is not an elaborate decision akin to a judgment. Sanjeev alias Bittu (supra), the Supreme Court interpreting Section 47 of the Bombay Police Act, 1978, which is similarly worded as Section 5 of the Act of 1990, has held in Para 25 :- "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. While dealing with question mere repetition of the provision would not be sufficient. Reference to be made to some material on record and if that is done the requirements of law are met. As noted above, it is not the sufficiency of material but the existence of material which is sine qua non. " ( 13. ) THE Act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19 (1) of the Constitution and the fundamental right to personal liberty under Article 21 of the Constitution and unless the conditions mentioned under Section 5 (b) of the Act of 1990 are strictly satisfied, an order of externment, will have to be quashed by the Court. While considering a case under Section 56 of the Bombay Police Act, which also empowered the police to pass an order of externment, the Supreme Court observed in pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of maharashtra (supra), as under:- "it is true that the provisions of Section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society. This Court in Gurbachan Singh Vs. The State of bombay, 1952 SCR 737 = ( AIR 1952 SC 221 ) had upheld the validity of Section 27 (1) of the City of Bombay Police Act, 1902, which corresponds to Section 56 of the Act. Following that decision, the challenge to the constitutionality of Section 56 was repelled in 1956 SCR 533 = ( AIR 1956 SC 585 ). We will only add that care must be taken to ensure that the terms of Sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee. " ( 14. We will only add that care must be taken to ensure that the terms of Sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee. " ( 14. ) WE are thus of the considered opinion that the two conditions for an order of externment stated in Section 5 (b) of the Act of 1990 do not exist in this case and the order passed by the District Magistrate and appellate order of the Commissioner are liable to be quashed. Since the impugned order of externment passed by the District Magistrate and the appellate order passed by the Divisional Commissioner are liable to be quashed on this ground alone, it is not necessary for us to deal with the other grounds raised by the petitioner in this writ petition. In the result, we quash the impugned order dated 18-11-2008 passed by the District Magistrate Rewa in Cr. Case No. 227/08 as well as the appellate order dated 13-1-2009 passed by the Commissioner, Rewa Division. No costs.