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2011 DIGILAW 278 (MP)

Rajesh Mangoudi v. State of M. P.

2011-02-28

A.K.SHRIVASTAVA

body2011
ORDER A.K. Shrivastava, J. 1. By this petition filed under Article 226 of the Constitution of India, the Petitioner is seeking the following reliefs: (1) It is therefore, most humbly prayed that the Hon'ble Court be kind enough to set aside the impugned order (Annexure P-1) and as a consequence Annexure P-2 also, by allowing the writ petition in ends of justice. (2) Adequate compensation for the sufferance and loss to the Petitioner due to the illegal and arbitrary action of the Respondents along with the cost of the petition may also be granted, in the interest of justice. (3) Any other relief this Hon'ble Court deems fit and proper may also be granted. 2. The contention of Learned Counsel for Petitioner is that order dated 21-7-2010 passed by the District Magistrate, Sagar passing the order of externment against the Petitioner under the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (in short "Adhiniyam") has been affirmed by the Commissioner, Sagar Division, Sagar who is Appellate Authority. Learned Counsel further submits that there is absolutely no material on record to pass such type of harsh order against Petitioner. Learned Counsel has invited my attention to Section 5 of the said Adhiniyam and has submitted that before passing any order by the District Magistrate, he has to satisfy that there are reasonable grounds for believing that Petitioner is engaged in the commission of offence involving force and violence or an offence under Chapter XII, XVI or XVII or under Section 506 or 509, Indian Penal Code. Learned Counsel further submits that provisions of Essential Commodities Act is not included under this Section and, therefore, impugned order which has been passed by the District Magistrate and affirmed by Appellate Authority is bad in law. 3. On the other hand, Shri Verma, learned Government Advocate argued in support of impugned order and submitted that an offence has been registered under Section 506 later part of Indian Penal Code and therefore, provision of Section 5 has been rightly triggered and set in motion. Learned Government Advocate further submitted that charge-sheet for offence under Crime No. 133/1998 was filed on 27-4-1998 and in this regard learned Government Advocate has invited my attention to Para 3 of the return. 4. Learned Government Advocate further submitted that charge-sheet for offence under Crime No. 133/1998 was filed on 27-4-1998 and in this regard learned Government Advocate has invited my attention to Para 3 of the return. 4. Facing this difficulty, Learned Counsel for Petitioner submits that order of the District Magistrate is dated 21-7-2010 and the alleged offence under Section 506 later part of Indian Penal Code along with other offences was registered at Crime No. 133/1998 of Police Station, Gopalganj, Sagar and charge-sheet was filed on 30-4-2010 (Crime No. 133/1998) and in this regard my attention has been drawn to Annexure P-4, dated 22-6-2010, which is a letter addressed by the Station Officer-in-Charge, Police Station Gopalganj to Superintendent of Police Sagar. 5. Having heard Learned Counsel for the parties, I am of the view that this petition deserves to be allowed. 6. On bare perusal of Section 5 of said Adhiniyam, it is gathered that in order to pass the order of externment, as per the mandate of Section 5 of the Adhiniyam, it is necessary that any offence under Chapter XII, XVI or XVII or under Section 506 or 509 of Indian Penal Code or in the abetment of any such offence should have been registered against a person. Apart from this, if the District Magistrate on his satisfaction finds that 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, the order of externment can be passed. 7. On bare perusal of impugned order this Court finds that following offences were registered against Petitioner: Sr. No. Crime Number Offence 1. 133/98 341, 294, 323, 506-B, IPC 2. 364/2002 407, 34, IPC; 3/7 of E.C. Act 3. 248/2010 3/7 of E.C. Act 4. 249/2010 3/7 of E.C. Act 8. On bare perusal of Section 5 of the said Adhiniyam, the offence under the Essential Commodities Act are not included. So far as Crime No. 364/2002 registered against Petitioner under Sections 407, 34, Indian Penal Code along with Section 3/7 of E.C. Act is concerned, suffice it to say that Petitioner has been acquitted from that case by judgment dated 31-3-2010 (Annexure P-12) of Chief Judicial Magistrate Sagar in Criminal Case No. 1206/04. 9. So far as Crime No. 364/2002 registered against Petitioner under Sections 407, 34, Indian Penal Code along with Section 3/7 of E.C. Act is concerned, suffice it to say that Petitioner has been acquitted from that case by judgment dated 31-3-2010 (Annexure P-12) of Chief Judicial Magistrate Sagar in Criminal Case No. 1206/04. 9. So far as Criminal Case registered at Crime No. 133/1998 is concerned, on bare perusal of aforesaid Chapters of Indian Penal Code this Court finds Sections 341, 294 and 323 of Indian Penal Code are not included therein however Section 506 later part of Indian Penal Code is included. I do not find any merits in the contention of learned Government Advocate that charge-sheet of Crime No. 133/1998 was filed on 27-4-1998. No document in this regard is filed along with return. On the contrary, Petitioner has filed a specific document (Annexure P-4) dated 22-6-2010, which is letter of Station House Officer addressed to Superintendent of Police, Sagar. On bare perusal of this document, it is gathered that investigation itself was completed on 27-4-2010 and Challan No. 97/1998 was submitted on 30-4-2010. According to me, even if a case was registered under Section 506 later part of Indian Penal Code, 12 years earlier to date of the filing of charge-sheet, how and in what manner the existence of Petitioner in the locality of Sagar would become hazardous to the Society at large and therefore, according to me, the satisfaction has been accorded mechanically. The Commissioner has also committed same error by affirming the order of District Magistrate. 10. Resultantly, this petition is allowed. The impugned order dated 18-11-2010 (Annexure P-1) passed by the Commissioner, Sagar and order dated 21-7-2010 (Annexure P-2) passed by the District Magistrate, Sagar are set aside with no order as to costs.