Anoop Saxena v. Secretary, Ministry of Home Affairs,Bhopal
2014-09-11
S.C.SHARMA
body2014
DigiLaw.ai
ORDER 1. The petitioner before this Court has filed this present writ petition being aggrieved by the order dated 4.4.2014 passed by the District Magistrate, Rajgarh under the provisions of the M.P. Rajya Suraksha Adhiniyam, 1990. He is also aggrieved by the order dated 21.7.2014 dismissing his appeal, passed by the Commissioner, Bhopal Division, Bhopal. 2. Facts of the case reveal that the petitioner who is a journalist was served with a show cause notice dated 21.11.2013 issued under the provisions of the M.P. Rajya Suraksha Adhiniyam, 1990 and the following cases were reflected in the show cause notice : (a) Crime No.131/93 for offence under sections 294, 448, 504 and 34 of the Indian Penal Code registered on 28.8.1993. (b) Crime No.23/11 for offence under sections 334, 509 and 506 of the Indian Penal Code registered on 25.6.2011. (c) Crime No.449/11 for offence under sections 354, 506, 294 of the Indian Penal Code read with section 3(1)(x) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. (d) Ishtgasha No.58/2012 under sections 106 and 116(3) of the Code of Criminal Procedure, 1973. (e) Ishtgasha No.71/12 under sections 107, 116(3) of the Code of Criminal Procedure, 1973 on 5.4.2012. 3. A reply was filed by the petitioner stating therein that he was acquitted in Crime No.230 and 440, in respect of Crime No.131, he has stated that no further proceedings of any kind took place after registration of the crime and it was closed later on. In respect of proceeding under sections 107 and 116(3) of the Code of Criminal Procedure, 1973 it has been stated that the proceedings also came to an end, meaning thereby, at the time of show cause notice was issued, there was no case pending against the petitioner. 4. Learned counsel for the petitioner has argued before this Court that because the petitioner is a journalist he is being harassed by the District Administration and the impugned orders deserves to be set aside. It has been further argued that the documents were not supplied along with the show cause notice and the petitioner was not permitted to cross-examine the witnesses. He has further argued that the District Magistrate has nowhere in the impugned order named the witnesses who have not come forwarded to give statement against the petitioner in the criminal cases and other grounds have also been raised. 5.
He has further argued that the District Magistrate has nowhere in the impugned order named the witnesses who have not come forwarded to give statement against the petitioner in the criminal cases and other grounds have also been raised. 5. On the other hand, a detailed and exhaustive reply has been filed on behalf of the State Government and the State Government in its reply has stated that the action against the petitioner is in consonance with the statutory provisions governing the field. It has been further stated that a report was received from the Superintendent of Police and based upon the said report, a show cause notice was issued and after granting a reasonable opportunity to the petitioner, the impugned orders have been passed. It has also been stated that the petitioner was involved in many criminal cases and, therefore, they have rightly passed the impugned orders. 6. Heard learned counsel for the parties at length and perused the record. 7. In the present case, most of the cases reflected in the show cause notice have come to an end. The petitioner has been acquitted in the criminal cases and as informed, there is no criminal case pending against the petitioner. Not only this, old and stale cases were taken into account while passing the order of externment. The recent cases of the year 2012 are under Chapter -- Security to Keep Peace and Good Behaviour, meaning thereby, under the prevention action of the police and based upon the cases reflected in the show cause notice, the order of externment has been passed. 8. A Division Bench of this Court in the case of Ashok Kumar Patel v. State of M.P., reported in 2009(4) MPLJ 434 , has exhaustively dealt with section 5 of the M.P. Rajya Suraksha Adhiniyam, 1990, and paragraphs 5 to 14 of the aforesaid judgment reads as under : “5. Section 5 of the Act of 1990 under which the order of externment has been passed in quoted hereinbelow : “5. Removal of persons about to commit offence.
Section 5 of the Act of 1990 under which the order of externment has been passed in quoted hereinbelow : “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 on 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 no willing to come forward to given evidence in public against such person by reason of apprehension on their part as regards the safety of their person property; or (c) that an outbreak epidemic discase is likely to result from the continued residence of an immigrant; the District Magistrate, may be 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.
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 NCT of Delhi and another v. Sanjeev alias Bittu (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 AIR thus : “Section 47 consists of two parts. First part relates to that satisfaction of the Commissioner of Police or any authorized 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 given 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 provisions 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 provisions itself. The three options are : (1) to direct such person to conduct himself as deemed necessary in order to prevent violence an 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, 233, 325 and 506B read with section 34 of Indian Penal Code has been registered. In our considered 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 tothe 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 againt 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.
10. The second condition which must be satisfied for passing of an order of externment againt 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 v. 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 these 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 given evidence in public against such person by a reason on apprehension on their part as regards safety of their person or property. In most of the cases, challans have been filed by the Criminal Procedure Code 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 given 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.
12. In State of NCT of Delhi and another v. 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 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 v. Deputy 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 restrains have to be suffered in the larger interests of society. This Court in Gurbachan Singh v. The State of Bombay [AIR 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 AIR 1956 SCR533= 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 an 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 an 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 lible 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 Criminal Case No.227/2008 as well as the appellatle order dated 13.1.2009 passed by the Commissioner, Rewa Division.” 9. Keeping in view the aforesaid judgment, as the District Magistrate, in the impugned order has baldly stated that the list of the offences registered against the petitioner reflects that the petitioner is a criminal and because there is a fear and terror in the public and in his opinion the witnesses are not coming forward to give evidence, has erred in law and facts in passing the impugned orders. The District Magistrate, inspite of the fact that two cases have been concluded, has not named a single witness who has not come forward to give evidence against the petitioner. Hence, in absence of any material to establish that the witnesses are not coming forward by reason of apprehension to danger to their property or person to give evidence against the petitioner in respect of all the offences, an order under section 5(b) of the Act of 1990 cannot be passed by repeating the language of section 5(b) of the Act of 1990. 10. Not only this, the present case reflects a sorry state of affairs and a journalist who is supposed to report the incidents without fear and favour, has been subjected to externment.
10. Not only this, the present case reflects a sorry state of affairs and a journalist who is supposed to report the incidents without fear and favour, has been subjected to externment. The petitioner who is a journalist in his reply to the externment notice has categorically stated that on account of his Articles published in the Newspapers including the Times of India, as a correspondent of Nai Duniya, Free Press Journal besides other newspapers, the District Administration has acted with vengeance. The petitioner in his reply to the show cause notice has categorically stated that the earlier Collector, Mr. M.D. Oza has committed gross irregularities and he has submitted a written complaint to the Chief Secretary on 23.6.2012 as well as to the Lokayukt Establishment. He has further stated that at the behest of the officers serving in the District he was subjected to proceedings under section 116 of the Code of Criminal Procedure, 1973 without there being any basis. He has also stated that he has reported various scams allegedly committed by the Government servants and the news items were published in various newspapers from time to time and as he has not succumbed to the illegal pressure of the district administration, he has been subjected to the externment proceedings. 11. In the present case, it is an admitted fact that the documents were not supplied to the petitioner. The statements of witnesses recorded were also not given to the petitioner and old and stale cases were considered while passing the impugned order. 12. This Court is of the considered opinion that the cases reflected against the petitioner and the material reflected in the show cause notice does not make it a fit case for passing an order in respect of the externment. From the record, this Court can safely gather that the order has been passed in a vindictive manner to suppress the voice of an independent journalist who has not allegedly succumbed to the pressure of the administration. 13. Freedom of speech and expression, is guaranteed under Article 19(1)(g) of the Constitution of India. The profession of journalism is a very noble profession and large number of issues of social importance have been brought to the notice of various High Courts and to the notice of Hon’ble Supreme Court of India by various journalist from time to time.
13. Freedom of speech and expression, is guaranteed under Article 19(1)(g) of the Constitution of India. The profession of journalism is a very noble profession and large number of issues of social importance have been brought to the notice of various High Courts and to the notice of Hon’ble Supreme Court of India by various journalist from time to time. A journalist Sheela Barse wrote a letter complaining custodial violence of women prisoner during the confinement in the police lock-up in the city of Bombay and cognizance was taken in the matter and the apex Court has delivered a landmark judgment which was initiated by a journalist in the case of Sheela Barse v. State of Maharashtra, reported in (1983)2 SCC 96 . The apex Court in the case of Express Newspapers Pvt.Ltd. and others v. Union of India and others, reported in (1986)1 SCC 133 , has held that freedom guaranteed under Article 19(1)(a) and (2) comprehends Freedom of Press. In the aforesaid case, notices of re-entry were issued upon forfeiture of lease and a threat of demolition of Express Building was also intended and in those circumstances of apex Court in paragraphs 73, 75 and 76 has held as under : “73. Here, the very threat is to the existence of a free and independent press. It is now firmly established by a series of decisions of this Court and is a rule written into the Constitution that freedom of the press is comprehended within the right to freedom of speech and expression guaranteed under Article 19(1)(a) and I do not wish to traverse the familiar ground over again except to touch upon certain landmark decisions. In Romesh Thappar v. State of Madras [AIR 1950 SCR 594 ], the Court observed that the founding fathers realized that freedoms of speech and of the press are at the foundation of all democratic organizations, for without free political discussion no public education, so essential for proper functioning of the processes of popular Government, is possible. In Sakal Papers (P) Ltd. v. Union of India [AIR (1962)3 SCR 842 ], the Court reiterated : “That the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution includes the freedom of press i.e. the freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation.
In Sakal Papers (P) Ltd. v. Union of India [AIR (1962)3 SCR 842 ], the Court reiterated : “That the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution includes the freedom of press i.e. the freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. LIberty of circulation is as essential to that freedom as the liberty of publication. Central to the concept of a free press is freedom of political opinion and at the core of that freedom lies the right to criticise the Government, because it is only through free debate and free exchange of ideas that Government remains representation to the will of the people and orderly change is effected. When avenues of political expression are closed. Government by consent of the governed would soon be foreclosed. Such freedom is the foundation of free Government of a free people. Our Government set up being elected limited and 475 responsible we need requisite freedom of any animadversion for our social interest which ordinarily demands free propagation of views. Freedom to think as one likes and to speak as one thinks are as a rule indispensable tothe discovery and separate of truth and without free speech, discussion may be futile.” 75. I would only like to stress that the freedom of thought and expression, and the freedom of the press are not only valuable freedoms in themselves but are basic to a democratic form of Government which proceeds on the theory that problems of the Government can be solved by the free exchange of thought and by public discussion of the various issues facing the nation. It is necessary to emphasize and one must not forget that the vital importance of freedom of speech and expression involves the freedom to dissent to a free democracy like ours. Democracy rlies on the freedom of the press. It is the inalienable right of everyone to comment freely upon any matter of public importance. This right is one of the pillars of individual liberty freedom of speech, which our Court has always unfailingly guarded. I wish to add that however precious and cherished the freedom of speech is under Article 19(1)(a), this freedom is not absolute and unlimited at all times and under all circumstances but is subject to the restrictions contained in Article 19(2).
I wish to add that however precious and cherished the freedom of speech is under Article 19(1)(a), this freedom is not absolute and unlimited at all times and under all circumstances but is subject to the restrictions contained in Article 19(2). That must be so because unrestricted freedom of speech and expression which includes the freedom of the press and is wholly free from restraints, amounts to uncontrolled licence which would lead to disorder and anarchy and it would be hazardous to ignore the vital importance of our social and national interest in public order and security of the State. 76. In Bennett Coleman’s case the Court indicated that the extent of permissible limitations on this freedom are indicated by the fundamental law of the land itself viz. Article 19(2) of the Constitution. It was laid down that permissible restrictions on 476 any fundamental right guaranteed under Part III of the Constitution have to be imposed by a duly enacted law and must not be excessive i.e. they must not go beyond what is necessary to achieve the object of the law under which they are sought to be imposed. The power to impose restrictions on fundamental rights is essentially a power to ‘regulate’ the exercise of those rights. In fact, ‘regulation’ and not extinction of that which is to be regulated is, generally speaking, the extent to which permissible restrictions may go in order to satisfy the test of reasonableness. The Court also dealt with the extent of permissible limitations on the freedom of speech and expression guaranteed under Article 19(1)(a). The test laid down by the Court in Bennett Coleman’s case is whether the direct and immediate impact of the impugned action is on the freedom of speech and expression guaranteed under Article 19(1)(a) which includes the freedom of the press. It was observed that the restriction on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamentalright under Article 19(1)(a) on the aspects of propagation, publication and circulation of a newspaper.
It was observed that the restriction on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamentalright under Article 19(1)(a) on the aspects of propagation, publication and circulation of a newspaper. In repelling the contention of the learned Additional Solicitor General that the newsprint policy did not violated Article 19(1)(a) as it does not direct and immediately deal withthe right mentioned in Article 19(1)(a), the Court held that the test of pith and substance of the subject-matter and of direct and incidental effect of legislation are relevant to questions of legislative competence but they are irrelevant tothe question of infringement of fundamental rights. The true test, according to the Court, is whether the effect of the impugned action is to take away or abridge fundamental rights. It was stated that the word ‘direct’ would go to the quality or character of the effect and not the subject-matter and the restriction sought to be imposed by the impugned newsprint policy was, in substance, a newspaper control i.e. to control the number of pages or circulation of dailies or newspapers and such restrictions were clearly outside the ambit of Article 19(2) of the Constitution and therefore were in abridgement of the right of freedom of speech and expression guaranteed under Article 19(1)(a), and it added : “The Newsprint Control Policy is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint. This Court in The Bank Nationalisation case (supra), laid down two tests. First it is not the object of the authorityu making the law impairing the right of the 477 citizen nor the form of action that determines the invasion of the right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the Court to grant relief. The direct operation of the Act upon the rights forms the real test. ... No law or action would state in words that rights of freedom of speech and expression are abridged or taken away. That is why Courts have to protect and guard fundamental rights by considering the scope and provisions of the Act and its effect upon the fundamental rights.” We have only to substitute the word ‘executive’ for the word ‘law’ and the result is obvious.
That is why Courts have to protect and guard fundamental rights by considering the scope and provisions of the Act and its effect upon the fundamental rights.” We have only to substitute the word ‘executive’ for the word ‘law’ and the result is obvious. Here, the impugned notices or re-entry upon forfeiture of lease and of the threatened demolition of the Express Buildings are intended and meant to silence the voice of the Indian Express. It must logically follow that the impugned notices constitute a direct and immediate threat to the freedom of the press and are thus violative of Article 19(1)(a) read with Article 14 of the Constitution. It must accordingly be held that these petitions under Article 32 of the Constitution are maintainable. The Government Grants Act, 1895, section 3. Purport and Effect of. Whether the notice of re-entry upon forfeiture of lease was valid and enforceable due to non-compliance of clause 6 thereof.” 14. Thus, the apex Court in the aforesaid case has held that the freedom of thought and expression and the freedom of press are not only valuable freedom in themselves but are basic to a democratic form of a Government,. 15. In the year 1950, the apex Court has considered a Notification by which certain restrictions were imposed upon Organiser, an English Weekly of Delhi by the State of Delhi and the apex Court has quashed the Notification dated 2.3.1950 again holding that imposition of censorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression, as declared by Article 19(1)(g). 16. In the case of Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay Pvt.Ltd. and others, reported in (1988)4 SCC 592 , the apex Court, after considering the test of imminent danger has lifted the injunction imposed upon the Indian Express in respect of a publication material against Reliance Petrochemicals Ltd. It is certainly true that in the profession of journalism, a journalist is required to ascertain the correctness of the news item, as publishing false news items are having serious repercussions. But, at the same time, by using coercive method, journalist cannot be suppressed from raising voice against the corruption prevalent in the society. 17.
But, at the same time, by using coercive method, journalist cannot be suppressed from raising voice against the corruption prevalent in the society. 17. The apex Court in the case of In Re : Harijai Singh and another, In Re : Vijay Kumar, reported in (1996)6 SCC 466 , has again dealt with Freedom of Press and in paragraph 9 has held as under : “9. It is thus needless to emphasis that a free and healthy press is indispensable to the functioning of true democracy. In a democratic set-up, there has to be an actice and intelligent participation of the people in all spheres and affairs of their community as well as the State. It is their right to be kept informed about current political, social, economic and cultural life as well as the burning topics and important issues of the day in order to enable them to consider and form broad opinion about the same and the way in which they are being managed, tackled and administered by the Government and its functionaries. To achieve this objective the people need a clear and fruthful account of events, so that they may form their own opinion and offer their own comments and view points on such matters and issues and select their further course of action. The primary function, therefore, of the press is to provide comprehensive and objective information of all aspects of the country’s political, social, economic and cultural life. It has an educative and mobilizing role to play. It plays an important role in moulding public opinion and can be an instrument of social change. It may be pointed out here that Mahatma Gandhi in his autobiography has stated that one of the objectives of the newspaper is to understand the proper feelings of the people and give expression to it; another is to arouse among the people certain desirable sentiments; and the third is to fearlessly express popular defects. It, therefore, turns out that the press should have the right to present anything which it thinks fit for publication.” 18.
It, therefore, turns out that the press should have the right to present anything which it thinks fit for publication.” 18. The freedom of expression, in the light of the aforesaid judgment is not absolute, unlimited and unfeterred at all times and in all circumstances as giving an unrestrictive freedom of speech and expression would amount to uncontrolled licence, but at the same time, the Editor or a newspaper or journal has to act with greater responsibility to guard against untruthful news and publications for the simple reason that his utterances have a far greater circulation and impact than utterances of an individual and by reason of their appearing in the print, they are likely to be believed by the ignorant. 19. The apex Court has again dealt with the freedom of speech and expression in the case of Narmada Bachao Andolan v. Union of India and others, reported in (1999)8 SCC 308 , and paragraphs 6 and 7 reads as under : “6.While hypersensitivity and peevishness have no place in judicial proceedings vicious stultification and vulgar debunking cannot be permitted to pollute the stream of justice. Indeed under our Constitution there are positive value like right to life, freedom of speech and expression, but freedom of speech and expression does not include freedom to distort orders of the Court and present incomplete and a one side picture deliberately, which has the tendency to scandalise the Court. Whatever may be the motive of Ms. Arundhati Roy, it is quite obvious that she decided to use her lierally fame lay misinforming the public and projecting in a totally incorrect manner, how the proceedings relating to resettlement and rehabilitation and shaped in this Court and distorting various directions given by the Court during the last about 5 years. The writings referred to above have the tendency to create prejudice against this Court. She seems to be wholly ignorant of the task of the Court.The manner in which she has given twist to the proceedings and orders of the Court is in bad taste and not expected from any citizen, to say the least. 7.
The writings referred to above have the tendency to create prejudice against this Court. She seems to be wholly ignorant of the task of the Court.The manner in which she has given twist to the proceedings and orders of the Court is in bad taste and not expected from any citizen, to say the least. 7. We wish to emphasise that under the cover of freedom of speech and expression no party can be given a licence to misrepresent the proceedings and orders of the Court and deliberately paint an absolutely wrong and incomplete picture which has the tendency to scandalise the Court and bring it into disrepute or ridicule. The right of criticising, in good faith in private or public, a judgment of the Court cannot be exercised, with malice or by attempting to impair the administration of justice. Indeed, freedom of speech and expression is “life blood of democracy” but his freedom is subject to certain qualifications. An offence of scandalising the courtier se is one such qualification, since that offence exists to protect the administration of justice and is reasonably justified and necessary in a democratic society. It is not only an offence under the contempt of Courts act but is sui generis. Courts are not unduly sensitive to fair comment or even outspoken comments being made regarding their judgments and orders made objectively, fairly and without any malice, but no one can be permitted to distort orders of the Court and deliberately give a slant to its proceedings, which have the tendency to scandalise the Court or bring it to ridicule, in the larger interest of protecting administration of justice.” 20. The freedom of speech and expression was considered again by the apex Court in the case of Rajendra Sail v. M.P. High Court Bar Association and others, reported in 2005(3) JLJ 1 (SC)= (2005)6 SCC 109 , and it was a case wherein the Media has criticised the judgment delivered by the Madhya Pradesh High Court in the case of Shankar Guha Niyogi murder case. A news was published in newspaper Hitavada on 4.7.1998 which became subject-matter of initiation of Contempt of Court Proceedings against the alleged contemners.The apex Court has accepted the unconditional apology tendered by the contemners therein with a warning to be more careful and responsible in future. 21.
A news was published in newspaper Hitavada on 4.7.1998 which became subject-matter of initiation of Contempt of Court Proceedings against the alleged contemners.The apex Court has accepted the unconditional apology tendered by the contemners therein with a warning to be more careful and responsible in future. 21. The apex Court in the aforesaid case has held that no criticism of a judgment, however, vigorous can amount to contempt of Court provided it is kept within the limits of reasonable courtesy and good faith. It was also held that a fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute a contempt. 22. The apex Court in the case of Pebam Ningol Mikoldevi v. State of Manipur and others, reported in (2010)9 SCC 618 , has considered detention of a journalist who was Editor of a Manipuri paper on grounds of indulging in activities prejudicial to maintenance of public order being involved in extortion of money along with UNLF, an unlawful association. In the aforesaid case, the writ petition preferred by the wife before the High Court was dismissed and the matter went up to the apex Court. The apex Court has set aside the detention under the National Security Act, 1980 and paragraphs 27 to 29 and 32 to 39 of the judgment delivered by the apex Court, reads as under : “27. In light of these decisions, to determine the validity of the detention order, it is necessary to go into the materials relied on by the detaining authority in passing the detention order. The documents relied upon by the District Magistrate, West Imphal, as mentioned in the grounds for detention dated 28.9.2009 are : (a) The statement of the detenue given before the I.O. on 18.9.2009. (b) State of S.I. T. Khogen Singh of CDO/I.W. recorded under section 161 CrPC in connection with FIR No.183(9) 09 SJM-P.S. under section 17/20 of the Unlawful Activities (Prevention) Act, 1967. (c) Statement of Rfm.No.15007038 L, Rajen Singh of CDO/I.W. recorded undr section 161 CrPC in connection with FIR No.183(9) 09 SJM-P.S. under section 17/20 of the Unlawful Activities (Prevention) Act, 1967. (d) Statement of C/No.0601193 S. Khomei Singh recorded under section 161 CrPC in connection with FIR No.183(9) 09 SJM-P.S. under section 17/20 of the Unlawful Activities (Prevention) Act, 1967.
(c) Statement of Rfm.No.15007038 L, Rajen Singh of CDO/I.W. recorded undr section 161 CrPC in connection with FIR No.183(9) 09 SJM-P.S. under section 17/20 of the Unlawful Activities (Prevention) Act, 1967. (d) Statement of C/No.0601193 S. Khomei Singh recorded under section 161 CrPC in connection with FIR No.183(9) 09 SJM-P.S. under section 17/20 of the Unlawful Activities (Prevention) Act, 1967. (e) Copy of arrest memo dated 17.9.2009. (f) Copy of seizure memo dated 17.9.2009. (g) Copy of Manipur Local daily “the Poknapham” dated 8.3.1999. (h) Copy of Notification under No.S.O.1922(E) dated 13.11.2007. 28. We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the discretion of the Court and it is the subjective satisfaction of the detaining authority which is implied. However, if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under NS Act, is non-existent or misconceived or irrelevant, the order of detention would be invalid. 29. Keeping in view these well settled legal principles, we have perused the grounds of detention and the documents relied on by the detaining authority while passing the order of detention. In our considered view, the grounds on which detention order is passed has no probative value and were extraneous to the scope, purpose and the object of the National Security Act. This Court in the case of Mohd. Yusuf Rather v. State of Jammu and Kashmir and others [ AIR 1979 SC 1925 ], has observed that under Article 22(5), a detenue has two rights (1) to be informed, as soon as may be, of the grounds on which his detention is based and (2) to be afforded the earliest opportunity of making a representation against his detention. The inclusion of an irrelevant or non-existent ground among other relevant grounds is an infringement of the first right and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second right. No distinction can be made between introductory facts, background facts and ‘grounds’ as such; if the actual allegations were vague and irrelevant, detention would be rendered invalid. 32. Furthermore, none of the other documents substantiate the involvement of the detenuin unlawful activities as alleged in the detention order.
No distinction can be made between introductory facts, background facts and ‘grounds’ as such; if the actual allegations were vague and irrelevant, detention would be rendered invalid. 32. Furthermore, none of the other documents substantiate the involvement of the detenuin unlawful activities as alleged in the detention order. Thus, it is clear that there was no pertinent or relevant material on the basis of which, the detention order could be passed. 33. The second issue is that of delay. There has been a delay of 7 days, i.e., from 9.10.2009 to 16.10.2009, in forwarding the representation of the detenue to the Central Government. There has been no explanation of the reasons for this delay given by the respondents. 34. Article 22(5) of the Constitution of India mandates in preventive detention matters. The detenu should be afforded the earliest possible opportunity to make a representation against the order. With regard to the importance of delay in preventive detention matters under the National Security Act, it has been held by this Court in Union of India v. Laishram Lincola Singh @ Nicolai [ (2008)5 SCC 490 ], that : “There can be no hard and fast rule as to the measure of reasonable time and each case has to be considered from the facts of the case and if there is no negligence or callous inaction or avoidable red-tapism on the facts of a case, the Court would not interfere. It needs no reiteration that it is the duty of the Court to see that the efficacy of the limited, yet crucial, safeguards provided in the law of preventive detention is not lost in mechanical routine, dull casualness and chill indifference, on the part of the authorities entrusted with their application. When there is remissness, indifference or avoidable delay on the part of the authority, the detention becomes vulnerable.” (Emphasis supplied). 35. On the specific ground of delay in fowarding the representation under the National Security Act, it has been observed by this Court in Haji Mohd. Akhlaq v. District Magistrate [1988 Supp.(1) SCC 538], that : “There can be no doubt whatever that there was unexplained delay on the part of the State Government in forwarding the representation tothe Central Government with the result that the said representation was not considered by the Central Government till October 16, 1987 i.e. for a period of more than two months.
Section 14(1) of the Act confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply a right in a detenu to make representation to the Central Government against the order of detention. Thus, the failure of the State Government to comply with the request of the detenu for the onward transmission of the representation to the Central Government has deprived the detenu of his valuable right to have his detention revoked by that Government.” (Emphasis supplied) 36. In the matter before us, a delay of 7 days has occurred in the forwarding of the representation. This may not be inordinate; however, at no stage has there been an explanation given for this delay. The State Government or Central Government has not clalrified the same and thus the delay remains unexplained. 37. In light of the fact that none of the documents relied on by the detaining authority in passing the detention order can be deemed to be pertinent, and the fact that the delay has remained unexplained, there is sufficient ground made out in order to quash the order of preventive detention made against the detenue. 38. Before parting with the case, we wish to add that in a criminal case, if it is initiated atgainst the detenu, the prosecution would not be in a position to procure evidence to sustain conviction cannot be a ground to pass an order of preventive detention under National Security Act. Therfore, we cannot agree with the submission made by the learned counsel for the State of Manipur. 39. As a result of our above discussion, we cannot sustain the impugned judgment and order of the High Court and the order of detention passed by the detaining authority. Accordingly, the appeal is allowed. The impugned order of the High Court and the order of detention passed by the detaining authority are set aside. Ordered accordingly.” 23. In the aforesaid case, the journalist was detained in National Security Act and the apex Court has held that the grounds on which the detention order was passed had no probative value and were extraneous to the scope, purpose and object of NSA.
Ordered accordingly.” 23. In the aforesaid case, the journalist was detained in National Security Act and the apex Court has held that the grounds on which the detention order was passed had no probative value and were extraneous to the scope, purpose and object of NSA. It has also been held in the aforesaid case that individual liberty is a cherished right, one of the most valuable fundamental rights guaranteed by the Constitution to the citizens of this country. 24. Freedom of expression, as contemplated by Article 19(1)(g) of the Constitution of India is availabvle to the press and merely because a journalist is reporting against the corruption in the society or about the misdeeds of public servants, he cannot be slapped with an order passed under the M.P. Rajya Suraksha Adhiniyam. Though the order passed under the said Adhiniyam, does not refer to any report, but, at the same time in the manner and method the order has been passed in respect of externment of a journalist, which is based upon petty cases, in which he has been exonerated, impliedly means that attempt was made by the administration to silence the voice of a journalist who was reporting against the administration. 25. The Constitution of India guarantees that there will be freedom of speech and expression, but reasonable restrictions can be imposed. Reasonable restriction does not mean to restrict a journalist by slapping an order of externment under the M.P. Rajya Suraksha Adhiniyam, 1990. This Court, in view of the aforesaid, is of the considered opinion that the impugned order passed by the respondents was certainly an act amounting to infringment of fundamental rights guaranteed under the Constitution of India. 26. This Court in the case of Ravindra Singh Sikarwar v. State of M.P., reported in 2010(1)JLJ 151=ILR (2010) M.P. 86, in paragraphs 17 to 21 has held as under : “17.The learned counsel for the petitioner has relied upon a judgment delivered by this Court in the case of Pyare Fukki v. District Magistrate, Bhopal and others [ 2007(4) MPHT 60 ], and paragraph 4 of the judgment is relevant which reads as under : “On a close scrutiny of the record, I find that on receipt of the information from the Superintendent of Police the matter was taken up and the statements of the witnesses were recorded.
Thereafter, a show cause notice under section 8(1) of the Adhiniyam was issued to the petitioner. I find that along with the show cause notice other material on the basis of which the said show cause notice was issued, i.e., statement of witnesses were not supplied to the petitioner. The record indicates that before issuing show cause notice the statement of four witnesses including the police personnels were recorded and it is on the basis of these statements the show cause notice was directed to be issued. Having not supplied copies of the statements, in my considered view, the petitioner has been denied proper and effective opportunity of submitting reply to the show cause notice. From the record, I find that the statements of in all four witnesses were recorded and on the basis of the aforesaid statements the case was registered against the petitioner and he was issued a show cause notice. The non-supply of these vital documents to the petitioner vitiates the entire proceedings. Even after the petitioner appeared through his counsel the aforesaid documents were not suplied to him and, therefore, passing of the ex parte order of externment without supplying all these documents to the petitioner is not proper {See Dinnu @ Dinesh v. State of M.P. [2005(II) MPJR SN 16]}.” 18. In the case of Pyare Fukki (supra), the learned Single Judge of this Court has again held that the statements of witnesses including the police personnel recorded in the matter should have been supplied to the person facing the proceedings under the provisions of the Adhiniyam, 1990 and as the same was not done, the order of externment and the order passed by the appellate authority affirming the same were set aside. 19. The learned counsel for the petitioner has further relied upon a judgment delivered by a Division Bench of this Court in the case of Ramkhiladi Gurjar v. State of M.P. and another [ 2008(2) JLJ 430 ], wherein an order of detention of the petitioner therein passed by the competent authority under the National Security Act, 1980 has been set aside on the ground that no objective consideration of the matter was done by the competent authority while passing an order under the Act, 1980. 20.
20. Lastly, the learned counsel for the petitioner has relied upon a judgment delivered by the Hon’ble apex Court in the case of State of Maharashtra v. Public Concern for Governance Trust and others [ (2007)3 SCC 587 ], wherein the Hon’ble apex Court has held that the principles of natural justice and fair play are to be afforded where an order has been passed against a person adversely effecting the person concerned. Paragraphs 39 to 41 are relevant and the same reads as under : “The party-in-person has also pointed out certain findings in the judgment of the High Court. We do not propose to go into the merits of the other contentions which are the subject-matter of Special Leave Petition No.336 of 2006. In our opinion, when an authority takes a decision which may have civil consequences and affects the rights of a person, the principles of natural justice would at once come into play. Reputation of an individual is an important part of one’s life. It is observed in D.F. Marion v. Minnie Davis and reads as follows : “The right to enjoyment of a private reputation, unassailed by malicious slander is of an ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.” This Court also in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, has observes that right to reputation is a facet of right to life of a citizen under Article 21 of the Constitution. It is thus amply clear that one is entitled to have an preserve one’s reputation and one also has a right to protect it. In case any authority in discharge of its duties fastened upon it under the law, travels into the realm of personal reputation adversly affecting him, it must provide a chance to him to have his say in the matter. In such circumstancees, right of an individual to have the safeguard of the principles of natural justice before being adversely commented upon is statutorily recognized and violation of the same will have to bear the scrutiny of judicial review.” 21.
In such circumstancees, right of an individual to have the safeguard of the principles of natural justice before being adversely commented upon is statutorily recognized and violation of the same will have to bear the scrutiny of judicial review.” 21. Keeping in view the fact that the impugned order of externment dated 6th November, 2008 (Annexure P-2) passed by the District Magistrate, Morena and the order dated 25th March, 2009 passed by the Commissioner, Chambal Division, Morena (Anneuxre P-1) having been passed without affording proper opportunity of hearing and without supplying all the relevant material documents are therefore set aside, both the writ petitions stand allowed and the matter is remanded to the District Magistrate, Morena, for a fresh decision in the matter. The entire exercise shall be concluded by the District Magistrate, Morena, within a period of sixty days from the date of receipt of a certified copy of this order.” 27. In the light of the aforesaid judgment, as there is a complete violation o the principles of natural justice and fair play in the light of the fact that the District Magistrate, has not provided all material documents including the statements of witnesses, the order passed by the District Magistrate, deserves to be set aside and is accordingly set aside. 28. Resultantly, the impugned order dated 4.4.2014 passed by the District Magistrate, Rajgarh and the order dated 21.7.2014 passed by the Commissioner, Bhopal Division, Bhopal are quashed with costs of Rs.10,000/- to be paid by the State Government through Collector within a period of 30 days from today. .............