Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1148 (MP)

Rasid v. State of M. P.

2014-09-15

PRAKASH SHRIVASTAVA

body2014
JUDGMENT Prakash Shrivastava, J. Heard finally with consent. 1. This writ petition is directed against the order of externment dated 23.11.2013 passed by the District Magistrate, Rajgarh in respect of the externment of the petitioner for a period of one year from District Rajgarh and its adjoining districts, as affirmed by the order of Commissioner dated 25.2.2014. 2. In brief, the petitioner who is the local resident of Sarangpur, District - Rajgarh was served with the notice dated 11.11.2013 to show cause why the order of externment be not passed against him. The petitioner had submitted the reply and thereafter the impugned order of externment was passed by the District Magistrate on 23.11.2013 under Section 5 of the M.P. Rajya Suraksha Adhiniyam, 1990 (for short “the Act”) which has been affirmed by the Commissioner vide order dated 25.2.2014. 3. Learned counsel appearing for the petitioner submits that the District Magistrate in the impugned order has baldly stated that the witnesses are not coming forward to give evidence against the petitioner, but there is no material to substantiate the same. He further submits that the order of externment has been passed on the basis of old and stale cases having no proximity in time with the order of externment. 4. As against this, learned counsel for the respondent has supported the impugned order by submitting that the order of externment has been passed after following the due procedure. 5. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that the order of externment has been passed by the District Magistrate under Section 5 of the Act without specifically mentioning that as to under which sub-section of Section 5 of the Act the order of externment has been passed. Even the show cause notice which was issued to the petitioner, does not specifically mentions if the order of externment is under Section 5(a), 5(b) or 5(c) of the Act. The scope of the three sub-sections of Section 5 are different, therefore, District Magistrate ought to have specified the sub-section under which the order of externment was passed. 6. On the perusal of the record, it is also noticed that the District Magistrate while passing the impugned order has considered the six cases which were registered against the petitioner from 2004 to 2013. 6. On the perusal of the record, it is also noticed that the District Magistrate while passing the impugned order has considered the six cases which were registered against the petitioner from 2004 to 2013. Counsel for the petitioner has pointed out that in the order of externment itself it has been noted that the cases at Serial No.1 and 2 had resulted into the acquittal of the petitioner. He has further pointed out that so far as the cases at Serial No.3 and 4 are concerned, in those cases also the petitioner was acquitted. So far as the case at serial No.6 is concerned, that was in the nature of prohibitory order, therefore, only one case at Serial No.5 in the order dated 23.11.2013 is pending against the petitioner. The cases which have been considered while passing the impugned order reveal that the order of externment has been passed on the basis of old and stale cases, in most of which the petitioner was already acquitted. 7. The Division Bench of this Court in the matter of Ashok Kumar Patel Vs. State of M.P. and others reported in 2009(4) M.P.L.J. 434 has expressed that if a person is engaged or is about to be engaged in the commission of offence or in the 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 and the requirement of the said sub-section is not fulfilled. 8. Another ground which has been taken by the counsel for the petitioner is that in the impugned order the District Magistrate has baldly stated that the witnesses are not coming forward to give evidence against the petitioner, but there is nothing to substantiate it. 9. The Division Bench in the matter of Ashok Kumar (supra) has held as under :- “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. 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. 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 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 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.” 10. The original record has been produced before this Court and on the perusal of the said record also it is noticed that there is no sufficient material to substantiate the passing of an order under Section 5(a) or 5(b) of the Act. So far as Section 5(c) of the Act is concerned, there is no iota of material to show that any such circumstances exist. 11. In these circumstances the impugned order of externment dated 23.11.2013 passed by the District Magistrate as affirmed by the order in appeal by the Commissioner dated 25.2.2014, cannot be sustained and is hereby set aside. 12. The writ petition is allowed to the extent indicated above. C.C. as per rules.