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2014 DIGILAW 979 (MP)

Aman v. State of M. P.

2014-08-07

S.R.WAGHMARE

body2014
Judgment S.R. Waghmare, J.:- This writ petition under Articles 226 & 227 of the Constitution of India, the petitioner Aman Rathore has challenged the order dated 26.3.14 passed by the District Magistrate, Dhar, by which the petitioner has been externed from the District of Dhar, Indore, Ujjain, Ratlam, Jhabua, Barwani, Khargone and Alirajpur for a period of six months and also the appellate order dated 31.5.14 passed by the court of Commissioner in Case No. 10/Appeal/Su.Adhi./2014. Counsel for the petitioner has vehemently urged the fact that the SP, Dhar had proceeded against the petitioner under provisions of 5A of the Madhya Pradesh Rajya Suraksha Adhiniyam 1990, stating that the involvement of the petitioner in criminal activities was a danger to the life of the public in district Dhar and surrounding areas and, therefore, the externment was required to be passed against the petitioner. The District Magistrate Dhar had issued a show cause notice No. 62, dated 22.01.13 to the petitioner. The petitioner was heard, however, the order of externment was passed on 26.3.14 in the case No. 04/13 (Annexure P/1). Being aggrieved the petitioner had filed the appeal under Section 9 of the MP Rajya Suraksha Adhiniyam, 1990 before the Court of the Commissioner who upheld the findings of the District Magistrate and dismissed the appeal. The appeal was registered as Case No. 10/Appeal/Su. Adhi./2014 and hence the present petition filed by the petitioner. 2. Counsel for the petitioner has vehemently urged the fact that before passing the externment order, District Magistrate has to be satisfied on the basis of the material placed before him that the accused were causing or calculated to cause alarm, danger or harm to person or property, in general, however there is no such finding in the impugned order and the statement of the Police was not supplied to the petitioner and hence he was not able to take up an adequate defence. Counsel submitted that the material on record did not satisfy the ingredients as contemplated under Sections 5-A & 5-B of the Suraksha Adhiniyam. Moreover out of 16 offences registered against him, the accused had been acquitted in most of them. Moreover even if the nature of the offence registered are considered Counsel submitted that all of them are petty offences under Sections 323, 294 & 506 of the IPC. He was involved in any serious offences. Moreover out of 16 offences registered against him, the accused had been acquitted in most of them. Moreover even if the nature of the offence registered are considered Counsel submitted that all of them are petty offences under Sections 323, 294 & 506 of the IPC. He was involved in any serious offences. Even if the list filed along with the reply filed by the State is considered, Counsel submitted that there was no offence registered against the petitioner after the year 2011, whereas the externment order has been passed in the year 2013. Counsel prayed that the impugned orders be set aside. 3. Counsel relied on Asaf Ali vs. State of M.P. and others reported in [2006 (3) MPLJ] to state that the basis on which the externment order had been passed against the petitioner were old and stale offences under the Indian Penal Code in which he had been acquitted from all of them and the Court had held that powers of externment are to be exercised sparingly with care and circumspection and cannot be used for punishing a man for his past deeds and the externment order was held not sustainable. 4. Similarly placing reliance on Pappu @ Dinesh Gupta vs. State of Madhya Pradesh reported in 2007 MP CANDID 110 to state that "the Commissioner has nowhere found that the movements or acts of the petitioner were causing or calculated to cause alarm, danger or harm to the person or property. He has, merely found that the petitioner was convicted with fine in all seven cases registered under Public Gambling Act. He has further found that one more prosecution is pending against the petitioner which confirms the criminal background of the petitioner. No doubt that the past conduct or antecedent history of a person can appropriately be taken into account in making an order of externment. However, the criminal background of a person by itself is not sufficient to empower the authorities to pass order of externment, unless it is found that the criminal background of the proposed externee is causing or calculated to cause alarm, danger or harm to person or property." 5. However, the criminal background of a person by itself is not sufficient to empower the authorities to pass order of externment, unless it is found that the criminal background of the proposed externee is causing or calculated to cause alarm, danger or harm to person or property." 5. Relying on Kala S/o. Khan Sahib vs. State of M.P. and another reported in 2004 MP Candid 685 Counsel stated that the condition precedent to passing of order of externment was that an opinion has to be formed by the District Magistrate as "witnesses are not willing" to come forward to give evidence and proceed against such person by reason of apprehension of their part as regard to safety of their person or property. 6. Relying on Ravindra Singh Sikarwar vs. State of M.P. reported in 2009 MP CANDID 53 Counsel submitted that the learned Counsel appearing for the petitioner has categorically stated before this Court that while issuing the show cause notice to the petitioner, the respondent District Magistrate has not provided him copy of the statement of the police officers recorded in the matter and the Court had held that since the statements of the witnesses and certain police officers were not furnished to the petitioner, the order passed by the respondents of externment was liable to be quashed and in the present case also Counsel pointed out that he had raised objection that the petitioner was not granted opportunity of hearing and was not supplied all the relevant documents. Moreover Counsel also insisted that to pass an externment order on the basis of past connection was mandatory and hence also the petition was required to be allowed and the impugned order of externment and that of the appellants order be set aside. 7. Counsel for the respondent State on the other hand has vehemently opposed the fact that the petitioner was wrongly externed. Counsel submitted that by way of reply it was drawn the notice of the Court that there were several cases pending against the petitioner for offence under Sections 323, 506 and 294 of the IPC in almost 16 cases and he has not been acquitted in all of them as is contended by the Counsel for the petitioner. In fact there has been conviction in some of them and Counsel prayed that the petition was without merit and the same be dismissed as such. In fact there has been conviction in some of them and Counsel prayed that the petition was without merit and the same be dismissed as such. Moreover Counsel submitted that the petitioner is an anti-social element and had no right to claim sympathy. He prayed for dismissal of the petition. 8. On considering the above submissions I find that there are no other offences listed after the year 2011 against the petitioner. However, another important fact which cannot be marginalized or blinked away is that the petitioner is implicated in petty matters such as Sections 294, 506 & 323 of the IPC; although it has been alleged in the report of the Police Superintendent filed as Annexure R-l, I find that the Superintendent has observed that the petitioner was found always armed with weapons and there is no case under the Arms Act registered against the petitioner. Moreover all the offences registered against the petitioner were for the period from 2004-2011. There is not a single case recorded after the year 2011 against the accused petitioner. It would be more fruitful to rely on Ashok Kumar Patel vs. State of M.P. and others reported in 2009 (4) MPLJ Page 435 whereby the Division Bench of this Court held thus: "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 he 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. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reason 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 1990. 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 the appellate order of the Commissioner are liable to be quashed. [ AIR 1973 SC 630 , AIR 1989 SC 1304 and AIR 2005 SC 2080 ] 9. In the present case also I am of the opinion that the order passed by the District Magistrate was upheld by the Commissioner. There is a failure to fulfill both the conditions as stated in Section 5-b of the Act 1990. There is no expression that in the opinion of the said Authority that the present accused petitioner was a danger to the person of property of persons and was therefore being externed. Similarly this Court has in the matter of Asaf Ali (supra) held that the petitioner should not be involved in old and stale offences under the IPC and the powers of externment are to be exercised sparingly with care and circumspection and cannot be used for punishing a man for his past deeds. In this light I find that the petition needs to be allowed and it is hereby allowed. Consequently the impugned order passed by the court of Commissioner in Case No. 10/Appeal/Su.Adhi./2014 and the order passed by the District Magistrate, Dhar in Case No. 04/2013 are, therefore, liable to be quashed on these grounds and they are hereby quashed as being contrary to the provisions of law. It is directed that the petitioner shall be set at liberty to enter the districts from where he has been externed. The petition is allowed to the extent herein above indicated.