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Madhya Pradesh High Court · body

2017 DIGILAW 1185 (MP)

Anil v. State of M. P.

2017-11-20

P.K.JAISWAL

body2017
ORDER Heard. 1. By this writ petition under Article 226 of the Constitution of India, the petitioner is praying for quashment of externment order dated 6.4.2017 passed by the District Magistrate, Barwani and order dated 4.10.2017 (Annexure P-1) passed by the Commissioner, Indore Division by which appeal under section 9 of the M. P. State Security Act, 1990 (in short "the Act of 1990") preferred by the petitioner has been dismissed. 2. Facts of the case are the petitioner is resident of Barwani. On the basis of report submitted by the Superintendent of Police, Barwani, the District Magistrate initiated action against the petitioner under section 5(a-b) of the Act of 1990 and a show cause notice was issued to the petitioner. 3. The petitioner submitted his reply and denied the allegation made against him and submitted that out of total five criminal cases registered against him at Rajpur vide Crime No.474/2007, Crime No.84/2008, Crime No.478/2013, Crime No.444/2014 and Crime No.26/2016, he has been acquitted in Crime No.474/2007, Crime No.84/2008 and Crime No.444/2014. In Crime No.26/2016, as the offences under sections 294, 323, 506 and 34 of the IPC is compoundable, an application for compromise has been filed and the same is pending before the Judicial Magistrate First Class. 4. The District Magistrate on the basis of report of the Superintendent of Police, Barwani passed the impugned order after considering the material evidence available on record on 6.4.2017 by which the petitioner has been directed to leave the territory of District Barwani within 24 hours and not to enter Barwani and nearby districts, without the permission of the authority. 5. Being aggrieved by the order dated 6.4.2017, petitioner filed an appeal under section 9 of the Act of 1990 before the Commissioner. 6. Vide order dated 4.10.2017 (Annexure P-1), the said appeal has been dismissed. 7. The petitioner is assailing the aforesaid order on the ground that while passing the order, five criminal cases were considered by the respondents and out of five criminal cases, in three cases, he has been acquitted by the Competent Court and in one case, application for compromise is pending. Only one case (Crime No.478/2013) is pending and in the aforesaid matter, statement of all the prosecution witnesses have been recorded. Only one case (Crime No.478/2013) is pending and in the aforesaid matter, statement of all the prosecution witnesses have been recorded. He has mentioned all these details in his reply to show cause notice but the same has been discarded by the District Magistrate as well the by the appellate authority and his appeal has been rejected on the basis of presumption that because of terror and fear of the petitioner, witnesses have not given evidence against him. Except the aforesaid, there was no material with the authorities, hence, the order is bad in law. 8. From the years 2007 to 2016, 5 cognizable criminal cases were registered against the petitioner, mainly offences punishable under sections, 147, 148, 149, 323, 506, 341, 294, 324, 34 and 153A of the IPC. The impugned order has been passed on the basis of presumption that because of the terror and fear of the petitioner, witnesses have not deposed against him. The externment order was passed for a period of one year w.e.f. 6.4.2017 to 5.4.2018. During the period of 2015 to 2017, no criminal case has been registered against the petitioner. 9. The Division Bench of this Court at Principal Seat Jabalpur in the case of Ashok Kumar Patel v. State of M. P. and others, reported in 2009(4) MPLJ 434 , has held that unless the conditions mentioned under section 5(b) of the M. P. Rajya Suraksha Adhiniyam, 1990 are strictly satisfied, an order of externment will have to be quashed by the Court. The two conditions, for passing an order of externment against a person, to be satisfied are :- (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 sections 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. 10. 10. 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. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reasons 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. 11. In the present case, from the record, it is not in dispute that after 2014, not a single case has been registered against the petitioner nor any material was available with the authorities to pass the order. The registration of a criminal case is not a condition precedent to implicate the petitioner under the provisions of the Act of 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. 12. For the above mentioned reasons, I am of the view that the impugned order dated is liable to be quashed. Accordingly, impugned orders dated 6.4.2017 and 4.10.2017 are hereby, quashed. The writ petition is accordingly, allowed and disposed of. Manish Yadav for petitioner; Swapnil Sharma, Dy. Government Advocate for State.