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2017 DIGILAW 691 (MP)

ARVIND SINGH ALIAS PAPPU v. STATE OF M. P.

2017-05-19

S.A.DHARMADHIKARI

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ORDER : S.A. Dharmadhikari, J. With the consent of parties, matter is heard finally. 2. In this petition under Article 226 of Constitution of India, the petitioner has challenged the order dated 21/12/2010 passed against him for externment under the M.P. Rajya Suraksha Adhiniyam, 1990 (for brevity, 'Act of 1990') by the District Magistrate, Dist. Bhind and the appellate order dated 17/10/2011 passed by the Commissioner, Chambal Division, Morena rejecting the appeal of the petitioner filed against the order of externment. 3. The relevant facts briefly stated are that the Superintendent of Police, Dist. Bhind has submitted report dated 14/01/2010 to the District Magistrate, Bhind about criminal activities of the petitioner. In the report, the concerning police station had submitted details of chain of criminal offences alleged to have been committed by the petitioner from 1990 to 2009 and had made request that an externment order be passed against the petitioner in exercise of power under sections 3 & 4 of the Act of 1990. The District Magistrate, Dist. Bhind had issued a notice dated 21/06/2010 to show cause why a proceeding for order of externment from District Bhind as also the Districts touching the revenue limits of adjacent Districts, namely, Datia, Morena and Gwalior should not be initiated against him, and asked the petitioner to submit his reply on 29/07/2010. The petitioner appeared before the District Magistrate, Bhind on 29/07/2010 and submitted reply denying that he had committed offences alleged in the show cause notice. The District Magistrate, Bhind fixed the case for hearing on 12/08/2010. The petitioner did not appear before the District Magistrate, Bhind on 12/08/2010, inspite of the fact that the petitioner has been served notice for the same. On 26/08/2010 ex-parte proceedings were initiated against the petitioner by the District Magistrate, Bhind and vide impugned order dated 21/12/2010 directed externment of the petitioner from District Bhind as also the Districts touching the revenue limits of adjacent Districts, namely, Datia, Morena and Gwalior for a period of one year. Aggrieved, the petitioner preferred an appeal under section 9 of the Act of 1990 before the Commissioner, Chambal Division, Morena, but by order dated 17/10/2011, Commissioner dismissed the appeal. 4. Mr. H.K. Shukla, learned Counsel for the petitioner submitted that there was no material before the District Magistrate for passing the order of externment under section 5(b) of the Act of 1990. 4. Mr. H.K. Shukla, learned Counsel for the petitioner submitted that there was no material before the District Magistrate for passing the order of externment under section 5(b) of the Act of 1990. He submitted that notice was issued on the ground that there are 11 criminal cases registered against the petitioner in different police station and on account of terror around, the public are not living peacefully and there is criminal atmosphere. 5. The petitioner in his reply before the District Magistrate has invited attention of this Court to the fact that on account of political rivalry and village politics, the petitioner has been falsely implicated in most of the criminal cases. However, the petitioner has been acquitted by the Court in five criminal cases and in rest of the criminal cases witnesses are not appearing. Looking to such conduct, the Superintendent of Police, Dist. Bhind also requested the District Magistrate, Dist. Bhind vide letter dated 06/09/2010 that the proceedings under the Act of 1990 against the petitioner does not appear to be reasonable so the same may be withdrawn. The District Magistrate, Dist. Bhind proceeded further without considering the request for withdrawal and unilaterally ex-parte proceedings were conducted and the order of externment has been passed, therefore, this is a fit case in which the impugned orders passed by the District Magistrate, Dist. Bhind and the Commissioner, Chambal Division, Morena deserve to be quashed for contravention of different provisions of the Act of 1990. 6. Ms. Nidhi Patankar, learned Govt. Advocate, appearing for the respondents/State submitted that the order passed by the District Magistrate would show that the petitioner has committed a series of offences right from the year 1990 to 2009, on account of which the District Magistrate had to pass the order of externment under section 5(b) of the Act of 1990. She submitted that section 8(1) of the Act of 1990 is very clear that the District Magistrate shall inform the person in writing of the general nature of the material allegations against him and is not required to disclose materials on the basis of which the material allegations are made. After considering all the aspect of the matter and before passing the order impugned, the District Magistrate has issued show cause notice to the petitioner on 21/06/2010 which was replied by him and the same was considered before passing the impugned order. After considering all the aspect of the matter and before passing the order impugned, the District Magistrate has issued show cause notice to the petitioner on 21/06/2010 which was replied by him and the same was considered before passing the impugned order. In appeal, the Commissioner, Chambal Division, Morena after hearing the petitioner and perusing the criminal record of the petitioner dismissed the appeal. The aforesaid orders have been passed by the District Magistrate, Dist. Bhind and the Commissioner, Chambal Division, Morena after exercising their discretion judicially as well as considering the report in regard to criminal activities of the petitioner. In support of this submissions, she cited the decision of the Supreme Court in Pandharinath Shridhar v. Dy. Commissioner of Police, State of Maharashtra, AIR 1973 SC 630 in which pari materia provisions of section 56 of Bombay Police Act were interpreted and it was held that only the general nature of material allegations against whom the order of externment is proposed to be passed are to be furnished to the person concerned and not the full particulars on the basis of which the allegations are made. She submitted that a similar view has been taken by the Supreme Court in State of Maharashtra v. Salem Hasan Khan, AIR 1989 SC 1304 . She further submitted that in a recent decision in State of NCT of Delhi v. Sanjeev alias Bittoo, AIR 2005 SC 2080 , the Supreme Court has also taken a view that sufficiency of material to pass an externment order under section 47 of the Delhi Police Act, cannot be gone into by the Court while exercising the power of judicial review. 7. Section 5 of the Act of 1990 under which the order of externment has been passed is quoted here-in-below :- "5. Removal of persons about to commit offence. 7. Section 5 of the Act of 1990 under which the order of externment has been passed is quoted here-in-below :- "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 or 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 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; or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant; the District Magistrate, may by 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." 8. 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. 9. In the instant case, the District Magistrate has in the impugned order stated that the petitioner has created group of anti social element right from 1990 to 2009 and is continuously involved in the criminal activities. The petitioner is a habitual offender and is regularly involved in committing violence, beating persons belonging to lower caste, committed robbery and other offences and because of this, there is terror amongst the general public and, therefore, the witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards the safety of their person or property. The petitioner do not appear before the District Magistrate even though opportunity was granted to him. He do not produce any order of acquittal in the criminal case particularly with regard to the crime No. 27/2009 for the offence punishable under section 307, 427, 34 of IPC r/w section 25/27 of Arms Act. 10. From the aforesaid, it is clear that the matter relates to heinous crime pending before the Court below. With regard to the plea taken by the petitioner that superintendent of police vide his letter dated 06/09/2010 requested the District Magistrate, Dist. Bhind to withdraw the proceedings in which this aspect has been considered. Hence, the order passed by the District Magistrate, Dist. Bhind and the Commissioner, Chambal Division, Morena cannot be found fault with. The two conditions mentioned in the proceedings for passing the order of externment against the petitioner has been satisfied. 11. Accordingly, the orders passed by the District Magistrate, Dist. Hence, the order passed by the District Magistrate, Dist. Bhind and the Commissioner, Chambal Division, Morena cannot be found fault with. The two conditions mentioned in the proceedings for passing the order of externment against the petitioner has been satisfied. 11. Accordingly, the orders passed by the District Magistrate, Dist. Bhind and the Commissioner, Chambal Division, Morena are hereby affirmed as the same do not warrant any interference by this Court in exercise of its extra ordinary jurisdictional power. 12. In view of the above, this writ petition being bereft of merits and substance is hereby dismissed.