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Madhya Pradesh High Court · body

2018 DIGILAW 555 (MP)

Shobharam Yadav v. State of M. P.

2018-06-25

SHEEL NAGU

body2018
ORDER 1. The jurisdiction of this Court under Article 226 read with 227 of the Constitution of India is invoked being aggrieved by the order of externment passed by the District Magistrate, Datia dated 4.8.2017 (Annexure P-2) externing the petitioner from the territory of District of Datia and its adjoining districts i.e. Shivpuri, Gwalior and Bhind for a period of one year, invoking the powers under sections 3 and 5 of M.P. Rajya Suraksha Adhiniyam, 1990 (1990 Act for brevity). Further challenge is laid to the appellate order of Commissioner, Revenue Division, Gwalior (Annexure P-1) dated 12.9.2017 rejecting the appeal preferred against the said order of externment. 2. Learned counsel for the rival parties are heard. 3. Learned counsel for the petitioner primarily raised the ground of non-application of mind in as much as 3 out of 8 offences which are taken into consideration against the petitioner have ended in acquitted leaving only 5 pending offences and that all these offences are of 2010 or earlier and also that there was no imminent and live danger to public order in praesenti. It is further submitted that there was no material in support of conclusion that the members of the general public feel insecure to depose against the petitioner. 4. Learned counsel for the State on the other hand referring to the original file pertaining to the proceedings of externment from the office of the District Magistrate, Datia, contends that though the petitioner has been acquitted in 3 out of 8 offences pending against him but one of the remaining 5 pending cases is of murder. It is also submitted that the statement of S.H.O of the concerned Police Station is on record as material to support the ground that the members of the general public are apprehensive to come forward to depose against the petitioner in the Court of law which results in technical acquittal of the petitioner in offences. Learned counsel for the State has also drawn the attention of this Court to a judgment to Para 18 of the judgement dated 15.3.1996 rendered by 4th Additional Sessions Judge, Gwalior in Sessions Trial No. 149/1990 where the learned trial Judge has observed that for some reason none of the PWs are ready to make statement against the petitioner and therefore, have turned hostile. The relevant para of the judgment is reproduced below : ^^vfHk;kstu i= }kjk ÁLrqr Áek.k ls ;g Li"V gks x;k gS fd e`rd ds HkkbZ vk'kkjke] mldh ekrk tudnqykjh] e`rd dh iRuh iq"ik rFkk vU; lkFkhx.k fdUgha dkj.kksa ls vfHk;qDrx.k ds fo#) lgh ugha nsuk pkgrs gSa rFkk vfHk;kstu dFkk fd iq"Vh ugha djrsA ?kVuk ds--------------** 5. In the aforesaid scenario the question that falls for consideration is whether the order of externment which is though based on antecedents of the petitioner constituting 5 offences out of which last one occurred sometimes in 2010, can be taken as foundation for declaring the petitioner to be imminent and live danger to the public order in praesenti? 6. Before adverting to the judicial pronouncements relevant to the issue involved herein it would be appropriate to reproduce the relevant statutory provision i.e. section 5 of the 1990 Act as follows : “5. 6. Before adverting to the judicial pronouncements relevant to the issue involved herein it would be appropriate to reproduce the relevant statutory provision i.e. section 5 of the 1990 Act as follows : “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 abatement 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 duty 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 my 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. (Emphasis supplied) 6.1 Close scrutiny of the language employed in section 5 reveals that while adjudging the movements, acts and conduct of any person for the purpose of forming opinion as regards externment the District Magistrate may evaluate material related to antecedents but this material can at best be corroborative in nature and utility, but never substantive in character. (Emphasis supplied) 6.1 Close scrutiny of the language employed in section 5 reveals that while adjudging the movements, acts and conduct of any person for the purpose of forming opinion as regards externment the District Magistrate may evaluate material related to antecedents but this material can at best be corroborative in nature and utility, but never substantive in character. The substantive material which forms the raison de etre for externment ought to exist at the crucial time of forming the opinion/satisfaction or likely to exist in the near future which is palpable enough to raise an apprehension that if nothing is done then the said apprehension would turn into reality. 6.2 The District Magistrate has wide powers to form the said opinion. However, the conclusion arrived at can draw inspiration from factor like antecedents but the final opinion and satisfaction formed by District Magistrate should invariably rest upon material available in praesenti. The objective material can be affidavits of members of general public who are alleged to be apprehensive and scared, or any evidence, oral or documentary, reflecting danger of imminent and live nature. 6.3(a) The impugned order of externment is passed by invoking the provision of section 5(b) which empowers the District Magistrate to remove any person of any district or districts which are contagious thereto, if it appears to him that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property. 6.3(b) The heartbeat of section 5(a) is the expression “are causing” or “calculated to cause” by the movements or acts of any person, should either exists in the present time when the opinion is being formed or should be so imminent and palpable that if preventive/remedial action is not taken the imminent danger would turn into reality. 6.3(c) The object of 1990 Act inter alia is to maintain public order. To achieve this objective, externment is prescribed as one of the modes. Externment is a drastic step which impinges upon the Fundamental Right of Liberty and therefore should be preceded by following such procedure and formation of mind which is in accordance with rule of law without any arbitrariness, capriciousness, or malice so as to be saved from being sacrificed on the alter of judicial review. Externment is a drastic step which impinges upon the Fundamental Right of Liberty and therefore should be preceded by following such procedure and formation of mind which is in accordance with rule of law without any arbitrariness, capriciousness, or malice so as to be saved from being sacrificed on the alter of judicial review. 6.3(d) Therefore, it is essential for the State to ensure strict compliance of the prescribed procedure with fair, just and reasonable formation of opinion as regards existence of compelling and imminent reasons to sustain an order of externment. 6.4 Merely because a person has criminal past cannot per se lead to a conclusion that allowing of such person to enjoy liberty of movement would be at the cost of danger to public order in the present. 6.5(a) It is seen that the only material available to the District Magistrate to form the aforesaid opinion was the statement of the SHO of Police Station, Datia. This statement of the SHO is of no avail. It would have been much better if the State would have recorded statement by independent members of the general public residing in the area who are adversely affected to ascertain whether such members of the general public are apprehensive of the acts, conduct and movements of the petitioner. No such statement of any independent person has been recorded and therefore, the statement of SHO itself is of no avail. 6.5(b) The other piece of foundational evidence as produced in the record by the learned counsel for the State is the observation made by the Sessions Judge while delivering one of its judgments acquitting the petitioner of the charge of murder that the witnesses for some reasons did not seem to depose inter alia against the petitioner. The said judgment was rendered in 1996 in regard to an incident which took place on 29.5.1995 and thus relates to remote past which can not, caste adverse shadow upon the petitioner's conduct movements and acts in praesenti. 6.5(c) The remaining material with the State are the 9 offences registered against petitioner out of which four relate to preventive action taken under sections 107, 116(3) and 110 of CrPC which are inconsequential. 6.5(c) The remaining material with the State are the 9 offences registered against petitioner out of which four relate to preventive action taken under sections 107, 116(3) and 110 of CrPC which are inconsequential. Among the remaining 5 pending offences, one is of murder committed in 2010, second is of wrongful restraint hurling of abuses and causing minor injuries registered in 1999, third offence is of assault against Government servant and hurling of abuses, the fourth relates to act endangering life or personal safety of others, while the fifth is of causing minor injury and causing intentional insult to provoke breach of peace.The indisputable feature of the aforesaid pending offences is that all the four of the offences registered in 1999, 2001, 2015 and 2017 are bailable where maximum punishment prescribed is 2 years imprisonment. These offences are trivial in nature which can not by any stretch of imagination cause breach of public order. 6.5(d) The remaining offence pending against the petitioner as alleged is of murder registered in 2010 in which the petitioner is presently facing trial. The said offence was committed sometime in 2010. No material has been brought forth by the State to sustain apprehension in the mind of District Magistrate that the petitioner has indulged in acts, conduct and movements of such nature which cause imminent and live danger to public order in praesenti. As such pendency of the said offence of murder against the petitioner may reflect presence of criminal antecedents but in the absence of compelling and live adverse circumstances and material on record, can not per-se become legitimate cause for the District Magistrate to form an opinion about breach of public order by the petitioner in praesenti. 7. From the above discussion what comes out loud and clear is that the petitioner's right to liberty has been curtailed for reasons not in accordance with law thereby violating his Fundamental Right under Article 21 of the Constitution of India. 7.1 Consequently, the order of externment and the appellate order cannot be sustained. 7.2 Accordingly, the petition stands allowed. The impugned order of externment dated 4.8.2017 (Annexure P-2) passed by District Magistrate and the appellate order dated 12.9.2017 (Annexure P-1) passed by the appellate authority Commissioner,Revenue Division, Gwalior are quashed. No Cost.