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2019 DIGILAW 122 (MP)

Akku @ Akash Yadav v. State of M. P.

2019-02-05

SANJAY YADAV

body2019
ORDER 1. With the consent of learned counsel for the parties, the matter is finally heard. 2. This petition under Article 226 of the Constitution of India is directed against the order dated 26.7.2018 passed by the Commissioner, Bhopal, Division Bhopal; whereby, an order of externment of the petitioner by the District Magistrate Vidisha, has been affirmed. 3. Proceedings against the petitioner under Madhya Pradesh Rajya Suraksha Adhiniyam 1990, (hereinafter referred to as Adhiniyam 1990) was initiated by District Magistrate on the basis of the report from Superintendent of Police, Vidisha, vide his letter No. iqŒvŒfofn'kk@jhMj@ftyk cnj@17@2016 dated 3.10.2016 that the petitioner has indulged in criminal activity since 2010 which are not conducive to peace and serenity and there is always apprehension of breach of peace and public order. 4. Show cause notice was issued vide preliminary order dated 30.12.2010 purportedly under section 5 of Adhiniyam 1990, on the finding that 4 cases under various provisions of Indian Penal Code were registered; viz, Crime No. 88/2010 under section 307/34 IPC, 25 Arms Act (Police Station Kotwali); Crime No. 413/2012 under sections 307, 34, 427 IPC, 25, 27, 30 Arms Act (Police Station Civil Lines); Crime No. 538/2014 under sections 341, 323, 294, 506, 34, 307, 302 IPC, (Police Station Civil Lines); Crime No. 492/2016 under sections 147, 148, 149, 294, 506, 341 IPC (Police Station Kotwali), Istagasa 13/2016 under section 110 Code of Criminal Procedure, 1973. 5. Responding to said preliminary order and the show cause notice, petitioner filed his reply on 10.1.2017. It was stated that out of cases in 2 cases the petitioner is acquitted i.e. in Crime No. 88/2010 and 413/2012. It was stated that he has been falsely implicated. 6. The District Magistrate while not disputing that the cases registered vide Crime No. 88/2010, 413/2012 has resulted in recording acquittal, externed the petitioner from District Vidisha and the District of Raisen, Bhopal, Guna, Ashoknagar, Sagar and Rajgarh for a period of one year by order dated 28.2.2018 on the finding that because of the registration of cases against the petitioner under various provisions of the Indian Penal Code, his presence in these 7 district will not be congenial to public peace and order. An appeal preferred by the petitioner has been dismissed by the impugned order. 7. An appeal preferred by the petitioner has been dismissed by the impugned order. 7. Petitioner challenges the orders on the ground that though the condition precedent required to be satisfied for an action under section 5 of Ahinityam 1990 has not been fulfilled, yet the petitioner has been subjected to externment. It is urged that maximum number of cases having ended into an acquittal goes to establish that the petitioner has been falsely implicated. It is urged that no satisfactory evidence has been led before the District Magistrate as could establish even a prima facie case against the petitioner. It is contended that even an opportunity of hearing has not been given. It is urged that without affording any opportunity to lead evidence the matter was closed. It is urged that entire proceedings was only an eyewash. It is contended that though there is no likelihood of breach of public peace and order yet the petitioner has been subjected to externment from seven districts. 8. Learned Govt. Advocate on his turn supports the order of externment as well as the Appellate order. It is contended that, the impugned order does not warrant any interference. It is urged that reasonable grounds were available for believing that the petitioner was engaged in commission of an offence involving force and violence and that there exists the likelihood that the witness will not come forward to record evidence against the petitioner in the pending criminal case. It is contended that order of externment being in public interest does not warrant any interference. 9. Considered the rival submissions and perused the material on record. 10. Section 5 of the Adhiniyam, 1990 whereunder action is taken stipulates : "5. Removal of persons about to commit offence. It is contended that order of externment being in public interest does not warrant any interference. 9. Considered the rival submissions and perused the material on record. 10. Section 5 of the Adhiniyam, 1990 whereunder action is taken stipulates : "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 reasonable grounds for believing that such 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 he Indian Penal Code, 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 district, or part thereof, as the case may be, from which he was directed to remove himself." 11. A Division Bench of this Court in Ashok Kumar Patel v. State of M. P. and others : 2009 (4) MPLJ 434 , while dwelling upon the scope of the said provisions opined : "6. A Division Bench of this Court in Ashok Kumar Patel v. State of M. P. and others : 2009 (4) MPLJ 434 , while dwelling upon the scope of the said provisions opined : "6. 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 he 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. 8. The expression "is engaged or is about to be engaged" in the commission of 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, shows that the commission of the offence or the abetment of such offence by the person must have a very close proximity to the date on which the order is proposed to be passed under section 5 (b) of the Act of 1990. Hence, if a person was engaged in the commission of offence or in 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. 13. The Act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and the fundamental right personal liberty under Article 21 of the Constitution and unless he conditions mentioned under section 5 (b) of the Act of 1990 are strictly satisfied, an order of externment, will have to be quashed by the Court. The Act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and the fundamental right personal liberty under Article 21 of the Constitution and unless he conditions mentioned under section 5 (b) of the Act of 1990 are strictly satisfied, an order of externment, will have to be quashed by the Court. While considering a case under section 56 of the Bombay Police Act, which also empowered the police to pass an order of externment, the Supreme Court observed in Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, State of Maharashtra (supra) as under :"It is true that the provisions of section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society. This Court in Gurbachan Singh v. The State of Bombay, 1952 SCR 737 = AIR 1952 SC 221 had upheld the validity of section 27(1) of he City of Bombay Police Act, 1902, which corresponds to section 56 of the Act. Following that decision, the challenge to the constitutionality of section 56 was repelled in 1956 SCR 533 = AIR 1956 SC 585 . We will only add that care must be taken to ensure that the terms of sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee." 12. Thus, it is to be seen whether the condition precedent is satisfied in the case at hand, when admittedly only an incident leading to registration of an offence is being relied upon by the District Magistrate in passing the order of externment. True it is that an offender always have a ready defence of being falsely implicated and they always abjure the guilt. But for the action under section 5 of the Adhiniyam, 1990, it is not only the implication of an offence which should alone be the guiding factor, but some more in degree which would lead to real likelihood of breach of peace and public order. The facts of the present case does not attract the fulfillment of condition precedents for an exercise of powers under section 5 of Adhiniyam, 1990. 13. In the case at hand the District Magistrate while not disputing the fact that out of 5 cases, 2 cases ended in acquittal. The facts of the present case does not attract the fulfillment of condition precedents for an exercise of powers under section 5 of Adhiniyam, 1990. 13. In the case at hand the District Magistrate while not disputing the fact that out of 5 cases, 2 cases ended in acquittal. Furthermore, registration of cases in the year 2014 and 2016, will not in the considered opinion of this Court, would lead to an inference that the presence of the person concern poses threat to peace and public order. The reasonable ground which imperatively should exist for an incumbent to be externed, being not present the impugned order of externment cannot be given the stamp of approval. Even the appellate authority has glossed over these aspects; therefore, even the Appellate Order is not sustainable in the eyes of law. Consequently, the impugned order dated 26.7.2018 (Annexure P-1) and 28.2.2018 (Annexure P-2) are set aside. 14. Petition is allowed to the extent above. No costs.