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2019 DIGILAW 389 (MP)

Sanjay @ Sanju Singh v. State of M. P.

2019-05-15

S.K.SETH, VIJAY KUMAR SHUKLA

body2019
ORDER Shukla, J. -- 1. With the consent of both the parties, the appeal is heard finally. 2. Seeking an exception to the order passed by the learned Single Judge dated 25.2.2019 in W. P. No. 107/2019, the present intra Court appeal is filed under section 2 (1) of the Madhya Pradesh Uchch Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005. 3. The appellant filed a writ petition under Article 226 of the Constitution of India being aggrieved by the order dated 17.12.2018, whereby the statutory appeal under the provisions of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as ‘the Adhiniyam’) filed by the petitioner was dismissed affirming the order of externment dated 12.10.2018 passed by the District Magistrate by which the appellant was externed from the municipal limits of District Sidhi for the period of eight months. 4. Learned counsel for the appellant submitted that the order of externment was passed in the absence of essential ingredients of section 5 (a) and (b) of the Adhiniyam. He has drawn the attention of this Court to the list of cases alleged to be registered against the present appellant. There are as many as 6 cases mentioned in the said list. The aforesaid table is reproduced as under: S. No. Crime No. Sections 1 142/06 294, 323, 506, 34, 325, 326 IPC 2 622/06 147, 148, 149, 294, 323, 324, IPC 3 74/09 294, 323, 506, 34 IPC 4 289/10 341, 294, 323, 506, 34 IPC 5 274/16 294, 323, 506, 34 IPC 6 Istgasa No. 6/17 110 Cr.P.C. Out of these 6 cases, except the case at Serial No. 5 which is of the year 2016, the remaining cases are of the years 2006, 2009 and 2010. The 6th case relates to prohibitory proceedings under section 110 of the Code of Criminal Procedure. Learned counsel for the appellant submitted that all the cases are old and stale which do not form sufficient material to pass an order of externment under ‘the Adhiniyam’. He also contended that the District Magistrate has failed to record its satisfaction on the basis of the material that the witnesses are not willing to come forward to give evidence in the public by reason on apprehension as regards to their safety, which is essential requirement under section 5(b) of the Adhiniyam. 5. He also contended that the District Magistrate has failed to record its satisfaction on the basis of the material that the witnesses are not willing to come forward to give evidence in the public by reason on apprehension as regards to their safety, which is essential requirement under section 5(b) of the Adhiniyam. 5. Learned counsel for the respondents submitted that the order of externment and the appellate order are based on the sufficient and cogent material available against the appellant and therefore, no interference is warranted in the present intra court appeal. 6. Before adverting to the contentions of the counsel for the appellant as discussed earlier and examining them on the anvil of the law prevailing in the field of externment, it is apt to refer the provisions of the Adhiniyam, 1990. Section 5 of the Act, under which the order of externment has been passed, is quoted herein below: "5. 6. Before adverting to the contentions of the counsel for the appellant as discussed earlier and examining them on the anvil of the law prevailing in the field of externment, it is apt to refer the provisions of the Adhiniyam, 1990. Section 5 of the Act, under which the order of externment has been passed, is quoted herein 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 reasonable 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 of 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.” 6. A plain reading of section 5 (b) of the Act 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. 8. At this stage, I think it condign to survey the authorities on the legal issues canvassed on behalf of the petitioner. 9. A Division Bench of this Court in the case of Ashok Kumar Patel v. State of M.P. & others, 2009 (4) MPLJ 434 after considering section 5 of the Act, held thus: “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.” 10. In the case of Ramgopal Raghuvanshi v. State of M. P. and others, 2014 (4) MPLJ 654 this Court, after considering the earlier judgments in respect of section 5 of the Act, held that the order of externment cannot be passed on the basis of old and stale cases. In the case of Ramgopal Raghuvanshi v. State of M. P. and others, 2014 (4) MPLJ 654 this Court, after considering the earlier judgments in respect of section 5 of the Act, held that the order of externment cannot be passed on the basis of old and stale cases. A coordinate Bench of this Court at Indore in the case of Bhim @ Vipul v. Home Department (W. P. No. 4329/2015, decided on 14.9.2015) has also considered the judgments rendered in the cases of Ashok Kumar (supra) and Ramgopal Raghuvanshi (supra) and held that the expression “engaged or is to be engaged” used in section 5(b) shows that commission of offence or the abetment of such offence by the person must have close proximity to the date on which the order is proposed to be passed under section 5 (b) of the Act. 11. In the case of Sanju @ Sanjay Ben v. State of M. P. and others, 2005 (4) MPHT 102 while considering the provisions of the Adhiniyam, 1990, the Court held that the provision is not punitive in its nature and a person cannot be externed for his past acts. Although past activities of a person may afford a guide as to his behaviour in future, they must be reviewed in the context of the time when the order is proposed to be made. The past activities must be related to the situation existing at the moment when the order is to be passed. 12. In the instant case, upon perusal of the impugned orders, it is also found that the District Magistrate did not record any opinion on the basis of the materials that in his opinion witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension as regards to their safety. Hence, in absence of any existence of material to show that witnesses are not coming forward by reason of apprehension to give evidence against the petitioner in respect of the alleged offences, an order u/s. 5 (b) of Adhiniyam, 1990 cannot be passed by the District Magistrate as held in the case of Ashok Kumar Patel v. State of M. P. (supra) by the Division Bench that for a passing an order of externment against the person, both the conditions mentioned under section 5 (b) (i) and (ii) have to be satisfied. 13. 13. In the light of the aforesaid preceding analysis, we are of the considered view that the impugned order of externment and affirmation thereof in the appeal are unsustainable having been found in violation of the ingredients of section 5 of the Adhiniyam and the judgments passed by this Court which have been noted hereinbefore. 13. Ex consequenti, the appeal is allowed. The order passed by the learned Single Judge dated 25.2.2019 as well as the impugned order of externment dated 12.10.2018 passed by the respondent No. 3 and the order dated 17.12.2018, passed by the appellate authority, the respondent No. 2 are hereby quashed.