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Madhya Pradesh High Court · body

2020 DIGILAW 343 (MP)

Ankesh Chouhan v. State of M. P.

2020-03-02

SANJAY DWIVEDI

body2020
ORDER 1. Since pleadings are complete and learned counsel for the parties agreed to argue the matter finally, therefore, it is heard finally. 2. By this petition under Article 226 of the Constitution of India, the petitioner is seeking quashment of the orders dated 28.3.2019 (Annexure-P-1) and 23.10.2019 (Annexure-P-4). 3. By order dated 28.3.2019 (Annexure-P-1), the District Magistrate, Chhindwara, on a representation submitted by the Superintendent of Police, Chhindwara, made on 28.7.2017 for initiating action against the petitioner under section 5(a)(b) of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 [hereinafter referred to as 'the Adhiniyam, 1990'], passed an order of externment against him initiating the proceedings. 4. As per the report submitted by the Superintendent of Police, Chhindwara, there were nine cases registered against the petitioner since year 2011 in different Police Stations of District-Chhindwara. As per the report of respondent No. 2, the petitioner has been found involved in criminal activities and because of his criminal attitude, he is disturbing the peace of the town and also creating law and order situation. As per the said report, the residents of the area are under terror because of the petitioner's attitude and as such, he has become a matter of concern for the society. 5. As per the requirement of section 8 of the Adhiniyam, 1990, the petitioner was provided an opportunity of hearing and was issued show-cause notice asking to submit his reply. In the show-cause notice, it has been asked as to why the proceedings under section 5 of the Adhiniyam, 1990, shall not be initiated and the order of externment be not passed against him. The petitioner failed to submit his reply to the show-cause notice and also not attended the proceedings initiated by the District Magistrate, therefore, ex-parte proceedings have been initiated against him. 6. The District Magistrate after recording the statement of witnesses, arrived at a conclusion that it was a fit case in which he could exercise the power under section 5(b) of the Adhiniyam, 1990. The District Magistrate, it its order, has also observed that in the interest of public and to maintain law and order situation, it is appropriate that the petitioner be externed for a period of one year from the revenue boundaries of District-Chhindwara and also from all other nearby districts i.e. Seoni, Narsinghpur, Hoshangabad and Betul. 7. The District Magistrate, it its order, has also observed that in the interest of public and to maintain law and order situation, it is appropriate that the petitioner be externed for a period of one year from the revenue boundaries of District-Chhindwara and also from all other nearby districts i.e. Seoni, Narsinghpur, Hoshangabad and Betul. 7. The order passed by the District Magistrate was further appealed under section 9 of the Adhiniyam, 1990, before the Commissioner, Jabalpur, but the said appeal was also dismissed by the appellate authority on the ground that the same was barred by time. 8. This petition has been filed challenging the order passed by the District Magistrate mainly on the ground that as per the law laid down by this Court in various cases before exercising the power provided under section 5(b) of the Adhiniyam, 1990, two requirements must be fulfilled; first, the District Magistrate before forming an opinion that the 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, and secondly, 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. 9. The Division Bench of this Court in the case of Ashok Kumar Patel v. State of M.P. and others, reported in 2009(4) MPHT 263 , after considering section 5 of the Act, held as under: "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, thee 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. The Division Bench of this Court in the case of Kala v. State of M.P. and another [ 2004(4) MPLJ 234 ] has also taken note of the respective provision of section 5(b) of the Adhiniyam, 1990, and observed as under: "8. It is necessary under section 5(b) that if a person is involved in an offence punishable under Chapter XII, XVI or XVII or under sections 506 and 509 of the Indian Penal Code or in the abetment of any such offence, or is about to be engaged in such an offence, an action of externment can be taken. However, condition precedent is that the opinion has to be formed by the District Magistrate as "witnesses are not willing; to come forward to give evidence and proceed against such person by reason of apprehension on their part as regard to safety of their 'person or property'. In order (P-1), Addl. District Magistrate has mentioned that the persons are not lodging report and have the apprehension of safety on giving evidence against petitioner in the Court. But, the name of even single witness who has been given threat or who has apprehension of appearing in the Court due to fear of the petitioner, has not been referred to in the order. On specific query being made as to name of the witness, who has stated that he has apprehension of petitioner in deposing in the Court or in public, it has fairly been stated by the respondents counsel that there is nothing on record to suggest the name. Thus, in my opinion, satisfaction which has been recorded under section 5(b) by the Addl. District Magistrate lacks objective consideration of the matter. Thus, the order of externment based on section 5(b) has no legs to stand. Thus, in my opinion, satisfaction which has been recorded under section 5(b) by the Addl. District Magistrate lacks objective consideration of the matter. Thus, the order of externment based on section 5(b) has no legs to stand. Moreso, in view of the fact that the cases are of the year 2003 and it is not the case set up that any of the case has reached the evidence stage in the trial Court, thus, I find force in the submission raised by Shri H.S. Ruprah, learned Senior Counsel appearing for the petitioner that is criminal cases the stage of evidence has not yet reached, it is 'premature' to infer that any of the witness has any apprehension in deposing in public against the petitioner or has any kind of apprehension of person or property, thus, I find that the order of externment based on section 5(b) is liable to be quashed as essential ingredient to attract same does not exist in the instant case." 11. As per the order passed by the District Magistrate, it is clear that the recommendation was made by the Superintendent of Police, Chhindwara, on 28.7.2017 whereas the order was passed by the authority on 28.3.2019. Further, the authority has recorded the statement of one Police Officer, namely, Kanwaljeet Singh Randhawa, who was posted as an Inspector in Police Station-Pandhurna, DistrictChhindwara, and admittedly the statement of no other witness was recorded especially the witnesses who were the witnesses of the criminal cases registered against the petitioner. As per the orders passed by the Division Bench and observations as quoted hereinabove considering the mandatory requirement of condition prescribed under section 5(b) of the Adhiniyam, 1990, it is clear that in the present case, even the District Magistrate has not shown name of any of the witnesses who have been called to give statement against the petitioner that due to threat and terror of the petitioner, he is not coming forward to record his statement. It is also clear from the order passed by the District Magistrate that he failed to show as to how the mandatory condition as enumerated under section 5(b) of the Adhiniyam, 1990, is fulfilled. It is also clear from the order passed by the District Magistrate that he failed to show as to how the mandatory condition as enumerated under section 5(b) of the Adhiniyam, 1990, is fulfilled. Merely because in the report of Superintendent of Police, Chhindwara, material was produced, but that could not be the basis for recording subjective satisfaction by the District Magistrate even without recording statement of any of the witnesses who has stated that on account of the threat and terror of the petitioner, he is hesitating to come to the Court for recording his statement. 12. I have also perused the record submitted by the Deputy Government Advocate, but even in the record, nothing is found to substantiate as to on what basis the District Magistrate proceeded in the matter against the petitioner relying upon the recommendation made by the Superintendent of Police. In my opinion, in absence of fulfilling the second requirement of section 5(b) of the Adhiniyam, 1990, which necessitated to pass an order of externment considering the activities of the person, who is externee, the witnesses among public are not coming Court to depose in the criminal cases registered against the petitioner even under apprehension of person or property. But in the order impugned, if such a requirement and material to substantiate such requirement does not exist, the finding recorded by the competent authority to reach the satisfaction cannot be considered to be fulfilling the requirement of such a mandatory provision. Thus, considering the above aspect, in my opinion, the order of externment of the petitioner dated 28.3.2019 (Annexure-P-1) passed by the District Magistrate relying upon the report of the Superintendent of the Police, Chhindwara, is without application of mind and without recording the proper satisfaction as per section 5(b) of the Adhiniyam, 1990, therefore, the same is not sustainable and is hereby set-aside. 13. Resultantly, the order impugned dated 28.3.2019 (Annexure-P-1) passed by the District Magistrate, Chhindwara, and the order dated 23.10.2019 (Annexure-P-4) passed by the appellate authority i.e. the Commissioner, Jabalpur, are liable to be and are hereby set-aside. 14. Accordingly, this petition succeeds and is hereby allowed and disposed of. Parties shall bear their own costs.