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2021 DIGILAW 134 (MP)

Ram Lakhan Yadav v. State of M. P.

2021-02-09

ATUL SREEDHARAN

body2021
ORDER : Atul Sreedharan, J. 1. The present petition has been filed by the petitioner herein who is aggrieved by the order dated 11.11.2020 passed by the Commissioner, Jabalpur whereby he upheld the order of the District Magistrate dated 28.7.2020, whereby the Collector had externed the petitioner from Jabalpur District and other adjoining districts for a period of one year. The brief facts of the case are as follows. 2. On 6.11.2016, the petitioner was externed by the District Magistrate, Jabalpur for a period of six months. The said order was challenged in appeal. The same was confirmed by the Commissioner, Jabalpur. Thereafter, on 23.6.2018, the Superintendent of Police, Jabalpur forwarded an application to the District Magistrate, Jabalpur for proceeding against the petitioner under the provisions of Madhya Pradesh Rajya Suraksha Avam Lok Vyavastha Adhiniyam, 1990. It was registered as case No. 6/2018 and 16 cases pending against the petitioner were tendered along with application by the Superintendent of Police. Vide order dated 29.9.2018, the Collector Jabalpur passed an order of externment against the petitioner for a period of one year, vide order dated 29.9.2018. The said order of externment was challenged before the Commissioner, Jabalpur who allowed the appeal, quashed the order of externment passed by the Collector. 3. Thereafter on 22.3.2020 an incident took place within the jurisdiction of Police Station Khamariya and Crime No. 184/2020 was registered four months later on 8.7.2020 for offences punishable under sections 327, 427, 294, 506 and 34 IPC by the complainant Gaurav Dixit. But for the offence under section 327, the remaining offences were all bailable. On 8.7.2020, the SHO of PS Khamariya forwarded the FIR dated 8.7.2020, to the Superintendent of Police, Jabalpur. The Superintendent of Police, Jabalpur vide his order of even date, forwarded the letter to the District Magistrate, Jabalpur and on 10.7.2020, Nirupa Pandey, ASI at PS Khamariya swore an affidavit where she levelled allegations against the petitioner to the effect that he was a habitual offender and was creating a law- and-order situation in the vicinity of Dumna Airport by extorting money and intimidating persons. On 17.7.2020 Nirupa Pandey, ASI was cross-examined wherein she deposed before the Court denying all the facts and evidence in the affidavit dated 10.7.2020 and she also categorically accepted the fact that the petitioner had not committed any offence between 2017 to 2020. On 17.7.2020 Nirupa Pandey, ASI was cross-examined wherein she deposed before the Court denying all the facts and evidence in the affidavit dated 10.7.2020 and she also categorically accepted the fact that the petitioner had not committed any offence between 2017 to 2020. However, the same notwithstanding, the District Magistrate vide order dated 28.7.2020 passed the order externing the petitioner for a period of one year from Jabalpur and other adjoining districts. 4. Thereafter, the petitioner appealed against the aforementioned order passed by the Collector and the Commissioner Jabalpur Division dismissed the appeal and upheld the order passed by the Magistrate. 5. The challenge to the said impugned order is on the following brief grounds. The first one being that those cases which constituted the formation of opinion by the District Magistrate with regard to the proceedings of 2018 where the order of externment was passed against the petitioner, which was however, quashed by the Commissioner on appeal, the said list of cases could not have been considered while passing the second order of externment. It is further argued that only one FIR was registered against the petitioner on 8.7.2020 and that too belatedly after a passage of four months for an incident stated to have been committed on 22.3.2020. 6. Per contra, learned counsel for the State has argued that there is nothing perverse in the order impugned and that the District Magistrate has applied his mind to the facts and circumstances of the case and only thereafter passed the order of externment, which has been upheld in appeal. 7. Heard the learned counsel for the parties perused the petition and the documents filed therewith and also taken into consideration the judgments placed before this Court by both the sides. 8. Learned counsel for the petitioner has referred to the judgments passed by the Division Bench of this Court in Ashok Kumar Patel v. State of M.P. and others, 2009 (4) MPHT 263 , The Division Bench while considering the legality of externment under M.P. Rajya Suraksha Adhiniyam, arrived at a conclusion that two conditions were required to be satisfied for the externment order of the externment to be valid. Firstly, the alleged offences should have close proximity to the order of externment and secondly, there has to be material to show that witnesses were not coming forward to give evidence against the proposed externee. Firstly, the alleged offences should have close proximity to the order of externment and secondly, there has to be material to show that witnesses were not coming forward to give evidence against the proposed externee. That was a case pertaining to district Rewa where the criminal activities of the petitioner in that case were forwarded by the Superintendent of Police, Rewa to the District Magistrate. The District Magistrate after hearing both sides externed the petitioner in that case. The said order of the Collector was upheld by the Commissioner in appeal. Before this Court, it was argued that there was no material before the District Magistrate for passing the order of externment under section 5(b) of the M.P. Rajya Suraksha Adhiniyam, 1990 and that there were no reasonable grounds to believe that the petitioner of that case had engaged or was about to be engaged in the commission of an offence involving force or violence. Under the circumstances, it was argued before the Division Bench that there was no satisfaction whatsoever of the District Magistrate that the petitioner was engaged or was about to be engaged in the commission of offences. The learned Division Bench examined the scope of section 5 of the Rajya Suraksha Adhiniyam, referred to various judgments of the Supreme Court and arrived at the finding that the commission of the offence or abetment by the proposed externee must have very close proximity to the date on which the order was proposed to be passed under section 5(b) of the Act of 1990 and the second condition which had to be satisfied for passing an order of externment was that the witnesses were not coming forward to give their evidence in public against the proposed externee. Thereafter they went ahead and closed the proceedings against the complainant in that case. 9. The law laid down by the division bench has been followed by another Single Bench in W.P. No. 23930/2018 decided on 17.1.2019. In that case it was argued on behalf of the externee that the order of externment was illegal and arbitrary as the order of externment has been passed on the basis of old and stale matters from which the petitioner has been acquitted. 10. In this case also the learned counsel for the petitioner has submitted that out of the 10 cases the petitioner was acquitted in 8 cases. 10. In this case also the learned counsel for the petitioner has submitted that out of the 10 cases the petitioner was acquitted in 8 cases. This has not been disputed by the learned counsel for the State, who however has submitted that three of those cases the acquittal was by way of compromise and in three other cases, the acquittal took place on account of the witnesses turning hostile and in two others only it was a case of clear acquittal and in one case he was convicted for an offence under section 323 IPC. 11. The petitioner in W.P. No. 23930/2018 was also granted the relief by the Single Judge by quashing of the order of externment by holding that there is no reference in the order of externment by the District Magistrate that witnesses named in the challan filed by the police are not coming forward to give evidence against the petitioner in the Court. 12. In the cases against the petitioner, the State has not been able to establish that the witnesses are not turning up in Court to depose against the petitioner. On the contrary, in three cases the witnesses did appear but they however, turned hostile and did not support the prosecution's case. In three other cases, there was a compromise between the parties. 13. Learned counsel for the petitioner has submitted that the cases, which were used by the police in the first instance to extern the petitioner in the year 2018 having been set aside by the order of the Commissioner in appeal. He further submitted that only on the basis of fresh material, could the District Magistrate extern the petitioner. He, however, says that the same offences which were considered in the year 2018 were reconsidered once again in the year 2020 when the witness of the police itself in a testimony before the Collector has stated that after 2017 the offence of 2020 is the only case which has been registered against the petitioner. 14. The learned counsel for the petitioner has also placed before this Court, the judgment of another Division Bench of this Court in Rajendra Kumar Jain v. State of M.P., 2015 (1) MPWN 37 . In that case, the petitioner was then detained under the National Security Act. 14. The learned counsel for the petitioner has also placed before this Court, the judgment of another Division Bench of this Court in Rajendra Kumar Jain v. State of M.P., 2015 (1) MPWN 37 . In that case, the petitioner was then detained under the National Security Act. The grounds of detention served on the petitioner related to his involvement in the commission of 20 criminal cases from time to time since the year 2021.The learned Division Bench of this Court held that the acquittal of the petitioner in that case in 17 criminal cases out of the 20 was a relevant factor ought to have been considered by the Detaining Authority and having not done so, vitiated the subjective satisfaction. Learned counsel for the petitioner submits that be it an order under the National Security Act or an order under the M.P. Rajya Suraksha Adhiniyam, in both the cases it is the fundamental right to life of the internee/detenu under Article 21, that is violated if the procedure adopted is not just and proper. In that case also the detention order was quashed and set aside. 15. Learned counsel for the State on the other hand has referred and relied upon the judgment of a Single Bench reported in 2004 (1) MPHT 165 (Babu Khan v. State of Madhya Pradesh and others), whereby it was held in paragraph 6 that in a case of externment the fact that the petitioner was acquitted in some of the cases was no ground for an argument that no order could have been passed against him. This Court had observed that it is not the case of the petitioner that list of cases mentioned in the show cause were not at all registered against him nor do they relate to him. The learned Single Judge arrived at the conclusion that it was not the case of the petitioner that he was not involved in those cases cited by the State and that it was in relation to some other person. The judgment put forth by the learned counsel for the State is against the law laid down by the Division Bench of this Court in 2009 (4) MPHT 263 (DB): (undefined) and 2015 (1) MPWN 37 . 16. The judgment put forth by the learned counsel for the State is against the law laid down by the Division Bench of this Court in 2009 (4) MPHT 263 (DB): (undefined) and 2015 (1) MPWN 37 . 16. The undisputed facts in this case reveals that after the first order of externment was passed on 20.2.2019, by the Collector/District Magistrate Jabalpur, which was set aside by the Commissioner in appeal. Thereafter, the list of cases that were relied upon by the Superintendent of Police forwarding the same to the District Magistrate to extern the petitioner could not have been used for the second time as their relevance was already considered by the Commissioner in appeal after which the order of externment was quashed. Thus, it is clear that for a fresh externment order from the Collector/District Magistrate, it was essential for the District Magistrate to consider an entirely different set of cases, which did not constitute a part of the earlier proceedings against the petitioner. In this case, the two conditions, which were required to be taken cognizance of as held by the judgment of this Court in Ashok Kumar' Patel's case (supra), was that the offences/cases should have a close proximity to the order of externment and the second condition was that there must be material to show that witnesses are not coining forward to give evidence against the proposed externee. The statement of the police witness in cross-examination where the person admits that after 2017 the only case registered against the petitioner was Crime No. 184/2020 at Police Station Khamariya as mentioned hereinabove. It is also relevant to mention here that the incident constituting the said offence was committed on 22.3.2020 but the FIR has belatedly been filed after four months on 8.7.2020 for which there is no reason given. The offences are also extremely minor in nature with only section 327 being the non-bailable offence and the remaining offences being bailable. 17. Under the circumstances, in view of the discussion hereinabove, the present petition succeeds, and the impugned orders dated 11.11.2020 and dated 28.07.2020 stand quashed. The petitioner shall be released forthwith if not wanted in any other case.