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2021 DIGILAW 325 (MP)

Irshad Hussian Qurashi v. State of M. P.

2021-03-09

SHAILENDRA SHUKLA, SUJOY PAUL

body2021
ORDER : Shailendra Shukla, J. 1. Submissions were made on I.A. No. 1766/2021, which is an application for amendment in prayer clause. 2. As per the application, the date of the impugned order was wrongly mentioned as 27.8.2018 whereas, it was 4.2.2021. 3. The application for amendment stands allowed in view of the fact that the date mentioned earlier in prayer clause was written erroneously. 4. Let the amendment be carried out during the course of the day. 5. Accordingly, I.A. No. 1766/2021 stands allowed and disposed of. 6. Final submissions were heard. The same is being disposed of as under:- 1. The present Writ Appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, has been preferred against order dated 4.2.2021, passed in W.P. No. 20518/2020, refusing to set aside the order dated 17.9.2020, passed by the District Collector, District Shajapur and order dated 14.12.2020, passed by the Commissioner, Division Ujjain, regarding externment of the petitioner for a period of six months from 17.9.2020. 2. The facts of the case precisely speaking are that, the Superintendent of Police, Ujjain requested the District Magistrate to initiate externment proceedings against the petitioner for being involved in criminal activities and the grounds of externment were served on 29.11.2017, as the petitioner was obstructing Government employees to execute Government work and thereby creating panic and terror resultant to which no witness was coming forward to depose against him. Hence, it was requested that the petitioner be externed under Section 5(a)(b) of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (herein after referred as 'the Act of 1990'). The District Magistrate, Ujjain, issued show cause notice against the petitioner under Section 8 of the Act of 1990. The petitioner submitted his reply along with affidavits in support refuting allegations of being involved in criminal activities and submitting that he was involved in the social service during lock down period. However, the submission of the petitioner did not find support from District Magistrate and externment order was passed for a period of six months vide order dated 17.9.2020. The appeal against this order also stood dismissed on 14.12.2020. 3. However, the submission of the petitioner did not find support from District Magistrate and externment order was passed for a period of six months vide order dated 17.9.2020. The appeal against this order also stood dismissed on 14.12.2020. 3. In the impugned order passed in writ petition which was preferred by the petitioner, it was observed that in view of the fact that petitioner is consistently involved himself in the criminal activities, his acquittal in some of the cases would not be enough to set aside the orders of externment and petition was dismissed. 4. The petitioner in this writ appeal has submitted that the order of externment was passed due to political rivalry of the appellant, that order of externment has been passed after a period of 20 months of service of grounds of externment, that appellant has been acquitted in all 4 criminal cases registered against him and rest cases are in the form of complaints of trivial criminal nature, that appellant has been a Corona warrior and these were appropriate grounds for setting aside the externment order and on these grounds impugned order passed in the writ petition has been sought to be set aside. 5. Learned counsel for the State was heard who has supported the impugned orders submitting that the order was passed keeping in view the criminal antecedents of the appellant and resultant terror created in the mind of the public at large and any relief to a person such as the appellant would create sense of insecurity in public at large. 6. Considered. 7. Learned counsel for the appellant has laid stress on the fact that there is an inordinate time gap between the date when the grounds of externment were served upon the appellant and when the order of externment was passed upon the appellant. The earlier date is 29.11.2017 and the later date is 17.9.2020. Learned counsel has referred to an order of co-ordinate Bench delivered in the case of Rajesh Singh vs. State of M.P. & Ors. passed in W.P. No. 12445/2019 dated 4.10.2019, para 7 of which is of relevance and reads as under:- "7. The earlier date is 29.11.2017 and the later date is 17.9.2020. Learned counsel has referred to an order of co-ordinate Bench delivered in the case of Rajesh Singh vs. State of M.P. & Ors. passed in W.P. No. 12445/2019 dated 4.10.2019, para 7 of which is of relevance and reads as under:- "7. In view of the aforesaid, in the considered opinion of this Court, in the present case also the recommendation by the S.P. was made on 25.11.2016 and the notice to show cause was issued to the petitioner only on 24.09.2018 i.e. almost after a period of one year and 10 months and thereafter the final order was passed on 05/11/2018 i.e. after more than two years from the date of recommendation, thus, this Court has no hesitation to hold that the initiation of the externment proceeding was merely a ritual which has been performed by the District Magistrate without application of mind after the recommendation was made by the Superintendent of Police on 25.11.2016." 8. In the aforesaid order, reference has been made of yet another order dated 2.8.2019 passed in W.P. No. 12446/2019 in the case of Manish Pratap Singh vs. State of M.P. & Others, wherein it has been held that:- "9. Above all, this Court also finds that the Superintendent of Police has recommended the proceedings to be initiated against the petitioner on 22.04.2016, the evidence of only one police witness has been recorded that too on 23.01.2017 i.e. after around 8 months whereas the order was passed by the District Magistrate on 26.11.2018 i.e. after one whole year after the witness was examined. Thus, a substantial period of more than 2 Vi years had already been elapsed when the order of externment was passed. 10. This Court, time and again has emphasized that an order of externment has to be passed soon after the notice to show cause is served on the petitioner. Of course, the principles of natural justice cannot be bygone while proceeding further but inordinate delay in disposing of such applications clearly defeat the very purpose for which the Adhiniyam of 1990 has been enacted. Of course, the principles of natural justice cannot be bygone while proceeding further but inordinate delay in disposing of such applications clearly defeat the very purpose for which the Adhiniyam of 1990 has been enacted. In this context, it would be apt to refer to the statement of object and reasons of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 which reads as under: "STATEMENT OF OBJECT AND REASONS For want of adequate enabling provisions in existing laws for taking effective preventive action to counteract activities of anti-social elements Government have been handicapped to maintain law and order. In order to take timely and effective preventive action it is felt that the Government should be armed with adequate power to nip the trouble in the bud so that peace, tranquility and orderly Government may not be endangered. (2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx"(emphasis supplied) 11. Thus, a bare perusal of the same reveals that very purpose of the Adhiniyam of 1990 is to take timely and effective action which is preventive in nature. As has been discussed above, more than 2 1/2 years have already been trifled away for no apparent reasons and during this entire period, no offense was registered against the petitioner. In view of the aforesaid, it is held that the order passed by the District Magistrate and affirmed by the Commissioner cannot be sustained in the eyes of law as the order itself has been passed by the D.M. after undue delay and thus, is a stale order passed against the petitioner for offences committed by him at an earlier period of time having no proximity with the order of externment." 9. Further, Court's attention has been drawn to yet another order dated 8.8.2019 passed in WP No. 12634/2019 in the case of Deepu Chourasiya Vs. State of M.P. and others, in which it has been observed in Para-8 as under:- "8. Further, Court's attention has been drawn to yet another order dated 8.8.2019 passed in WP No. 12634/2019 in the case of Deepu Chourasiya Vs. State of M.P. and others, in which it has been observed in Para-8 as under:- "8. In view of the same, in the considered opinion of this Court, the order of externment and its affirmation by the Commissioner cannot be sustained as apparently both the authorities below have not taken into consideration the extenuating facts that only three cases were registered against the petitioner out of which he was already acquitted in two cases when the recommendation was made by the S.P. and otherwise also those cases were not serious or heinous in nature and were registered against him in the year 2015-16 only, i.e. around two years prior to the recommendation by the S.P., thus, they were also not in close proximity to the impugned order of externment. It is a trite law that an order of externment has to be passed in close proximity of time when the offences are committed by the accused. As already observed above, the evidence was also not recorded to arrive at a satisfaction regarding the petitioner's menacing demeanor in public." 10. It would be appropriate to depict the criminal history of the appellant in tabular form:- Sr. no. Crime No. Case No. Result 820/2008 1929/2008 Pending 199/2010 1230/2010 Acquittal 19/2/2015 150/2017 302/2017 Acquittal 17/7/2017 297/2017 1165/2017 Acquittal 11/01/2017 61/2015 Istagasa 62/2015 Istagasa 3 of 2017 Istagasa 21/2017 Istagasa 406/2017 Istagasa 88/2019 Istagasa 94/2020 Istagasa 11. The relevant Section 5(b) of M.P. Rajya Suraksha Adhiniyam, 1990, reads as under:- "5. Removal of persons about to commit offence.- Whenever it appears to the District Magistrate- (a) ****************** (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) ****************** 12. A bare perusal of this provision shows that an order can be passed under this provision when either "the person is engaged or is about to be engaged in the commission of an offence" AND "when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public". 13. Learned counsel for the appellant has cited the judgment delivered in the case of Anil v/s. State of M.P. reported in 2018 (I) MPWN 2 , the following extracts of which are relevant:- "10. In the instant case, the District Magistrate has in the impugned order only baldly stated that the list of offences registered against the petitioner reflects that he is a daring habitual criminal and because of this there is fear and terror in the public and has not recorded any clear opinion on the basis of materials, that in his opinion witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of their person or property. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reasons of apprehension to danger to their person or property to give evidence against the petitioner in respect of the alleged offences, an order under Section 5(b) of the Act of 1990 cannot be passed by the District Magistrate by merely repeating the language of Section 5(b) of the Act of 1990. 11. In the present case, from the record, it is not in dispute that after 2014, not a single case has been registered against the petitioner nor any material was available with the authorities to pass the order. The registration of a criminal case is not a condition precedent to implicate the petitioner under the provisions of the Act of 1990. The two conditions for an order of externment stated in Section 5(b) of the Act of 1990 do not exist in this case and the order passed by the District Magistrate and the appellate order of the Commissioner are liable to be quashed." 14. The coordinate Bench in the aforesaid order has drawn its conclusion from a Division Bench judgment pronounced in the case of Ashok Kumar Patel Vs. State of M.P. & Others reported in 2009 (4) MPLJ 434 , in the following manner:- "9. The coordinate Bench in the aforesaid order has drawn its conclusion from a Division Bench judgment pronounced in the case of Ashok Kumar Patel Vs. State of M.P. & Others reported in 2009 (4) MPLJ 434 , in the following manner:- "9. The Division Bench of this Court at Principal Seat Jabalpur in the case of Ashok Kumar Patel vs. State of M.P. & others reported in 2009 (4) MPLJ 434 has held that unless the conditions mentioned under Section 5(b) of the M.P. Rajya Suraksha Adhiniyam, 1990 are strictly satisfied, an order of externment will have to be quashed by the Court. The two conditions, for passing an order of externment against a person, to be satisfied are:- (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." 15. Reverting back to the facts of the present case, there has been a huge time lag between date of service of grounds of externment, ie., 29.11.2017 and the order of externment 17.9.2020 and the appellant has not been found to have indulged in any major criminal activities post 2017. This apart, he has been acquitted in criminal cases registered against him and there is nothing on record to show that the acquittal was on account of the fact that witnesses had not turned up due to fear of the appellant. 16. In view of the aforesaid, we are of the considered view that the writ appeal deserves to be allowed and is, accordingly, allowed. 17. The impugned order dated 4.2.2021 passed in W.P. No. 20518/2020 is set aside and it is directed that appellant be set free immediately, if not required in any other case. 7. Consequently, I.A. No. 1766/2021 is also allowed and disposed of. 8. C.C. as per rules.