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2021 DIGILAW 337 (MP)

Devki Nandan Bhagmare v. State of MP

2021-03-10

PRAKASH SHRIVASTAVA

body2021
JUDGMENT : Prakash Shrivastava, J. Heard. 1. By this petition, the petitioner has challenged order of externment dated 26.08.2020 passed by the District Magistrate, Seoni under Section 5(b) and 6(c) of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'the Act') in respect of externment from District Seoni and adjoining districts for a period of one year. The petitioner is also aggrieved with the order of the Commissioner dated 23.09.2020 dismissing the appeal. 2. The facts in nutshell as stated in the petition are that the petitioner is resident of Seoni and on 07.08.2020 a report was submitted by the Superintendent of Police, Seoni stating that the petitioner is a habitual offender and a notorious and dangerous criminal of Seoni against whom several criminal cases have been registered pertaining to Arms Act, assault, attempt to murder, gambling etc. It is further stated that the petitioner is in the habit of getting into quarrel after being drunk and organizes gambling due to which the residents of the area feel unsafe. In pursuance to the said report, notice dated 07.08.2020 was issued to the petitioner which was served on him on 23.08.2020 requiring the petitioner to appear on 25.08.2020. The petitioner could not appear and the matter was proceeded ex-parte and impugned order of externment was passed. 3. Learned counsel for the petitioner submits that the order was passed during the lock down period, therefore petitioner could not appear and that the order has been passed on incorrect premises and Section 5(b) of the Act is not attracted because no such offence has been registered. He further submits that the petitioner has already suffered the externment for a period of six months. 4. Opposing the prayer, learned counsel for the respondent has referred to the list of cases registered against him and has submitted that the petitioner is a habitual offender and the witnesses are not coming forward to give evidence against the petitioner and even during the externment he was involved in the criminal activities, therefore, no case for interference is made out. 5. I have heard learned counsel for the parties and perused the record. 6. Section 5(b) and Section 6(c) under which the impugned order has been passed reads as under: "5. Removal of persons about to commit offence - Whenever it appears to District Magistrate- (a) .... 5. I have heard learned counsel for the parties and perused the record. 6. Section 5(b) and Section 6(c) under which the impugned order has been passed reads as under: "5. Removal of persons about to commit offence - Whenever it appears to District Magistrate- (a) .... (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. 6. Removal of persons convicted of certain offences - If a person has been convicted- (a) .... (b) .... (c) thrice, of an offence within a period of three years under Section 3 or 4 or 4-A of the Public Gambling Act, 1867 (3 of 1867), in its application to the State of Madhya Pradesh; the District Magistrate may, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted direct such person by an order to remove himself outside the district or part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route and within such time as the District Magistrate may order and not to enter or return to the 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." 7. On the perusal of the record, it is noticed that the Superintendent of Police had submitted the report to the District Magistrate mentioning the criminal activities of the petitioner. The impugned externment order of the Collector reveals that between the period 2007 to 2018 as many as 17 cases were registered against the petitioner which includes the offences under Section 307, 322, 294, 506 of the IPC as also Section 25 of the Arms Act and the offences under the Gambling Act. The impugned externment order of the Collector reveals that between the period 2007 to 2018 as many as 17 cases were registered against the petitioner which includes the offences under Section 307, 322, 294, 506 of the IPC as also Section 25 of the Arms Act and the offences under the Gambling Act. The order further reveals that on 12.11.2018, in the externment proceedings the bond of Rs. 50,000/- was got executed from the petitioner but inspite of that he had continued his criminal activities. The District Magistrate on examination of the material has found that if the action under the externment is not taken, the petitioner can cause any untoward incident in the city and can disturb tranquility and law and order. He has further found that the witnesses are afraid to come forward to give evidence against the petitioner and he is continuously involved in the criminal activities. He has also taken note of as many as six cases, which are registered against the petitioner in the year 2019 and 2020 for offences under the provisions of IPC and the Gambling Act. The Commissioner in the appeal has duly appreciated the entire material and has reached to the conclusion that the findings of the District Magistrate do not suffer from any error. Before passing the impugned order, the petitioner has been given due opportunity of hearing as undisputedly the notice was served upon the petitioner. Though the counsel for the petitioner submitted that at that time the petitioner was at Nagpur but he could not substantiate the plea in this regard. Hence, I am of the opinion that due the procedure has been followed before passing the impugned order. 8. The reply of the respondent further reveals that during the course of externment also two other cases have been registered against the petitioner under Section 13 of the Gambling Act and Section 109 of the IPC in Crime No. 547/2020 on 19.09.2020 and Section 13 of the Gambling Act and Section 109 of the IPC in Crime No. 573/2020 on 04.10.2020 and thereafter also two cases have been registered against the petitioner under Section 13 of the Gambling Act and Sections 188, 269 and 270 of the IPC and Section 14 of the NSA, 1990. 9. The conclusion arrived at by the District Magistrate clearly reveals that there is sufficient material to invoke the provisions of the Act. 9. The conclusion arrived at by the District Magistrate clearly reveals that there is sufficient material to invoke the provisions of the Act. This Court in the matter of Manoj vs. State of M.P. and others reported in 2017 (2) MPLJ 294 while dismissing the similar petition has held that: "11. The requirement of law is that there must be clear and present danger based upon credible material which makes the movements and acts of person in question alarming or dangerous or fraught with violence and that for removing a person from a District there must exist a reasonable ground for believing that the person is engaged or is about to be engaged in commission of offence involving force or violence or in the abatement of any such offence. It is the reach effect and potentiality of overt commission of an offence which lend support to cause reasonable apprehension would be the basis for valid exercise of power by the Authority under these provisions. The antecedents of a person also plays an important role in forming an opinion. It is indeed usually prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely to act in a manner prejudicial to the maintenance as would cause alarm, danger or harm to person or property. 12. The prejudicial act or antecedent history should ordinarily be proximated the point of time and should have a rational connection with the conclusion arrived as has been held in Wasi Uddin Ahmed Vs. District Magistrate, Aligarh : AIR 1981 SC 2166 :- "24. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order. Of course, such prejudicial conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary." 13. In Pandharinath Shridhar Rangnekar vs. Dy. Of course, such prejudicial conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary." 13. In Pandharinath Shridhar Rangnekar vs. Dy. Commissioner of Police, State of Maharashtra (1973) 1 SCC 372 : AIR 1973 SC 630 , the Supreme Court has observed 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 vs. The State of Bombay, 1952 SCR 737 : AIR 1952 SC 221 had upheld the validity of section 27(1) of the 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." 14. In State of Maharashtra v. Salem Hasan Khan, AIR 1989 SC 1304 , it has been held: "On behalf of the appellant reliance has been placed on the decision of this Court in Pandarinath Sridhar Rangnekar v. Deputy Commissioner of Police, [1973] 3 SCR 63 wherein a similar plea was taken by the appellant before this Court. It was contended that the failure on the part of the State Government indicated non-application of mind. The appellant had also urged that the allegations contained in the show cause notice were too vague in absence of details to afford him reasonable opportunity to defend himself. Rejecting the argument, this Court held that a full and complete disclosure of particulars, as is requisite in an open prosecution, will frustrate the very purpose of an externment proceeding. There is a brand of lawless elements in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is impossible to obtain, because out of fear of reprisal witnesses are unwilling to depose in public. There is a brand of lawless elements in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is impossible to obtain, because out of fear of reprisal witnesses are unwilling to depose in public. While dealing with the contention that the State Government was under a duty to give reasons in support of its order dismissing the appeal, the point was rejected in the following terms:- "Precisely for the reason for which the proposed externee is only entitled to be informed of the general nature of the material allegations, neither the externing authority nor the State Government in appeal can be asked to write a reasoned order in the nature of a judgment." As observed, if the authorities were to discuss the evidence in the case, it would be easy to fix the identity of the witnesses who were unwilling to depose in public against the proposed externee. A reasoned order containing a discussion would probably spark off another round of harassment. We are, therefore, of the view that the High Court was in error in quashing the order as confirmed by the state Government in appeal." 15. In the case at hand when the test as laid down under Section 3 and Section 5 of 1990 Adhiniyam is made applicable there remains no iota of doubt that the apprehension raised by the District Magistrate is not without a substance or basis as would warrant any interference. The Appellate Authority also after, reappreciating the entire facts affirmed the findings arrived at by the District Magistrate. There is no perversity in the findings. In view whereof, petition fails and is dismissed. No costs." 10. Learned counsel for the petitioner has placed reliance upon the judgment of this Court in the matter of Pappu @ Dinesh Gupta vs. State of M.P. and others reported in 2007 (3) MPLJ 115 . There is no dispute with the proposition that criminal background of a person by itself is not sufficient to empower the authority to pass order of externment unless it is found that criminal background of the proposed externment is causing or calculated to cause alarm danger or harm to person or property. In the present case, these conditions have been duly satisfied. In the present case, these conditions have been duly satisfied. Counsel for the petitioner has also placed reliance upon the judgment of this Court in the matter of Kala vs. State of MP and another reported in 2004 (4) MPLJ 234 wherein it held that the opinion has to be found by the Magistrate as "witnesses are not willing" to come forward to give evidence by reason of apprehension on their part as regard safety of their 'person or property'. In this case, the District Magistrate has duly formed an opinion to this effect. Counsel for the petitioner has also relied upon the judgment of this Court in the matter of Ashok Kumar Patel Vs. State of M.P. and others reported in 2009 (4) MPLJ 434 wherein it is held that before passing an order of externment the conditions given under Section 5(b) of the Act must be strictly satisfied. In the present case, these conditions are duly satisfied. Hence, the petitioner is not entitled to the benefit of the said judgments. Having regard to the above analysis, I am of the opinion that no case for interference in the impugned order is made out. The petition is found to be devoid of any merit. It is accordingly dismissed.