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2022 DIGILAW 1056 (MP)

Javed @ Loot v. State of Madhya Pradesh

2022-08-25

SUSHRUT ARVIND DHARMADHIKARI

body2022
JUDGMENT 1. Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari for quashing of the impugned order dated 08.08.2022 (Annexure P/5) passed in case No.0080/APPEAL/22 by the respondent no.3 affirming the order passed by the District Magistrate, Bhopal dated 12.04.2022 whereby the order of externment has been passed against the petitioner directing him not to enter in the area of District Bhopal and its adjoining Districts Vidisha, Sehore, Rajgarh, Raisen and Narmadapuram for a period of six months. 2. The facts as have been unfolded in the writ petition are that the name of the petitioner was continuously involved in the criminal activities since the year 1994 and is in the habit of creating terror amongst general public. The Superintendent of Police (Northern Region) District Bhopal submitted a proposal to the District Magistrate, Bhopal about criminal activities of the petitioner. The police authorities have enumerated details of chain of criminal offences alleged to have been committed by the petitioner from the year 1994 to 2021 and has requested for externment order to be passed against the petitioner in exercise of the powers under Sections 3 to 5 of M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'the Adhiniyam, 1990'). 3. The District Magistrate then issued a show cause notice dated 21.12.2021 to the petitioner to show cause why proceedings of externment should not be initiated against him. 4. The petitioner had submitted the reply and asked the time to defend the evidence/ argument. The time was granted for the same. The District Magistrate framed the following issues for consideration :- 5. The District Magistrate on the basis of report received from the Superintendent of Police and after considering the material available on record including the statements of the witnesses, recorded in the Camera proceedings who have deposed that the petitioner is a very dangerous criminal and because of fear people refrain from going to the Courts for recording of the evidence. It is also evident from the statements that public at large is under fear in the vicinity where he resides and there is strong feeling of insecurity amongst the public at large. The District Magistrate passed the impugned order dated 12.04.2022 and ordered for externment of the petitioner. It is also evident from the statements that public at large is under fear in the vicinity where he resides and there is strong feeling of insecurity amongst the public at large. The District Magistrate passed the impugned order dated 12.04.2022 and ordered for externment of the petitioner. Being aggrieved, the petitioner preferred an appeal before the Commissioner, Division Bhopal, District Bhopal. The appellate authority vide order dated 08.08.2022 (Annexure P/5) confirmed the order passed by the District Magistrate. 6. Learned counsel for the petitioner contended that the order of externment has been issued without due application of mind and the same is contrary to Sections 8 and 10 of the Adhiniyam, 1990. The impugned order is also contrary to Section 5(a)(b) of the Adhiniyam, 1990 as no case under the Indian Penal Code has been registered against the petitioner after 2009. Earlier, the petitioner had approached this Court in WP No.11473/2022 in which directions were issued to the petitioner to avail the alternative remedy of filing an appeal under Section 9 of the Adhiniyam, 1990. The Appeal has been dismissed by the Appellate Authority. It was further contended that the District Magistrate is required to give the finding that the movement or acts of any person are causing or calculated to cause alarm, danger or harm to a person or property. Lastly, it is submitted that no opportunity to cross examine the witnesses was afforded to the petitioner, therefore, the impugned order being non-speaking deserves to be set aside. 7. In support of the contentions, learned counsel for the petitioner has placed reliance on the judgment delivered in the case of Ashu @ Assu @ Asish Jain @ Ankush Vs. State of M.P. and others reported in 2011 (3) MPLJ 367 to contend that though the order of externment has been passed against the petitioner by the District Magistrate and the same was affirmed by the appellate authority, neither the competent authority nor the appellate authority recorded any such finding to the effect that in the criminal cases witnesses are not coming to testify against him nor it is held that his presence would endanger the normal life in the area concerned. He further contended that there is nothing on record to indicate that the criminal cases registered against the petitioner would fall under the category which are specified under Section 5 (a) of the Adhiniyam, 1990. He further contended that there is nothing on record to indicate that the criminal cases registered against the petitioner would fall under the category which are specified under Section 5 (a) of the Adhiniyam, 1990. The order of externment could not have been passed against the petitioner and therefore the same is deserve to be set aside. 8. On the other hand, Shri Lalit Joglekar, learned Government Advocate for the respondents/State submitted that there is no infirmity in the order of externment and the same has been passed to the satisfaction of the District Magistrate. The action is justified in the public interest and to avoid any unwanted incident. About 23 criminal cases have been registered against the petitioner out of which most of them are pending. Learned counsel for the respondents have supported the impugned order and the appellate order and submitted that the petitioner is a habitual offender. The satisfaction recorded by the District Magistrate that the petitioner was engaged or was about to engage in commission of the offence as alleged causing danger and harm to the safety to their person or property is unassailable and is based on the material available on record. He further pointed out that in para Nos.3, 4 and 5 of the impugned order dated 12.04.2022, the District Magistrate has specifically dealt with all the issue and has recorded the evidence of the witnesses who have been deposed that the petitioner is a dangerous criminal and people because of fear do not go to the Courts to record the evidence. Other documents have also been considered before passing the impugned order. Learned counsel for the respondents have placed reliance on the judgment rendered by the Division Bench of this Court in the case of Taarik @ Bablu Vs. State of M.P. and others passed in W.P. No.8689/2022 on 13.05.2022, wherein the order of externment was upheld. Reliance is also placed on the order dated 07.07.2022 passed in Writ Appeal No.660/2022 (Taarik @ Bablu Vs. State of M.P. and others) in which the order passed in W.P. No.8689/2022 has been upheld. The Division Bench dismissed the writ appeal on the ground that the orders of externment are subject to satisfaction of the authority. Whether the satisfaction is exercised mala fide or not, would be the only ground for interference by the Writ Court. State of M.P. and others) in which the order passed in W.P. No.8689/2022 has been upheld. The Division Bench dismissed the writ appeal on the ground that the orders of externment are subject to satisfaction of the authority. Whether the satisfaction is exercised mala fide or not, would be the only ground for interference by the Writ Court. Since the decision taken by the authority is based on the material available with them, it was held that the order of externment does not lack either any jurisdiction or it is issued with any mala fide and rejected the appeal. 9. Heard the learned counsel for the parties. 10. The question for consideration is whether the petitioner was given due opportunity of hearing before passing the order impugned or not? 11. Sub section 1 of section 8 requires hearing to be given before order under section 3 to 6 is passed against any person, the District Magistrate shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the District Magistrate shall grant such application and examine such witnesses unless for reason to be recorded in writing, the District Magistrate is of opinion that such application is made for the purpose of vexation or delay. The person may appear through legal practitioner under sub section 3 of section 8 of the Act and may also file reply. 12. In the instant case, it is an admitted position that the show cause notice was issued to the petitioner against which he had filed reply. Sub-section 2 of section 8 of the Act provides for making application for examination of the witnesses. In the present case, no application was filed by the petitioner as required under sub section 2 of section 8 of the Act, as such, submissions of the petitioner has no force. 13. The requirement of law is that there must be danger to the safety of the persons or their property based on the material available on record which makes the authority to come to the conclusion that there is reasonable apprehension regarding danger or violence being caused by the accused to the general public. 14. 13. The requirement of law is that there must be danger to the safety of the persons or their property based on the material available on record which makes the authority to come to the conclusion that there is reasonable apprehension regarding danger or violence being caused by the accused to the general public. 14. In the case of Wasiuddin Ahmed vs. District Magistrate, Aligarh reported in AIR 1981 SC 2166 the Apex Court has observed thus:- '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.' 15. In the case of State of Maharashtra & Anr vs Salem Hasan Khan reported in AIR 1989 SC 1304 , it has been held by the Apex Court as under:- 'On behalf of the appellant reliance has been placed on the decision of this Court in Pandarinath Sridhar Rangne- kar v. Deputy Commissioner of Police, [1973] 3 SCR 63 where- in 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.' 16. The contention that the District Magistrate as well as appellate authority were under obligation to give reasons in support of the dismissal of the appeal, 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. 17. In view of above, no infirmity or perversity is found in the impugned orders passed by the respondents and therefore, the instant petition deserves to be and is hereby dismissed at the admission stage itself.