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2024 DIGILAW 719 (MP)

Shyamsunder Sen v. State Of Madhya Pradesh

2024-11-18

VINAY SARAF

body2024
ORDER : Vinay Saraf, J. 1. The instant writ petition filed under Article 226 of the Constitution of India assailing the orders passed by the Collector/ District Magistrate District-Anuppur on 08.04.2024 under the provisions of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 and the order passed by Commissioner, Shahdol Division Shahdol on 16.08.2024 rejecting the appeal of the petitioner against the order of externment. 2. With the consent of the parties, matter is heard finally. 3. Mr. Jai Shukla, Advocate appearing on behalf of petitioner submits that upon the report of Superintendent of Police, Anuppur dated 12.01.2024 Collector-cum-District Magistrate, Anuppuur registered a case under Section 001/externment/2024 against the petitioner under Sections 4, 5 and 6 of M.P. Rajya Suraksha Adhiniyyam, 1990. He further submits that a show-cause notice was issued to the petitioner on 14.02.2024, which was duly replied by the petitioner on 04.03.2024 when the petitioner submitted that he is not indulged in any criminal activity and thee report has been submitted by the Superintendent of Police on the basis of old cases. He further submits that earlier also the order was passed under the provisions of Adhiniyam, 1990 and the petitioner was directed to appear before the Station Officer, Chachai District-Anuppur on every Tuesday at 12:00 PM for a period of 6 months and the petitioner has duly complied with the order and except one case i.e. Crime No. 51/2023 registered under Section 4(a) of Gambling Act no other case was registered against the petitioner however, once again the report was submitted by the Superintendent of Police without application of mind and the petitioner has been noticed for proposed externment. He further submits that on 08.04.2024, Collector-cum-District Magistrate passed the order of externment for a period of one year from the District-Anuppur and other adjacent districts i.e. Shahdol, Umaria and Dindoori. Order was assailed by thee petitioner before Revenue Commissioner, Shahdol Division-Shahddol in appeal, which was dismissed by order dated 16.08.2024 therefore, the present petition has been preferred. 4. Mr. Jai Shukla, Advocate submits that there was no material before the District Magistrate for passing the order of externment under Section 5(a) and (b) of the Adhiniyam, 1990, as no case was registered against the petitioner under the provisions of Indian Penal Code or there is no allegation against the petitioner causing any danger or harm to any person or property. He further submits that undeer Section 5(b) of the Adhiniyaam, 1990 makes it clear that there must be reasonable grounds for beelieving that the person is engaged or is about to be engaged in the commission of an offence involving forrce of violence or an offence punishable under Chapter XII, XIV and XVII or under Section 506 or 509 of Indian Penal Code, 1860 or inn abatement of any such offencce, however, a show-cause notice and the order passed by District Magistrate under Section 5(b) reflect that the offence is alleged to have been committed of the year 2003 to 20020. He further submits that there was no satisfaction recorded byy the District Magistrate to hold that the petitioner is engaged or is about to be engaged in a commission of offences. Since 2020, theere is only one case registered against the petitioner i.e. under Section 4 of the Gambling Act. 5. He further submits that Section 8(a)(1) of Adhiniyam, 1990 provides that before an order under Section 5 is passed against any person, the District Magistrate shall inform the person in writing of the general nature of allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. After receipt of show-cause notice the petitioner submitted a detailed reply, which was not considered by the Collector-cum-District Magistrate and the impugned order was passed in a mechanical manner without application of mind. He submits that the Collector has passed the order on the basis that total 36 cases were registered against the petitioner including the prohibitory proceedings and the petitioner is involved in the offences punishable under Gambling Act and Excise Act. It is mentioned in the order that earlier also in the year 2022, the order was passed against the petitioner under the provisions of Adhiniyam, 19990 and even, thereafter, one case was registered against the petitioner under Section 4(a) of the Gambling Act and, therefore, on that basis thee District Magistrate passed the order impugned. 6. Mr. Jai Shukla,, Advocate submits that even if the allegation levelled in the order is accepted as it is, no case for externment is made out as no specific allegation is alleged against the petitioner. He prays for quashment of externment order. 7. He relies on thee order passed by Division Bench in the matter of Ajju @ Azam Vs. State of M.P. & Ors. He prays for quashment of externment order. 7. He relies on thee order passed by Division Bench in the matter of Ajju @ Azam Vs. State of M.P. & Ors. in Writ Appeal Noo. 659 of 2023 decided on 22.05.2023 and the order dated 22.07.2009 passed in W.P. No. 1180/2009 in the matter of Ashok Kumar Patel Vs. State of M.P. and Ors. He also placed reliance on the order passed by Co-ordinate Bench in the matter of Chandra Prakash @ Tinku Pandey Vs. State of M.P. & Ors. 2021 SCC OnLine MP 2120. 8. Mr. B.K. Upaddhyay, Government Advocate opposed the petition on the ground thaat petitioner is a habitual offender and indulged in commission of offences continuously. He further submits that before passing the externment order, a show-cause notice was duly issued and petitioner was granted opportunity to submit a reply and after affording an opportunity, the order was passed according to the provisions of law and, therefore, there is no infirmity in the order passed by District Magistrate. 9. Considered the arguments advanced by the counsels for the parties. District Magistrate has exercised the power under Section 5 of Madhya Pradessh Rajya Suraksha Adhiniyam, 1990, which reads as under : 5. Removal of persons about to commit offence. 9. Considered the arguments advanced by the counsels for the parties. District Magistrate has exercised the power under Section 5 of Madhya Pradessh Rajya Suraksha Adhiniyam, 1990, which reads as under : 5. Removal of persons about to commit offence. Whenever It appears to the District Magistrate- (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property; or (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) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant; the District Magistrate, may by an order in writing duty served on him or by beat of drum or otherwise as the District Magistrate thinks fit, direct such person or immigrant- (a) so as to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease; or (b) to remove himself outside the district or any part thereof or such area and any district or districts or any part thereof. contiguous thereto by such route within such time as the District Magistrate may specify and not to enter or return to the said district or part thereof or such area and such contiguous districts, or part thereof, as the case may be. from which he was directed to remove himself. 10. Bare reading of the provision of Section 5 of Adhiniyam, 1990, it appears that any action can be taken against any person to remove him from the district or districts or any part thereof, for the purpose of preventing violence, danger or harm to other persons or their property. It also reveals that under sub-clause (a), the order may be passed for preventing to cause harm, danger or harm to any person or property. It also reveals that under sub-clause (a), the order may be passed for preventing to cause harm, danger or harm to any person or property. In the present matter, not a single case was registered against the petitioner till today upon the allegation of causing any danger or harm to any person or property. Under sub-clause (b), the order may be passed if the authority is satisfied on the basis of material placed before him that for the purpose of preventing someone from causing any offence, involving force of violence or any offences punishable under Chapter XII, XVI or XVII or under Section 506 and 509 of Indian Penal Code or for the abatement of any such offence, the power may be exercised for externment of the offender. Petitioner has not committed any such offence in past. 11. The impugned order was passed by the Collector-cum-District Magistrate, Anuppur exercising the powers conferred under Section 3.1, 5(a) and (bb) as well as Section 7 however, no incident of causing any danger or harm to any person or property is mentioned in the impugned order. It is also not mentioned in the impugned order that which case was registered against the petitioner under the provisions of Indian Penal Code and, therefore, exercise of powers by District Magistrate-cum-Collector under Section 5(a) and (b ) are without material on record, however, existence of material is sine qua non for passing any such order and when there is no satisfaction of immediate engagement or possibility of engagement in commission of offence as mentioned in Section 5(b), no order could be passed against the petitioner. Passing of the order in a mechanical manner is condemnable ass the externment order causes serious restrictions on the fundamental rights of personal liability of any person. 12. The list of criminal cases mentioned in the impugned order reflects that there is noot a single case of heinous nature so ass to attract the provisions of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990. There is no material on record to hold that the presence of the appellant is undesirable for the maintenance of law and order or for the purposes off maintaining peace and order within the district. There is no material on record to hold that the presence of the appellant is undesirable for the maintenance of law and order or for the purposes off maintaining peace and order within the district. It is trite law that for passing an order of externment, the alleged offence should have closed proximity to the order of externment and there should be a specific finding that witnesses are not coming forward to give evidence against the proposed externe. 13. In the present case, the above grounds are not made out, there is no close proximity or any heinous offence against the petitioner and only one offence was registered against the petitioner in the year 2023 that to under Section (4)(a) of the Gambling Act, which is not a heinous offence. Earlier also, the offences were registered under the provisions of Gambling Act or Excise Act and the prohibitory actions were taken against the petitioner. The complaint filed under Section 110 of Cr.P.C. cannot be considered to establish the criminal record. 14. The Division Bench has laid down in the matter of Ashok Kumar Patel (supra) as under : 6. A plain reading of section 5(b) of the Act of 1990 quoted above, would show that for passing an order of externment against a person, two conditions must be satisfied:- (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 too 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. 11. 11. 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. In most of the cases, Challans have been filed by the Police in Court obviously after examination of the witnesses under section 161 of Criminal Procedure Code and the cases are pending in the Court. There is no reference in the order of District Magistrate that witnesses named in the Challans filed by the Police are not coming forward to give evidence against the petitioner in Court. Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reason 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. 13. The Act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and the fundamental right to personal liberty under Article 21 of the Constitution and unless the conditions mentioned under section 5(b) of the Act of 1990 are strictly satisfied, an order of externmentt, will have to be quashed by the Court. While considering a case under section 56 of the Bombay Police Act, which also empowered the police to pass an order of externment, the Supreme Court observed in Panndharinath Shridhar Raangnekar vs. Dy. Commissioner of Police,, State of Maharashtra (supra), 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. Commissioner of Police,, State of Maharashtra (supra), 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 19566 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 externe." 14. We are thus of the considered opinion that 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 appellate order of the Commissioner are liable to be quashed. Since the impugned order of externment passed by the District Magistrate and the appellate order passed by the Divisional Commissioner are liable to be quashed on this ground alone, it is not necessary for us to deal with the other grounds raised by the petitioner in this writ petition. Inn the result, we quash the impugned order dated 18-11-2008 passed by the District Magistrate Rewa in Cr. Case No. 227/08 as well as the appellate order dated 13-1-20009 passed by the Commissioner, Rewa Division. No costs. Order accordingly. 15. In view of the aforesaid, this Court comes to the conclusion that the impugned order is based on without any material and the present case “is a case of no material” at all so as to warrant exercise of powers under Section 5(b) of the Act,1990. The exercise of such power causes serious restrictions on the fundamental rights granted under Article 19(1) of the Constitution of India and the fundamental rights to personal liberty under Article 21 of the Constitution and unless the conditions mentioned under Section 5(b) of the Act, 19990 are strictly satisfied, order of externment cannot be passed. 16. In the instant case, there is no material on record. 16. In the instant case, there is no material on record. The impugned order was passed by District Magistrate without any application of mind and the same does not satisfy the requirement of Section 5(b) of the Act, 1990. 17. Consequently, the petition is allowed. The impugned order of externment dated 08.04.2024 passed by Collector-cum-District Magistrate, District-Anuppur and appellate order passed by Commissioner, Shahdol Division-Shahdol dated 166.08.2024 are hereby set aside. No order as to costs.