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2024 DIGILAW 789 (MP)

Sandeep Tiwari v. State of Madhya Pradesh

2024-12-16

VISHAL DHAGAT

body2024
ORDER : VISHAL DHAGAT, J. Petitioner has filed this petition under Article 226 of the Constitution of India challenging order of externment of petitioner passed by District Magistrate, Rewa dated 24.04.2024 by which petitioner has been externed from District Rewa, Mauganj, Sidhi, Singrauli, Satna and Maihar for period of one year. 2. Counsel appearing for petitioner submitted that order is contrary to law. Moment and activity of petitioner is not danger to person or property and nature of offence which is registered against petitioner is not of that serious nature. No offences has been registered under Chapter XII, XVI and XVII or under Section 506 and 509 of INDIAN PENAL CODE . There was no possibility of offences which is said to have been committed by petitioner to order of externment. There was no material to show that witnesses are not coming forward to give evidence in the case. Nine cases were registered against the petitioner and in most of the cases he has been acquitted. District Magistrate has committed an error in not taking into account the acquittal of petitioner. Mandatory provisions of M.P. Rajya Suraksha Adhiniyam, 1990 was ignored. In these circumstances, impugned order passed by District Magistrate dated 24.04.2024 which has been confirmed in appeal vide order dated 20.08.2024 be set aside. 3. Government Advocate appearing for State has submitted its reply. In its reply it has been stated that it is experience of administration that incident of crime against Scheduled Tribes and Scheduled Castes and women are on increase and they need protection against atrocities. Communal tension also tends to disturb peace loving citizens and same is to be taken care of. It is submitted that as per Section 19, sources of information is not to be disclosed. It is submitted that as per Section 10, any order passed under Section 3, 4, 5 and 6 shall not be called in question in any Court except on ground the District Magistrate had not followed the procedure laid down in Section 8 (1) of the Act of 1990 or there was no material before District Magistrate upon which he could have based his order and District Magistrate was not of opinion that witnesses were unwilling to come forward to give evidence in public against the petitioner. It is submitted that opportunity of hearing was provided to petitioner and notices were issued in accordance with Section 8 (1) of Act of 1990. Petitioner appeared before Collector and sought time to file reply. On 23.04.2024, petitioner submitted his reply through his advocate. Petitioner is having long history of criminal records since 2015 to 2024. Petitioner is repeatedly committing offences mentioned in Chapter XVI which are offences affecting human body and Chapter XVII against property. Taking into account District Magistrate considered entire facts of the case and thereafter passed impugned order exercising power conferred under Section 5(b) of M.P. Rajya Suraksha Adhiniyam, 1990. While exercising power, authorities are required to record reasonable reasons for removal of a person. District Magistrate has duly applied its mind. Mere acquittal of a person in criminal case is not a shield against the order of externment. Mere acquittal does not mean that externment proceedings cannot be initiated against the petitioner. In these circumstances, no interference is called for in the impugned order and petition be dismissed. 4. Heard the counsel for the parties and perused the impugned order passed by District Magistrate. 5. Acquittal of a person may result if evidence is not properly collected by prosecution or there is failure to prove it in Court. There may also be circumstances that witnesses are not coming forward to give evidence against a person or any other error in part of prosecution case which may result in acquittal of the accused. Merely acquittal of accused will not give him a shield to get full proof protection from order of externment. District Magistrate has various sources from which he can gather fact and information regarding activities of a person which may fall within mischief of Section 5(b) of Act of 1990 for passing an order of externment. Court has to see whether there was sufficient material before District Magistrate and reasonable grounds existing for passing of order. District Magistrate has to follow proper procedure as envisaged in Act before passing of order. Seven cases under INDIAN PENAL CODE and one offence under SC/ST (Prevention of Atrocities) Act is registered against the petitioner. Two cases of prohibitive action by Executive Magistrate is initiated against petitioner. Offences which are committed by petitioners span from year 2015 to 2024. In last five years petitioner has committed four offences. Seven cases under INDIAN PENAL CODE and one offence under SC/ST (Prevention of Atrocities) Act is registered against the petitioner. Two cases of prohibitive action by Executive Magistrate is initiated against petitioner. Offences which are committed by petitioners span from year 2015 to 2024. In last five years petitioner has committed four offences. Other offences committed by petitioner are old and stale and cannot be taken into consideration. Offences in last five yeas are under Sections 341 , 294, 323, 451 and 504 of IPC. Offences committed by petitioner under Sections 323 and 341 falls within Chapter XVI of IPC and offence under Section 451 of IPC falls under Chapter XVII which shows that petitioner was engaged in committing offences which are described under Section 5(b). Merely when a person is engaged in committing offence under Chapter XVI or XVII or under Section 506 and 509 of IPC or when he is involved in abetment of such offence alone will not give a ground for externment of a person. Said fact is to be coupled with opinion of District Magistrate that witnesses are not coming forward to give evidence in public against such person by reason of apprehension on their part as regards to their safety or property. 6. Considering the facts of the case, there is fulfillment of one part of ingredients mentioned in Section 5(b) that he was engaged in committing offence under Chapter XVI and XVII of IPC. Now, it is to be seen that whether there is material that witnesses are not willing to come forward to give evidence as they suspect danger to their safety or property. On examining the order, it is found that nothing has been mentioned that what material has been relied upon by District Magistrate to form an opinion that witnesses are not coming forward in public to give evidence against the petitioner. 7. Considering aforesaid facts and circumstances of the case, writ petition is allowed. Externment orders passed against petitioner by District Magistrate as well as Commissioner are quashed. Certified copy as per rules.