Madhya Pradesh High Court
Rakesh vs The State Of Madhya Pradesh on 18 December, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
A T J A B A L P UR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 18th OF DECEMBER, 2024
WRIT PETITION No. 34207 of 2024
RAKESH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
....................................................................................................
Appearance:
Mr. Sheersh Agrawal - Advocate for Petitioner.
Mr. Lokesh Jain - Government Advocate for Respondents/State.
....................................................................................................
ORDER
Per: Justice Vinay Saraf,
1. The instant writ petition filed under Article 226 of the Constitution
Constituti of
India assailing the orders passed by the Collector/ District Magistrate
District-Betul on 07.06.2024
.2024 under the provisions of Madhya Pradesh
Rajya Suraksha Adhiniyam, 1990 and tthe
he order passed by
Commissioner, Narmadapuram Division Narmadapuram on
24.09.2024
.2024 rejecting the appeal of the petitioner preferred against the
order of externment.
2. With the consent of the parties, matter is heard finally.
3. Mr. Sheersh Agrawal
Agrawal,, Advocate appearing on behalf of petitioner
submits that upon the report of Superintendent of Police, Betul dated
02.04.2024
.2024 Collector
Collector-cum-District Magistrate, Betul registered a case
2
against the petitioner under Section
Sections 3,, 5 and 6 of M.P. Rajya
Suraksha Adhiniyam, 1990. He further submits that a show-cause
show
notice was issued to the petitioner on 05.04.2024,
.2024, which was duly
replied by the petitioner and the petitioner has submitted that he is not
indulged in any criminal activity and the report has been submitted
sub by
the Superintendent of Police on the basis of old cases. He further
submits that earlier also the report was submitted by Superintendent of
Police under the provisions of Adhiniyam, 1990 and after considering
the report, the proceedings initiated against the petitioner under the
provisions of M.P. Rajya Suraksha Adhiniyam, 1990 was dropped by
the District Magistrate, Betul by order dated 05.12.2023 holding that
no case is made out to take action against the petitioner under Section
5(a)(b) of the A
Adhiniyam,
dhiniyam, 1990 thereafter, no criminal case registered
against the petitioner under Indian Penal Code and only prohibitory
proceedings were filed against the petitioner under Sections 110, 151
1
and 107/116(3) of Cr.P.C.
4. He further submits that once again the report was submitted by the
Superintendent of Police without application of mind and the
petitioner has been noticed for proposed externment and on
07.06.2024, Collector
Collector-cum-District
District Magistrate passed the order of
externment for a period of one year from the District-Betul
Betul and other
adjacent districts i.e. Chhindwara, Narmadapuram, Khandwa and
Harda.. Order was assailed by the petitioner before Revenue
Commissioner, Narmadapuram Division- Narmadapuram in appeal,
3
which was dismissed by order da
dated 24.09.2024
.2024 therefore, the present
petition has been preferred.
5. He relies on the order passed by Division Bench in the matter of Ajju
@ Azam Vs. State of M.P. & Ors
Ors. in Writ Appeal No. 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
Co
Bench in the matter of Chandra Prakash @ Tinku Pandey Vs. State
of M.P. & Ors. 2021 SCC OnLine MP 2120 and
d in the matter of
Rakesh Vs. State of M.P. & Ors. In W.P. No. 34207 of 2024 decided
on 18.12.2024.
6. Mr. Lokesh Jain
Jain,, Government Advocate opposed the petition on the
ground that petitioner is a habitual offender and indulged in
commission of offence
offences continuously. He further submits that before
passing the externment order, a show
show-cause
cause notice was duly issued
and petitioner was granted opportunity to sub
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.
7. Considered the arguments advanced by the counsels for the parties.
parties It
appears that District Magistrate has exercised the power under Section
5 of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990,
1990 which reads
as under :
4
5. Removal of persons about to commit offence. Whenever It appears
to the District Magistrate
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 abo
about to be engaged in the commissionsion 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
ension 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
orr by beat of drum or otherwise as the District Magistrate thinks fit,
direct such person or immigrant
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 par
partt thereof or such
area and such contiguous districts, or part thereof, as the case may be.
from which he was directed to remove himself.
8. From bare
are reading of the provision of Section 5 of Adhiniyam, 1990,
1990
it appears that any action can be taken agains
against any person to remove
him from the district or districts or any part thereof, for the purpose of
5
preventing violence, danger or harm to other person
persons or their property.
proper
It also reveals that under sub
sub-clause (a), the order may be passed for
preventing to ccause harm, danger or harm to any person or property.
In the present matter, not a single case was registered against the
petitioner till today after 05.12.2023, when earlier proceedings were
dropped, 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,
offence
involving force of violence or any offenc
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.
9. Thee impugned order was passed by the Collector-cum-District
Collector
Magistrate, Betul exercising the powers conferred
nferred under Section 3.1,
5(a) and (b) as well as Section 7 however, no incident of causing any
danger or harm to any person or property is mentioned in the
th
impugned order. It is also not mentioned in the impugned order that
which case was registered recently against the petitioner under the
provisions of Indian Penal Code and, therefore, exercise of powers
power by
District
strict Magistrate
Magistrate-cum-Collector under Section 5(a) and (b) are
without material on record
record, however, existence
xistence 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
6
offence ass mentioned in Section 5(b), no order could be passed against
the petitioner. Passing of the order in a mechanical manner is
condemnable as the externment order causes serious restrictions
restriction on the
fundamental rights of personal liability of any person.
10. The list of criminal
minal cases mentioned in the impugned order reflects
that there is not a single case of heinous nature registered after
disposal of earlier request by order dated 05.12.2023 so as 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 of maintaining peace and order within the district. It is
trite
rite 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 aagainst the proposed externee.
11. In the present case, the above grounds are not made out, there is no
close proximity or any heinous offence is registered recently against
the petitioner. The complaint filed under Section 110
110,, 107, 116(3) of
Cr.P.C. cannot be considered to establish the ccriminal
riminal record.
12. 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:
satisfied:-
(i) There are reasonable grounds for believing that a person is
engaged or is about to be engaged in commission of an offence
7involving force or violence or an offence punishable under Chapter
XII, XVI or XVII or under sectio
section
n 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 ttheir
heir part as regards the
safety of their person or property.
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 cr
criminal
iminal 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
pend 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 externment, will have
to be quashed by the Court. While considering a case under section 56
of the Bombay
ombay Police Act, which also empowered the police to pass an
order of externment, the Supreme Court observed in Pandharinath
Shridhar Rangnekar vs. Dy. Commissioner of Police, State of
Maharashtra (supra), as under:-
“It is true that the provisions of sect
section
ion 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
81952 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 tha
thatt 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. We are thus of the considered opinion that the two conditions for an
order of exter
externment
nment 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 Magist
Magistrate
rate 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. In the result,
we quash the impugned order dated 18-11-2008 2008 passed by the District
Magistrate Rewa in Cr. Case No. 227/08 as well as the appellate order
dated 13-1-2009
2009 passed by the Commissioner, Rewa Division.
No costs.
Order accordingly.
13. In view of the aforesaid, this Court comes to the conclusion that the
impugned order passed 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, 1990 are strictly
satisfied, order of externment cannot be passed.
14. In the instant case, there is no material on record. The impugned order
was passed by District Magistrate without any application of mind and
9
the same does not satisfy the requirement of Section 5(b) of the Act,
1990. The impugned order amounts to colourable exercise of the
powers hence, it is a fit case to quash the order passed by District
Magistrate, which is upheld by Commissioner.
15. Consequently,
quently, the petition is allowed. The impugned order of
externment dated 07.06.2024
.2024 passed by Collector-cum-District
Collector
Magistrate, District
District-Betul and appellate order passed by
Commissioner, Narmadapuram Division-Narmadapuram
Narmadapuram dated
24.09.2024
.2024 are hereby set aside. No order as to costs.
(VINAY SARAF)
JUDGE
Shub
SHUBHAM Digitally signed by SHUBHAM THAKKER
DN: c=IN, o=HIGHT COURT OF MADHYA PRADESH, ou=GOVERMENT,
2.5.4.20=9ae0b4c3f8dbec36692c45b55d89f22c2ad48e7930accbade871ee34
95c5a9d8, postalCode=482001, st=MADHYA PRADESH,
THAKKER
serialNumber=086CC2FDA1069ABFC2CE779B66622BD02EEAD5773A0DCE2
947571D5FE6005A56, cn=SHUBHAM THAKKER
Date: 2024.12.20 19:27:41 +05’30’