Madhya Pradesh High Court
Nizam @ Nizamuddin Shah vs The State Of Madhya Pradesh on 22 April, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:10428
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 22nd OF APRIL, 2025
WRIT PETITION No. 20729 of 2022
NIZAM @ NIZAMUDDIN SHAH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Hitesh Sharma - advocate for the petitioner.
Mukesh Parwal appearing on behalf of Advocate General.
ORDER
This petition under Article 226 of the Constitution of India has been
preferred by the petitioner being aggrieved by the order dated 26.04.2022
(Annexure P/6) passed by the District Magistrate, District Ujjain externing
him for a period of one year with effect from the date of order from the
revenue limits of District Ujjain and contiguous districts in exercise of
powers under Section 5(a) (b) of M.P. Rajya Suraksha Adhiniyam, 1990
(hereinafter referred as the ‘Adhiniyam’). The petitioner has also challenged
the order dated 24.08.2022 (Annexure P/1) passed by the Commissioner,
Ujjain Division, Ujjain, whereby his appeal preferred against order dated
26.04.2022 under Section 9 of the Adhiniyam has been dismissed.
2. The facts of the case are that on the basis of the report of
Superintendent of Police, District Ujjain dated 24.10.2021 a show cause
notice for externment was issued to the petitioner by the District Magistrate
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CHOURASIA
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under Section 8(1) of the Adhiniyam. The said notice was served upon the
petitioner. He however, did not file any reply to the same after which the
District Magistrate passed his order on 26.04.2022 which has been affirmed
by the Commissioner by the impugned order.
3. It is submitted on behalf of the petitioner that the impugned order
of externment has been passed only on the basis of number of cases
registered against the petitioner. No satisfaction has been recorded of
existence of grounds of externment on the basis of the available material.
The externment order is contrary to the provisions of the Adhiniyam. There
is no objective consideration by the competent authority. The order is
contrary to the law laid down by Division Bench of this Court in Ashok
Kumar V/s. State of M.P., 2009 (4) MPLJ 434 and various other decisions on
the same point. The authorities have failed to record satisfaction in the
impugned orders regarding requirement of Section 5 of the Adhiniyam. It is
further submitted that the last case which was registered against the
petitioner under the Arms Act has been quashed by this Court.
4 . Per contra, learned counsel for the respondents / State has
supported the externment order of the petitioner and has submitted that the
petitioner is a habitual offender and has fifteen criminal cases registered
against him. He is involved in criminal activities since the year 2012.
Recently, an FIR was lodged against the petitioner at Police Station
Mahidpur, District Ujjain and on as many as seven occasions
prohibitory proceedings have been taken against him for keeping the peace
under Section 107, 110, 116(2) of the Cr.P.C. It is submitted that the District
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Magistrate after objective consideration of the material on record had passed
the externment order which has rightly been affirmed in appeal. In all the
cases which were registered against the petitioner in which he has been
acquitted the same were only on the basis of a compromise which itself
shows that the witnesses were not willing to come forward to give their
evidence and the petitioner had threatened the complainants for entering into
compromise. However, the fact as regards occurrence of the incident was
duly established from these judgments of acquittal itself. There is no
illegality in the impugned order warranting interference in this petition.
5. I have considered the submissions of the learned counsel for the
parties and have perused the record.
6. It would firstly be apt to refer to the provisions of the Adhiniyam
particularly Section 5 under which the order of externment has been passed
against the petitioner. The same is 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, 4 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; 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 duly 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 partSignature Not Verified
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NEUTRAL CITATION NO. 2025:MPHC-IND:104284 WP-20729-2022
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 of 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.
7. On a perusal of the record and the impugned order, I find that
petitioner’s externment order has been passed invoking Section 5 (a) of the
Adhiniyam. For passing such an externment order there must be a clear and
present danger based upon credible material which makes the movements
and acts of the person in question alarming or dangerous or fraught with
violence. There must be sufficient reason to believe that the person
proceeded against is so desperate and dangerous that his mere presence in the
locality or any part thereof is hazardous to the community and its safety. A
stringent test must be applied in order to avoid easy possibility of abuse
of this power to the detriment of the fundamental freedom. This has been so
held in Abdul Mannan V/s. State of M.P. And Others 2008 (III) MPJR 100 .
8. It may also be noticed that in order to pass a restriction order
under Section 3 of the Adhiniyam there should be satisfaction that the person
is acting or is likely to act in a manner prejudicial to the security of the State
or the maintenance of public order and to prevent him it is necessary in the
interest of the general public to pass restriction order.
9. A scrutiny of the order passed by the District Magistrate shows
that there is no satisfaction recorded by him in regard to fulfilment of the
requirements of Section 5(a) and 3 of the Adhiniyam. The reasons assigned
by the District Magistrate to extern the petitioner and to pass the restriction
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order against him do not satisfy the basic requirements of the said provisions.
It has merely been observed that petitioner has been involved in criminal
cases from 2012 up to 2023 which are sixteen in number but the result
thereof and the allegations levelled against the petitioner therein have
not been taken into consideration nor has any finding been recorded
specifically to the effect that the movements and acts of the petitioner are
causing or are calculated to cause alarm, danger or harm to person or
property. It has been observed that his acts may cause breach of public order
and peace but nothing further has been recorded. Thus the justification given
by the respondents in their return for passing of the externment order against
the petitioner under Section 5(a) of the Adhiniyam does not hold ground.
10. A plain reading of Section 5 (b) of the Act 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 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.”
11. It would be profitable to refer to some of the decisions of this
Court in this regard at this stage.
12. Division Bench of this Court in the case of Ashok Kumar Patel
(Supra) has held thus: –
“8. The expression is engaged or is about to be engaged” in
the commission of offence involving force or violence or an
offence punishable under Chapter XII, XVI or XVII or under SectionSignature Not Verified
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CHOURASIA
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NEUTRAL CITATION NO. 2025:MPHC-IND:104286 WP-20729-2022
506 or 509 of the Indian Penal Code, 1860 or in the abetment of any
such offence, shows that the commission of the offence or the abetment
of such offence by the person must have a very close proximity to the
date on which the order is proposed to be passed under Section 5(b) of
the Act of 1990. Hence, if a person was engaged in the commission of
offence or in abetment of an offence of the type mentioned in section 5
(b), several years or several months back, thee cannot be any
reasonable ground for believing that the 6 person is engaged or is about
to be engaged in the commission of such offence.”
13. In Ramgopal Raghuvanshi vs. State of M.P. and others, 2014(4)
MPLJ 654 this Court after considering the earlier judgments in respect of
Section 5 of the Adhiniyam held that the order of externment cannot be
passed on the basis of old and stale cases. A co-ordinate Bench of this Court
in the case of Bhim @ Vipul vs. Home Department, (W.P.: -No.4329/2015,
decided on 14-09-2015) has considered the judgments rendered in the cases
of Ashok Kumar (supra) and Ramgopal Raghuvanshi (supra) and has held
that the expression “engaged or is to be engaged” used in Section 5(b)(i)
shows that commission of offence or the abetment of such offence by
the person must have close proximity to the date on which the order is
proposed to be passed under Section 5(b) of the Act.
14. In Sanju @ Sanjay Ben Vs. State of M.P. and others, 2005 (4)
MPHT 102 while considering the provisions of the Adhiniyam the Court
held that the provision is not punitive in its nature and a person cannot be
externed for his past acts. Although past activities of a person may afford a
guide as to his behavior in future, they must be reviewed in the context of
the time when the order is proposed to be made. The past activities must be
related to the situation existing at the moment when the order is to be passed.
15. The respondent District Magistrate has considered fifteen
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NEUTRAL CITATION NO. 2025:MPHC-IND:10428
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criminal cases registered against the petitioner and seven prohibitory
proceedings. In eight cases registered against the petitioner he has been
acquitted. Even though the same may be on the basis of compromise but the
fact remains that he has been acquitted. A perusal of the offences for which
the petitioner was implicated shows that they were not so dangerous in nature
and were for small offences punishable under the IPC. The cases which are
pending against the petitioner are also in respect of minor offences. Only for
the reason that the cases were decided on the basis of compromise it cannot
be said that the petitioner would not be entitled to avail the benefit of the
same. If a compromise has been arrived at in a case the same would be on the
basis of the consent of the complainant. It has not been brought on record to
demonstrate that such consent of the complainant was only on account of
threat having been extended by the petitioner. Two cases pending against the
petitioner are for offence punishable under Section 379 of the IPC. The last
case which was registered against the petitioner on 16.10.2021 for offence
punishable under Section 25 of the Arms Act has itself been quashed by this
Court by order dated 14.03.2022 passed in M.Cr.C. No.13310 of 2022. Thus
the fact remains that the last case registered against the petitioner was on
09.07.2020 whereas the show cause notice has been issued to the petitioner
in October, 2021 i.e after a period of fifteen months therefrom. There is
nothing on record to show the activities of the petitioner for the intervening
period. There does not appear to be any proximity between the last case
registered against the petitioner and issuance of show cause notice to him.
Merely for initiation of prohibitory proceedings in the meanwhile, it cannot
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be said that the petitioner has done any act which would have the effect of
instilling fear in the mind of the general public against him.
16. Upon perusal of the impugned order, it is also found that the
District Magistrate has only baldly enumerated the list of the offences
registered against the petitioner to hold that he is a daring habitual criminal
but he has not recorded any finding upon satisfaction on the basis of the
material that in his opinion witnesses are not willing to come forward to give
evidence in public against the petitioner in respect of the alleged offences by
reason of apprehension as regards to their safety. Hence, in absence of
anysuch finding, an order under Section 5 (b) of Adhiniyam could not have
been passed by the District Magistrate since for passing an order of
externment against a person both the conditions under Section 5(b) (i) and
(ii) have to be satisfied. It may also be noted that the authority has not
discussed the nature of cases, the date of registration of cases and their
present status. Most of the cases are old and stale.
17. In the aforesaid fact situation, it would also be apt to refer to the
decision of this Court in Meena Sonkar vs. State of M.P. and others, 2017(2)
MPLJ 565 and also in Anek alias Anil Nageshwar vs. State of Madhya
Pradesh & four others [W.P. No.9297/2017, decided on 8-8- 2017] in which
it has been held as under :-
“The second requirement is also necessitated to pass an order
of externment that on account of the activities of a person, who is
externed, the witnesses amongst public are not coming forth to depose
in the criminal cases against him either under apprehension of person
or property. But in the order impugned existence of such material is not
on record, more so, no such finding has been recorded by the
competent authority to record satisfaction. Therefore, the order
impugned do not fulfill the second requirement of Section 5(b) of the
Adhiniyam.”
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CHOURASIA
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18. Under the provisions of Section 5 of the Adhiniyam, if a
detention order has to be passed, there has to be sufficient material for the
same as fundamental right of freedom of a person is involved. The order
passed by the appellate Authority is also nothing but repetition of the order
passed by the District Magistrate without any application of mind. In such
circumstances, the impugned order of externment and affirmation thereof in
appeal is unsustainable being in violation of the requirements of
the Adhiniyam and the judgments passed by this Court.
19. Accordingly, the writ petition deserves to be and is hereby
allowed. The impugned order 26.04.2022 (Annexure P/6) passed by the
District Magistrate, Ujjain and the order dated 24.08.2022 (Annexure
P/1) passed by the Commissioner, Ujjain Division, Ujjain are hereby
quashed.
No order as to costs.
(PRANAY VERMA)
JUDGE
jyoti
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 23-04-2025
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