Madhya Pradesh High Court
Sudhir vs M.P. Shasan Through Pramukh Sachiv on 18 December, 2024
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2024:MPHC-IND:36450
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 18th OF DECEMBER, 2024
WRIT PETITION No. 24015 of 2024
SUDHIR
Versus
M.P. SHASAN THROUGH PRAMUKH SACHIV AND OTHERS
Appearance:
Shri Neeraj Siresiya - Advocate for the petitioner.
Shri Kratik Mandloi - P.L. for respondents/State.
ORDER
1. This petition under Article 226 of the Constitution of India has been
preferred by the petitioner being aggrieved by the order dated 26/12/2023
(Annexure P/2) passed by the District Magistrate, District Dewas externing
him for a period of one year with effect from date of order from the revenue
limits of District Indore, Ujjain, Shajapur, Sehore, Harda, Khandwa and
Khargone 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 31/7/2024 (Annexure P/3)
passed by the Commissioner, Ujjain Division, Ujjain whereby his appeal
preferred against order dated 26/12/2023 under Section 9 of the Adhiniyam
has been dismissed.
2 . The facts of the case are that on the basis of report of
Superintendent of Police, District Dewas dated 4/10/2023 a show cause
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 12/20/2024
2:40:02 PM
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notice for externment was issued to the petitioner by the District Magistrate
under Section 8(1) of the Adhiniyam. The petitioner filed his reply to the
said notice after which the District Magistrate passed his order on
26/12/2023, 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.
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 9 criminal cases registered against him. He is
involved in criminal activities since the year 2003. Recently an FIR was
lodged against the petitioner under Section 323, 294, 506 and 34 of the IPC
at police station BNP, District Dewas and on as many as five occasions
prohibitory proceedings have been taken against him for keeping the peace
under Section 110 of the Cr.P.C. It is submitted that the District Magistrate
after objective consideration of the material on record has passed the
externment order which has rightly been affirmed in appeal. There is no
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 12/20/2024
2:40:02 PM
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illegality in the same 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 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 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
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 12/20/2024
2:40:02 PM
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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 fulfillment of
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
order against him do no satisfy the basic requirements of the said provisions.
It has merely been observed that petitioner has been involved in criminal
cases from 2003 up to 2023 which are nine in number but the gravity of the
same 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
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 12/20/2024
2:40:02 PM
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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 Section 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)
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 12/20/2024
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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 nine criminal cases
registered against the petitioner and five prohibitory proceedings. Upon
perusal of the list it is clear that first case registered against the petitioner
under Section 294, 506, 352 and 34 of the IPC was in the years 2003. One
case was registered against him under Section 289 of the IPC in the year
2004. One case under Section 323, 294, 34 of the IPC was registered in the
year 2006. Thereafter no case was registered against the petitioner upto the
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 12/20/2024
2:40:02 PM
NEUTRAL CITATION NO. 2024:MPHC-IND:36450
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year 2016 when two cases were registered under Section 323, 324, 294, 506
and 34 of the IPC. A similar case was registered in the year 2017. In 2022,
ie., after lapse of a period of five years one similar case was registered. Two
cases were registered in the year 2023 for similar offences. Four prohibitory
proceedings under Section 110 of the Cr.P.C have also been taken by way of
Istagasha from the year 2018 upto 2023. From a perusal of the allegations
levelled against the petitioner in all the aforesaid cases it cannot be said that
he is a hardened criminal. The acts which have been alleged against him
cannot be said to be so grave that they may give apprehension in the mind of
the respondent authorities that mere presence of the petitioner in the locality
would give rise to a situation of law and order. Though the petitioner has
been alleged of having committed criminal offences but they are not so grave
in nature so as to castigate him as a habitual offender.
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 any such
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
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 12/20/2024
2:40:02 PM
NEUTRAL CITATION NO. 2024:MPHC-IND:36450
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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.”
18. Under the provision 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 dated 26/12/2023 (Annexure P/2) passed by the District
Magistrate, Indore and the order dated 31/7/2024 (Annexure P/3) passed by
the Commissioner, Ujjain Division, Ujjain are hereby quashed.
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 12/20/2024
2:40:02 PM
NEUTRAL CITATION NO. 2024:MPHC-IND:36450
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No order as to costs.
(PRANAY VERMA)
JUDGE
SS/-
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 12/20/2024
2:40:02 PM
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