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IN THE HIGH COURT OF MADHYA PRADESH
Purushaindra Kumar Kaurav, J.
Chandra Prakash @ Tinku Pandey v. State of M. P. & Others
Writ Petition No. 11825 of 2021(Jabalpur);
Decided on18.11.2021
(1) Rajya Suraksha Adhiniyam, 1990 (M. P.) -- S. 5 (b) -- expression 'is engaged or is about to be engaged' -- commission or abetment of offence must have very close proximity to date on which order is proposed to be passed -- person engaged in commission or abetment of offence of type mentioned u/s. 5 (b) several years or several months back -- cannot be any reasonable ground for believing that person is engaged or is about to be engaged in commission of such offence. 2009 (4) MPLJ 434 relied on. [Para 8
(2) Rajya Suraksha Adhiniyam, 1990 (M. P.) -- S. 5 (b) -- externment order -- should show existence of "some material" warranting such course -- not "sufficiency of material" but "existence of material" is sine qua non for passing such order. (2005) 5 SCC 181 referred to. [Para 9
(3) Rajya Suraksha Adhiniyam, 1990 (M. P.) -- S. 5 (b) -- externment order -- authority must be satisfied by expediency of order -- satisfaction recorded by authority objective and based on material on record -- Court would not interfere only because another view can be taken -- can be interfered with if same is demonstrably perverse, based on no evidence, misleading evidence or no reasonable person could have, on basis of materials on record, been satisfied of expediency/necessity of passing order of externment. (2021) 8 SCC 362 followed. [Para 10
(4) Rajya Suraksha Adhiniyam, 1990 (M. P.) -- S. 5 (b) -- externment order -- long list of criminal cases -- does not ipso facto give right to District Magistrate to exercise power of externment -- he has to form specific opinion that witnesses are not willing to come forward to give evidence by reason of apprehension or there is apprehension as regards safety of their person or property. [Para 11
(5) Rajya Suraksha Adhiniyam, 1990 (M. P.) -- S. 5 (b) -- Constitution of India -- Arts. 19 (1) and 21 -- scope of power u/s. 5 (b) -- exercise of such power causes serious restrictions on fundamental right to freedom under Art. 19 (1) and fundamental right to personal liberty under Art. 21 -- unless conditions mentioned u/s. 5 (b) are strictly satisfied, order of externment cannot be justified. [Para 15
(6) Constitution of India -- Arts. 226, 19 (1) and 21 -- M. P. Rajya Suraksha Adhiniyam, 1990 -- S. 5 -- externment order -- matter involving valuable fundamental rights of freedom or personal liberty needs to be considered seriously -- authorities should file para-wise reply clarifying factual position. [Para 17
(7) Rajya Suraksha Adhiniyam, 1990 (M. P.) -- S. 5 (b) -- externment order - does not show objectivity -- no satisfaction of "immediate engagement" or possibility of engagement in commission of offence mentioned in S. 5 (b) -- passed without "application of mind" - does not satisfy requirement of S. 5 (b) -- set aside. 2004 (4) MPLJ 234, 2018 (3) MPLJ 645, 2006 (3) MPLJ 592, 2018 (3) MPLJ 291, 2020 SCC Online MP 2066 and 2018 (3) MPLJ 349 referred to. [Paras 16 to 18
¼1½ jkT; lqj{kk vfèkfu;e] 1990 ¼e-ç-½ && èkkjk 5 ¼[k½ && vfÒO;fä ^layXu gS ;k layXu g¨us d¨ vkeknk gS^ && vijkèk dk djuk ;k vijkèk dk nq"çsj.k ml fnukad d¢ cgqr fudV g¨uk vko';d ftl fnukad d¨ vkns'k ikfjr fd;k tkuk çLrkfor gS && O;fä vusd o"kZ ;k vusd ekg iwoZ èkkjk 5 ¼[k½ esa mfYyf[kr fdlh çdkj d¢ vijkèk d¢ djus esa ;k ,sls fdlh vijkèk d¢ nq"çsj.k esa layXu && ;g fo'okl djus d¢ fy, ;qfä;qä dkj.k ugÈ g¨ ldrk fd O;fä ,sls vijkèk d¢ djus esa ;k ,sls fdlh vijkèk d¢ nq"çsj.k esa layXu gS ;k layXu g¨us d¨ vkeknk gSA 2009 ¼4½ ,e ih ,y ts 434 voyafcrA ¼iSjk 8
¼2½ jkT; lqj{kk vfèkfu;e] 1990 ¼e-ç-½ && èkkjk 5 ¼[k½ && fuokZlu vkns'k && ,slk vkns'k vko';d cukus d¢ fy, ^^dqN lkexzh^^ g¨uk nf'kZr g¨uk pkfg, && ,slk vkns'k ikfjr djus d¢ fy, ^^lkexzh dh i;kZIrrk^^ ugÈ] vfirq ^^lkexzh g¨uk^^ vfuok;Z gSA ¼2005½ 5 ,l lh lh 181 fufnZ"VA ¼iSjk 9
¼3½ jkT; lqj{kk vfèkfu;e] 1990 ¼e-ç-½ && èkkjk 5 ¼[k½ && fuokZlu vkns'k && vkns'k dh mi;¨fxrk d¢ ckjs esa çkfèkdkjh dk lekèkku g¨uk vko';d && çkfèkdkjh }kjk vfÒfyf[kr lekèkku oLrqijd v©j vfÒys[kxr lkexzh ij vkèkkfjr && U;k;ky; gLr{ksi ek= blfy, ugÈ djsxk fd d¨Ã vU; n`f"Vd¨.k viuk;k tk ldrk gS && og çn'kZuh; :i ls foi;ZLr g¨] fdlh lk{; ij vkèkkfjr ugÈ g¨ ;k Òzked lk{; ij vkèkkfjr g¨] vFkok vfÒys[kxr lkexzh d¢ vkèkkj ij fdlh Òh ;qfä;qä O;fä dk fuokZlu vkns'k ikfjr djus dh mi;¨fxrk@vko';drk d¢ ckjs esa lekèkku ugÈ g¨ ldrk Fkk] r¨ mlesa gLr{ksi fd;k tk ldrk gSA ¼2021½ 8 ,l lh lh 362 vuqlfjrA ¼iSjk 10
¼4½ jkT; lqj{kk vfèkfu;e] 1990 ¼e-ç-½ && èkkjk 5 ¼[k½ && fuokZlu vkns'k && nkafMd çdj.k¨a dh yach lwph && ftyk eftLVªsV d¨ fuokZlu dh 'kfä ç;qä djus dk vfèkdkj Loeso çkIr ugÈ g¨ tkrk && mls fofufnZ"V jk; xfBr djuk g¨rh gS fd lk{khx.k vk'kadk g¨us d¢ dkj.k lk{; nsus gsrq vkxs vkus d¢ fy, jtkean ugÈ gS vFkok mud¢ 'kjhj ;k laifÙk dh lqj{kk d¢ ckjs esa vk'kadk gSA¼iSjk 11
¼5½ jkT; lqj{kk vfèkfu;e] 1990 ¼e-ç-½ && èkkjk 5 ¼[k½ && Òkjr dk lafoèkku && vuq& 19 ¼1½ rFkk 21 && èkkjk 5 ¼[k½ d¢ vèkhu 'kfä dh O;kfIr && ,slh 'kfä d¢ ç;¨x ls vuq&19 ¼1½ d¢ vèkhu Lora=rk d¢ ewy vfèkdkj v©j vuq&21 d¢ vèkhu nSfgd Lora=rk d¢ ewy vfèk[kkj dk xaÒhj fucZaèku g¨rk gS && tc rd èkkjk 5 ¼[k½ esa mfYyf[kr 'kr¨Za dk iw.kZr% ikyu ugÈ g¨] fuokZlu dk vkns'k U;k;¨fpr ugÈ g¨ ldrkA ¼iSjk 15
¼6½ Òkjr dk lafoèkku && vuq& 226] 19 ¼1½ rFkk 21 && e-ç- jkT; lqj{kk vfèkfu;e] 1990 && èkkjk 5 && fuokZlu vkns'k && Lora=rk vFkok nSfgd Lora=rk d¢ vewY; ewy vfèkdkj¨a ls lacafèkr fo"k; ij xaÒhjrk ls fopkj fd;k tkuk vko';d && çkfèkdkfj;¨a d¨ rF;kRed fLFkfr Li"V djrs gq, in&okj mÙkj çLrqr djuk pkfg,A ¼iSjk 17
¼7½ jkT; lqj{kk vfèkfu;e] 1990 ¼e-ç-½ && èkkjk 5 ¼[k½ && fuokZlu vkns'k && oLrqijdrk nf'kZr ugÈ && èkkjk 5 ¼[k½ esa mfYyf[kr vijkèk esa ^^layXu g¨uk vklUu^^ g¨us vFkok layXu g¨us dh laÒkouk d¢ ckjs esa lekèkku ugÈ && ^^eu¨fu;¨x^^ d¢ fcuk ikfjr
&& èkkjk 5 ¼[k½ dh vis{kk dh iwfrZ ugÈ g¨rh && vikLrA 2004 ¼4½ ,e ih ,y ts 234] 2018 ¼3½ ,e ih ,y ts 645] 2006 ¼3½ ,e ih ,y ts 592] 2018 ¼3½ ,e ih ,y ts 291] 2020 ,l lh lh vkWuykbu ,e ih 2066 rFkk 2018 ¼3½ ,e ih ,y ts 349 fufnZ"VA ¼iSjk 16 ls 18
ORDER
1. In this petition under Article 226 of the Constitution, the petitioner is aggrieved by an order dated 30.6.2021 (Annexure-P/7) passed by Additional Commissioner, Rewa in an appeal under section 9 of the M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred as “The Act of 1990”), whereby an order of externment dated 3.2.2021 (Annexure-P/2) under section 5 (b) of the Act of 1990 passed by District Magistrate, Rewa, directing externment of the petitioner, for a period of one year from revenue limits of District Rewa and other adjacent Disctricts Sidhi, Satna and Singraulli has been affirmed.
2. The relevant facts briefly are :--
i) On 7.12.2020 Superintendent of Police, Rewa on the basis of report received by him from Town Inspector P.S. Sirmour District, Rewa made recommendations to the District Magistrate for initiation of proceedings under section 5 of the Act of 1990. It was reported that the petitioner is a habitual criminal and is involved in various criminal activities such as, possessing illegal arms, land grabbing and disturbing peace in the locality etc. From 1998 till the date of submission of the report, there were 17 criminal cases registered against him.
ii) The report further states that there was stronghold of the petitioner in the locality and a common citizen feels unsecured. He is involved in the commission of organised offences. Because of the terror of the petitioner neither anyone is reporting against him nor the witnesses are willing to come forward to give evidence in public. There was threat to public tranquillity and, therefore, it was necessary to prevent disturbance and to provide for security and maintenance of public order, an action under the provisions of the Act of 1990 was requested to be invoked.
iii) On 29.12.2020, upon receiving such a report, the District Magistrate, after registering Case No.72/Criminal/2020 recorded the statement of the Town Inspector, Sirmour-Rewa and thereafter a show cause notice was directed to be issued to the petitioner for his appearance on 5.1.2021. It appears that during proceedings on 8.1.2021, the petitioner was represented through his counsel. The documents were supplied to him and he sought time to file the reply. Thereupon, the matter was fixed for reply on 15.1.2021. However, despite various opportunities, he chose not to file reply, therefore, the impugned order was passed.
iv) The petitioner challenged the said order of externment by filing a statutory appeal under section 9 of the Act of 1990. However, vide order dated 30.6.2021, the appeal has also been dismissed by the Appellate Authority.
3. The precise submissions made by the petitioner are as under :-
i) The impugned order is vitiated on account of not providing him an opportunity of hearing to file the reply. The District Magistrate on 2.2.2021 had fixed the date for filing of the reply upto 3.2.2021, whereas, later-on behind the back of the petitioner on the same date i.e. 2.2.2021 impugned order was passed.
ii) There was no evidence against the petitioner so as to reasonably conclude that the people are not reporting the matters against him or the witnesses are not coming forward because of fear of the petitioner.
iii) The action of externment is further vitiated because not a single witness has been examined to substantiate the allegations except the police witnesses who happend to be the Town Inspector, Sirmour District Rewa.
iv) There is no application of mind, inasmuch as, if the list of all criminal cases is considered, it is seen that the crime mentioned at Serial No.8 as Crime No.32/2012 is not against the petitioner, and out of 17 cases, only 8 cases are relating to the proceedings under section 107 and 116 (3) of CrPC. Moreso, in most of the cases he has been acquitted.
v) The proceedings are politically motivated which is apparent from Rojnamcha dated 3.11.2020, (AnnexureP/8) of the writ petition, wherein Police Station Sirmour states that the name of the
The court ruled that externment orders require substantial evidence and must not infringe on fundamental rights without clear justification.
Old and stale cases cannot be considered for externment, and there must be a live link between the activities and the necessity of externment. Specific findings and the recording of reasons are essen....
The central legal point established in the judgment is that for passing an order of externment under Madhya Pradesh Surksha Adhiniyam, 1990, both conditions mentioned under section 5(b)(i) and (ii) o....
The court highlighted the importance of objective material for recording subjective satisfaction to pass an order of externment, the need for compliance with principles of natural justice, and the ne....
The main legal point established in the judgment is that externment orders must satisfy the requirements of close proximity to the offense, objective consideration, and satisfaction of the District M....
The legal principle established is that for an externment order to be valid, the person's engagement in criminal activities must have close proximity to the date of the order, and witnesses must be u....
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