02/03/2022

The present petition is filed under article 226 of the

Constitution of India, wherein the legality and validity of the

order dated 20.07.2021 passed by the District Magistrate,

Badwani under section 5 of MP Rajya Suraksha Adhiniyam, 1990

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(hereinafter referred to as 'the act,1990') externing the petitioner

from the boundaries of District Badwani and contiguous District

i.e. Dhar, Jhabua, Alirajpur, Khandwa, Khargone, Bhuranpur and

Indore for a period of one year. The petitioner has also challenged

the order dated 22.12.2021 passed by the Commissioner, Indore

dismissing the appeal under section 9 of the Act, 1990.

2.

The facts adumbrated in nutshell are that on the basis of a

report submitted by the Superintendent of Police, Badwani to the

District Magistrate, Badwani to the effect that the petitioner is

involved in criminal activities since 1992 and he has spread his

terror to the local public the proceedings under the Act, 1990

were initiated by the respondent no.2 District Magistrate,

Badwani. It is further alleged that the petitioner is involved in

criminal activities and there are about 21 cases registered against

him, which have been mentioned in the impugned order. On the

basis of the said report, a show cause notice was issued to the

petitioner initiating the proceedings under the Act, 1990. Despite

serviced of notice, the petitioner did not appear before the

respondent no.2 and he was proceeded ex-partie. The respondent

no.2 on the basis of report of respondent no.3 and the material

passed the impugned order of externment.

3.

Learned counsel for the petitioner while assailing the order

of externment submitted that in the report of the Superintendent

of Police, the old and stale cases have been mentioned in the said

list. It is further submitted that out of 21 cases, only four cases

are said to be pending against him. The aforesaid cases are at

serial no.13,15,17 and 21. The cases at serial no.13 relates to

offence under section 353,341,352 of the IPC and the offence at

serial no.15 and 17 relates to the offence under section 188 of the

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IPC. The case at serial no.21 relates to the offence under section

379 of the IPC. The cases are old and stale. It is further submitted

that the offence which are said to be registered in the year 2000

and 2001 are only in nature of preventive action taken by the

police.

4.

Learned counsel for the petitioner further submits that the

order of externment has been passed without compliance of

provision of section 5-B of the Act, 1990. It is argued that the

District Magistrate has not recorded his satisfaction that the

witnesses are not willing to come forward to give evidence in

public due to apprehension of their safety and therefore, the order

of externment is bad in law. In support of his submission, he

places reliance of the judgment of Division Bench in the case of

Ashok Kumar Patel Vs. State of MP and Ors reported in 2009

(4) MPLJ 434 and also the judgment passed by the co-ordinate

bench in the case of Meena Sonkar Vs. State of MP and Ors

reported in 2017 (2) MPLJ 565 and in the case of Jahangeer

Alvi Vs State of MP and Ors reported in 2017 (3) MPLJ 667 and

also the judgment in the case of Istfaq Mohammad Vs. State of

MP and Ors reported in 2018 (3) MPLJ 349.

5.

Per contra, learned counsel for the respondent/state denied

the submissions of the learned counsel for the petitioner and

submitted that the externment order and the appellate order

passed on the basis of material available against the petitioner. He

relied on the report of the Superintendent of Police.

6.

Before adverting to the contentions of the counsel for the

petitioner as discussed earlier and examining them on the anvil of

the law prevailing in the field of externment, it is apt to refer the

provisions of the Adhiniyam, 1990. Section 5 of the Act under

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which the order of externment has been passed is quoted

hereinbelow:-

"5. Removal of persons about to commit

offence.- whenever it appears to the

Dist