MP High Court Quashes Externment Order, Cites Non-Application of Mind and Lack of Material

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Jabalpur, MP – In a significant ruling on personal liberty, the Madhya Pradesh High Court has set aside a one-year externment order, emphasizing that such drastic measures cannot be passed mechanically and must be supported by cogent material satisfying the strict conditions of the law.

A Division Bench comprising Chief Justice Sanjeev Sachdeva and Justice Vinay Saraf allowed a writ appeal filed by Tushar @ Nandi @ Anand, quashing the externment order issued by the District Magistrate of Betul. The court found a clear "non-application of mind" by the authorities and a failure to meet the essential requirements under Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 .

Case Background

The case originated from a recommendation by the Superintendent of Police (SP), Betul, on March 22, 2024, to extern Tushar from Betul and four adjoining districts. The SP cited a list of 12 past criminal cases and claimed that witnesses were afraid to testify against him.

Following this, the District Magistrate (DM), Betul, issued an externment order on November 21, 2024, banishing Tushar for one year. This order was subsequently upheld by the Divisional Commissioner and a single-judge bench of the High Court, prompting the present appeal.

Arguments of the Parties

The appellant’s counsel argued that the externment order was passed without proper consideration. Key points raised were: * Most of the cited cases resulted in acquittal, and recent cases were of a "trivial nature." * A glaring error in the SP's recommendation letter, which mistakenly requested action against a different individual, "Golu S/o Prabhakar Solanki," indicated a mechanical process. * The significant eight-month delay between the SP's recommendation and the DM's final order undermined the claim of urgency and immediate threat to public order.

The State, represented by the Government Advocate, defended the order, arguing that the appellant's criminal history as a "habitual offender" justified the externment and that proper procedure, including a show-cause notice, was followed.

Court's Analysis and Precedents

The Division Bench conducted a meticulous review of Section 5 of the 1990 Act, which empowers a District Magistrate to issue externment orders. The court reiterated that such powers impose serious restrictions on the fundamental rights to freedom and personal liberty under Articles 19 and 21 of the Constitution.

The court heavily relied on the precedent set in Ashok Kumar Patel Vs. State of M.P. (2009) , which established two mandatory conditions for an externment order under Section 5(b): 1. Reasonable grounds to believe the person is engaged, or about to be engaged, in committing certain offences. 2. The DM must form an opinion, based on material, that witnesses are unwilling to testify due to fear for their safety.

The bench observed that in Tushar's case, these conditions were not met.

> "Sufficient material was not available on record to show that there was any immediate engagement of the offender in commission of offence... Passing of the order in mechanical manner is condemnable as the externment order casts serious restrictions on the fundamental rights and personal liberty of any person."

The court noted that the witnesses examined during the proceedings did not support the police's case against the appellant. Furthermore, it found a lack of "close proximity" between the alleged offences and the externment order, as most cases were old, and the only recent ones were minor.

The bench also criticized the lower court's reasoning for dismissing the initial writ petition, stating:

> "We are not in agreement with the finding recorded by the learned writ court. The Writ Court has jurisdiction under Article 226 of Constitution of India to examine the legality and validity of the order... as the same adversely affected the fundamental rights of the personal liberty of the externee."

Final Decision

Concluding that the administrative actions were taken without due application of mind and were not based on cogent material, the High Court allowed the appeal.

> "The Superintendent of Police forwarded an application without applying his mind and the District Magistrate has also passed the order without application of mind, which does not satisfy the requirement of section 5 of Act, 1990," the judgment stated.

The court set aside the orders of the District Magistrate, the Divisional Commissioner, and the single-judge bench. As a result, Tushar @ Nandi @ Anand is now free to enter the District of Betul and its adjoining areas from which he was externed.