Rajesh @ Raju Sharma vs Divisional Commissioner & Others

The petitioner has filed the present petition being aggrieved by order of externment dated 05.04.2018 passed by the District Magistrate, Neemuch and order dated 26.06.2018, passed by the Commissioner, Ujjain by which the appeal has been dismissed.

The Superintendent of Police, Ujjain vide letter dated 28.03.2017 requested the District Magistrate to initiate the proceedings under Section 5(b) of Madhya Pradesh Rajya Suraksha Adhiniyam 1990. According to the Superintendent of Police, Ujjain seven cases have been registered against the petitioner under various sections of IPC. There is a general fear in the mind of public and the witness and they are not attending the Court proceedings. On the basis of the aforesaid letter show cause notice was issued to the petitioner. The petitioner submitted a reply denying the allegations made in the show cause notice. Being dissatisfied with the reply and the material available on record, the District Magistrate vide order dated 05.04.2018 has passed the order of externment for the period of 6 months restraining the petitioner to enter into the territory of Neemuch, Mandsaur, Ratlam, Shajapur, Ujjain and Dewas.

Being aggrieved by the aforesaid order, the petitioner preferred an appeal and that has been dismissed and order of District Magistrate has been upheld, hence the present petition.

By order dated 13.07.2018 this Court has directed respondent No.1 to make available record of Case No.289/1718. Today, record is not available. Out of 6 months, 4 months have already expired, therefore, the petition is heard and decided on the basis of documents filed alongwith the petition. I have heard learned counsel for the parties.

According to the record available before the District Magistrate, the District Magistrate formed an opinion that seven cases were registered against the petitioner punishable under the IPC, therefore, there is a general fear in the minds of local public and they are not willing to give evidence against him.

The Division Bench of this Court in case of Ashok Kumar Patel Vs. State of M.P. & Others, reported in ILR (2009) MP 3090 has held that such an order cannot be passed mechanically. The District Magistrate under Section5(b) of the M.P. Rajya Suraksha Adhiniyam is required to find out whether the petitioner was engaged in commission of offence or in abatement of such offence which was close to proximity to the date when the impugned order of externment was passed. The second condition which must be satisfied for passing an order against the person is that in opinion of District Magistrate witnesses are not willing to come forward to give evidence and to furnish evidence against such person by reasons of apprehension on their part as regard safety, but the District Magistrate in the impugned order has only reproduced the list of offence registered against the petitioner and formed an opinion against petitioner. Relevant portion of the aforesaid judgement is reproduced below:

“9. We will therefore have to examine the impugned order dated 18-11-2008 passed by the District Magistrate, under Section 5 (b) of the Act of 1990 to find out whether the petitioner was engaged in the commission of an offence or was about to be engaged in the commission of an offence mentioned in Section 5 (b) of the Act of 1990, or in the abetment of such offence, which was very close in proximity to 18-11-2008 when the impugned order of externment was passed. The first offence mentioned is alleged to have been committed by the petitioner on 9-4-1995 when the petitioner and his other associates forcibly took possession of 'Mahuwa' of Tilakdhari Tripathi, son of Indramani Tripathi and collected the same, and Crime No. 46/95 under Sections 447 and 379 of the Indian Penal Code was registered and the petitioner was arrested and produced before the Court.

The second offence is alleged to have been committed by the petitioner on 14-3-2007 when the petitioner is alleged to have written a letter to Shivshankar Tripathi, son of Tilakdhari Tripathi, giving threats regarding construction of new building of Shiksha Guarantee School, and Crime No. 42/2007 under Sections 353, 294, 506 read with Section 34 of the Indian Penal Code has been registered and a challan has been filed in the Court in Case No. 729/2008. The third act which has been mentioned in the impugned order is not an offence alleged to have been committed but a prohibitory proceeding No. 22/2007 under Sections 107 and 116(3) of the Code of Criminal Procedure instituted against the petitioner on 9-4-2007 and the petitioner has been produced in Court. The fourth offence alleged to have been committed by the petitioner is in July, 2008 when the petitioner along with 6 or 7 others is alleged to have caused hindrance in Government work during the election of Palak Shikshak Sangh and created disturbances in election work and committed 'Marpeet' on the basis of which Crime No. 216/2008 for offences under Sections 253, 294, 323, 325 and 506-B read with Section 34 of Indian Penal Code has been registered. In our considered opinion, these offences alleged to have been committed by the petitioner in the years 1995 to 2007, cannot be the foundation of an order under Section 5 (b) of the Act of 1990 as the alleged offences have no proximity at all to the order of externment passed on 18-11-2008. Even, the offence alleged to have been committed by the petitioner along with 6 or 7 other persons in July, 2008, cannot constitute a reasonable ground to believe on 18-112008 that the petitioner is engaged or is about to be engaged in offence mentioned in Section 5 (b) of the Act of 1990.

The second condition which must be satisfied for passing of an order of externment against a person is that in the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of person or property. Construing a pari materia provision in Section 27 of the City of Bombay Police Act, 1902 in Gurbachan Singh v. The State of Bombay and Anr.(AIR 1952 SC 221), the Supreme Court observed:

“The law is certainly an extra-ordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety or the public residing therein.”

In the instant case, the District Magistrate has in the impugned order only baldly stated that the list of offences registered against the petitioner reflects that he is a daring habitual criminal and because of this there is fear and terror in the public and has not recorded any clear opinion on the basis of materials, that in his opinion witnesses are not willing to come forward to give evidence in public against such person by a reason of apprehension on their part as regards safety of their person or property. In most of the cases, Challans have been filed by the Police in Court obviously after examination of the witnesses under Section 161 of Cr.PC and the cases are pending in the Court. There is no reference in the order of District Magistrate that witnesses named in the Challans filed by the Police are not coming forward to give evidence against the petitioner in Court.

Hence, in the absence of any existence of material to show that witnesses are not coming forward by a reason of apprehension to danger to their person or property to give evidence against the petitioner in respect of the alleged offences, an order under Section 5 (b) of the Act of 1990 cannot be passed by the District Magistrate by merely repeating the language of Section 5 (b)of the Act of l990.

In State of N.C.T. of Delhi and Anr. v. Sanjeev alias Bittu (supra), the Supreme Court interpreting Section 47 of the Bombay Police Act, 1978, which is similarly worded as Section 5 of the Act of 1990, has held in Para 25:

“It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary, the order directing externment should show existence of some material warranting an order of externment. While dealing with question mere repetition of the provision would not be sufficient. Reference to be made to some material on record and if that is done the requirements of law are met. As noted above, it is not the sufficiency of material but the existence of material which is sine qua non.”

The Act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and the fundamental right to personal liberty under Article 21 of the Constitution and unless the conditions mentioned under Section 5 (b) of the Act of 1990 are strictly satisfied, an order of externment, will have to be quashed by the Court. While considering a case under Section 56 of the Bombay Police Act, which also empowered the police to pass an order of externment, the Supreme Court observed in Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, State of Maharashtra (supra), as under:

“It is true that the provisions of Section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society. This Court in Gurbachan Singh v. The State of Bombay, 1952 SCR 737 : AIR 1952 SC 221 had upheld the validity of Section 27 (1) of the City of Bombay Police Act, 1902, which corresponds to Section 56 of the Act. Following that decision, the challenge to the constitutionality of Section 56 was repelled in to ensure that the terms of Sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee.”

In the present case also the District Magistrate, only on the basis of list of cases registered against the petitioner has formed an opinion that witnesses are not coming forward to give evidence against him, therefore, in view of the judgment passed in the case of Ashok Kumar Patel (supra), impugned orders are not liable to be sustained, hence, they are set aside.

Petition is allowed.