^.^K'-%g' -.-'nSST^S—?^-^—, IINiSlE BEKCR' ^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) W.P. No..3.?'.?.5........./2005 PETITIONER: ...^' •<" \ ^^ ^^y •c-^ //^w ^ 'y REiSPONDENTS: Radha Mohan Rai Aged about 55 years S/0 Shri Chandrika Prasad Rai, R/0 Nagar Panchayat Baradwar Ward No. 8 District Janjgir - Chanipa (Chhattisgarh) VERSUS ^ . 2. ^ i>^^^r>s|| IfS^ ]'^> '^^-^ %,-'r ^^'' State of Chhattisgarh Through the Secretary Department of Home D.K.S. Bhawan, Mantralaya Raipur (Chhattisgarh) District Magistrate (Collector) Janjgir District Janjgir-Champa (Chhattisgarh) PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA FQR ISSUANCE OF APPROPRIATE WRITS OF MANDAMUS AND CERTIORARI AND FOR OTHER SUITABLE WRITS AND DIRECTIONS:- AF^' HTGH _COURT QF CHHATnSGARH AT BILASPUR Writ Petition No. 3233 of 2005 Radha Mohan Rai -Versus- State of Chhattisgarh & aaofher f^ Post for order on / 6 NoveiGiber, 2005 Sd/- Satish K. Agnihotri Judge ,\<: 130-- mGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 3233 of 2005 Radha Mohaii Rai -Versus- State of Chhattisgarh & aaotih.er Mr. Prateek Shai-ma, Advocate for ttie petitioner. Mr, Yashwant Siagh Thakur, Govt. Advocate for fhe Respondents. Q RnER ( ^'November, 2005) BT Jisstiee Batish K. A^mihotri^ L The preseut petition filed uiider Article 226/227 oftlie Constitution of India impugns tlie order dated 23,12.2004, passed by fhe Distiict Magistrate, Janjgir Champa fhereby the petitione.r was rem-oved froin the teiTitorial Imiits of distdct Janjgir Chauipa an-d oUier adjacent districts Raigarh, Korba, BUaspur, aad Raipur for a period ofone year w.e,f 23,12»2004, The petitioner farther mipiigns fhe order dated 26.2.2005 passed ia appeal, affirmmg ttie order dated 23.12.2004, by fhe AdditioneJ Cliief Secretaiy, Home, Govt. of Chhattisgarh. The brief facts ia tliis case are that as niaa;/ as 23 cases were registered froiii the yeaj: 1973 to March, 2004 agabist fhe petitioner for corniaittHig offences of fheft, dacoit^^ riotmg, Gundagardi, criinuial nitmiidation, assaulting geueral pubUc aad Govt. officials, creating interference with the fzinctioning of the Govt. officials, keepnig illegally Uquor and iinanfhorised arms zuider section 34 (1) a, 49 ofthe Excise Actaiid sections 107, 116(3), 120, 147,186,225,294, 323, 332,341, 342, 353, 379, 384, 392, 408, 420, 448, 467, 468, 506, 506-B of fhe Indien Penal Code aud Sections 25 and 27 of the Anns Act, 9. \2^ Out of 23 cases registered agahist the petitioner, ia four cases there was setflem.ent, 13 cases are penduig ui the Court, in 2 cases i.e. Case No, 162/99 thi-ee yeai's aad one nionfh's rigorous imprisonmeut aiid Rs, 400/- fixie was awarded for fhe offence; coaimitted zuider sections 353, 332, 186, 294, 506 ofthe I.P.G. read with Section 3 (1- 10) of the Scheduled Caste aiid Scheduled Tribe (Preventiou of Atrocities )Act, aiid ia Case No. 184/2001 for an offeuce. committed under section 34(1), 49 offhe Excise Act, the petitioner was convicted for iwo years rigorous imprisonnieiit with fiiie ofRs, 75,000/~. In bofh fhe cases the petitioner was acqiiitted ia appeal, The i£iovem.eiits and acte of the petitioner had been cansuig danger or alajni to fhe persous at large whereiii the witaesses ai'e not wiUiag to 00.2110. foi'ward to give evidence io. piiblic agamst tlie petitione.r l3y reasons of apprehension on their part, as regards safety of the persons aad property. The Respondent No.2 Distdct Magistorate, Janjgir Champa, issued a notice on 11.10,2004 to show cause as to why tiie action be not taken agaijist the petitioner under sections 3 aiid 5 of tiie Chhattisgarh Rajya Siiraksha Adhmiyam, 1990 (m short 'the Act, 1990'). The said show cause notice coiitaiiied histoty of 23 cases, 20 cases pendiag again.st the petitioiier, charge sheets for distiirbirxg peace^ complamt by citisen of Baradwar for assaultiiig, criBiinal iatiinidation, Gundagardi, destruction of the. property by tlie petitioner aiid his associates and tivo rojnamcha sejiha were slso stated to be pe.ndiiig for creatiiig terror aiid further creatiiig ten'or ui fhe election, The petitioner subinitted detailed reply on 23,10.2004 whereui fhe qTiestion of doiible jeopardy was raised on the groiuid fhat 110 actioii coiild be taken agamst fhe petitioixer zuider section 3 read with section 5 of fhe Act, 1990 on fhe basis of past case.s whereui eifher ^ 124 the cases are peiidiag or the petitioner ho.d been acqziitted by fhe / appellate Court. 5. The Re.sponde.nt No,2 ofter liearing flie evidences of tiie proseciitiou aiid that of tlie petitioner as weU as fhe siibmissions of botih. the parties passed a detalled order ninnio.g into 19 pages, Itwas held that it has clearly been established that the petitioner had beeii engaged ia the past aiid he was Kkely to be engaged ia the. offeuces iiivolviiig force or violence m. causing alarm, danger or terror to the pubUc peace, aiid law & order of fhe society in t±ie district lu view of the above, the District Magistrate iu. exercise of the powers under sectioiis 3 and 5 of the Act, 1990 reiuoved the petitioner from fhe tenitoiy of the district Jaiygir Chaiupa aiid territorial lioiits of the adjacent distdcts Le, RaigaA, Korba, Bilaspur, Raipur for a period ofoue year vide order dated 23.12.2004, with mimediate effect. 6. Beiag aggrieved, the petitioner filed an appeal before the State Govemment, The Additional Chief Secretaiy, Home, consiclered all tiie siibmissions of the petitioner ajid examiB.ed the case in. detaU, The Additional Chief Secretary canie. to fhe. conclusion fhat the. offences tlie activities comniitted by fhe petitioner aad Kkely to be coiainitted by the petitiouer were offences punishable uuder Chapter XVI or XVII or uiide.r section 506 of the I.P.C. Accordiagly the Additioual Chief Secretaiy confirmed fhe order dated 23.12,2004 passed by fhe Distiict Magistrate, 7. The petitioiier file.d tliis petition impiigniiig the orders dated 23.12.2004 passed by fhe District Magistrate. ajid the order dated 26.2.2005 passecl in. appeal by tlie Additional Chief Secretary, Hoine oii the grounds fhat flie petitioner had already been extenied on 8.10.2002 for the ideiitical or sioiilar charges, only one or two new charges were mentioned at Srl, No. 21 to 24m flie inipiigned orde.r 8. Q fer' dated 23,12.2004, which entails violation ofthe fundaniental right of tlie petitioiier as enshrined uuder Ailicle 20 of the Constitutiou of India, Mr, Prateek Sharma, learaed counsel for the petitiouer subinitte.d that tlie chej:ges alleged ui flie mipugned order dated 23.12.2004 were wiOiout auy basis aiid did not estabUsh guilt of flie petitioner so as to irivoke th.e jurisdiction luider Sections 3 aiid 5 offlie Act, 1990, Itwas furtlier subinitted tiliat fhe petitioner was holdiag the post of the office of fhe Vice President of Nagar Paiichayat Baradwar for t^o terms ia the yesjr 1994 sio.d 2002, aiicl his wife wos sdso the President of tlie aforesaicl Nagaj: Panchayat. The petitioner was a law abidiag citizen and tiie inipiigned order was passed to msJign his aiid his wife's iinage, Leanied coiinsel fiirther siibmitte-d fliat the petitioner had uot conducted hmiself iii such a niaiiner which uivoked fhe jurisdiction of Distdct Magisti'ate to pass fhe irsipugned order under sections 3 aiid 5 of the Act, 1990 after the first order of removal was passed on 8.12.2002. Mr. Yashwaiit Suigh Thakur, learned Govt. Advocate appearmg for the State ia support of the mipngued order siibmitted that the petitioner was iiivolved in several activities Uke theft, rioting, cheatmg, keepuig unauthorized weapons, iUicit Uquors, causiiig terror ia the mind offhe geueral pubUc, as such fhe witnesses were not willing to conie fonvard to give eviclence in pubUc agamst the petitioner. The petitioner zised to abscond sAer coiaiHittmg crime. The petitioner was slso iavolved iii terrorizirig Nagar Pauchayat President as such a proceediag iiuder sections 107, 116(3) ofthe I.P,C. were initiated agaiast fhe petitiouer, The petitioner was habitual hardened cmninal and he had not ioiprovecl or Biended his y.7ays diiruig the period of earMer order of renioval. ^— l36 10. 11. Haviiig heard leamed coiuisel for the parties aad havuig perused the records flled vdth the petition by bofh fhe parties, it is found fhat tilie District Magistrate had examuied each aad every charge leveUed agaiast the petitiouer and conduct of the petitiouer, caiisiiig alarm, danger, riotiiig, aiid assaultuig piibUc and Govt. ofHcials. It was further foziud that the piibUc was so terrorise that even the witnesses were not comiag fon^ai'd to give evidence in. piiblic agaiast tiie petitiouer. The Distdct Magistratc had fnrtlier coiaplie.d wifh fhe priaciples of natural justice by giving a show caiise iiotice stating all fhe chai'ges made agaiiist flie petitioner aad provided hiai ao. opportunity of m.enduig his ways. The District Magistrate had considered tlie entire witaesses and siibiaissions of fhe petitiouer before passiag fhe impugued order dated 23.12.2004, The appeUate au-thority had also exaoiined the inatters ia detail while confirmiD.g tJie impugned order dated 23.12.2004, ajid dismissed fhe appeal filed by the petitionerby inipiigned orderdated 26.2.2005. Leaiiied cozinsel appeariiig for tliie petitioner had heavily relied on the decision dated 3.11.2003 passed by fliis Court m W.P.No. 2914 of 2003 (Krishna Datt Upadhyay Vs. State of Chliattisgarh & ofliera). The said decision was passed ui the facts of fhat case whereio. it was fouud tliat there were no siifficieiit material before tlie District Magistrate to fonn an opmion to his satisfaction and fiirther to reach to a conclusion that fhe petitioner was ia association of unsocial elenients iiivolved himsetf ia riotbig, assaulting, criiD.inal in.tiinidation or poUtical or com.m.unal activities which be.casiie dajiger for the main.tenan.ee of piiblic order, peace aiid traaquiUty or in saiy way, the petitioner was iavolved hi creatiag clisharaiony or hatrcd between the two commiinities. 6 \yi 12. Iii the facts of the present case it is clearly estabUshed fhat tlie petitioner was iiivolved ui several offence.s Uke rioting, assaultiag, criBiin.al iatimidatiou as such the petitioner becarae daiiger for the mamtena-iice offlie pzibUc order aiid peace. Having regajrd to fhe facts of fhe present case, tiie decision of this Court in the case of Krishna Datt Upadhyay (Siipra) is not appUcable. 13. The order ofrenioval passed under sectiou 3 and 5 ofthe Act, 1990 is preventive ia iiature and it is setfled prmciples of law that tlie preventive ordei^ are. passed keepuig iii view fhe past activities of fhe person giviug rise. to fhe satisfaction of tlie aiifhority. The Court can enqiiire iiito fhe avajlabUity of ftie materi.al but the cozirts should refraiii from enquiring reasonable subjective satisfactiou of the Distri.et Magistrate on the basis of fhe niaterials available. In tlie present case. fhe sufficieut materials are available aiid have beeii found estabUshed ailer givuig proper opportunity of heaiiiig to tilie petitioner, There is no merit so as to call for fhe iiiterference of this Court under Article 226 of the Constitution of India. Accordiiigly, the petition deserves to be dismissed. 14. The petitiou is dismissed. No order as to costs. Thakur Sd/- SatishK.Agnihotri Judge