.n. ^'^ ^) HIGH COURT OF JUDICATURB AT BILASPUR (C.Q.S WRIT PETITION SI0.2914 OF 2003 PETmONER: EESPONDENTS: Versus Krishna Datt Upadhyay, S/o Rain Siuiiiran Upadhyay, Aged about 43 yeai's, R/o Keshkal (Harra Padav), Thana: Keshkal, Distt.: Bastar(C.G.) State of Chhattisgarh aad four others 1 POST FOR ORDER ON 3^ DECEMBER, 2003 Sd/- L.C. Bhadoo Judge ^.^—l— \^<) HIGH COURT OF JUDICATURE AT BILA8PUR (C.G.l WRIT PBTITION N0.2914 OF 2003 PETITIONER: Versus RESPONDENTS: Krishna Datt Upadhyay, S/o Ram Suniiraa Upadhyay, Aged about 43 years, R/o Keshkal (Harra Padav), Thaaa: Keshkal, Distt.: Bastar(C.G.) State of Chhattisgarh aad four others fa^sent: - Shri Gurudev Sharan, Advocate: For fhe petitioner, Shri Raabir Siagh Marhas, Govt. Advocate: For fhe State/rcspondents, (liadoo. J D^^^^ "^s^:. r, 2003) ^-- : O R D E,R (Passed on ^^ €N( 1. By ttiis writ petition under Article 226/227 of ffae Constitution of India, the petitioner has challenged fhe exteninient order dated 08,09.2003 passed by the District Magistrate, Jagdalpur, ia Crimmal Case No, 10/2003, by which fhe leamed Distdct Magistrate has directed the petitioner to leave several districts viz,, Bastar, Dantewada, Kanker, Chandrapur (Maharashtra) and Koraput (Orissa), 2. Brief facts leading to filing of fhis writ petition are fhat fhie Supermtendent of PoUce, Jagdalpur, filed a complamt beforc fhe District Magistrate, Jagdalpur, on 30th June, 2003, under the Chhattisgarh State Security Act, 1990, for extemment of fhe petitioner on fhe ground that fhe petitioner ahyays remaias ia coiapan^y of unsocial elements aiid iavolved hiniself ia act of rioting, assaulting, criminal iatiniidation, poUtical aad comiEiunal activitles aad disturban.ee of peace and traaquility of the area and such activities offhe petitioner has become danger for the mamtenaace of pubUc order aad on account of these activities fhe civiUaas arc w^....^...:.^.^. 9 scared offhe petitioner aad fear to niake rcport, In this complaint, the list of cases which werc registercd aad challaned against fhe petitioner are mentioned in para 5.3 of fhe writ petition. Ou receiviag this complaint the District Magistrate after prelmunary enquiry and satisfymg himself wifh ftie contents of fhe complamt issued show cause notice to tihie petitioner on 28.07,2003 luider the Chhattisgarh State Securily Act, 1990, isi Crimiaal Case No. 10/2003. In rcsponse to fhat, fhie petitiouer filed reply and he was asked for production of evidence, but ftirther, ia spite of givuig him opportunity, the petitioner coiild not produce evidence. The prosecution ni support oftiie coinplaint exanuned, Arviad Dwivedi, Thana Incharge, Keshkal. 3. The leamed Distdct Magistrate after considering fhe reply of fhe petitioner aad prosecution evidence aiid placiag reUance on fhe evidence of Arviad Dwivedi aad the past conduct of fhe petitioner and crimuial cases filed agaiast him» reached the conclusion tib.at the alleged allegations agamst the petitioiier are true and he is daagerous for the mamtenaace of pubUc order ia tiie distnct. Therefore, tihie District Magistorate, passed fhe impugned order dated 08.09.2003 under Sections 5 (a) & 5 (b) of the Chliattisgarh State Security Act, 1990. The petitioner has primarily chaUenged this order on tiie groiind that no reasonable opportanity of hearing was given to the petitioner, no reasonable opporfriinity was given to him for adducing fhe evidence aad fhe grounds taken by the District Magistorate ui passuig fhe iinpugned order beiag old aad stale, and principles of natural justice have not been followed. Thercfore, he rcquested for quashing ofthe impugned order. 4. In spite ofthe opportunity given to the State, the State has not been able to fUe the retum, Therefore, I have heard leanied counsel for the parties. 5. Sections 5 (a) & 5 (b) of the Chhatdsgarh State Secmity Act, 1990, lays down fhat, "5. Renwvdl of persons about to commit ojQTence, - Whenever it appears to the District Magistrate— — —^ 3 (a) that the fnove^nents or acis of any person are causing or calculated to cause alarm^ dcmger or hmm toperson orproperty; or (b) tfzat there are reasonably groundsfor believing that Quchperson is engciged or is about to be engaged in the commission of an offen^w involving force or violenoe or an offence punishable under Chapter» xzr, xvi or xvn or under Section 506 or 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abatement ofany such offence, and when in the opinion of the District Magisirate wiinesses are not ivilling to come forward io give evidence in public agair^st such person by rec^son of apprehension on their part as regcirds the safety of their person or property; the Disirict Magistraie, may by an order in writing duly served on Hm or by beat of drum or otherwise as the Distric^ Magistrate thinks fit, direct sucfz person or irnmigrant to remove himself outside the district59 6. The perusal of the iuipugned order reveals ffaat the allegations agaio.st fhe petitioner upon which the leamed Distdct Magistrate placed rcUaiice are that fhe petitioner is ia conipany wifh. unsocial elements iuvolved m act of rioting, a3saulting, fhreatenmg to kiU, crimiaal iatimidation aad i&volved m political aad communal activities and creating hatred between two cooiinunities of Hitidu & Muslim aad committmg such serious offences which are agauist fhe public and national mterest. The general pubHc is scarcd of the petitioner aad tiiey arc not coniiag forward to niake coinplamt agaiast him, Therefore, m order to inamtabi public peace, law and order in fhe police station area of Keshkal, it is necessary to extem the petitioner and reference has been made m the impugned order about the past crimiaal record of ftie petitiouer. The leamed Distodct Magistrate also reUed upon fhe statement of the Station House Officer, Police Station: 'Keshkal, The perusal of ftie order fiirther reveals that Arvind Dwivedi, Station House Officer: Keshkal, has supported ftie coniplaiat, but in. fh.e cross-exainiaation he has admitted that after 1998, no case was registered agam.st the petitioner; only one case was entered m the Roznamcha of 1998 aad upou fhat no-action was taken, Apart from that all the cases were 8-10 years old. He has further stated that duriag his tenure no iticident was reported agaiast the petitioner on account of which aay situation of riotmg was created. In the year 1998, one JL \ coinplamt under Sections 107 & 116 offhe Cr,P,C. was entered ia the record, but no fiirther action was taken on fhat. Therefore, it is undisputed fact fhat after 1991, no regular crimiaal case was rcgistered agamst the petitioner. Only one report ia the year 1998 was lodged fhat too remaiaed ia the Roznamcha Police Diary and no challaa was filed against the petitioner. Therefore, on fhe date of the complaint i,e, June, 2003, since last twelve years, no cases were chatlaned or rcported against the petitioner aad the petitioner^s case is tliat even iu all those cases which were chananed agamst fhie petitioner in the years, 1987, 1988, 1989, 1990 & 1991, he has bcen acquitted aiid no case is pendiag agaiast him and fhe ioipugned order of fhe learaed District Magistorate does not show that m ao.y of fliose cases whefh.er the petitioner was convicted or senteuced, 7. Ifwe look into fhe above facts of the case, therc was no sufficient material before the Distdct Magistrate to form aa opuiiou for his satisfaction and to reach fhe conclusion fhat ia the last 12 years tiie petitioner was ia association wifh unscx^ial elenients iavolved hiinself ia riotiag, assaulting, cruniaal uitimidation or political or communal activities which became danger for fhe maiatenaace of pubUc order, peace aad traaquility or in aay way, fhe petitioner was iavolved m creating disharmony or hatrcd between tihie two communities. As has been held m the case ofAyub Khan vs. State of M.P. and another reported m 1994 (1) Vibha 168 that the extemment order passed on ttie basis ofrecord fhat during fhe last 18 monfhs no case was reported agaiast the petitioner, no evidence as to mvolvement m any of fhe crime or incident adversely affectmg fhe public oider and the ground appears to be old and stale ond further held fhat, e{The powef-s ofextemment are to be exerdsed sparingly with care and drcizmspection, They cannot be usedfor punishnzg a rnan for his past deeds. If nothing substantial during the recent period has been brought out, it cannot be said thafbecause of the presence ofthe person ihe life of the persoizs of the localiiy will be in danger or there will be disturbancs ofpublic order " In oider to pass fhe exteniment order, it is further held that, j__ <{A stringent test must be applied in order io avoid ectsy possibility of abuse of this power to the detriment of the jundcunental freedom, Natural jttstic^ must be fairly complied with and the vague allegations and secrei hearings are gross molations ofArttdes 24, 19 & 21 of ihe Consiitution oflndia/ 8. In fhe present case also except one iacident of 1998, that remaiaed ia fhe case diaiy only, uo chaUan was filed, withia last 12 years, no mcident was reported agabist the petitioner. Moreover, fhe petitioner is an elected member of Jaapad Paa.chayat aad is a JoumaLlst, Therefore, there was no sufScient ciaterial beforc fhe leamed Distdct Magistrate to reach fhe couclusion fhat fhe petitioner was ia aay way dangerous or eugaged or was to be engaged m commission of aay offence meationed m sub-section (b) of Section 5 of the Chhattisgarh State Security Act, 1990, or his presence ia Keshkal city was in. aay way daiiger to fhe pubUc or uational iaterest. Therefore, the order of fhe learaed District Magistrate suffers from illegality being based on no material aad based on past iacidents which werc old aad stale. Thercfore, the order of tlie leaaied Distdct Magistrate cannot be sustained as fhe saine has not stood up to the test of fhe pnaciples goveming ftie passiag of exteniment order of a person uuder Sections 5 (a) & 5 (b) ofthe Chhattisgarh State Security Act, 1990. 9. Now, coxmng to fhe question fhat under Section 9 of the Chhattisgarh State Security Act, 1990, the petitioner has fhe alteraative remedy to file aa appeal before the State Govemnient, but as has been held ia the case of Ayub Khaa (supra) passed by fhe Division Bench fhat if aa order is passed on consideration of vague grounds, absence of cogent rcasons, non-appUcation of mind aad the atleged incident being old aad stale, fhe Court can exercise extra-ordmary jurisdiction under Article 226 of the Constitution of ludia. As has been held by the Hon^le Apex Court m fhe case of Harbaas Lal Sahaia & aaother vs. ladiaa Oil Corporation Ltd., fis others reported ia 2003 AIR SCW 126 that if fhe writ petition is filed for enforcement of fandamental rights and there is failure of principles of natural justice where fhe orders or proceedings are wholly without jurisdiction, then the High Court is entitled to invoke extra ordmary junsdiction, S^l Soma lO.Based on fhe above prmciples laid by fhe M.P. High Court aad fhe Hou^le Apex Court, ifwe look iato the present case, the fibading of the leamed Distdct Magistrate is based ou fhe old aad stale incidents and virtually on no evideuce and thercby, the fuudamental rights of fhe petitioner under Articles, 14, 19 & 21 of fhe Constitution have been violated, Thercfore, this Court can look into the facts of fhe present case aad iavoked the extra ordiaar}7 jurisdiction, ll.In the result, the exteninient order dated 08.09.2003 is quashed aud the writ petition is allowed. There is uo order as to costs. ___ Sd/- L.C. Bhadoo Judge w <^-~v-