--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 4339 / 2011 AMITABH S/O MUNNILAL Vs. STATE OF MP & ORS., * * * * * O R D E R ( 16/8/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 4/3/2011 under the provisions of M. P. Rajya Suraksha Adhiniyam, 1990 in the matter of externment of the petitioner. The contention of the petitioner is that a show cause notice was issued under the provisions of the M. P. Rajya Suraksha Adhiniyam, 1990 and he was directed to file a reply and a reply was submitted by him. The petitioner has further stated that a prayer was made to cross examine the witnesses and the matter was fixed on 15/2/11. The petitioner has further stated that thereafter an order was passed on 4/3/11 and the District Magistrate without forming an opinion on the basis of material that the --- 2 --- witnesses are not willing to come forward to give evidence in public against the petitioner, has straightway passed an order in the matter of externment of the petitioner. Learned counsel has argued before this court that one case was registered against the petitioner in the year 1998 u/S. 307 of the Indian Penal Code and the petitioner was acquitted in the aforesaid case ie., Crime No. 391 / 98. Petitioner has further stated that in the year 1998 a case was registered in respect of an offence u/S. 25 of the Arms Act and thereafter in 2002 under the provisions of the Public Gambling Act, 1867. Petitioner has further stated that after 2002, two offences were registered in the year 2010 u/s. 4-A of the Gambling Act and one offence was registered for offences u/S. 294, 336 and 341 of the IPC. Learned counsel for the petitioner has also argued before this Court that in respect of one offence ie., Crime No. 62 / 2010 a fine of Rs.500/- has been imposed and in respect of an offence of the year 2002, again a fine of Rs.100/- has been imposed. Learned counsel for the petitioner has vehemently argued before this court that baring one case for offences u/Ss. 294, 336 and 341 of the --- 3 --- I.P.C. the petitioner has not been involved in any other criminal case after 1998 excepting under the Gambling Act and therefore the order passed by the District Magistrate is bad in law. He has placed reliance upon a judgment delivered by this court in the case of Ashok Kumar Patel Vs. State of MP and others reported in [2009 (4) MPLJ 434]. His contention is that for passing an order u/S. 5 of the M. P. Rajya Suraksha Adhiniyam, 1990 the District Magistrate has to form an opinion that witnesses are not coming forward by reason of apprehension to danger to their person or property to give evidence against the petitioner and therefore as there was no material existing before the District Magistrate nor the District Magistrate has taken into account any such material and as no opinion was formed by the District Magistrate, the order passed u/S. 5 of the M. P. Rajya Suraksha Adhiniyam, 1990 is bad in law. Learned Government Advocate appearing on advance notice has vehemently argued before this court that the petitioner is a habitual offender involved in large number of gambling cases and he was also involved in the criminal --- 4 --- cases in 2010 for offence u/Ss. 294, 336 and 341 of the IPC. Learned counsel for the respondent has further stated that proceedings were initiated u/s. 41(2) and 110 of The Code of Criminal Procedure and as the petitioner is a habitual offender and is involved in criminal cases, a show cause notice was rightly issued in the matter. Learned counsel for the respondent has further stated that the petitioner did not appear before the District Magistrate on 21/3/11 and therefore the District Magistrate has proceeded ex-parte and an order of externment has been passed. He has prayed for dismissal of the writ petition. Learned Government Advocate has fairly stated before this Court that the Collector has not formed an opinion as provided u/S.5 of the M. P. Rajya Suraksha Adhiniyam, 1990. The Division Bench of this Court in the case of Ashok Kumar Patel (supra)paragraphs No. 5 to 14 has held as under : “5. Section 5 of the Act of 1990 under which the order of externment has been passed in quoted hereinbelow:- “5. Removal of persons about to commit offence .- Whenever it appears to the District Magistrate - (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property; or (b) that there are reasonably grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable --- 5 --- under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abetment of any such offence, and when in the opinion of the District Magistrate witnesses are no willing to come forward to given evidence in public against such person by reason of apprehension on their part as regards the safety of their person property; or (c) that an outbreak epidemic disease is likely to result from the continued residence of an immigrant; the District Magistrate, may by an order in writing duly served on him or by beat of drum or otherwise as the District Magistrate thinks fit, direct such person or immigrant - (a) so as to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease; or (b) to remove himself outside the district or any part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route within such time as the District Magistrate may specify and not to enter or return to the said district or part thereof or such area and such contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself.” 6. A plain reading of section 5(b) of the Act of 1990 quoted above, would show that for passing an order of externment against a person, two conditions must be satisfied:- (i) There are reasonable grounds for believing that a person is engaged or is about to be engaged in commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under section 506 or 509 of the Indian Penal Code, 1860 or in the abetment of any such offence; and (ii) In the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. 7. In State of N.C.T. of Delhi and another vs. Sanjeev alias Biuttoo (supra), the Supreme Court had the occasion to interpret section 47 of the Bombay Police act, 1978, which contains provisions similar to section 5 of the Act of 1990 and has referred to these essential conditions for passing an order under section 47 of the Delhi Police Act in Para 10 of the judgment as reported in the AIR thus :- “Section 47 consists of two parts. First part relates to that satisfaction of the Commissioner of Police or any Authorized Officer reaching a conclusion that movement or act of any person are causing alarm and danger to person or property or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in commission of enumerated offences or in the abetment of anh such offence or is so desperate and dangerous as to render his being at large hazardous to the community. Opinion of the Concerned Officer has to be formed --- 6 --- that witnesses are not willing to come forward in public to given evidence against such person by reason of apprehension on their part as regards safety of person or property. After these opinions are formed on the basis of materials forming foundation therefore, the Commissioner can pass an order adopting any of the available options as provided in the provision itself. The three options are – (1) to direct such person to conduct himself as deemed necessary in order to prevent violence an alarm or (2) to direct him to remove himself outside any part of Delhi or (3) to remove himself outside whole of Delhi.” 8. The expression “is engaged or is about to be engaged” in the commission of offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under section 506 or 509 of the Indian Penal Code 1860 or in the abetment of any such offence, shows that the commission of the offence or the abetment of such offence by the person must have a very close proximity to the date on which the order is proposed to be passed under section 5(b) of the Act of 1990. Hence, if a person was engaged in the commission of offence or in abetment of an offence of the type mentioned in section 5(b), several years or several months back, there cannot be any reasonable ground for believing that the person is engaged or is about to be engaged in the commission of such offence. 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 writtne 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 --- 7 --- and committed 'Marpeet' on the basis of which Crime No.216/2008 for offences under sections 253, 294,233, 325 and 506-B read with section 34 of Indian Penal Code has been registered. In our considered 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 18-11-2008 that the petitioner is engaged or is about to be engaged in offence mentioned in section 5(b) of the Act of 1990. 10. 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 vs. The State of Bombay and another, AIR 1952 SC 221, the Supreme observed:- “ The law is certainly an extra-ordinary one and has been made only to meet these 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.” 11. 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 given evidence in public against such person by a reason on apprehension on their part as regards safety of their person or property. In most of the cases, Challans have been filed by the Criminal procedure Code 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 given 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 1990. 12. In State of N.C.T. of Delhi and another vs. Sangeev alias Bittu (supra), the Supreme Court interpreting section 47 of the Bombay Police Act, 1978, which is similarly worded as section 5 --- 8 --- 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.” 13. The Act of 1990 certain serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and unless the conditions mentioned under section 5(b) of the Act of 1990 are strictly safisfied, 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 vs. Dy. Commissioner of Police, State of Maharasthra (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 vs. 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 1956 SCR 533 = AIR 1956 SC 585. We will only add that care must be taken to ensure that the terms of sections 56 and 59 are strictly complied with an that the slender safeguards which those provisions offer are made available to the proposed externee.” 14. We are thus of the considered opinion that the two conditions for an order of extenment stated in Section 5(b) of the Act of 1990 do no exist in this case and the order passed by the District Magistrate and appellate order of the Commissioner are liable to be quashed. Since the impugned order of externment passed by the District Magistrate and the appellate order passed by the Divisional Commissioner are liable to be quashed on this ground alone, it is not necessary for us to deal with the other grounds raised by the petitioner in this writ petition. In the result, we quash the impugned order dated 18-11-2008 passed by the District Magistrate Rewa in Cr.Case No.227/2008 as well as the appellate order dated 13-1-2009 passed by the Commissioner, Rewa Division. No costs.” Keeping in view the aforesaid judgment and also --- 9 --- keeping in view the fact that the District Magistrate has not formed an opinion as required u/S. 5(b) of the M. P. Rajya Suraksha Adhiniyam, 1990, the order passed by the District Magistrate dt. 4/3/11 and the subsequent order passed by the Commissioner is bad in law. The Commissioner has also not at all considered the fact that no opinion was formed by the District Magistrate while passing the impugned order of externment. Resultantly, both the orders dated 28-04-2011 and dated 04-03-2011are set aside. The petition is allowed. No order as to costs. (S. C. SHARMA) J U D G E KR