Madhya Pradesh High CourtSiddhnath Sahu vs The State Of Madhya Pradesh on 24 November, 20161
                                                     W.P.No.8669/2016


                 Writ Petition No.8669/2016

24.11.2016

      Shri Manish Datt, learned senior counsel with Shri

Chetan Jaggi, learned counsel for petitioner.

      Shri Ajay Pratap Singh, learned Government Advocate for

respondent-State of Madhya Pradesh.With consent of learned counsel for the parties, the

matter is finally heard.This petition underArticle 226of the Constitution of

India is directed against the order dated 27.04.2016 passed by

the Commissioner, Rewa, Division Rewa. By said order

Commissioner affirmed the order of externment of petitioner

by the District Magistrate, Singrauli by his order dated

1.02.2016.Proceeding against the petitioner under Madhya Pradesh

Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as

'Adhiniyam 1990') was initiated on the basis of the report from

Superintendent    of   Police,   Singrauli    vide   his   letter   No.

iq0v0@flax@vijk/k@,e@12909@2015              dated 06.10.2015 that

the petitioner was indulged in the criminal activities which are

not conducive to peace and serenity and there is always

apprehension of breach of peace and public order.Show cause notice was issued by the District Magistrate

under Section 8(1) of Adhiniyam 1990. Responding to the2W.P.No.8669/2016show cause the petitioner filed a reply that he is framed and

merely because he raised the grievance against D.B. Power

Plant which having acquired the land of the petitioner and the

like but has not adhered to the term of the settlement. It is

further contended that the criminal case registered vide crime

No.59/07 underSection 147,148,149,323,307,325,120 Bof Indian Penal Code, vide crime No.61/2007 underSection

147,148,149,440,452,428,120 Bof IPC, vide crime

No.62/07 underSection 147,148,149,440,452,428,120 Bof IPC, vide crime No.382/2014 underSection 147,148,353,332,188,186of IPC, vide crime No.383/2014 underSection145,147,149,341, vide crime No.384/2014 underSection 147,149,353,332,188IPC he was falsely implicated

and in the case registered in the year 2007, he has been

acquitted; whereas, the cases registered in the year 2014 were

of the incident reportedly of 08.10.2014 and 14.10.2013.

None of these cases, it is urged, posed any threat to peace and

were registered at the instance of the Management of

D.B.Power Plant to prevent the petitioner from raising his

genuine cause and demand for his rightful claim.The District Magistrate while not disputing as to

petitioner's acquittal in the case registered in the year 2007,

yet externed him or the ground of three heinous offences

registered against him in the year 2014. These cases3W.P.No.8669/2016cumulatively   led   the   District   Magistrate   to   record   the

satisfaction that petitioner's stay at Singrauli and adjacent

districts of Sidhi and Rewa would cause breach to public peace

and order. Accordingly, the order of externment is passed

which is affirmed by the impugned order in Appeal.Petitioner challenges the orders on the ground that

though the conditions precedent required to be satisfied for an

action undersection 5of the Adhiniyam having not been

fulfilled, yet an order of externment is passed. It is urged that

the petitioner is a peace loving citizen and because his raising

grievance against the curtailment of his right accruing from

the acquisition of land has led the police registering false case

at the instance of Management of D.B.Power Plant against the

petitioner, that the proceeding under the Adhiniyam has been

initiated and externment order is passed. It is contended that

even the evidence led before the District Magistrate is by the

rival group. It is contended that though there is no likelihood

of breach of peace and tranquility yet the petitioner has been

inflicted with the order of externment.Learned Govt. Advocate on his turn supports the order

of externment as well the appellate order. It is contended that

the impugned order does not warrant any interference. It is

urged that reasonable grounds are available for believing that4W.P.No.8669/2016the petitioner was engaged in commission of an offence

involving force and violence and that there exists the

likelihood that the witnesses will not come forward to record

evidence against the petitioner in the pending criminal case. It

is contended that order of externment being in public interest

does not warrant any interference.Section 5of the Adhiniyam, 1990 whereunder action is

taken stipulates :"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 reasonable grounds for
       believing that such 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 he Indian
       Penal Code, 1860 or in the abetment of any
       such offence; and when 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; or(c) that an outbreak of epidemic disease is
       likely to result from the continued residence
       of an immigrant;the District Magistrate may, by an order in5W.P.No.8669/2016writing 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
       district, or part thereof, as the case may be,
       from which he was directed to remove
       himself."A Division Bench of this Court inAshok Kumar Patel vs.

State of M. P. and others: 2009 (4) M.P.L.J. 434, while dwelling

upon the aspect of the said provisions opined :-"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 he 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 in6W.P.No.8669/2016public against such person by reason
        of apprehension on their part as
        regards the safety of their person or
        property.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
undersection 506or 509 of theIndian 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 insection 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.13. The Act of 1990 certain serious
restrictions on the fundamental right to
freedom underArticle 19(1)of the
Constitution and the fundamental right
personal liberty underArticle 21of the
Constitution and unless he 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 undersection 56of the Bombay Police Act, which
also empowered the police to pass an order
of externment, the Supreme Court observed
inPandharinath Shridhar Rangnekar vs. Dy.
Commissioner of Police, State of Maharashtra(supra) as under :-"It is true that the provisions ofsection 56make a serious inroad on personal liberty7W.P.No.8669/2016but such restraints have to be suffered in
          the larger interests of society. This Court
          inGurbachan Singh vs. The State of
          Bombay, 1952 SCR 737 = AIR 1952 SC
          221 had upheld the validity ofsection
          27(1)of he City of Bombay Police Act,
          1902, which corresponds tosection 56of
          the Act. Following that decision, the
          challenge to the constitutionality ofsection 56was repelled in 1956 SCR 533
          = AIR 1956 SC 585. We will only add that
          care must be taken to ensure that the
          terms ofsections 56and59are strictly
          complied with and that the slender
          safeguards which those provisions offer
          are made available to the proposed
          externee."Thus, it is to be seen whether the condition precedent is

satisfied in the case at hand, when admittedly only an incident

leading to registration of an offence is being relied upon by

the District Magistrate in passing the order of externment.

True it is that an offender always have a ready defence of

being falsely implicated and they always abjure the guilt. But

for the action undersection 5of the Adhiniyam, 1990, it is not

only the implication of an offence which should alone be the

guiding factor, but some more in degree which would lead to

real likelihood of breach of peace and serenity. The facts of

the present case does not attract the fulfillment of condition

precedents for an exercise of powers undersection 5of

Adhiniyam, 1990. The District Magistrate has basically relied8W.P.No.8669/2016upon the incident which took place on 08.10.2014 and has

recorded his satisfaction that there is a real likelihood of the

petitioner having engaged in the commission of an offence

involve force of violence. The said opinion formulated by the

District Magistrate is conclusive in nature whereas offence

registered in respect of the same incident is still pending

adjudication and does not born out from the record that any

charges in respect of offence registered against the petitioner

has been framed. Thus the reasonable ground does not exist

as would lead the District Magistrate to draw an inference as

per clause (b) ofSection 5of the Adhiniyam, 1990. In view

whereof the externment         deserves to be and is hereby

quashed.The petition is allowed to the extent above. However, no

costs.(SANJAY YADAV)
                                            JUDGE
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