Sachin Gurjar vs The State Of Madhya Pradesh on 24 August, 2024

Madhya Pradesh High Court

Sachin Gurjar vs The State Of Madhya Pradesh on 24 August, 2024

Author: Milind Ramesh Phadke

Bench: Milind Ramesh Phadke

         NEUTRAL CITATION NO. 2024:MPHC-GWL:14271




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                              IN        THE   HIGH COURT OF MADHYA PRADESH
                                                    AT GWALIOR
                                                          BEFORE
                                        HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                                                  ON THE 24th OF AUGUST, 2024
                                                 WRIT PETITION No. 7710 of 2024
                                                      SACHIN GURJAR
                                                          Versus
                                        THE STATE OF MADHYA PRADESH AND OTHERS
                           Appearance:
                                   Shri Rameshwar Rawat - Advocate for the petitioner.
                                   Shri Sohit Mishra - Government Advocate for the State.

                                                              ORDER

I.A.Nos.3728, 5443, 6792 & 7609 of 2024, applications for urgent
hearing are taken up, considered and allowed for the reasons mentioned
therein.

The present petition under Article 226 of the Constitution of India is
directed against the order dated 16.11.2023 passed by District Magistrate in
Case No.0181/Externment/2023; whereby, the petitioner had been directed to
be externed for a period of one year from the boundaries of District Gwalior

and the adjoining Districts, viz., Bhind, Morena, Shivpuri and Datia by
invoking the provisions of Section 5 of the M.P. Rajya Suraksha Evam Lok
Vyavastha Adhiniyam, 1990 (for short ”Adhiniyam, 1990”)

2. The petitioner is further aggrieved by order dated 07.03.2024
passed by the Commissioner, Gwalior Division, Gwalior in Case
No.0251/Appeal/2023-24 whereby while dismissing the appeal, the order of

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externment passed by District Magistrate dated 16.11.2023 was affirmed.

3. Brief facts of the case are that on 06.09.2023 a memorandum was
submitted against the petitioner before respondent No.3 alleging that he is a
man of a immorality and is involved in several criminal cases and because of
his terror the peace of the society is gone and in all 14 criminal cases have
been registered against the petitioner out of which, twice preventive action
was taken under the provisions of Section 110 of CrPC and in the year 2022,
he was externed under Section 5(a) & (b) of the Adhiniyam, 1990 and, rest
under the provisions of IPC, therefore, some restrain orders are required to
be passed against the petitioner. In pursuance to the said memorandum, a
show cause notice dated 21.09.2023 was issued to the petitioner to explain as
to why the order of externment may not be passed against him for his alleged

involvement in the criminal activities and detailing the criminal record of the
petitioner, a reply was sought in the matter. A reply was filed by counsel for
the petitioner before the District Magistrate. The learned District Magistrate
after considering the reply as well as documents available on record vide
impugned order dated 16.11.2023 had passed the order of externment for a
period of one year.

4. Being aggrieved by the order of Collector, an appeal was
preferred before the Commissioner, Gwalior Division, Gwalior which was
dismissed vide order 07.03.2024 and the order passed by the Collector of
externment of the petitioner for a period of one year was affirmed. Aggrieved
by the said orders, the present petition has been filed.

5. Challenging the order passed by the authorities below, it is

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submitted by the counsel for the petitioner that the respondents have
considered the stale and old cases for passing an order of externment against
the petitioner which were already considered in the previous proceedings
under the Adhiniyam, 1990. It is well established principle of law that old
and stale cases cannot be taken into consideration as the order of externment
adversely affects the life and liberty of a person that too when they had been
considered earlier and since had been reckoned, amounts of double jeopardy.

6. It was further submitted that for passing of an order under the
provisions of Section 5 of the Adhiniyam, 1990, two conditions are required
to be satisfied; (i) That, there is 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. It was further submitted that the provisions of Section 5 of the
Adhiniyam, 1990 are not attracted in the present case as the offences
registered against the petitioner were not such as would have caused any
alarm, danger or harm to a person or property and also the District
Magistrate has not recorded his satisfaction that the witnesses of the cases
registered against the petitioner are not willing to come forward and to give

evidence in public against such person by reason of apprehension on their

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part as regards the safety of their person or property.

8. It was further submitted that the Appellate Court had not
considered the legal provisions and had dismissed the appeal. On the strength
of the above arguments, it was contended that the impugned orders herein are
bad in law and therefore, deserve to be set aside.

9. Per contra, counsel for the respondents while supporting the
findings recorded by the authorities concerned has opposed the prayer so
made by counsel for the petitioner and prayed for dismissal of the present
petition.

10. Heard counsel for the parties and perused the record.

11. The order of externment is not an ordinary measure and it is
settled that it must not be resorted to in a routine manner rather it must be
resorted to sparingly and only in extraordinary circumstances. The reason
behind it is that by passing an order of externment fundamental right of a
person of its free moment throughout the territorial of India is curtailed and,
therefore, it must with stand the test of reasonableness. The Hon’ble Apex
Court in the matter of Deepak S/o Laxman Dongre Vs. State of Maharashtra
& Others passed in CRA No.139 of 2022, decided on 28.01.2022 has held as
under:

“4. We have given careful consideration to the
submissions. Under clause (d) of Article 19(1) of the
Constitution of India, there is a fundamental right conferred
on the citizens to move freely throughout the territory of
India. In view of clause (5) of Article 19, State is empowered

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to make a law enabling the imposition of reasonable
restrictions on the exercise of he right conferred by clause

(d). An order of externment passed under provisions of
Section 56 of the 1951 Act imposes a restraint on the person
against whom the order is made from entering a particular
area. Thus, such orders infringe the fundamental
rightguaranteed under Article 19(1) (d). Hence, the
restriction imposed by passing an order of externment must
stand the test of reasonableness.

6. As observed earlier, Section 56 makes serious
inroads on the personal liberty of a citizen guaranteed under
Article 19(1)(d) of the Constitution of India. In the case of
Pandharinath Shridhar Rangnekar v. Dy. Commr. of Police,
State of Maharashtra1 in paragraph 9, this Court has held that
the reasons which necessitate or justify the passing of an
extraordinary order of externment arise out of extraordinary
circumstances. In the same decision, this Court held that care
must be taken to ensure that the requirement of giving a
hearing under Section 59 of the 1951 Act is strictly complied
with.

7. There cannot be any manner of doubt that an order
of externment is an extraordinary measure. The effect of the
order of externment is of depriving a citizen of his
fundamental right of free movement throughout the territory

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of India. In practical terms, such an order prevents the person
even from staying in his own house along with his family
members during he period for which this order is in
subsistence. In a given case, such order may deprive the
person of his livelihood. It thus follows that recourse should
be taken to Section 56 very sparingly keepingin mind that it
is an extraordinary measure. For invoking clause (a) of sub-

section (1) of Section 56, there must be objective material on
record on the basis of which the competent authority must
record its subjective satisfaction that the movements or acts
of any person are causing or calculated to cause alarm,
danger or harm to persons or property. For passing an order
under clause (b), there must be objective material on the
basis of which the competent authority must record
subjective satisfaction that there are reasonable 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 offences punishable under Chapter XII, XVI or
XVII of the IPC. Offences under Chapter XII are relating to
Coin and Government Stamps. Offences under Chapter XVI
are offences affecting the human body and offences under
Chapter XVII are offences relating to the property. In a given
case, even if multiple offences have been registered which
are referred in clause (b) of subsection (1) of Section 56

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against an individual, that by itself is not sufficient to pass an
order of externment under clause (b) of subsection (1) of
Section 56. Moreover, when clause (b) is sought to be
invoked, on the basis of material on record, the competent
authority mustbe satisfied that witnesses are not willing to
come forward to give evidence against the person proposed
to be externed by reason of apprehension on their part as
regards their safety or their property. The recording of such
subjective satisfaction by the competent authority is sine qua
non for passing a valid order of externment under clause (b).

12. Thus, it is clear that the competent authority must record its
subjective satisfaction of the existence of the ground mentioned in Section 5
of M.P. Rajya Suraksha Adhiniyam. For ready reference Section 5 of Rajya
Suraksha Adhiniyam, is reproduced herein below:

“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
under Chapter XII, XVI or XVII or under Section 506 or 509
of the Indian Penal Code, 1860 (45 of 1860) or in the
abatement of any such offence, and when in the opinion of

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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 in
writing duty 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 ormy 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.”

13. As per the provisions of Section 5 of Rajya Suraksha Adhiniyam,
a specific finding is required to be given, to the effect that the movements or
acts of any person are causing or calculated to cause alarm, danger or harm
to person or property or there are reasonable grounds for believing that such
person is engaged or is about to engage in the commission of offence
involving force or violation or offence punishable under Chapter XII, XVI or

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XVII or under Sections 506 and 509 of IPC and the witnesses are not willing
to come forward to give evidence in public against any such person by
reason of apprehension on their part as regards the safety of their person or
property. If the reasons assigned by the authorities are taken into
consideration, then it is clear that the order under challenge has been passed
on the ground that 14 criminal cases were registered against the petitioner
out of which on two occasions, preventive measures under Section 110 of
CrPC was taken and in another matter in the year 2022, he was externed,
considering the past antecedents.

14. From bare perusal of the list of criminal antecedents of the
petitioner, it is clear that in the year, 2019, one case under Section 323, 294,
506, 34 of IPC was registered vide Crime No.106 of 2019 in which the
petitioner has already been acquitted on 20.08.2019 and another case was
registered under Section 307, 34 of IPC vide Crime No.692 of 2019 in which
the petitioner has been acquitted on 07.03.2023. In the year 2020, two cases
were registered under Section 294, 323, 341, 506, 34 of IPC vide Crime
Nos.119 of2020 & 195 of 2020 in which also the petitioner had been
acquitted. In the year, 2021, case was registered under Section 327, 323, 294,
506, 34 of IPC vide Crime No.794 of 2021 and in another matter Section 110
of CrPC preventive measures were taken and after taken bond over the
matter was closed. In the year, 2022, a case was registered under Section 5

(a) of Adhiniyam, 1990 vide No.06 of 2022 in which the petitioner was
externed, the period of which is already over. In the year, 2023, one case
under Section 110 of CrPC was registered against the petitioner at No.19 of

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2023 and another case under Section 323, 427, 506, 34 of IPC vide Crime
No.200 of 2023 in which the petitioner had been acquitted by this Court vide
order dated 09.08.2023 passed in M.Cr.C. No.33749 of 2023. Thus, it is clear
that out of 14 criminal cases, in 10 cases, the petitioner has been acquitted
and rest of the cases pending before the court are not of grievous nature.

15. The reasons assigned by the District Magistrate to pass an
impugned order of externment are contained in paragraph 4 of the impugned
order which is reproduced herein below:

अत: म, अ य कुमार िसं◌ंह जला म ज े ट जला
वािलयर पुिलस अधी क वािलयर के ितवदे न से सहमत होते
हुए म० ० रा य सुर ा अिधिनयम क धारा ३ सहप ठट धारा ५ के
अ तगत द श य का योग करते हुए अनावेदक सिचन गजर
पु बीरबल गुजर पु २५ साल िनवासी ाम िसरौल थाना िसरोल
जला वािलयर क आपरािधक एवं असाम जक गितवधय केा
िनय त करने के उ े य से लोक यव था एवं जन साधारण के
हत म आदे श पा रत करता हू ं क-

१- अनावेदक सिचन गजर पु बीरबल गुजर पु २५ साल
िनवासी ाम िसरौल थाना िसरोल जला वािलयर- जला
वािलयर एवं उसके िनकटवत जले िभ ड, मुरैना, िशवपुर एवं
दितया जले क सीमा से ०१ वष क अविध के िलए बाहर चला जाए
तथा बना पूव वीकृृ ित के उपरो जल क सीमा म वेश न कर।

२- अनावेदक के व कसी भी यायालय म
सं थत/ चिलत आपरािधक करण म यायालय के आदे श पर
अनावदे क क उप थित आव यक हो तो उसे करण म िनयत

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दनांक को यायालय म उप थत हे ाने हे तु पृ क से इस
यायालय क अनुमित क आव यकता नह ं होगी। अनावेदक
करण म िनयत दनांक को संबंिधत थाने म तदा य क सूचना
दे कर यायालय म उप थत हो सकेगा तथा यायालीन कायवाह
उपरांत पुन: थाने म सूचना दे कर त काल इस आदे श म उ ल खत
जल क सीमा से बाहर चला जावेगा। इस अविध के दौरान
अनावेदक को यायालय के ारा जार सम स/ आदे श अपने साथ
रखना अिनवाय होगा तथा मांग करने पर तुत करना होगा।

३-पुिलस अधी क वािलयर अनावेदक पर उ ादे श क
तमीली करवाकर, उसे आदे श म व णत जल क सीमा से बाहर
छुडवाकर पालन कराकर, पालन ितवदे न ७ दवस क समयसीमा
म िभजवाना सुिन त कर तथा आदे श के उ लंघन क दशा म
धारा १४ के तहत विधवत कायवाह सुिन त कर।

४-अनावेदक व णत जल क सीमाओं से बाहर जाने के
प ात अपने िनवास थान क सूचना ितमाह र ज टड डाक से
संबंिधत थाने को आव यक प से दे गा तथा थाना भार अपने
थाने से त संबंधी रकाड संधा रत करगे।

16. In the aforesaid conclusion, learned District Magistrate has
observed that in the light of the recommendations made by the
Superintendent of Police and after considering the documents of the
department, it is clear that in between 2019 to 2023, 11 criminal cases were
registered against the petitioner and on two occassions preventive measures
have been taken against him, thus, there is an apprehension of insecurity in
the society and in-spite of preventive measures, there is no improvement in

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his conduct and he is repeatedly committing the offence and to maintain the
law and order, it is necessary to put a check on the activities of the petitioner
and accordingly, action under the provisions of Section 5 the Adhiniyam,
1990 is warranted.

17. Though, it had been stated that due to the criminal activities of
the petitioner there is an uproar in the society, and accordingly general public
is apprehensive of lodging report or giving evidence against the petitioner,
however, there is nothing on record to substantiate such contention.

18. In context of the above to substantiate the order of reasonable, it
was incumbent upon the respondents to show that there was a live link of the
activities of the petitioner and necessity of passing an order of externment
and for that the State should not consider the stale and old cases which do not
have live link with the necessity of passing an order of externment.

19. Thus, in the light of the above facts since the order of externment
according to this Court does not satisfy the test of reasonableness and has
been passed without adhering to the provisions of Section 5 of the
Adhiniyam, 1990, thus, this Court is of the considered opinion that the order
of externment cannot be given the stamp of approval.

20. So far as the order passed by the Appellate Authority is
concerned, this Court has again and again reiterated that filing of appeal is
not a mere formality. The authorities must realize that there is a difference
between their administrative functions and quasi judicial functions. While
discharging quasi judicial functions, they should consider as to whether the
order passed by the original authority is in-conformity with law or not. In the

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present case, the Appellate Authority has dismissed the appeal in a most
casual manner without considering the requirements of law as well as
without considering that there should be a a live link between the activities of
a person with the necessity of passing an order of externment and that unless
and until there is a live link between the cases with the necessity of
externment order, old and stale cases, cannot be taken into consideration.

21. In the light of the aforesaid discussion, this Court finds that the
order passed by District Magistrate dated 16.11.2023 and the order passed by
Commissioner dated 07.03.2024 are unsustainable and accordingly both the
orders are quashed.

22. As a result, the petition is allowed and disposed of.

(MILIND RAMESH PHADKE)
JUDGE

pwn*

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