ASHOK KUMAR PATEL Vs. STATE OF M P

JUDGEMENT

(1.) IN this writ petition under Article 226 of the Constitution, the petitioner has challenged the orders passed against him for externment under the State security Act, 1990 (for short 'the Act of 1990'), by District Magistrate, Rewa, and the appellate order of the Commissioner, Rewa Division, rejecting the appeal of the petitioner against the order of externment.

(2.) THE relevant facts briefly are that the Superintendent of Police, district Rewa (M. P.), submitted a report dated 31-10-2008 to the District magistrate, District Rewa, about the criminal activities of the petitioner. In the report, the Inspector of Hanumana Police Station, District Rewa, had given the details of the chain of criminal offences alleged to have been committed by the petitioner from 1995 to 2008 and had made a request that an externment order be passed against the petitioner in exercise of powers under Sections 3 and 4 of the Act of 1990. The District Magistrate then issued a notice dated 31-10-2008 to the petitioner to show cause why a proceeding for order of externment from district Rewa as also the districts touching the revenue limits of adjacent districts, namely, Sidhi, Shahdol, Satna, Umariya and Anuppur should not be initiated against him, and asked the petitioner to submit his reply on 11-11-2008. The petitioner appeared before the District Magistrate on 11-11-2008 and prayed for time to submit his reply and the District Magistrate fixed the case for reply to 12-11-2008. The petitioner submitted his reply on 12-11-2008 denying that he had committed offences alleged in the show-cause notice. The petitioner also stated in his reply that he was a candidate contesting the Vidhan Sabha election from Mauganj Constituency No. 71, and if, a proceeding for externment is initiated against him, he cannot contest the election. The District magistrate heard the Counsel for the petitioner on 12-11-2008 and posted the case for orders to 18-11-2008, and on 18-11-2008 passed the impugned order in criminal Case No. 227/08 directing externment of the petitioner from District rewa as also the districts touching the revenue limits of adjacent districts, namely, Sidhi, Shahdol, Satna, Umariya and Anuppur for a period of one year. Aggrieved, the petitioner preferred an appeal under Section 9 of the Act of 1990, before the Commissioner, Rewa Division, but by order dated 13-1-2009, the Commissioner dismissed the appeal.

(3.) MR. Sanjay Patel, learned Counsel for the petitioner submitted that there was no material before the District Magistrate for passing the order of externment under Section 5 (b) of the Act of 1990. He submitted that Section 5 (b) of the Act of 1990, makes it clear that there must be 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, XIV or XVII or under Section 506 or 509 of the Indian penal Code, 1860, or in abetment of any such offence, but the show-cause notice and the order passed by the District Magistrate under Section 5 (b) would show that offences alleged to have been committed mostly of the years 1995 to 2007, have been mentioned. He submitted that, therefore, there was no satisfaction whatsoever of the District Magistrate that the petitioner is engaged or is about to be engaged in the commission of offences. He also submitted that all the six cases mentioned in the show-cause notice and the order of the District magistrate are pending before the Trial Court and in not a single case, the petitioner has been convicted. He further submitted that Section 8 (1) of the Act of 1990 provides that before an order Section 5 is passed against any person, the district Magistrate shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. He submitted that the materials in support of the allegations, such as the statement of SHO referred to in the order sheet, on the basis of which the externment order was passed, was not furnished to the petitioner. He further submitted under Section 8 (3) of the Act of 1990 also provides that the person against whom the order is proposed to be passed, will be given an opportunity to examine witnesses, but no such opportunity was given to the petitioner because the case was fixed on 11-11-2008 and the reply was filed by the petitioner on 12-11-2008 and the case was closed on 12-11-2008. He submitted that this is, therefore, a fit case in which the impugned orders passed by the District Magistrate and the Commissioner should be quashed for contravention of different provisions of the Act of 1990.