Under Section 5 of the Adhiniyam of 1990, the order is liable to be passed if the movement or act of any person is causing or may cause danger to a person or property: HIGH COURT OF MADHYA PRADESH AT INDORE


The facts of the case are that on an application sent by the Superintendent of Police, Indore, the District Magistrate has registered a case under Section 5 of the Adhiniyam, 1990 and issued a show-cause notice to the respondent on 29.04.2021 for an appearance on 17.05.2021. On 17.05.2021, the counsel engaged by the respondent appeared along with Vakalatnama. Learned counsel moved an application seeking condonation of non-appearance of the respondent and on which a next date was fixed on 20.05.2021. On the said date, the presiding officer was on leave and the matter was taken up on 21.05.2021. On the said date also, the counsel appeared without the respondent and sought time to file a reply. The time was given, and the matter was fixed on 01.06.2021. On the said date also, the respondent did not appear and on his behalf, his counsel appeared along with the reply and the matter was fixed for arguments on 14.06.2021. On 14.06.2021 also, only an advocate appeared, the respondent did not appear, learned DM heard the final arguments, the learned counsel of the respondent submitted Written arguments and the case was closed for order. Thereafter, the final order was passed on 17.09.2021 under Section 5(A) of the Adhiniyam, 1990 externing the respondent for a period of 6 months. Instead of challenging the aforesaid order by way of an appeal under Section 9 of the Adhiniyam of 1990, the respondent approached this Court by way of a writ petition under Article 226 of the Constitution mainly on the ground that he was not given any effective opportunity of hearing by the District Magistrate before passing the final order. It is further submitted that the respondent could not produce the certified copies of the criminal cases wherein he had been acquitted by the competent courts, therefore, the order is bad in law and liable to be set aside by the High Court without relegating him to the appellate forum. The appellant/State Government filed the reply justifying the impugned action that ample opportunity of hearing was given to the respondent but he did not file any document hence the learned authority had no option but to pass the final order. It is further submitted that the respondent is having statutory remedy of appeal under Section 9 of the Adhiniyam of 1990 and all the grounds are liable to be considered by the appellate authority.

It is clear that the respondent did not appear on any single date before the learned authority and every time his counsel appeared with an application seeking exemption from appearance. Thrice, the learned authority allowed the application and granted time for appearance. The respondent filed a reply on 01.06.2021 and thereafter the case was fixed for final arguments on 14.06.2021. At the time of the final arguments also, the respondent was not present. The authority (District Magistrate) heard the arguments, took the written submission on record and closed the case for orders. The respondent ought to have filed the certified copies of the orders of acquittals along with the reply. There is no application on record seeking time to file the documents by him. Hence sufficient opportunities were given to the respondent for defending himself and it cannot be said that the learned authority is DM did not follow the principle of natural justice. Therefore, sufficient opportunities were given to the respondent to appear and defend his case, but he chose to appear through counsel. We do not find any illegality in the order of externment dated 17.09.2021 and the order passed by the Writ Court to that effect is hereby set aside. So far as by-passing the statutory remedy is concerned, once we have held that there is no violation of principles of natural justice, the petitioner ought to have preferred an appeal under Section 9 of the Adhiniyam, before approaching the Writ Court. In view of the above discussion, the impugned order passed by the writ court is hereby set aside. The proceedings under Section 5(a) of the Adhiniyam,1990 are liable to be drawn and concluded expeditiously. After the lapse of so many months, it cannot be said that now the After expiry of more than 7 months the respondent is causing or about to cause alarm, danger or harm to any person or property. Instead of sending him to undergo the remaining period of externment we hereby reduced the period from the 6 months to the period already undergone by him. In view of the aforesaid, this appeal stands partly allowed and disposed of.
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