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Validity of report of Superintendent of Police that the accused is involved in criminal activities and many crimes are registered against him – District Magistrate has not recorded his satisfaction that witnesses are not willing to come forward to give evidence in public due to apprehension of their safety: HIGH COURT OF MADHYA PRADESH AT INDORE

The writ petition is allowed by HIGH COURT OF MADHYA PRADESH AT INDORE in the case of LACCHU @ LAXMAN V. STATE OF MP and ORS through HON’BLE JUSTICE VIJAY KUMAR SHUKLA

FACTS OF THE CASE
The facts of the case are that on the basis of a report submitted by the Superintendent of Police, Badwani to the District Magistrate, Badwani to the effect that the petitioner is involved in criminal activities since 1992 and he has spread his terror to the local public the proceedings under the Act, 1990 were initiated by the respondent no.2 District Magistrate, Badwani. It is further alleged that the petitioner is involved in criminal activities and there are about 21 cases registered against him, which have been mentioned in the impugned order. On the basis of the said report, a show cause notice was issued to the petitioner initiating the proceedings under the Act, 1990. Despite serviced of notice, the petitioner did not appear before the respondent no.2 and he was proceeded ex-partie. The respondent no.2 on the basis of report of respondent no.3 and the material passed the impugned order of externment. Learned counsel for the petitioner while assailing the order of externment submitted that in the report of the Superintendent of Police, the old and stale cases have been mentioned in the said list. It is further submitted that out of 21 cases, only four cases are said to be pending against him. The aforesaid cases are at serial no.13,15,17 and 21. The cases at serial no.13 relates to offence under section 353,341,352 of the IPC and the offence at serial no.15 and 17 relates to the offence under section 188 of the IPC. The case at serial no.21 relates to the offence under section 379 of the IPC. The cases are old and stale. It is further submitted that the offence which are said to be registered in the year 2000 and 2001 are only in nature of preventive action taken by the police.

JUDGEMENT
In this case, it is clear that in the year 2021, one case under section 379 of the IPC has been registered. In the year 2020, two offences under Gambling Act have been registered. In the year 2015, one case under Gambling Act has been registered. Prior to that, in the year 2008, offence under section 188 of the IPC has been registered. The other offences mentioned in the table are of the year 2005, 2004, 2003, 2002, 1998, 1995 and 1992. Thus, the offence in the close proximity is only section 379 of the IPC and Gambling Act. The other cases are old and stale. Apart from that, the report of Superintendent of Police reflects that in the year 2020, preventive action was taken against the petitioner. Out of 21 cases, all cases have already been decided by imposition of fine. Only 4 cases at serial no.13, 115, 17 and 21 are pending. In the instant case, upon perusal of the impugned orders, it is also found that the District Magistrate has only baldly stated the list of the offences registered against the petitioner to reflect that the petitioner is a daring habitual criminal but he did not record any opinion on the basis of the materials that in his opinion witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension as regards to their safety. Hence, in absence of any existence of material to show that witnesses are not coming forward by reason of apprehension to give evidence against the petitioner in respect of the alleged offences, an order u/s 5 (b) of Adhiniyam, 1990 cannot be passed by the District Magistrate as held in the case of Ashok Kumar Patel Vs. State of M.P. by the Division Bench that for a passing an order of externment against the person both the conditions mentioned under section 5 (b) (i) and (ii) have to be satisfied. In the present case there is no satisfaction of the District Magistrate in the impugned order regarding second requirement of Section 5(b) of the Act 1990. He has not recorded his satisfaction on the basis of materials that witnesses are not willing to come forward to give evidence in the public against the petitioner by the 12 reasons of apprehension as regards to their safety. The authority has not discarded the nature of cases, the date of registration of cases and their present status. Most of the cases are old and stale. Under the provision of Section 5 of the Act, if a detention order has to be passed, there has to be sufficient material for passing the order as fundamental right of freedom of a person is involved. The order passed by the appellate Authority is nothing but repetition of the order passed by the District Magistrate without any application of mind. In the aforesaid circumstances, the impugned order of externment and affirmation thereof in the appeal are unsustainable having been found in violation of the requirements of the Act 1990 and the judgments passed by this Court which have been noted hereinbefore. Accordingly, the writ petition is allowed. The impugned orders dated 20.07.2021 passed by the District Magistrate, Badwani and the order dated 22.12.2021 passed by the Commissioner, Indore are quashed.
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JUDGEMENT REVIEWED BY SHREYA NIDHI

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