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Kashiram Baldeosingh Khangar and ors. Vs. the District Magistrate - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1974CriLJ254; 1973MPLJ953
AppellantKashiram Baldeosingh Khangar and ors.
RespondentThe District Magistrate
Cases ReferredBrijlal v. District Magistrate Damon
Excerpt:
.....be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - some of the prosecutions failed on account of witnesses not coming forward out of fear. where the district magistrate has obtained knowledge of the activities of dangerous elements within his area and the continuation of such activities cannot be stopped otherwise than by externment or when by externment the gang could be demoralised or its activities could be effectively arrested or weakened, he could take recourse to externment laws. no reasons have been given or suggested by the divisional magistrate for extending the area, not only outside the pandharpur taluka, but to the district of sholapur and the districts of poona and satara as well. it is..........thereto.' these words, however, cannot be so interpreted as to enable the authority to extend the area of externment without reference to the purpose of the externment. in a sense, the whole state of maharashtra is contiguous to any area within that state. if the authority concerned is not having an arbitrary and unguided discretion in deciding the area of externment it must follow that the area must be so chosen as to meet the situation created by the movements or acts of the person to be externed. such an interpretation is also necessary in order that section 56 may be in conformity with article 19(5) of the constitution referred to above. the restriction placed by section 56 on the fundamental rights guaranteed by article 19(1) (d) and (e) of the constitution cannot be held to be a.....
Judgment:
ORDER

M.L. Malik, J.

1. The District Magistrate, Sagar. has, by his order dated the 7th March, 1973, passed under Section 3 (b) of the Madhya Pradesh Maintenance of Public Order Act, 1965, directed the six persons forming a gang to disperse themselves outside the district of Sagar and the contiguous districts of Chhatarpur. Damoh. Narsimhapur, Raisen, Vidisha. Guna and Tikam-garh. The period of operation of the order is one year commencing from the 7th March. 1973 and expiring on the 6th March, 1974. Two of them being in Jail, the order directed that they should remove themselves out of the eight districts soon after their release from jail. Three of these six externees have filed Miscellaneous Petition No. 283 of 1973. two of them have filed Miscellaneous Petition No. 246 of 1973 and one of them has filed the Miscellaneous Petition No. 291 of 1973. The order delivered in Miscellaneous Petition No. 283 of 1973 shall govern the disposal of the other two petitions also.

2. None of the six externees preferred appeal to the State Government as provided by Section 8 of the Act. Instead, they have come to this Court for a writ of certiorari for quashing the externment order. Whereas the appellate authority, the State Government, could examine the sufficiency of the material on which the order of externment was founded and could substitute their decision for that of the District Magistrate, this Court cannot objectively examine that material to consider the order on its merits. The scope here is limited. The writ for quashing an order of externment would lie only if it could be shown that the order was either mala fide, or illegal in procedure. The learned Counsel for the petitioners, therefore, restricted their contentions to the questions of law alone.

3. In so far as procedural illegalities are concerned there were none. The District Magistrate had followed the necessary formalities of procedure prescribed under Section 7 of the Act; the petitioners were given notices informing them of the general nature of the material allegations against them; they were asked to tender their explanations either in person or through legal practitioners and they were given full opportunity to examine witnesses. The petitioners did avail of these procedural safeguards. They filed their replies. examined more than forty witnesses and their advocates pleaded their cause. The order of externment does not suffer from any procedural irregularity or illegality.

4. The information that was placed before the District Magistrate for proceeding under the Act is contained in the notice Annexure I, which is too exhaustive to be narrated in full. Briefly put, Premnarayan Katare was an outlaw, a bully, who had committed as many as sixty four offences, involving force and violence, criminal intimidation, some of robbery, housebreaking, even murder and attempt to murder, rioting, assaulting public servants, mischief by fire, hurt simple and grievous and by sharp edged weapons, even by fire arms. Of late he had formed a gang and the gang was busy with the same type of criminal activities involving force and violence. The result was that the movement of this gang was causing alarm and there was reasonable suspicion that the gang entertained unlawful designs.

The notice also indicated that the witnesses were not willing to come forward to give evidence publicly against the petitioners by reason of apprehension on their part as regards the safety of their person and property. Some of the prosecutions failed on account of witnesses not coming forward out of fear. Instances have also been given of violence used against the witnesses by Premnarayan Katare and his associates.

Premnarayan Katare has been convicted for various offences as per Annexure R-II in M. P. No. 246 of 1973 (Madh Pra). (Purushottam Katare v. State of M.P.). The other petitioners, as indicated in the notice Annexure I joined the gang in or about the year 1971. They were associated with him in his crimes committed in and after the year 1971.

Notices under Section 7 of the Act were issued by the District Magistrate to eleven persons but in respect of five of them notices have been discharged. The District Magistrate did not find them connected with the gang continuously. They were associated in petty offences, that too occasionally, and therefore, the District Magistrate did not think their externment necessary or expedient in the interest of public order.

5. The petitioners could not possibly challenge the vires of the Act, Time and again, externment laws came under the review of the Supreme Court and it was held that the restriction imposed under them were reasonable within the meaning of Article 19(5) of the Constitution both as regards substance as also procedure. Action taken for the prevention of crime. externment being one of the measures allowed to the State in the interest of the preservation of public peace, falls within the ambit of Article 19(5). To quote a few. Section 3 of the East Punjab Public Safety Act. 1949 providing for externment was held valid in Dr. N. B. Khare v. State of Delhi : [1950]1SCR519 . Sections 55 to 61 of the Bombay Police Act. 1951 which in : substance and letter are similar to the provisions of Sections 3 to 9 of the Madhya Pradesh Maintenance of Public Order Act. came under the review of the Supreme Court in Hari Khemu Gawali's case : 1956CriLJ1104 . All conceivable arguments were advanced and the provisions were held intra vires the Constitution. The latest authority that was cited before us is reported in Pandharinath Shridhar Rangnekar v. Deputy Commr. of Police 1973 Cri APP Rep 113 : : 1973CriLJ612 . We may also quote the Division Bench authority of this Court reported in Laxmi Prasad Bajpai v. District Magistrate Bilaspur 1972 Jab LJ 370 : 1972 Cri LJ 1501. No useful purpose will be served dilating the subject any further.

6. Four contentions were raised before us on behalf of the petitioners : fi) That the allegations in the notice did not justify action under Section 3 (b). instead the notice purported to be one for action under Section 4 of the Act; (ii) That the individual activities could be dealt with under the ordinary criminal law. The order of externment was inexpedient and unwarranted, indicating caprice; (iii) That, excessive authority has been used. The area covered by the criminal activities was the town limits of Sagar and the petitioners have been directed to remove themselves out of the limits of eight contiguous districts; and (iv) That the provisions of the Act contemplated removal of all the members of the gang outside the district or districts, specified. The District Magistrate could not pick and choose and discriminate one from the other.

7. Section 3 of the Act deals with dispersal of the gangs and bodies entertaining unlawful designs. The word 'gang' has nowhere been defined under the Act and ordinarily would mean a band of roughs or criminals, a troop of conspirators or confederates in crime. The allegations in the notice leave us in no manner of doubt that the petitioners formed a gang of which Premnarayan Katare was the chiefman. If they went about together and acted in concert and committed crimes, they could lawfully be called members of a gang having objectionable community of purpose and intention.

Whether the petitioners were deeply associated or not, whether their action in concert could be legitimately called activity of a gang or not. whether by reason of their antecedents and concerted action they had created terror in the locality of operation or not, and whether on account of their unlawful designs gathered from the circumstances, they deserved to be externed or not. was a matter left to the discretion of the District Magistrate. The District Magistrate had enough material placed before him to come to a reasonable conclusion that the petitioners formed a gang entertaining unlawful designs. Matter haying been left to his subjective satisfaction, the objective examination by this Court of the merits and propriety of the order of externment is prohibited. Had there been no material at all before the District Magistrate upon which he could have based his order, this Court could strike down the order as malicious, arbitrary or capricious. But that is not the position here.

8. It would be wrong to suggest that the District Magistrate contemplated an action under Section 4 of the Act because of the particulars given in the notice referred to the acts of the crime committed by the petitioners either in concert, or independently of each other. He was rather giving notice of the dishonourable antecedents of Premnarayan Katare. his previous prosecutions and convictions and his criminal activity committed in concert with the other petitioners. The details were given to show that Premnarayan Katare was a hardened criminal and a dangerous character, and since his activities had the support of confederates (who were the other petitioners) they were causing alarm, justifying an action under Section 3 of the Act.

9. The contention that the petitioners should have been dealt with under the penal law for their criminal activities is futile. Both powers vest in the State, one of punishment for the crime committed and the other to take measures for prevention of future crime. Externment is a preventive measure devised for maintenance of public safety. Where the District Magistrate has obtained knowledge of the activities of dangerous elements within his area and the continuation of such activities cannot be stopped otherwise than by externment or When by externment the gang could be demoralised or its activities could be effectively arrested or weakened, he could take recourse to externment laws. The penal action and the preventive action are mutually exclusive recourses and both cannot be resorted to at the same time.

10. For the third contention, the learned Counsel for the petitioners relied on the authority of the Bombay High Court reported in Balu Shivling Dombe v. Divisional Magistrate, Pandharpur : AIR1969Bom351 . This is what their Lordships observe in para 9:

It is difficult to understand why the Divisional Magistrate extended the order to the three revenue districts of Sholapur, Poona and Satara. Section 56 authorises the externment of a person outside the area within the local limits of the jurisdiction of the authority making the order as 'such area and any district or districts or any part thereof, contiguous thereto.' These words, however, cannot be so interpreted as to enable the authority to extend the area of externment without reference to the purpose of the externment. In a sense, the whole State of Maharashtra is contiguous to any area within that State. If the authority concerned is not having an arbitrary and unguided discretion in deciding the area of externment it must follow that the area must be so chosen as to meet the situation created by the movements or acts of the person to be externed. Such an interpretation is also necessary in order that Section 56 may be in conformity with Article 19(5) of the Constitution referred to above. The restriction placed by Section 56 on the fundamental rights guaranteed by Article 19(1) (d) and (e) of the Constitution cannot be held to be a reasonable restriction, unless the area of externment is restricted to the requirement created by the movements or acts of the person to be externed. The allegation contained in the notice in the present case was that the illegal acts of the petitioner had led to an atmosphere of danger and alarm 'in Pandharpur city and the surrounding area.' The two illegal acts on which the Divisional Magistrate relied were confined to Pandharpur City. No reasons have been given or suggested by the Divisional Magistrate for extending the area, not only outside the Pandharpur taluka, but to the district of Sholapur and the districts of Poona and Satara as well.

It was argued that the activities of 'the petitioners were confined to the city of Sagar, The District Magistrate gave no reasons why the order was being extended to eight contiguous districts. The order was passed without reference to the purpose of externment. It was both excessive and arbitrary. If externment from Sagar District alone could serve the purpose, externment from contiguous eight districts was unbridled exercise of powers, virtually denying to the petitioners the right of free movement guaranteed under the Constitution.

11. The authority of the Bombay High Court does not seem to have been fully approved in the Supreme Court decision reported in : 1973CriLJ612 .

Their Lordships observed that:

It is primarily for the externing authority to decide how best the externment order can be made effective, so as to subserve its real purpose. How long, within the statutory limit of 2 years fix-ed by Section 58, the Order shall operate and to what territories, within the statutory limitations of Section 56 it should extend, are matters which must depend for their decision on the nature of the data which the authority is able to collect in the externment proceedings. There are cases and cases and therefore no general formulation can be made that the order of externment must always be restricted to the area to which the illegal activities of the externee extend.

12. The District Magistrate in the present case, has not exceeded the statutory limitations prescribed. The externment order does not extend beyond the contiguous districts which is the permissible limit. His order therefore is not illegal. He has not exceeded his jurisdiction in passing the impugned order. Nor can the order be assailed as excessive or arbitrary. The Sagar district and the Districts contiguous are all dacoity infected areas. One of the reasons for isolating the gang beyond these limits could be to discourage them joining one of the gangs of dacoits. The other reason could be to keep them long away from their moorings, so that it was difficult for them to return to the field of their activities. Nothing done within the permissible statutory limits could be called illegal or excessive exercise of jurisdiction.

13. The fourth contention of the petitioners is that the District Magistrate could not pick and choose for externment some members of the gang. Section 3 of the Act contemplated dispersal of each member of the gang. The externment of the leader and some members may or may not result in the demoralization of the gang. To achieve the real objective, what Section 3 contemplates is the dispersal of the whole body. Reliance is placed by the petitioners on the authority of this Court reported in Brijlal v. District Magistrate Damon 1967 MPLJ 926. In that case five persons supposed to be the chiefmen or a leader of a gang of dacoits consisting of 15 to 20 hardened criminals, were directed to disperse and the order was quashed being against the terms of Section 3 and against the very intention and object of that provision.

We are of the view that Brijlal's case furnishes no analogy in the instant matter. We have in the present case a hesitant finding of the District Magistrate, that the five persons discharged were either not connected with the gang or if connected, they had played a very minor role. That being so. it was not necessary to extern them. The appraisal of the evidence depended on the sagacity of the District Magistrate and not open to question here. If they were not members of the gang and have not been direct-ed to remove themselves from the District, the petitioners could not make a grievance.

The learned Counsel for the State did argue that the authority in Brijlal's case required a reconsideration. Envisage situations, he contends, when identity of some members of the gang cannot be discovered, the leader of the gang remains in the hide-out and cannot be served with notice under Section 7 or that some persons whom the gangsters have employed to carry their loads and who have been mistaken for members of the gang come to be served with notices, the authority would be no answer to such situations. All the members could not be asked to disperse and even if such an order was passed, compliance could be enforced against those alone who were known to the authorities for their nefarious activities. An order addressed to the chief-men alone will convey no personal obligation upon the members to obey. The chiefman could not be their spokesman in a criminal proceeding. Every member has to speak for himself, whether he is a member of the gang or just a passive associate.

We need not express our opinion on the correctness of the authority in Brij-Lal's case 1967 MPLJ 926. The facts in the present case, however, do not attract the authority. The District Magistrate has discharged the five notices, as they were not members of the gang. That finishes the argument.

14. In the result, the petitions fail and are dismissed with costs. Counsel's tee Rs. 100/- in each petition.


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