Nature Of Case & Not Number Of Cases Is Relevant For Purposes Of Initiating Externment Proceedings: MP High Court

The Madhya Pradesh High Court recently observed that it is the nature of the case and not the number of cases that should be taken into account for the purposes of initiating externment proceedings against a person intended to be externed from a particular area.

Importantly, underscoring that the purpose of initiation of externment proceedings is to restrain a person from committing another offence in the near future, the Bench of Justice Subodh Abhyankar further observed that the order of externment must be passed within the close proximity of the offences committed by the petitioner.

The matter in brief

Essentially, the Bench was dealing with a plea challenging an externment order passed against one Gangaram by District Magistrate (Collector), Burhanpur in December 2020 externing him from the District Burhanpur and the adjoining districts.

The DM's order was confirmed by the Commissioner, Indore Division in March 2021 and both these orders were challenged in the plea filed in the High Court.

It may be noted that the externment order was passed on the basis of a case registered against the petitioner and nine other persons in September 2018 under Section 26 of the Indian Forest Act, 1927 and Sections 3 and 7 of 3 Biological Diversity Act, 2002 wherein it was alleged that the accused were cutting the trees and were also tiling the forest land.

Arguments put forth

Challenging both the orders, the Petitioner moved the court arguing that for a case of 2018, he was issued a show-cause notice in the year 2020 and the show cause notice didn't mention any other case apart from the 2018 case, however, the subsequent externment order passed against him mentioned lodging of two cases against him (one of the year 2018 and another of the year 2020.)

Agaisnt this backdrop, the petitioner submitted that it was a violation of principles of natural justice as the show cause notice itself was not issued in respect of the second offence, which was subsequently registered against the petitioner.

Therefore, it was ultimately prayed that the impugned order passed by the District Magistrate as also the order passed by the Commissioner, Indore Division be set aside.

Court's observations and order

At the outset, the Court observed that even though the order had been passed by the District Magistrate, Burhanpur, a district which falls under the territorial jurisdiction of Principal Seat of the HC at Jabalpur, however, since the order had been affirmed in appeal by the Commissioner, Indore Division, which falls under the jurisdiction of Indore bench, therefore, the Indore bench can very well deal with the challenge to both the orders.

Further, coming to the facts of the case, the Court noted that the recommendation by the Divisional Forest Officer (to extern the petitioner) was made after two years of the case registered against him and the order was passed after two years, two months and thirteen days, therefore, the Court opined thus:

"The purpose of initiation of externment proceedings is to restrain a person from committing another offence in the near future and in such circumstances the order of externment must be passed within the close proximity of the offences committed by the petitioner."

Also, regarding the reference of the second criminal case in the impugned order (and not in the show cause notice), the Court noted thus:

"...it is also found that the reference of a second criminal case appeared in the impugned order for the first time, registered against the petitioner after two years of committing the first offence, without giving him any opportunity to rebut the same was also not appropriate on the part of the District Magistrate, Burhanpur, which clearly runs against the principles of natural justice."

With this, the petition was allowed and the impugned orders were set aside.

It may be noted that the impugned orders had come to an end by the efflux of time when this order was passed by the HC, however, the Court did observe that its order would give satisfaction to the petitioner that in future, the instant externment proceedings (now set aside) shall not be taken into account as a circumstance while judging his credentials.

Advocate Lucky Jain appeared for the petitioner and Advocate Valmik Shakargayen, appeared for the respondents/State.

Case title - Gangaram S/o Shri Kanha Ji Versus Commissioner, Indore Division & another
Case Citation: 2022 LiveLaw (MP) 1

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