'State Should Not Consider Stale & Old Cases Which Do Not Have Live Link With Necessity Of Passing Order Of Externment': MP High Court

Quashing the order of externment passed by the District Magistrate, which was also upheld by the Appellate Authority, Justice G.S. Ahluwalia observed-

In order to pass the test of reasonableness, respondents must show that there is a live link between the activities of petitioner and necessity of passing an order of externment. Therefore, in order to fulfill this requirement, the State should not consider the stale and old cases which do not have live link with the necessity of passing an order of externment. As already pointed out, 11 criminal cases were registered against him from the year 1995 to 2012. Thereafter, there is a complete pause and no offence was registered against the petitioner.

The facts of the case were that the District Magistrate had issued a show cause notice under Section 5 of the Madhya Pradesh Rajya Suraksha Adhiniyam against the Petitioner seeking explanation as to why he should not be externed under the said provision. Subsequently, considering the criminal antecedents of the Petitioner, the impugned order of externment was passed by the District Magistrate. The Petitioner then preferred an appeal before the Appellate Authority which was dismissed. He then moved the Court to challenge the impugned orders.

The Petitioner argued before the Court that the authorities had based the order of externment against him on stale and old cases. He submitted that it is a well established principle of law that old and stale cases cannot be taken into consideration as the order of externment adversely affects the life and liberty of a person, which cannot be curtailed except in accordance with law. He also asserted that the order to extern him was passed by District Magistrate without supplying him with the necessary documents.

In view of the subject matter in hand, the Court opined that the order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstance. The Court also noted that by passing an order of externment, the fundamental right of a person of free movement throughout the territorial of India is curtailed and, therefore, it must withstand the test of reasonableness. Examining the jurisprudence laid down by the Supreme Court on externment, the Court observed-

Therefore, a specific finding is to be given to the effect that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or there are reasonable grounds for believing that such person is engaged or is about to engage in the commission of offence involving force or violation or offence punishable under Chapter XII, XVI or XVII or under Sections 506 and 509 of IPC and the witnesses are not willing to come forward to give evidence in public against any such person by reason of apprehension on their part as regards the safety of their person or property.

Scrutinizing the facts of the case, the Court noted that of the 12 cases registered against the Petitioner that found mention in the impugned order passed by the District Magistrate, 11 cases were registered between 1995 and 2012. The remaining one case, which was registered in the year 2021, was related to an altercation with regard to a property dispute within his family-

The offence which was registered in the year 2021 cannot be said to be of such a nature which might have sent the wave of shivering and apprehension in the minds of general public thereby adversely affecting the public peace and tranquility. There is a vast difference between maintenance of public order and the violation of ordinary law and situation.

The Court further held that the impugned order did not explain as to how the actions of the Petitioner were adversely affecting the peace and tranquillity in the society-

In the present case, by no stretch of imagination, it can be said that the offence committed by the petitioner in the year 2021 was in any manner prejudicial to the maintenance of public order. Furthermore, the District Magistrate did not give any finding that the act of the petitioner is causing or calculated to cause alarm, danger or harm to person or property. There is no finding that the witnesses are not willing to come forward to give evidence in public by reason of apprehension on their part as regards the safety of their person or property.

Thus, the Court noted that since the order of externment did not satisfy the test of reasonableness, the same was liable to be set aside-

Since the order of externment does not satisfy the test of reasonableness and has been passed without coming to the conclusion as to whether the requirements of Section 5 of Rajya Suraksha Adhiniyam are applicable to the activities of the petitioner, this Court is of the considered opinion that the order of externment cannot be given the stamp of approval.

The Court also brought its attention to the manner in which the Appellate Authority had upheld the order of externment and observed that the same was done in the most casual manner-

So far as the order passed by the Appellate Authority is concerned, this Court has again and again reiterated that filing of appeal is not a mere formality. The authorities must realize that there is a difference between their administrative functions and quasi judicial functions. While discharging quasi judicial functions, they should consider as to whether the order passed by the original authority is in-conformity with law or not. In the present case, the Appellate Authority has dismissed the appeal in a most casual manner without considering the requirements of law as well as without considering that there should be a a live link between the activities of a person with the necessity of passing an order of externment and that unless and until there is a live link between the cases with the necessity of externment order, old and stale cases, cannot be taken into consideration.

With the aforesaid observations, the Court set aside the impugned orders and accordingly, the Petition was allowed.