1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

WA No. 395 of 2022

•Taukeeir Ahmed Khan S/o Late Salauddin Khan Aged About 37 Years

R/o Risdi, Police Station Kotwali, District- Korba, Chhattisgarh.

---- Appellant

Versus

1.State Of Chhattisgarh Through Its Secretary Department Of Home

Affairs, Mahanadi Bhavan, Atal Nagar, Nava Raipur, Distt. Raipur, CG

2.District Magistrate Korba Rampur Road, Rampur, Korba, District

Korba Chhattisgarh.

3.Sub-Divisional Magistrate Katghora Tehsil Premises Katghora Korba,

District Korba Chhattisgarh.

4.State Of Chhattisgarh Through Station House Officer Police Station

Balco Nagar District- Korba, Chhattisgarh

---- Respondent

(Cause-title taken from Case Information System)

For Appellant : Shri R.S. Marhas with Shri Dhiraj Kumar

Wankhede, Advocates

For Respondents : Ms. Meena Shastri, Additional Advocate General.

Date of Hearing : 26/08/2022 & 29/08/2022

Date of Judgment : 16/09/2022

Hon'ble Shri Arup Kumar Goswami, CJ &

Hon'ble Shri Deepak Kumar Tiwari, J

C A V JUDGMENT

Per Deepak Kumar Tiwari, J.

The Appellant has preferred this Appeal challenging the order dated

2.5.2022 passed by the learned Single Judge in WPCR No.78/2022, whereby

2

the learned Single Judge has repelled/rejected the challenge made by the

appellant to the externment order dated 1.9.2021 passed by the District

Magistrate, Korba under Section 5(b) of the Chhattisgarh Rajya Suraksha

Adhiniyam, 1990 (Henceforth ‘the Act’).

2.The Appellant had preferred a Writ Petition against the order dated

1.9.2021 passed by the District Magistrate, Korba restraining him to enter

Korba city and other border districts for a period of one year, which was

affirmed in Appeal by the State Government on 6.12.2021. The learned

Single Judge has dismissed the writ petition by observing that ‘If the petitioner

has to his credit the number of enlisted cases, then balancing the right of the

public at large of Society to have free fearless atmosphere would be a prime

factor which cannot be ignored as against the rights of the petitioner. Though

it has been stated that the petitioner was acquitted of the cases, but the

inception of cases against the petitioner would demonstrate the gravity of

charges against him and would lead to show the activity mutated from one to

other. The public at large cannot be expected to face real life drama at

unexpected places time and again. The nature of acquittals in criminal cases

also speaks a loud. The state has passed the order of externment considering

the conduct of petitioner with an idea of reforming the society. It is obvious

that serving certain problem requires multi-prolonged approach to balance the

twin need i.e., the right of public at large and that of petitioner. Externment

orders are passed to control anti-social elements under the State Laws, which

provide for specific orders for their inter-state as well as intra-state for a

certain period of time. The power for such removal has been conferred to

3

administrative authorities, specially to District Magistrates and City

Commissioners whereby liberty of an individual is put to reasonable bounds

for larger good. Therefore, considering the nature of past conduct coupled

with fresh report made against the petitioner, which may be a turbulence alert,

the order passed by the District Magistrate and the order passed by the State

for the safety of general public at large would hold the sway over the

individual right of the petitioner as article 21 would be subject to the law of

land.’

3.The Appellant had challenged the impugned order passed by the District

Magistrate, Korba on 1.9.2021 in Criminal Case No.02/2020 in respect of

proceedings under Section 5(b) of the Act. The Appellant thereafter filed an

Appeal under Section 9 of the Act before the State Government, which was

rejected by the State Government on 6.12.2021. The Appellant had

challenged both the orders on the ground that sufficient material under Section

5(b) of the Act was not available before the learned District Magistrate. The

cases mentioned in the report of Superintendent of Police, Korba on the basis

of which impugned order was passed, were old and stale cases. However, the

learned Single Judge has failed to appreciate the aforesaid grounds while

dismissing the writ petition.

4.Learned counsel for the Appellant would submit that the order dated

2.5.2022 passed by the writ Court is bad in law inasmuch as the same has been

passed without considering the facts, relevant documents and grounds raised

by the appellant. The impugned order has been passed without considering

the provisions of Section 8 and Section 5(b) of the Act. The externment order

4

was passed in complete violation of Section 8 of the Act, as no opportunity

was granted to the appellant to defend his case and to submit all the certified

copies of acquittal orders and other relevant documents before the District

Magistrate, Korba. The Appellant was completely unaware of the witnesses

who had deposed against him and opportunity to cross-examine the witnesses

was not afforded to the appellant. The Superintendent of Police, Korba had

only submitted a letter dated 27.5.2020 along with list of 7 criminal cases

registered against the appellant. It was submitted that the respondents did not

place any material or document and the judgments passed by the Criminal

Court before the District Magistrate, Korba. The District Magistrate passed

the externment order only on the basis of list of cases registered against the

appellant. It is pertinent to mention here that 6 cases registered under the

preventive action mentioned in the list were too old, as the same were

registered 10-15 years ago.

5.Learned counsel would further submit that neither the Superintendent of

Police, Korba and other officers of the Korba Police Administration had

provided sufficient material to the District Magistrate, Korba nor the appellant

was afforded any opportunity to place the certified copies of the acquittal

orders passed in 6 criminal cases and the anticipatory bail order passed in

Crime No.223/2020. The learned District Magistrate passed the externment

order in the absence of sufficient material, which is against the provisions of

Sections 5(b) and 8 of the Act, and the learned Single Judge has also failed to

consider the aforesaid facts. The District Magistrate considered the report

submitted by the SHO, Police Station Balco Nagar before the SP, Korba on

5

5.8.2021 concerning the Whatsapp voice recording submitted by one Krishna

Kumar, Ex. Senior Manager at Feedback Power Company alleging that they

received the said voice recording on 12.6.2021 wherein the appellant was

extending threat to said Krishna Kumar. It was submitted that no complaint

has been filed by any person in any police station concerning the aforesaid

threat.

6.Learned counsel for the appellant would further submit that though the

externment order was passed not only in respect of Korba district but also in

respect of bordering districts, however, no material was available on record to

justify it. He would place reliance on the judgments in the matters of Deepak

Laxman Dongre Vs. State of Maharashtra

1

, Sandhi Mamad Kala Vs.

State

2

, Ayub Abdul Sattar Shaikh Vs. Dy. Commissioner of Police, Zone-

VI, Mumbai and Another

3

, State of NCT of Delhi and Another Vs.

Sanjeev alias Bittoo

4

, Rahmat Khan alias Rammu Bismillah Vs. Deputy

Commissioner of Police

5

, Lt. Governor, NCT And Others Vs. Ved

Prakash alias Vedu

6

and Pandharinath Shridhar Rangnekar Vs. Dy.

Commr. of Police, The State of Maharashtra

7

. He would finally submit

that the impugned order was passed in a mechanical and arbitrary manner,

without any just or sufficient cause. So learned counsel prays to allow the

Appeal and set aside the impugned order as well as the orders passed by the

appellate Court.

1 AIRONLINE 2022 SC 70

2 1973 0 GLR 384

3 2013 SCC OnLine Bom 1179

4 (2005) 5 SCC 181

5 (2021) 8 SCC 362

6 (2006) 5 SCC 228

7 (1973) 1 SCC 372

6

7.On the other hand, learned counsel for the Respondents contended that

while passing the order of externment, the competent authority has recorded

the subjective satisfaction regarding the grounds mentioned in Section 5(b) of

the Act. The State and the writ Court have already examined the grounds of

challenge to the impugned order of externment and the same have been

rejected. She would further submit that the grounds stipulated under Section

10 of the Act are limited and the source of information or communication

received by the State is not required to be disclosed. She submitted that due

procedure has been followed under the Act in passing the order of externment.

Learned State Counsel would place reliance on the judgment in the matter of

Gazi Saduddin Vs. State of Maharashtra and Another

8

to submit that no

interference is called for with the impugned order passed by the learned Single

Judge as also the appellate orders passed under Section 9 of the Act by the

State.

8.We have heard learned counsel for the parties at length and perused the

record.

9.Though the period of externment is over, however, considering the fact

that the issue affects the personal liberty and fundamental rights of a citizen,

this Court is of the view that the matter needs to be examined to see whether

due process of law has been followed in the present matter or not. The

relevant legal provisions of the Act under which the order of externment has

been passed and which also prescribes the proceedings for recording of

satisfaction on reasonable grounds to pass such an order are reproduced

8 (2003) 7 SCC 330

7

hereunder :-

“S. 5. Removal of persons about to commit offence. :

Whenever it appears to the District Magistrate-

(a) that the movements or acts of any person are

causing or calculated to cause alarm, danger or harm to

person or property; or

(b) that there are reasonable grounds for believing that

such person is engaged or is about to be engaged in the

commission of an offence involving force or violence

or an offence punishable under Chapter XII, XVI or

XVII or under Section 506 or 509 of the Indian Penal

Code, 1860 (45 of 1860) or in the abatement of any

such offence, and when in the opinion of the District

Magistrate witnesses are not willing to come forward to

give evidence in public against such person by reason

of apprehension on their part as regards the safety of

their person or property; or

(c) that an outbreak of epidemic disease is likely to

result from the continued residence of an immigrant;

the District Magistrate may, by an order in writing duly

served on him or by beat of drum or otherwise as the

District Magistrate thinks fit, direct such person or

immigrant-

(a) so as to conduct himself as shall seem necessary in

order to prevent violence and alarm or the outbreak or

spread of such disease; or

(b) to remove himself outside the district or any part

thereof or such area and any district or districts or any

part thereof, contiguous thereto by such route within

such time as the District Magistrate may specify and

not to enter or return to the said district or part thereof

or such area and such contiguous districts, or part

thereof, as the case may be, from which he was directed

to remove himself.

S. 7. Period of operation of orders under Section 4, 5

or 6. - A direction made under Section 4, 5 or 6 not to

enter any district or part thereof or such area and any

district or districts or any part thereof, contiguous

thereto, as the case may be, shall be for such period as

may be specified therein and shall in no case exceed a

period of one year from the date of which it was made.

8

S. 8. Hearing to be given before order under Section

3, 4, 5 or 6 is passed. - (1) Before an order under

Section 3, 4, 5 or 6 is passed against any person,

the District Magistrate shall inform the person in

writing of the general nature of the material allegations

against him and give him a reasonable opportunity for

tendering an explanation regarding them.

(2) If such person makes an application for the

examination of any witness produced by him, the

District Magistrate shall grant such application and

examine such witnesses unless for reason to be

recorded in writing, if District Magistrate is of the

opinion that such application is made for the purpose of

vexation or delay.

(3) Any written statement put in by such person shall be

filed with the record of the case and such person shall

be entitled to appear before the District Magistrate by

any legal practitioner for the purpose of tendering his

explanation and examining the witnesses produced by

him.

(4) The District Magistrate, proceeding under sub-

section (1), may for the purpose of securing the

attendance of any person against whom any order is

proposed to be made under Section 3, 4, 5 or 6 requires

such person to appear before him and to execute a

security bond with or without sureties for such

attendance during the inquiry.

(5) If the person fails to execute the security bond as

required or fails to appeal before the District Magistrate

during the inquiry, it shall be lawful for the District

Magistrate to proceed with the enquiry ex parte and

thereupon such order, as was proposed to be passed

against him, may be passed.

S. 10. Finality of orders passed for in certain cases. -

Any order passed under Section 3, 4, 5 or 6 shall not be

called in question in any Court except on the grounds-

(i) that the District Magistrate had not followed the

procedure laid down in sub-section (1) of Section 8; or

(ii) that there was no material before the District

Magistrate upon which he could have based his order;

or

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(iii) that the District Magistrate was not of opinion that

witnesses were unwilling to come forward to give

evidence in public against the person in respect of

whom an order was made under Section 5.

S. 19. Sources of information not to be disclosed. -

Nothing in this Act shall be deemed to require the State

Government or the officers specially empowered by it

under Section 13 or the District Magistrate or the

Additional District Magistrate or Sub-Divisional

Magistrate empowered under Section 18 as the case

may be to disclose to the person against whom an order

is made under Sections 3, 4, 5, 6 and 13 of this Act or

to any Court of law the source of it or his information

or any fact, the communication of which might, in the

opinion of the State Government or the officer

empowered under Section 13 of the District Magistrate

or the Additional District Magistrate or Sub-Divisional

Magistrate empowered under Section 18 as the case

may be lead to the disclosure of the identity or name of

any informant.”

10. Before delving upon the issue, the observations made on the subject in

legal precedents are significant which are being mentioned hereunder:

11.In Rahmat Khan v. State

9

, while quashing the externment order ,the

following was observed :

“25. The scope and ambit of Sections 56 to 59 of the

Maharashtra Police Act, 1954 was considered in

Pandharinath Shridhar Rangnekar v. State

[Pandharinath Shridhar Rangnekar v. State, (1973) 1

SCC 372 : 1973 SCC (Cri) 341] cited by Mr Patil,

appearing for the State, where this Court held : (SCC

pp. 376-78, paras 8-10 & 15-16) :

“8............................ the officer shall inform that person

in writing ‘of the general nature of the material

allegations against him’ and give him a reasonable

opportunity of tendering an explanation regarding those

allegations. The proposed externee is entitled to lead

evidence unless the authority takes the view that the

application for examination of witnesses is made for the

purpose of vexation or delay. Section 59 also confers

9 (2021) 8 SCC 362

10

on the person concerned a right to file a written

statement and to appear through an advocate or

attorney.

9. These provisions show that the reasons which

necessitate or justify the passing of an externment order

arise out of extraordinary circumstances. An order of

externment can be passed under clause (a) or (b) of

Section 56, and only if, the authority concerned is

satisfied that witnesses are unwilling to come forward

to give evidence in public against the proposed externee

by reason of apprehension on their part as regards the

safety of their person or property. A full and complete

disclosure of particulars such as is requisite in an open

prosecution will frustrate the very purpose of an

externment proceeding. If the show-cause notice were

to furnish to the proposed externee concrete data like

specific dates of incidents or the names of persons

involved in those incidents, it would be easy enough to

fix the identity of those who out of fear of injury to

their person or property are unwilling to depose in

public. There is a brand of lawless element in society

which is impossible to bring to book by established

methods of judicial trial because in such trials there can

be no conviction without legal evidence. And legal

evidence is impossible to obtain, because out of fear of

reprisals witnesses are unwilling to depose in public.

That explains why Section 59 of the Act imposes but a

limited obligation on the authorities to inform the

proposed externee of the general nature of the material

allegations against him’. That obligation fixes the limits

of the co-relative right of the proposed externee. He is

entitled, before an order of externment is passed under

Section 56, to know the material allegations against

him and the general nature of those allegations. He is

not entitled to be informed of specific particulars

relating to the material allegations.

10. It is true that the provisions of Section 56 make a

serious inroad on personal liberty but such restraints

have to be suffered in the larger interests of society.

This Court in Gurbachan Singh v. State of

Bombay [Gurbachan Singh v. State of Bombay, 1952

SCR 737 : AIR 1952 SC 221 : 1952 Cri LJ 1147] had

upheld the validity of Section 27(1) of the City of

Bombay Police Act, 1902, which corresponds to

Section 56 of the Act. Following that decision, the

11

challenge to the constitutionality of Section 56 was

repelled in Bhagubhai Dullabhabhai

Bhandari v. District Magistrate, Thana [Bhagubhai

Dullabhabhai Bhandari v. District Magistrate, Thana,

AIR 1956 SC 585 : 1956 Cri LJ 1126] . We will only

add that care must be taken to ensure that the terms of

Sections 56 and 59 are strictly complied with and that

the slender safeguards which those provisions offer are

made available to the proposed externee.

******

15. As regards the last point, 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 two

years fixed 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. A

larger area may conceivably have to be comprised

within the externment order so as to isolate the externee

from his moorings.

16.An excessive order can undoubtedly be struck down

because no greater restraint on personal liberty can be

permitted than is reasonable in the circumstances of

the case. The decision of the Bombay High Court in

Balu Shivling Dombe v. Divisional Magistrate,

Pandharpur [Balu Shivling Dombe v. Divisional

Magistrate, Pandharpur, 1968 SCC OnLine Bom

20] , is an instance in point where an externment order

was set aside on the ground that it was far wider than

was justified by the exigencies of the case. The

activities of the externee therein were confined to the

city of Pandharpur and yet the externment order

covered an area as extensive as districts of Sholapur,

Satara and Poona. These areas are far widely removed

from the locality in which the externee had committed

but two supposedly illegal acts. The exercise of the

power was therefore arbitrary and excessive, the order

having been passed without reference to the purpose of

the externment.”

(emphasis supplied)

12

31.An externment order may sometimes be

necessary for maintenance of law and order. However

the drastic action of externment should only be taken in

exceptional cases, to maintain law and order in a

locality and/or prevent breach of public tranquility and

peace. In this case, it is patently clear that the impugned

externment order was an outcome of the complaints

lodged by the appellant against government officials,

some Madrasas and persons connected with such

Madrasas who later lodged FIRs against the appellant.

The FIRs are clearly vindictive, retaliatory and aimed

to teach a lesson to the appellant and stifle his voice.”

12. In Lt. Governor, NCT v. Ved Prakash

10

it was observed thus :

“18. The law operating in the field is no longer res

integra which may hereinafter be noticed:

(i) In a proceeding under the Act, all statutory and

constitutional requirements must be fulfilled.

(ii) An externment proceeding having regard to the

purport and object thereof, cannot be equated with a

preventive detention matter.

(iii) Before an order of externment is passed, the

proceedee is entitled to an opportunity of hearing.

(iv) The test of procedural safeguards contained in the

Act must be scrupulously complied with.

(v) The satisfaction of the authority must be based on

objective criteria.

(vi) A proceeding under Section 47 of the Delhi Police

Act stands on a different footing than the ordinary

proceeding in the sense that whereas in the latter the

details of the evidence are required to be disclosed and,

thus, giving an opportunity to the proceedee to deal

with them, in the former, general allegations would

serve the purpose.

22. The High Court and this Court would undoubtedly

jealously guard the fundamental rights of a citizen.

While exercising the jurisdiction rested in them

invariably, the courts would make all attempts to

uphold the human right of the proceedee. The

10 (2006) 5 SCC 228

13

fundamental right under Article 21 of the Constitution

undoubtedly must be safeguarded. But while

interpreting the provisions of a statute like the present

one and in view of the precedents operating in the field,

the court may examine the records itself so as to satisfy

its conscience not only for the purpose that the

procedural safeguards available to the proceedee have

been provided but also for the purpose that the

witnesses have disclosed their apprehension about

deposing in court truthfully and fearlessly because of

the activities of the proceedee. Once such a satisfaction

is arrived at, the superior court will normally not

interfere with an order of externment. The court, in any

event, would not direct the authorities to either disclose

the names of the witnesses or the number of cases

where such witnesses were examined for the simple

reason that they may lead to causing of further harm to

them. In a given case, the number of prosecution

witnesses may not be many and the proceedee as an

accused in the said case is expected to know who were

the witnesses who had been examined on behalf of the

prosecution and, thus, the purpose of maintaining the

secrecy as regards identity of such persons may be

defeated. The court must remind itself that the law is

not mere logic but is required to be applied on the basis

of its experience.

26. Although it is not possible for us to lay down the

law in precise terms as the facts of each case are to be

considered on their own merit, we have endeavoured to

lay down the broad propositions of law.”

13. In State of NCT of Delhi v. Sanjeev

11

, it was observed that it is not

the sufficiency of material but the existence of material which is the sine qua

non. The satisfaction of the authority can be interfered with if it is found to be

perverse. So, for examining such issue the propositions which were observed

in paras 15 to 17 and 25 read thus :

15 “.......It is trite law that exercise of power, whether

legislative or administrative, will be set aside if there is

manifest error in the exercise of such power or the

11 (2005) 5 SCC 181

14

exercise of the power is manifestly arbitrary (see State

of U.P. v. Renusagar Power Co. [(1988) 4 SCC 59 :

AIR 1988 SC 1737] ). ..........”

16 “............. One can conveniently classify under three

heads the grounds on which administrative action is

subject to control by judicial review. The first ground is

“illegality”, the second “irrationality”, and the third

“procedural impropriety”. These principles were

highlighted by Lord Diplock in Council of Civil Service

Unions v. Minister for the Civil Service [(1984) 3 All

ER 935 : 1985 AC 374 : (1984) 3 WLR 1174 (HL)]

(commonly known as CCSU case). If the power has

been exercised on a non-consideration or non-

application of mind to relevant factors, the exercise of

power will be regarded as manifestly erroneous. If a

power (whether legislative or administrative) is

exercised on the basis of facts which do not exist and

which are patently erroneous, such exercise of power

will stand vitiated. (See CIT v. Mahindra and

Mahindra Ltd. [(1983) 4 SCC 392 : 1983 SCC (Tax)

336 : AIR 1984 SC 1182] )..................”

17. The court will be slow to interfere in such matters

relating to administrative functions unless decision is

tainted by any vulnerability enumerated above; like

illegality, irrationality and procedural impropriety.

Whether action falls within any of the categories has to

be established. Mere assertion in that regard would not

be sufficient.

25. As observed in Gazi Saduddin case [(2003) 7 SCC

330 : 2003 SCC (Cri) 1637] satisfaction of the authority

can be interfered with if the satisfaction recorded is

demonstratively perverse based on no evidence,

misreading of evidence or which a reasonable man

could not form or that the person concerned was not

given due opportunity resulting in prejudice. To that

extent, objectivity is inbuilt in the subjective

satisfaction of the authority.

14.In Deepak v/s State of Maharashtra and Others

12

it was observed that

an order of externment is not an ordinary measure and it must be resorted to

sparingly and in extraordinary circumstances. It was the duty of the

12 2022 SCC OnLine SC 99

15

Constitutional Court to test the said order within the parameters which are

well-settled by the Supreme Court. The Court can always consider whether

there existed any material on the basis of which a subjective satisfaction could

have been recorded. The restriction imposed by passing an order of

externment must stand the test of reasonableness. Regarding scrutiny of the

material on record, the observations made in paras 10 & 13 are significant,

which are as under :

“10. There cannot be any manner of doubt that an order

of externment is an extraordinary measure. The effect

of the order of externment is of depriving a citizen of

his fundamental right of free movement throughout the

territory of India. In practical terms, such an order

prevents the person even from staying in his own house

along with his family members during the period for

which this order is in subsistence. In a given case, such

order may deprive the person of his livelihood. It thus

follows that recourse should be taken to Section 56

very sparingly keeping in mind that it is an

extraordinary measure. For invoking clause (a) of sub-

section (1) of Section 56, there must be objective

material on record on the basis of which the competent

authority must record its subjective satisfaction that the

movements or acts of any person are causing or

calculated to cause alarm, danger or harm to persons or

property. For passing an order under clause (b), there

must be objective material on the basis of which the

competent authority must record subjective satisfaction

that there are reasonable grounds for believing that

such person is engaged or is about to be engaged in the

commission of an offence involving force or violence

or offences punishable under Chapter XII, XVI or

XVII of the IPC. Offences under Chapter XII are

relating to Coin and Government Stamps. Offences

under Chapter XVI are offences affecting the human

body and offences under Chapter XVII are offences

relating to the property. In a given case, even if

multiple offences have been registered which are

referred in clause (b) of sub-section (1) of Section 56

against an individual, that by itself is not sufficien t

to pass an order of externment under clause (b) of sub-

16

section (1) of Section 56. Moreover, when clause (b) is

sought to be invoked, on the basis of material on

record, the competent authority must be satisfied that

witnesses are not willing to come forward to give

evidence against the person proposed to be externed by

reason of apprehension on their part as regards their

safety or property. The recording of such subjective

satisfaction by the competent authority is sine qua non

for passing a valid order of externment under clause

(b).

13. Considering the nature of the power under Section

56, the competent authority is not expected to write a

judgment containing elaborate reasons. However,

the competent authority must record its subjective

satisfaction of the existence of one of the grounds in

sub-section (1) of Section 56 on the basis of

objective material placed before it. Though the

competent authority is not required to record reasons

on par with a judicial order, when challenged, the

competent authority must be in a position to show the

application of mind. The Court while testing the order

of externment cannot go into the question of

sufficiency of material based on which the subjective

satisfaction has been recorded. However, the Court

can always consider whether there existed any

material on the basis of which a subjective satisfaction

could have been recorded. The Court can interfere

when either there is no material or the relevant material

has not been considered. The Court cannot interfere

because there is a possibility of another view being

taken. As in the case of any other administrative order,

the judicial review is permissible on the grounds

of mala fide, unreasonableness or arbitrariness.

15.From the aforesaid propositions of law, it is evident that the order

of externment is not an ordinary measure and it must be resorted to

sparingly and in extraordinary circumstance. By passing an order of

externment fundamental right of a person of free movement throughout

the territory of India is curtailed and, therefore, it must withstand the test

of reasonableness. The order of externment should be sparingly used.

17

16.Reverting back to the facts of the present case, respondent No. 2

vide order dated 01/09/2021 exercised the powers under Section 5(b) of

the Act and directed the appellant to remove himself outside the limits of

District Korba and adjoining districts within 24 hours and he was

externed from District Korba and adjoining districts for a period of one

year from the service of the said order on him. In the impugned order of

externment, the respondent No. 2 has, before recording satisfaction,

relied upon 7 offences registered under the Indian Penal Code against the

appellant & 6 preventive actions which were taken against him, the

details of which were reported by the Superintendent of Police in his

report dated 25.05.2020, which are reproduced hereunder:

Offences registered under the Indian Penal Code

S. No.Name of

Complainant

Crime No. Section Status

1.Radheshyam Yadav 266/2007 452, 294,

323, 506 Pt.

II,147 of I.P.C.

Charge sheet

filed in the Court

2.Bharat Singh Thakur 341/2007 147, 149,

186, 353, 332

of IPC

Charge sheet

filed in the Court

3.Santosh Sahu 339/2008 293, 323,

506, 34 of IPC

Charge sheet

filed in the Court

4.Hemant Kumar

Bhatia

319/2010 294, 506,

147, 148, 427

of I.P.C.

Charge sheet

filed in the Court

5.Shambhusharan

Prasad

114/2011 452, 294,

323, 506, 427,

34 of I.P.C

Charge sheet

filed in the Court

6.Manish Kumar Singh248/2011 294, 506,

323, 34 of

I.P.C.

Charge sheet

filed in the Court

18

7.Lakhan Lal Patel,

Inspector, S.H.O.,

P.S.BALCONAGAR

223/2020 506, 384,

385 of I.P.C.

Under

Investigation

(Petitioner was

arrested & sent to

judicial custody)

The cases registered under preventive actions (Prohibitory

orders)

S. No.Istgasha NumberDate of

Incident.

Section

1 7/2009 22/06/2007107,116(3) of Cr.P.C.

2 43/2009 13/03/2009107,116(3) of Cr.P.C.

3 52/2010 25/01/2010107,116(3) of Cr.P.C.

4 59/2018 29/09/2018110 of Cr.P.C.

5 03/2012 15/10/2012110 of Cr.P.C

6 01/2020 25/05/2020110 of Cr.P.C

17.From the aforesaid chart, it is vivid that there was no offences

under the I.P.C. mentioned or reported from 2012 to 2019 by the S.P.,

and only one offence was registered by the S.H.O himself in the year

2020 which was pending investigation. It is also significant that

preventive action which was last drawn on 25/05/2020, and S. 116(6) of

Cr.P.C. mandates that if the inquiry is not completed within a period of

six months from the date of its commencement, the proceeding shall

stand terminated, unless, for special reasons to be recorded in writing by

the Magistrate. In the facts of the case, the cases which were taken into

consideration for passing the order, were old and stale, and there is no

live link between the said offences and as the order of externment was

passed in the year 2021, it demonstrates that the District Magistrate had

relied upon old and stale cases.

19

18. The Appellant has taken a specific stand that except the Crime No.

223/2020, which is pending consideration in Court, in all other cases

which have been reported, he had already been acquitted. Learned

counsel for the appellant would further submit that even in crime number

223/2020, the appellant was enlarged on anticipatory bail from the

Sessions Court. So, the proper facts were not brought to the notice of the

Competent Authority, and the copies of the judgment of acquittals were

also filed by the petitioner/appellant, which is not rebutted by the learned

State counsel. It is settled law that order of externment is a serious issue,

in which no casual approach saves such proceedings. In the present

matter, in the report dated 25.05.2020 submitted by the Superintendent of

Police, true facts about the acquittals were not placed. In the complaint

made by Bharat Singh Thakur, the date of incident was 16.11.2007, and

in Cr. Case No. 22/2010, the appellant and 6 others were acquitted on

17.05.2011 by J.M.F.C., Korba. In Cr.C. No. 415/2010, which had been

registered on the complaint of Hemant Kumar Bhatia, judgment of

acquittal was passed on 01.02.2014. On a complaint made by Manish

Kumar Singh, Cr. Case No. 252/2011 was registered wherein a judgment

of acquittal was passed on 05.03.2012. Cr. C. No. 185/2011 had arisen

out of a complaint made by Shambhu Sharan Prasad, wherein judgment

of acquittal was passed on 05.03.2012. From the aforesaid facts, it is

clear that in the impugned order, the District Magistrate had not based

20

its findings on true facts, and wrongly mentioned that charge sheets

have been filed on such cases though on the date of consideration for

extenment proceedings, the appellant had already been acquitted. So, the

satisfaction which was recorded by the District Magistrate based on such

incorrect and erroneous facts cannot be said to be proper. The report

submitted by the Superintendent of Police without collecting the facts of

acquittal of the appellant, in a very casual manner, was made basis for

initiating the externement proceeding and even in the said proceeding,

the District Magistrate had not called for any report about the result or

status of such cases before passing the order for externment.

19.The appellant has filed the copies of judgment of acquittals. Upon

perusing the said judgments, it is apparent that complainant Bharat Singh

Thakur, Hemant Kumar Bhatia, Shambhu Sharan Prasad, Manish Kumar

Singh were all examined during trial. So, the opinion recorded in the

order that the witnesses are not willing to come forward to give evidence

against the appellant is also not found to be correct from the record. In

the impugned order, the District Magistrate has merely mentioned that

the witnesses are not coming forward because of their apprehension. No

reasons were assigned for arriving such conclusion. Even the nature of

offence alleged against the appellant and their outcome have not been

taken into consideration.

21

20.Though the show cause notice was issued on 02.06.2020, but the

District Magistrate vide para 5 of the impugned order of externment, has

also taken into consideration the letter of Superintendent of Police dated

31.08.2021, in which it was mentioned that a complaint was made by

Krishna Swamy, Senior Manager of Feedback Power Company to

Station House Officer, Balco Nagar, Korba on 12/06/2021 stating that

he has received threat on his official Mobile Phone for giving petty

contract work in the company and creating pressure for illegal gain,

which is affecting the industrial work in the District Korba. Learned

counsel for the appellant would submit that no offence has been

registered on any such complaint and it was also not part of the show

cause notice issued to the appellant. He has also referred the judgment in

the matter of Shailender Kaur v/s Lt. Governor & others {2001 SCC

OnLine Del. 464} to submit that principles of natural justice must be

complied before passing the externment order against any individual. In

the said matter, the externment order was quashed as the cases were not

part of the notice and the relevant part is para-21 which reads thus :

“21...................Section 50 of the Act has

mandated the Commissioner of Police to give

notice in writing and also inform the person in

question of the general nature and the material

allegations against him. The acts, movements

and criminal cases which were proposed to be

taken into consideration before passing orders

under Section 47 were required to be

mentioned in the notice served on the

22

petitioner against whom the order of

externment was proposed. It was necessary to

give reasonable opportunity hearing and

tendering her explanation to the show cause

notice. It has not been stated before us that

after the service of the show cause notice

dated 2.4.1997 the Addl. DCP (East Distt.) had

given further notice to the petitioner or during

the hearing had made it known to the

petitioner the other cases in which she was

involved whether under the Punjab Excise Act

or under the IPC and they were also the

material allegations which could be used

against her in the proceedings. Admittedly, it

has not been done in this case. The order of

externment of Addl. DCP (East Distt.) and the

order passed in appeal by the Lt. Governor of

Delhi, therefore, are violative of Section 50 of

the Act. The orders are vitiated and cannot be

sustained.”

21. Section 8 of the Act mandates that the District Magistrate shall

inform that person in writing ‘of the general nature of the material

allegations against him’ and give him a reasonable opportunity of

tendering an explanation regarding those allegations. Though action was

initiated on 02.06.2020, and the impugned order was passed on

01.09.2021 after more than one year, it can safely be inferred that the

impugned order of externment was passed without due notice. The object

of the Act is to provide extraordinary measure to meet the instant or

emergent situation. An externment order may sometimes be necessary

for maintenance of law and order, but when the order itself was passed

belatedly, it shows that there was no such circumstances to exercise the

23

powers of extraordinary measure. So, from the facts which were taken

into consideration when it was not part of the show cause notice, the

basic rule of natural justice as engrafted under Section 8 of the Act is

violated, as the appellant was deprived of sufficient opportunity to

defend himself. Therefore, we are of the view that the impugned order is

bad in law on account of violation of the procedure prescribed in Section

8 of the Act.

22.From the foregoing analysis and on close scrutiny of the material

available on record, the following points emerge:-

(i)it can be safely inferred that there was no objective material for

recording subjective satisfaction to pass an order of externment against

the petitioner/appellant.

(ii)it is well settled principle of law that old and stale cases cannot be

taken into consideration while passing the order under Section 5 of the

Act.

(iii)the State has failed to point out the necessity of passing an order of

externment requiring curtailment of liberty of the Appellant as enshrined

under Article 19 of the Constitution of India.

(iv)principles of natural justice must be complied with before passing

the externment order against any individual.

(v)even when the externment order was passed in respect of bordering

district/s, the grounds must be disclosed to the proposed externee, both in

show cause notice as also in the order of externment for justifying it.

This proposition was laid down in the matter of Sandhi Mamad Kala

24

Vs. State {1973 0 GLR 384} and the power is not to be exercised

mechanically or blindly.

23. In the result, the impugned order of externment dated 01.09.2021, the

order passed in Appeal under Section 9 of the Act by the State on

06.12.2021, as well as impugned order passed in WPCR No.78/2022 on

02.05.2022 by the learned Single Judge are hereby quashed and set aside.

24.The Appeal is accordingly allowed.

Sd/- Sd/-

(Arup Kumar Goswami) (Deepak Kumar Tiwari)

Chief Justice Judge

Barve