Cases 'Old and Stale', No Live Link Between Offences and Externment Order: Chhattisgarh High Court Quashes Restraining Order

"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."

The appellant Taukeeir Ahmed Khan was restrained from entering the District of Korba and border districts for a year under the order passed by the DM on September 1, 2021 under Section 5(b) of the Chhattisgarh Rajya Suraksha Adhiniyam, 1990. A challenge against it was rejected by state government on December 6, 2021.

Khan then challenged it before High Court Single Bench which dismissed it while observing that 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."

Before the division bench, it was argued that the writ Court upheld the externment order without considering the provisions of Section 8 and Section 5(b) of the Act. It was further argued that no opportunity was granted to the appellant to defend his case. 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 court was told.

"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. Six cases registered under the preventive action mentioned in the list were too old, as the same were registered 10-15 years ago," the counsel representing the appellant submitted. 

The counsel representing the State argued that the competent authority has recorded the subjective satisfaction regarding the grounds and due procedure has been followed under the Act in passing the order of externment. The court was also told the period of externment is over.

The Court in the order said no offences dating back to years 2012 to 2019 find mention in the Superintendent of Police's report and only one pending case of 2020 has been shown. Regarding the preventive actions, the court said last order against the plaintiff was passed on May 25 in 2020. 

"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," the court observed.

The court said proper facts were not placed before the competent authority and satisfaction recorded by the officer 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 externment proceeding, noted the bench. 

Observing that the District Magistrate had not called for any report about the result or status of such cases, the court said the opinion recorded in the authority's order, that witnesses are not willing to come forward to give evidence against the appellant, is incorrect as all the witnesses of the trial examined during trial.

"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," said the bench.

The court also said Section 8 of the Act requires the Magistrate to 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 but 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 powers of extraordinary measure," added the court.

 Case Title : Taukeeir Ahmed Khan v State of Chhattisgrah & Ors.

Citation: 2022 LiveLaw (Chh) 67 

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