The State Of Madhya Pradesh vs Dharmendra Rathore

CRIMINAL APPEAL NO. 171 of 2019 (arising out of SLP (Crl.) No.10681/2015)

THE STATE OF MADHYA PRADESH & ORS. ...APPELLANT(S) VERSUS DHARMENDRA RATHORE ...RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 172 of 2019 (arising out of SLP (Crl.) No.10671/2015)

THE STATE OF MADHYA PRADESH & ORS. ...APPELLANT(S) VERSUS RAMU @ BRAJMOHAN JADON ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

Leave granted.

Signature Not Verified

2. Digitally signed by SANJAY KUMAR These two appeals raising similar question of law Date: 2019.01.29 16:42:23 IST Reason:

has been heard together and are being decided by this

1 common judgment. State of Madhya Pradesh has filed

the appeal questioning the judgment of Division Bench

of the High Court dated 30.10.2013 passed in Writ

Appeal No. 244 of 2013 and judgment of Division Bench

in Writ Appeal No. 71 of 2014 dated 20.06.2014

following the earlier judgment dated 30.10.2013.

3. For deciding the appeals, it shall be sufficient

to refer to the facts in Civil Appeal – The State of

Madhya Pradesh & Ors. Vs. Dharmendra Rathore. The

Additional District Magistrate, Gwalior has passed an

order dated 26.02.2013 externing the respondent for a

period of one year from the district concerned. An

appeal was filed by the respondent against the order

of the Additional District Magistrate before the

Commissioner, Gwalior Division, which too was

dismissed on 17.06.2013. A writ Petition No. 4818 of

2013 was filed by the respondent challenging the

order of the Additional District Magistrate as well

as of the Commissioner, Gwalior Division. The main

ground taken by the respondent before the High Court

2 was that the Additional District Magistrate had no

jurisdiction to pass the order under the Madhya

Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter

referred to as “Adhiniyam, 1990”). The order can be

passed only by District Magistrate. Reliance was

also placed on an order passed by another learned

Single Judge dated 30.05.2013 in Writ Petition No.

8555/2012 – Arvind Sharma Vs. State of Madhya Pradesh

& Ors. The High Court relying on judgment of

Arvind Sharma Vs. State of Madhya Pradesh & Ors.

allowed the writ petition holding that Additional

District Magistrate was incompetent to pass the order

under the Adhiniyam, 1990. Writ Appeal was filed

against the judgment of the High Court by the State

of Madhya Pradesh being Writ Appeal No. 71 of 2014. By judgment and order dated 20.06.2014, the writ

appeal has been dismissed by Division Bench relying

on its judgment in Writ Appeal No. 244 of 2013 dated

30.10.2013 – State of Madhya Pradesh Vs. Arvind

Sharma, in which judgment, the High Court after

considering the provisions of Sections 3, 13 and 29

3 of the Adhiniyam, 1990 and relying on the

Constitution Bench judgment of this Court in Ajaib

Singh Vs. Gurbachan Singh, AIR 1965 SC 1619 held that

the order could not have been passed by any authority

lower than the rank of District Magistrate. State

aggrieved by the order has come up in this appeal.

4. Learned counsel for the appellant in support of

the appeal contends that High Court committed error

in relying on the Constitution Bench Judgment of this

Court in Ajaib Singh Vs. Gurbachan Singh (supra). He

submits that in the case of Ajaib Singh (supra), this

Court had occasion to consider the provisions of

Defence of India Act,1962 and Defence of India Rules,

which contained a different statutory scheme. The

Statutory Scheme in the Adhiniyam, 1990 being

different, the said judgment was not applicable. It

is submitted that Additional District Magistrate was

fully competent to pass the order under the

Adhiniyam, 1990.

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5. Learned counsel for the respondent supporting the

order of the High Court contends that when Sections

3, 4, 5 and 6 empowers the District Magistrate to

pass the order, an authority lower in rank could not

have been passed the order. It is further submitted

that the State Government, in exercise of power under

Section 13, can also not delegate its power to any

authority lower in rank to the District Magistrate.

It is further submitted that there were other grounds

to challenge the order of Additional District

Magistrate in the writ petition but High Court having

considered only one ground, other grounds were not

considered.

6. We have considered the submissions of the learned

counsel for the parties and have perused the records.

7. It is necessary to notice the statutory scheme

under the Adhiniyam, 1990. Sections 3 and 4 of the

Adhiniyam, 1990 are as follows:-

3. Power to make restriction order. - (1) If a District Magistrate is satisfied with respect to any persons that he is acting or

5 is likely to act in a manner prejudicial to the security of the State or the maintenance of public order and that, in order to prevent him from so acting it is necessary in the interest of the general public to make an order under this Section, the District Magistrate, may make an order,-

(a) requiring him to notify movements or to report himself or both to notify his movements and report himself in such manner at such times and to such authority or persons as may be specified in the order;

(b) imposing upon him such restrictions as may be specified in the order, in respect of his association or communications with such persons as may be mentioned in the order;

(c) prohibiting or restricting the possession or use by him of any such article or articles as may be specified in the order.

(2) A restriction order made under sub-

section (1) shall remain in operation for such period as may be specified therein and shall in no case exceed a period of one year from the date of the order.

4. Dispersal of gangs and bodies of persons. - Whenever it appears to the District Magistrate that the movement or encampment of any gang or body of persons in the district is causing or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such gang or body, or by members thereof the District Magistrate,

6 may by an order addressed to the persons appearing to be the leaders or chiefmen of such gang or body and published by beat of rumor otherwise, as the District Magistrate thinks fit, direct the members of such gang or body,-

(a) to conduct themselves in such manner as may be necessary in order to prevent violence and alarm; or

(b) to disperse and each of them to remove himself outside the district or any part thereof or such area, and any district or districts, or any part thereof contiguous thereto with such time as the District Magistrate may specify, and not to enter the said district or part thereof or such area and such contiguous districts, or part thereof, as the case may be or not to return to the place from which each of them was directed to remove himself.

8. Sections 5 and 6 are other provisions, which

confer some power to District Magistrate to remove a

person about to commit offence and remove a person

convicted of certain offences. Sections 7 provides

that period of operation of orders under Sections 4,

5 or 6 shall in no case exceed a period of one year.

Section 13 provides for power of externment of the

State Government, which is to the following effect:-

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13. Power of externment of State Government. - (1) The State Government or the officer specially empowered by the State Government in that behalf, may, in like circumstances, and in like manner, exercise the powers exercisable in a district by the District Magistrate under Section 3, 4, 5 or 6 with this modification that it shall be lawful for the State Government or the officer specially empowered to direct the members of such gang or body, or persons or immigrants, or persons convicted, as the case may be, to remove themselves from and not to enter or return or any district or districts or parts thereof whether contiguous thereto or not.

(2) The provisions of Sections 7, 8,10, 11 and 12 and of Section 9 where the order is passed by the officer specially empowered by the State Government under sub-section (1) shall mutatis mutandis apply to the exercise of any powers under this section as they apply to the exercise of any powers under Section 3, 4, 5 or 6.

(3) Where the order is passed by the State Government under sub-section (1), the State Government may, either on its own motion or on an application of the person aggrieved, review any order passed by itself and pass such order in reference thereto as it thinks fit :

Provided that no order shall be varied or reversed unless notice has been given to the person concerned to appear and be heard in support of such order.

8 9. Section 18 deals with delegation of powers and

duties of District Magistrate, which is to the

following effect:-

18. Delegation of power and duties of District Magistrates. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government may by order direct that any power on duty conferred or imposed on a District Magistrate under this Act shall be exercised or performed by such additional District Magistrate or Sub-Divisional Magistrate and for such areas as may be specified in the order

10. In the present case, the State Government had

issued a notification under Section 13 delating the

power of the District Magistrate to the Additional

District Magistrate divisional head quarter, Indore,

Jabalpur, Rewa, Ujjain, Bhopal, Gwalior, Hoshangabad,

Sagar and Chambal (Murena). Notification dated

05.03.2003 is to the following effect:-

“Madhya Pradesh Gazette Extra-ordinary Published by Authority Bhopal Wednesday dated 5th March, 2003 Home Department (C section) Ministry, Vallabh Bhawan Bhopal Bhopal dated 5th March 2003

No. F35-116-2001-P-one- In exercise of powers conferred by sub section (11) of

9 section 13 of Madhya Pradesh State Security Act, 1990 (No. 4 of 1991) and superseding the notification no. F17-1-51-B(1)-2, dated 7th May 1991 and F35-116-2001-T-one dated 10th July, 2001 of this very department, the State Government hereby empowers the Additional District Magistrate of divisional head quarter, Indore, Jabalpur, Rewa, Ujjain, Bhopal, Gwalior, Hoshangabad, Sagar and Chambal (Murena) for the purposes of the aforesaid sub section.

By order & in the name of the Governor of MP Rakesh Sahni, Principal Secretary”

11. The entire basis of impugned judgment of the High

Court is the Constitution Bench judgment of this

Court in Ajaib Singh (supra). In Ajaib Singh's case

(supra), this Court had occasion to consider the

provisions of Defence of India Act, 1962 and the

Rules framed thereunder, where in that case, one Lall

Singh, who was working as Additional District

Magistrate, was invested with the power of District

Magistrate under Section 10(2) of the code of

Criminal Procedure, 1898, had passed an order of

detention of the appellant under the Defence of India

Act as District Magistrate. The challenge was that

he was incompetent to pass an order being not the

District Magistrate. It is necessary to consider the

10 Scheme of Section 3(i) of the Act and noticed

relevant provision in Paragraph No.6, which is to the

following effect:-

“6. We do not think it necessary for purposes of this case to decide the first point raised by the learned Advocate General, for we have come to the conclusion that no officer other than the District Magistrate of a District can pass an order of detention under R. 30 of the Rules in view of the provisions of the Act and of the Rules to which we shall now refer. Section 3(1) of the Act gives power to the Central Government by notification in the Official Gazette to make such rules as appear to it necessary or expedient for securing the defense of India and civil defense, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of community. Section 3(2) then provides for the making of rules for various purposes without prejudice to the generality of the powers conferred by section 3(1), and the 15th clause thereof provides for detention. The relevant portion of that clause necessary for our purposes reads thus :-

"(15). Notwithstanding anything in any other law for the time being in force -

(i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower

11 in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or having acted, acting, being about to act or being likely to act in a manner prejudicial to the defense of India and civil defense, the security of the State, the public safety or interest, the maintenance of public order, India's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner."

It would be seen that section 3(2) (15)(i) which is the source of power to detain according to the Rules to be framed thereunder itself lays down that the authority empowered to detain shall not be lower in rank than that of a District Magistrate.”

12. It is to be noted that under the Statutory Scheme

under the Defence of India Act, detention order can

be passed by the authority empowered by the rules to

apprehend or detain with restriction that the

authority empowered to detain not being lower in rank

than that of a District Magistrate. In view of the

12 above Statutory Scheme, this Court held that

Additional District Magistrate being not the District

Magistrate was incompetent to pass the impugned

order. In Paragraph No.7, following has been held:-

“7. Then we came to section 40(2) of the Act, which gives power to the State Government to delegate its powers to any officer or authority subordinate to it. This power of delegation, however, must be read harmoniously with section 3(2)(15) and therefore under section 40(2) the State Government cannot delegate its power to detain to any officer below the rank of a District Magistrate. Rule 30 of the Rules then provides for detention and under that rule that power is conferred on the Central Government or the State Government to detain any person. That power of the State Government can however be delegated under section 40(2) to any officer subordinate to it. But as we have already indicated the power of delegation must be read harmoniously with section 3(2)(15) and therefore the State Government cannot delegate the power to detain to any officer who is lower in rank than the District Magistrate. The position is further clearly brought out in r. 30-A which provides for review of a detention order made by an officer. It is made clear there also that the officer shall in no case be lower in rank than a District Magistrate. The effect of these provisions thus is that the power of detention can either be exercised by the State Government or by its delegate who however can in no case be lower in rank than a District Magistrate. The Act and the Rules therefore show unmistakably that the

13 power of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate.”

13. This Court has further contrasted the provisions

of the order of that of Preventive Detention Act,

when where District Magistrate is specially

empowered. Paragraph No. 8 of the judgment is as

follows:-

“8. We may in this connection contrast the language of section 3(2) of the Preventive Detention Act, No. 4 of 1950, which lays down that any of the following officers, namely :-

(a) district magistrates,

(b) additional district magistrates specially empowered in this behalf by the State Government,

(c)......

(d)......

may exercise the powers conferred by section 3(1)(a)(ii) and (iii). If the intention under the Act and the Rules was that the Additional District Magistrate may also exercise the power of detention conferred thereunder we would have found a provision similar to that contained in the Preventive Detention Act.”

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14. Applying the ratio of the above judgment in the

facts of the present case, it is clear that in the

Statutory Scheme of the Adhiniyam, 1990, there is no

provision, which prohibit passing an order by an

officer lower than the rank of District Magistrate

rather under Section 13, there is no limitation on

the State Government while specially empowering an

officer of the State to exercise the power of

District Magistrate under Sections 3, 4, 5 and 6 and

further under Section 18, the powers and duties of

District Magistrate can be directed to be exercised

or performed by Additional District Magistrate or Sub

-Divisional Magistrate for such areas as may be

specified in the order. Thus, the Scheme of the

Adhiniyam, 1990 clearly contemplate exercise of the

power of District Magistrate under Sections 3, 4, 5

and 6 by an Additional District Magistrate or Sub

-Divisional Magistrate. The Notification dated

05.03.2003 was not under challenge in the writ

petition.

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15. We are, thus, of the view that Constitution Bench

Judgment of this Court in Ajaib Singh (supra) was not

applicable in the facts of the present case and High

Court committed the error in relying on the said

judgment for holding that Additional District

Magistrate had no jurisdiction. The impugned

judgment is, thus, unsustainable on the above ground.

We further notice that the period of externment being

one year, which has already expired, there is no

useful purpose in considering the other grounds of

challenge as contended by the counsel for the

respondent.

16. In result, the appeals are allowed. The impugned

judgments of the High Court are set aside.

......................J. ( ASHOK BHUSHAN )

......................J. ( K.M. JOSEPH )

New Delhi, January 29, 2019.

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