Nyaju Niyaj Mohd. Vs. State of M.P. - Court Judgment

Excerpt:
- - he submitted that the crimes have been committed by petitioner and, therefore, there is no failure of justice. 6. all the proceedings which are infringing the provisions of constitution like articles 19 and 21 eclipsing the liberty of a citizen have to be quashed.orderj.g. chitre, j. 1. this petition is hereby decided finally at this stage because the petition is connected with the proceeding which is initiated against the petitioner in view of provisions of sections 5 & 8 of the madhya pradesh rajya suraksha adhiniyam, 1990, (herein after referred to as 'the adhiniyam' for convenience).2. the proceeding has been initiated against the petitioner in view of the above mentioned provision of the adhiniyam as the district magistrate, dhar has been informed that the petitioner has criminal history and therefore his being at large in the society, is dangerous to the safety and property of the citizens residing in the particular area. while showing the cause in response to the notice issued to him in view of the provisions of section 8 of the adhiniyam, the petitioner expressed his desire to examine certain witnesses. he also made a prayer that these witnesses be summoned by district magistrate who was conducting the said proceeding. the district magistrate rejected his prayer and passed an order externing him from district of dhar and its adjacent districts, for a period of 1 year.3. shri sunil jain submitted that the procedure adopted by district magistrate, dhar is not consistent with the procedure established by law and it is inconsistent with guarantee provided by relevant article of the indian constitution. shri amit agrawal appearing for the respondent, by making reference to section 8 of the adhiniyam pointed out that the district magistrate, dhar is not obliged or duty bound for summoning the witnesses who have been indicated in the list with reply to show cause notice. he pointed out that the words 'witnesses produced' have to be interpreted properly. according to the submission of shri agrawal, such witness is to be produced by proposed externee whom he wants to examine in the same proceeding. he submitted that the crimes have been committed by petitioner and, therefore, there is no failure of justice. 3a. article 21 of constitution of india guarantees that 'no person shall be deprived of his life or personal liberty except according to the procedure established by law'.4. article 19 guarantees fundamental rights to the citizens and clause (1) of sub article (d) provides a right to all citizens to move freely throughout the territory of india. sub clause (e) provides guarantee to reside and settle in any part of the territory of india. the fundamental right of freedom of movement and freedom of residence is likely to be infringed if the action proposed to be taken or taken is not consistent with provisions of article 21. the liberty is a valuable right of a citizen. a living being cannot even breathe freely and happily if he has been put to incarceration. the constitution is very much vigilent in protecting the fundamental right of liberty of a citizen. all opportunities should be given to a person whose liberty is likely to be eclipsed by an administrative action of the state.5. section 8 of the adhiniyam indicates that if a person against whom such proceeding is initiated, if makes an application for examination of any witness produced by him, the d. m. shall grant such application and examine such witnesses unless for reasons to be recorded in writing, the d.m. is of the opinion that such application is made for the purpose of vexation or delay, or for defeating the ends of justice. the said proceedings are to be conducted so far as possible in accordance with the procedure laid down by the criminal procedure code, 1973 (hereinafter referred to as 'the code'). same words have been used in sub-section (3) of section 233 of the code. it deals with the right of the accused who has been called upon to enter on his defence. sub-section (3) provides that if the accused applies for the issue of the process for compelling the attendance of any witness, the judge shall issue such process unless he considers for reasons to be recorded, that such application should be refused on the ground that he has made it for the purpose of vexation or delay or for defeating the ends of justice. in section 254 of the code, same sort of words are used in sub-section (1) that 'if the magistrate does not convict the accused under section 252 or section 253, the magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. in a proceeding which intends to eclipse the fundamental right of liberty of citizens, rules of natural justice have to be followed and full opportunity has to be given to a person against whom such proceedings is initiated and it is likely to be resulted into infringement of his fundamental right of liberty or to have specific place as his residence. while doing so, d. m. cannot forget that in all cases it is not possible for such persons to produce witnesses to whom he wants to examine. the d.m. cannot treat himself to be aloof from the normal experience of human life in society. unfortunately, the time has come when the persons do not assist the court for the purpose of deposing as witnesses. it happens frequently in cases of the prosecution that prosecution wants witnesses to be examined or prove its case or to proving guilt of a person who has been charged for commission of an offence. when it is so, how it cannot be accepted reasonably that such a person would always be able to produce all such witnesses. it is not possible for a single person to exercise influence or power over a number of persons making them to come to court for giving evidence without their being due assistance from the court. therefore, if such person intends to examine some witnesses an opportunity has to be given in any such proceeding by issuing summons for attending the court for giving evidence if such person so prays. therefore, if it has been indicated in the reply to show cause notice that such person intends to examine some witnesses, the magistrate has to ask him whether he wants such summonses, whether he is capable of producing them physically in the court for being examined in the said proceedings. it cannot be forgotten by magistrate that in such proceedings the material has been collected behind the back of a person against whom such proceedings are initiated. even he does not have right to cross-examination of these witnesses. if that is so, denial of assistance by court in the nature of issuing the summons or summonses would be definitely against the procedure established by law, as contemplated by article 21 of the indian constitution.6. all the proceedings which are infringing the provisions of constitution like articles 19 and 21 eclipsing the liberty of a citizen have to be quashed. d.m. dhar is hereby directed to start the fresh proceeding by giving the petitioner assistance in the nature of issuing summons if he desires to do so. of course, he is entitled to see that the petitioner does not use delaying tactics for the purpose of prolonging the matter. it is made clear that a fresh proceeding does not mean the initiation of proceeding, recording of the statements of the persons who are not willing to come forward to depose against the present petitioner and issuance of show cause notice in view of section 8. the proceeding should start from the stage of enabling the present petitioner to examine those witnesses who have been mentioned in his reply to show cause notice. for that purpose the petitioner should appear before the concerned d.m. on 11-10-99 during working hours. this date has been given because the d.m. is very likely to be busy in election activities being collector of dhar. the petitioner shall not abscond and shall keep himself available for the hearing in the said proceeding regularly and punctually on each day of hearing. the petitioner shall appear before the d.m. on 11-10-99 and furnish security to the tune of rs. 15,000/- with one surety and p. r. bond to that extent to the satisfaction of d. m. dhar.thus, this petition stands disposed of but with no orders as to costs. c.c.

Judgment:
ORDER

J.G. Chitre, J.

1. This petition is hereby decided finally at this stage because the petition is connected with the proceeding which is initiated against the petitioner in view of Provisions of Sections 5 & 8 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990, (Herein after referred to as 'the Adhiniyam' for convenience).

2. The proceeding has been initiated against the petitioner in view of the above mentioned Provision of the Adhiniyam as the District Magistrate, Dhar has been informed that the petitioner has criminal history and therefore his being at large in the society, is dangerous to the safety and property of the citizens residing in the particular area. While showing the cause in response to the notice issued to him in view of the provisions of Section 8 of the Adhiniyam, the petitioner expressed his desire to examine certain witnesses. He also made a prayer that these witnesses be summoned by District Magistrate who was conducting the said proceeding. The District Magistrate rejected his prayer and passed an order externing him from district of Dhar and its adjacent districts, for a period of 1 year.

3. Shri Sunil Jain submitted that the procedure adopted by District Magistrate, Dhar is not consistent with the procedure established by law and it is inconsistent with guarantee provided by relevant Article of the Indian Constitution. Shri Amit Agrawal appearing for the respondent, by making reference to Section 8 of the Adhiniyam pointed out that the District Magistrate, Dhar is not obliged or duty bound for summoning the witnesses who have been indicated in the list with reply to show cause notice. He pointed out that the words 'Witnesses produced' have to be interpreted properly. According to the submission of Shri Agrawal, such witness is to be produced by proposed externee whom he wants to examine in the same proceeding. He submitted that the crimes have been committed by petitioner and, therefore, there is no failure of justice. 3A. Article 21 of Constitution of India guarantees that 'no person shall be deprived of his life or personal liberty except according to the procedure established by law'.

4. Article 19 guarantees fundamental rights to the citizens and clause (1) of Sub article (d) provides a right to all citizens to move freely throughout the territory of India. Sub clause (e) provides guarantee to reside and settle in any part of the territory of India. The fundamental right of freedom of movement and freedom of residence is likely to be infringed if the action proposed to be taken or taken is not consistent with provisions of Article 21. The liberty is a valuable right of a citizen. A living being cannot even breathe freely and happily if he has been put to incarceration. The Constitution is very much vigilent in protecting the fundamental right of liberty of a citizen. All opportunities should be given to a person whose liberty is likely to be eclipsed by an administrative action of the State.

5. Section 8 of the Adhiniyam indicates that if a person against whom such proceeding is initiated, if makes an application for examination of any witness produced by him, the D. M. shall grant such application and examine such witnesses unless for reasons to be recorded in writing, the D.M. is of the opinion that such application is made for the purpose of vexation or delay, or for defeating the ends of justice. The said proceedings are to be conducted so far as possible in accordance with the procedure laid down by the Criminal Procedure Code, 1973 (hereinafter referred to as 'the Code'). Same words have been used in Sub-section (3) of Section 233 of the Code. It deals with the right of the accused who has been called upon to enter on his defence. Sub-section (3) provides that if the accused applies for the issue of the process for compelling the attendance of any witness, the Judge shall issue such process unless he considers for reasons to be recorded, that such application should be refused on the ground that he has made it for the purpose of vexation or delay or for defeating the ends of justice. In Section 254 of the Code, same sort of words are used in Sub-section (1) that 'if the Magistrate does not convict the accused Under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. In a proceeding which intends to eclipse the fundamental right of liberty of citizens, rules of natural justice have to be followed and full opportunity has to be given to a person against whom such proceedings is initiated and it is likely to be resulted into infringement of his fundamental right of liberty or to have specific place as his residence. While doing so, D. M. cannot forget that in all cases it is not possible for such persons to produce witnesses to whom he wants to examine. The D.M. cannot treat himself to be aloof from the normal experience of human life in society. Unfortunately, the time has come when the persons do not assist the Court for the purpose of deposing as witnesses. It happens frequently in cases of the prosecution that prosecution wants witnesses to be examined or prove its case or to proving guilt of a person who has been charged for commission of an offence. When it is so, how it cannot be accepted reasonably that such a person would always be able to produce all such witnesses. It is not possible for a single person to exercise influence or power over a number of persons making them to come to Court for giving evidence without their being due assistance from the Court. Therefore, if such person intends to examine some witnesses an opportunity has to be given in any such proceeding by issuing summons for attending the Court for giving evidence if such person so prays. Therefore, if it has been indicated in the reply to show cause notice that such person intends to examine some witnesses, the Magistrate has to ask him whether he wants such summonses, whether he is capable of producing them physically in the Court for being examined in the said proceedings. It cannot be forgotten by Magistrate that in such proceedings the material has been collected behind the back of a person against whom such proceedings are initiated. Even he does not have right to cross-examination of these witnesses. If that is so, denial of assistance by Court in the nature of issuing the summons or summonses would be definitely against the procedure established by law, as contemplated by Article 21 of the Indian Constitution.

6. All the proceedings which are infringing the provisions of Constitution like Articles 19 and 21 eclipsing the liberty of a citizen have to be quashed. D.M. Dhar is hereby directed to start the fresh proceeding by giving the petitioner assistance in the nature of issuing summons if he desires to do so. Of course, he is entitled to see that the petitioner does not use delaying tactics for the purpose of prolonging the matter. It is made clear that a fresh proceeding does not mean the initiation of proceeding, recording of the statements of the persons who are not willing to come forward to depose against the present petitioner and issuance of show cause notice in view of Section 8. The proceeding should start from the stage of enabling the present petitioner to examine those witnesses who have been mentioned in his reply to show cause notice. For that purpose the petitioner should appear before the concerned D.M. on 11-10-99 during working hours. This date has been given because the D.M. is very likely to be busy in election activities being Collector of Dhar. The petitioner shall not abscond and shall keep himself available for the hearing in the said proceeding regularly and punctually on each day of hearing. The petitioner shall appear before the D.M. on 11-10-99 and furnish security to the tune of Rs. 15,000/- with one surety and P. R. bond to that extent to the satisfaction of D. M. Dhar.

Thus, this petition stands disposed of but with no orders as to costs. C.c.