BRIJLAL Vs. DISTRICT MAGISTRATE DAMOH
LAWS(MPH)-1967-9-10
HIGH COURT OF MADHYA PRADESH
Decided on September 13,1967

BRIJLAL Appellant
VERSUS
DISTRICT MAGISTRATE, DAMOH Respondents

JUDGEMENT

DIXIT C.J. - (1.) BY this application under Articles 226 and 227 of the Constitution the petitioners seek a writ of certiorari for quashing an order passed by the District Magistrate, Damoh, on 2nd November 1966 under section 3 (b) of the Madhya Pradesh Maintenance of Public Order Act, 1965 (hereinafter referred to as the Act) directing the petitioners and two other persons "to disperse themselves outside the revenue district of Damoh or any part thereof and contiguous revenue districts namely Sagar, Panna, Chhatarpur, Jabalpur and Narsimhapur of Madhya Pradesh or any part thereof" within a period of seven days from the date of the order for a period of one year and not to enter the aforesaid district or part thereof and the said contiguous districts or part thereof and not to return to the place from which they have been directed to remove themselves. This order of the District Magistrate was upheld by the State Government on 15th April 1967 in an appeal preferred by the "externees". The petitioners pray that a writ of certiorari be issued also for quashing the order of the State Government passed in appeal.
(2.) SECTION 3 of the Act provides: "3. 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 may, by order addressed to the persons appearing to be the leaders or chiefmen of such gang or body and published by beat of drum or 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 within such time as the District Magistrate may specify, and not to enter the district or part thereof or such area and such contiguous districts, or part thereof, as the case may be, or return to the place from which each of them was directed to remove himself." Before making an order under section 3 against any person "the District Magistrate is required to inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them". If such person makes an application for the examination of any witnesses produced by him, the District Magistrate has to grant the application and examine the witnesses unless for reasons to be recorded in writing he is of opinion that the application for examination of witnesses has been made for the purpose of vexation or delay. On 15th September 1966 the District Magistrate purported to pass a "preliminary order" under section 7 of the Act. It was addressed to the three petitioners and two other persons, namely, Kanchhedi and Hiralal. It first stated:- "WHERRAS information is laid before me that a gang of dacoits under the leadership of Mooratsingh of district Chhatarpur is operating in this district for over 15 years. It consists of 15 to 20 hardened criminals. Their field of operation is spread over the areas of districts of Damoh, Sagar, Chhatarpur, Panna, Jabalpur of Madhya Pradesh and Lalitpur Jhansi of Uttar Pradesh. The gang has been continuously operating due to the active support of helpers, harbourers and sympathisers. A large number of heinous offences like murders, dacoities, kidnapping, arsons and also offences under Chapters XVI and XVII of the Indian Penal Code are being committed and a terror has been created in this district. You as one of the chief man of Mooratsingh and his gang in this district has been rendering active support in the said unlawful designs of the said dacoit gang and have got the following overt acts and offences committed in this district:- ***** ***** ***** The order then narrated the overt acts and offences alleged to have been committed by the addressees. Then it proceeded to say in the end: - "NOW., therefore, in exercise of the powers conferred on me under section 3 of Madhya Pradesh Maintenance of Public Order Act, 1965,1, N.P. Konher, District Magistrate, Damoh, hereby call upon you to show cause within seven days from the receipt of this order, why an order under section 3 (b) of the Madhya Pradesh Maintenance of Public Order Act, 1965, should not be passed against each of you to disperse and each of you to remove yourself outside the revenue district of Damoh or any part thereof and contiguous revenue districts namely Sagar, Panna, Chhatarpur, Jabalpur and Narsimbapur of Madhya Pradesh or any part thereof within a period of seven days for a period of one year and not to enter the aforesaid district or part thereof and the said contiguous districts or part thereof and not to return to the place from which each of you was directed to remove himself.,.....". Each of the petitioners gave his explanation in reply to the show cause notice issued to him. He also filed an application for examination of certain witnesses on his behalf. On 2nd November 1966 the District Magistrate passed the final, that is the impugned, order. The concluding portion of the order is as follows:- "On weighing the evidence led by the non-applicants before me and on the veracity of the information laid before me, I am convinced that all the non-applicants are responsible for commission of the activities, as detailed in the preliminary order, I, therefore, confirm my preliminary order passed on 15th September, 1966. Now in exercise of the powers conferred on me under section 3 (b) of Madhya Pradesh Maintenance of Public Order Act, 1965, I direct all the non-applicants namely Brijlal son of Kanhaiyalal Chirolia, Sunderlal son of Kanhaiyalal Chirolia, Shyamlal son of Pannalal alias Parmanand Chirolia, Kanchhedi son of Raghubar Kori and Hiralal son of Mahadeo Choube to disperse themselves outside the revenue district of Damoh or any part thereof and contiguous revenue districts namely Sagar, Panna, Chhatarpur, Jabalpur and Narsimhapur of Madhya Pradesh or any part thereof within a period of seven days from this date for a period of one year and not to enter the aforesaid district or part thereof and the said contiguous districts or part thereof, and not to return to the place from which they are directed to remove themselves."
(3.) SHRI Dharmadhikari, learned counsel appearing for the petitioners argued that the order passed by the District Magistrate was mala fide as the applicants were never the members of any gang or body of persons, the movement or encampment of which in the Damoh district was causing or was calculated to cause danger or alarm or reasonable suspicion about any unlawful design; that they were also neither the leaders nor the chiefmen of any such gang or body. It was said that under section 3 (b) the District Magistrate had no power to direct any individual person to remove himself outside any district or any contiguous districts; that he could only direct the members of a gang or body of the type described in section 3 "to disperse and each of them to remove himself outside any district or any part thereof and from any contiguous district or districts or any part thereof"; and that the impugned order passed by the District Magistrate, Damoh, was utterly contrary to the terms of section 3 (b) and, therefore, illegal. Learned counsel further submitted that the grounds on which the impugued order was passed against the petitioners were foreign or extraneous to section 3. He also made the grievance that the petitioners were not given a reasonable opportunity of tendring their explanation against the allegations made in regard to them; that the District Magistrate did not examine the persons whom they desired to examine on their behalf; and that the persons who gave evidence in support of the allegations made against them were examined in the absence of the petitioners. In our opinion, in making an order against the petitioners under section 3 (b) of the Act directing them to remove themselves from Damoh District and the contiguous districts, namely, Sagar, Panna, Chhatarpur, Jabalpur and Narsimhapur, the District Magistrate purported to exercise power not given to him by section 3 (b) or any other provision of the Act. Section 3 deals with "dispersal of gangs and bodies of persons". It is not concerned with the externment of an individual as such irrespective of his association with any gang or body of persons of the type described in section 3. That section is intended to hit at the activities of persons who go about together or act in concert and are thus members of a gang or a body having an objectionable community of purpose and intention. It aims at breaking up of any gang or body of persons described in section 3 by providing for the dispersal of the members of the gang or body and for the removal of the members from any district or part thereof and from any contiguous district or districts. It is plain enough that any gang or body of persons having a particular objectionable community of purpose and intention can be weakened or broken up only by the dispersal of the members thereof and not by merely isolating or extending the leader or chiefmen of the gang or the body. The externment of a leader can only lead to a change in the leadership of the gang or the body. But the change in leadership may or may not result in the demoralization of the gang or the body and its ultimate dissolution. The change may even strengthen and consolidate the gang or the body and may lead to an intensification of its activities. But when the strength of a gang or a body lies in action in concert, then it is by the dispersal of the members of the gang or the body that its activities can be effectively arrested or weakened. This is precisely what section 3 intends to achieve.;


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