THE STATE OF MADHYA PRADESH & ORS. versus DHARMENDRA RATHORE on 29 January 2019

THE STATE OF MADHYA PRADESH & ORS.

v.

DHARMENDRA RATHORE

(Criminal Appeal No. 171 of 2019)

JANUARY 29, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Madhya Pradesh Rajya Suraksha Adhiniyam, 1990:

ss. 3, 4, 5, 6, 13 and 18 – Power of externment – Competenceof Additional District Magistrate – Held: Scheme of the Adhiniyamcontemplates exercise of power of District Magistrate u/s. 3, 4, 5and 6 by Additional District Magistrate or Sub-Divisional Magistrate– Hence, Additional District Magistrate is competent to pass theexternment order.

Allowing the appeals, the Court

HELD: 1. In the Statutory Scheme of the Madhya PradeshRajya Suraksha Adhiniyam, 1990, there is no provision, whichprohibits passing an order by an officer lower than the rank ofDistrict Magistrate, rather under Section 13, there is no limitationon the State Government while specially empowering an officerof the State to exercise the power of District Magistrate underSections 3, 4, 5 and 6 and further under Section 18, the powersand duties of District Magistrate can be directed to be exercisedor performed by Additional District Magistrate or Sub -DivisionalMagistrate for such areas as may be specified in the order. Thus,the Scheme of the Adhiniyam, 1990 clearly contemplate exerciseof the power of District Magistrate under Sections 3, 4, 5 and 6by an Additional District Magistrate or Sub -Divisional Magistrate.The Notification dated 05.03.2003 was not under challenge inthe writ petition. [Para 14][715-F-H]

Ajaib Singh v. Gurbachan Singh AIR 1965 SC 1619 :[1965] SCR 845 – distinguished.

2. The period of externment being one year, which hasalready expired, there is no useful purpose in considering theother grounds. [Para 15][716-B]

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SUPREME COURT REPORTS

ACase Law Reference

[1965] SCR 845distinguishedPara 4

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.171 of 2019.

From the Judgment and Order dated 20.06.2014 of the High Courtof M.P., Bench at Gwalior in WA No. 71 of 2014.

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Crl. Appeal No. 172 of 2019.

Varun Chopra, AAG, Mrs. Swarupama Chaturvedi, B. N. Dubey,Advs. for the Appellants.

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Ms. Nidhi, Adv. for the Respondent.

The Judgment of the Court was delivered by ASHOK BHUSHAN,J. 1. Leave granted.D

2. These two appeals raising similar question of law has beenheard together and are being decided by this common judgment. Stateof Madhya Pradesh has filed the appeal questioning the judgment ofDivision Bench of the High Court dated 30.10.2013 passed in Writ AppealNo. 244 of 2013 and judgment of Division Bench in Writ Appeal No. 71Eof 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 thefacts in Criminal Appeal – The State of Madhya Pradesh & Ors. Vs.Dharmendra Rathore. The Additional District Magistrate, Gwalior haspassed an order dated 26.02.2013 externing the respondent for a periodFof one year from the district concerned. An appeal was filed by therespondent against the order of the Additional District Magistrate beforethe Commissioner, Gwalior Division, which too was dismissed on17.06.2013. A writ Petition No. 4818 of 2013 was filed by the respondentchallenging the order of the Additional District Magistrate as well as ofGthe Commissioner, Gwalior Division. The main ground taken by therespondent before the High Court was that the Additional DistrictMagistrate had no jurisdictionto pass the order under the MadhyaPradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as“Adhiniyam, 1990”). The order can be passed only by DistrictMagistrate. Reliance was also placed on an order passed by another H

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learned Single Judge dated 30.05.2013 in Writ Petition No. 8555/2012 –Arvind Sharma Vs. State of Madhya Pradesh & Ors. The High Courtrelying on judgment of Arvind Sharma Vs. State of Madhya Pradesh &Ors. allowed the writ petition holding that Additional District Magistratewas incompetent to pass the order under the Adhiniyam, 1990. WritAppeal was filed against the judgment of the High Court by the State ofMadhya Pradesh being Writ Appeal No. 71 of 2014. By judgment andorder dated 20.06.2014, the writ appeal has been dismissed by DivisionBench relying on its judgment in Writ Appeal No. 244 of 2013 dated30.10.2013 – State of Madhya Pradesh Vs. Arvind Sharma, in whichjudgment, the High Court after considering the provisions of Sections 3,13 and 29 of the Adhiniyam, 1990 and relying on the Constitution Benchjudgment of this Court in Ajaib Singh Vs. Gurbachan Singh, AIR1965 SC 1619 held that the order could not have been passed by anyauthority lower than the rank of District Magistrate. State aggrieved bythe order has come up in this appeal.

4. Learned counsel for the appellant in support of the appealcontends that High Court committed error in relying on the ConstitutionBench Judgment of this Court in Ajaib Singh Vs. Gurbachan Singh(supra). He submits that in the case of Ajaib Singh (supra), this Courthad occasion to consider the provisions of Defence of India Act,1962and Defence of India Rules, which contained a different statutory scheme.

The Statutory Scheme in the Adhiniyam, 1990 being different, the saidjudgment was not applicable. It is submitted that Additional DistrictMagistrate was fully competent to pass the order under the Adhiniyam,1990.

5. Learned counsel for the respondent supporting the order of theHigh Court contends that when Sections 3, 4, 5 and 6 empowers theDistrict Magistrate to pass the order, an authority lower in rank couldnot have been passed the order. It is further submitted that the StateGovernment, in exercise of power under Section 13, can also not delegateits power to any authority lower in rank to the District Magistrate. It isfurther submitted that there were other grounds to challenge the orderof Additional District Magistrate in the writ petition but High Court havingconsidered only one ground, other grounds were not considered.

6. We have considered the submissions of the learned counsel forthe parties and have perused the records.

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710SUPREME COURT REPORTS

A7. It is necessary to notice the statutory scheme under theAdhiniyam, 1990. Sections 3 and 4 of the Adhiniyam, 1990 are asfollows:-

3. Power to make restriction order. - (1) If a DistrictMagistrate is satisfied with respect to any persons that he is actingBor is likely to act in a manner prejudicial to the security of theState or the maintenance of public order and that, in order toprevent him from so acting it is necessary in the interest of thegeneral public to make an order under this Section, the DistrictMagistrate, may make an order,- C(a) requiring him to notify movements or to report himself orboth to notify his movements and report himself in such mannerat such times and to such authority or persons as may bespecified in the order; (b) imposing upon him such restrictions as may be specified inDthe order, in respect of his association or communications withsuch persons as may be mentioned in the order;

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

(2) A restriction order made under sub-section (1) shall remain inEoperation for such period as may be specified therein and shall inno case exceed a period of one year from the date of the order.

4. Dispersal of gangs and bodies of persons. - Whenever itappears to the District Magistrate that the movement orencampment of any gang or body of persons in the district isFcausing or is calculated to cause danger or alarm or reasonablesuspicion that unlawful designs are entertained by such gang orbody, or by members thereof the District Magistrate, may by anorder addressed to the persons appearing to be the leaders orchiefmen of such gang or body and published by beat of rumorotherwise, as the District Magistrate thinks fit, direct the membersGof such gang or body,- (a) to conduct themselves in such manner as may be necessaryin order to prevent violence and alarm; or (b) to disperse and each of them to remove himself outside thedistrict or any part thereof or such area, and any district or H

districts, or any part thereof contiguous thereto with such timeas the District Magistrate may specify, and not to enter thesaid district or part thereof or such area and such contiguousdistricts, or part thereof, as the case may be or not to return tothe place from which each of them was directed to removehimself.

8. Sections 5 and 6 are other provisions, which confer some powerto District Magistrate to remove a person about to commit offence andremove a person convicted of certain offences. Sections 7 providesthat period of operation of orders under Sections 4, 5 or 6 shall in nocase exceed a period of one year. Section 13 provides for power ofexternment of the State Government, which is to the following effect:-

13. Power of externment of State Government. - (1) TheState Government or the officer specially empowered by the StateGovernment in that behalf, may, in like circumstances, and in likemanner, exercise the powers exercisable in a district by the DistrictMagistrate under Section 3, 4, 5 or 6 with this modification that itshall be lawful for the State Government or the officer speciallyempowered to direct the members of such gang or body, or personsor immigrants, or persons convicted, as the case may be, to removethemselves from and not to enter or return or any district or districtsor parts thereof whether contiguous thereto or not.

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

(3) Where the order is passed by the State Government undersub-section (1), the State Government may, either on its ownmotion or on an application of the person aggrieved, review anyorder passed by itself and pass such order in reference thereto asit thinks fit :

Provided that no order shall be varied or reversed unless noticehas been given to the person concerned to appear and be heard insupport of such order.

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A9. Section 18 deals with delegation of powers and duties of DistrictMagistrate, which is to the following effect:-

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

10. In the present case, the State Government had issued aCnotification under Section 13 delegating the power of the DistrictMagistrate to the Additional District Magistrate divisional head quarter,Indore, Jabalpur, Rewa, Ujjain, Bhopal, Gwalior, Hoshangabad, Sagarand Chambal (Murena). Notification dated 05.03.2003 is to the followingeffect:- “Madhya Pradesh GazetteD

Extra-ordinary

Published by Authority

Bhopal Wednesday dated 5th March, 2003

Home Department (C section)

EMinistry, Vallabh Bhawan Bhopal

Bhopal dated 5th March 2003

No. F35-116-2001-P-one- In exercise of powers conferred bysub section (11) of section 13 of Madhya Pradesh State SecurityAct, 1990 (No. 4 of 1991) and superseding the notification no.FF17-1-51-B(1)-2, dated 7th May 1991 and F35-116-2001-T-onedated 10th July, 2001 of this very department, the State Governmenthereby empowers the Additional District Magistrate of divisionalhead quarter, Indore, Jabalpur, Rewa, Ujjain, Bhopal, Gwalior,Hoshangabad, Sagar and Chambal (Murena) for the purposes ofthe aforesaid sub section.G

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

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11. The entire basis of impugned judgment of the High Court isthe Constitution Bench judgment of this Court in Ajaib Singh (supra).In Ajaib Singh’s case (supra), this Court had occasion to consider theprovisions of Defence of India Act, 1962 and the Rules framed thereunder,where in that case, one Lall Singh, who was working as Additional DistrictMagistrate, was invested with the power of District Magistrate underSection 10(2) of the code of Criminal Procedure, 1898, had passed anorder of detention of the appellant under the Defence of India Act asDistrict Magistrate. The challenge was that he was incompetent topass an order being not the District Magistrate. It is necessary to considertheScheme of Section 3(i) of the Act and notice relevant provision inParagraph No.6, which is to the following effect:- “6. We do not think it necessary for purposes of this case to decidethe first point raised by the learned Advocate General, for wehave come to the conclusion that no officer other than the DistrictMagistrate 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 theRules to which we shall now refer. Section 3(1) of the Act givespower to the Central Government by notification in the OfficialGazette to make such rules as appear to it necessary or expedientfor securing the defense of India and civil defense, the publicsafety, the maintenance of public order or the efficient conduct ofmilitary operations, or for maintaining supplies and servicesessential to the life of community. Section 3(2) then provides forthe making of rules for various purposes without prejudice to thegenerality of the powers conferred by section 3(1), and the 15thclause thereof provides for detention. The relevant portion of thatclause necessary for our purposes reads thus :- “(15). Notwithstanding anything in any other law for the timebeing in force -

(i) the apprehension and detention in custody of any personwhom the authority empowered by the rules to apprehend ordetain (the authority empowered to detain not being lower inrank than that of a District Magistrate), suspects, on groundsappearing to that authority to be reasonable, of being of hostileorigin or having acted, acting, being about to act or being likelyto act in a manner prejudicial to the defense of India and civildefense, the security of the State, the public safety or interest, A

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the maintenance of public order, India’s relations with foreignStates, the maintenance of peaceful conditions in any part orarea of India or the efficient conduct of military operations, orwith respect to whom that authority is satisfied that hisapprehension and detention are necessary for the purpose ofpreventing him from acting in any such prejudicial manner.”

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It would be seen that section 3(2)(15)(i) which is the source ofpower to detain according to the Rules to be framed thereunderitself lays down that the authority empowered to detain shallnot be lower in rank than that of a District Magistrate.”

C12. It is to be noted that under the Statutory Scheme under theDefence of India Act, detention order can be passed by the authorityempowered by the rules to apprehend or detain with restriction that theauthority empowered to detain not being lower in rank than that of aDistrict Magistrate.In view of the above Statutory Scheme, this Courtheld that Additional District Magistrate being not the District MagistrateDwas incompetent to pass the impugned order. In Paragraph No.7, followinghas been held:- “7. Then we came to section 40(2) of the Act, which gives powerto the State Government to delegate its powers to any officer orauthority subordinate to it. This power of delegation, however,Emust be read harmoniously with section 3(2)(15) and thereforeunder section 40(2) the State Government cannot delegate itspower to detain to any officer below the rank of a DistrictMagistrate. Rule 30 of the Rules then provides for detention andunder that rule that power is conferred on the Central GovernmentFor the State Government to detain any person. That power of theState Government can however be delegated under section 40(2)to any officer subordinate to it. But as we have already indicatedthe power of delegation must be read harmoniously with section3(2)(15) and therefore the State Government cannot delegate thepower to detain to any officer who is lower in rank than the DistrictGMagistrate. The position is further clearly brought out in r. 30-Awhich provides for review of a detention order made by an officer.It is made clear there also that the officer shall in no case belower in rank than a District Magistrate. The effect of theseprovisions thus is that the power of detention can either beexercised by the State Government or by its delegate who however H

can in no case be lower in rank than a District Magistrate. TheAct and the Rules therefore show unmistakably that the power ofdetention can only be exercised by the State Government or anofficer or authority to whom it might be delegated but who shall inno case be lower in rank than a District Magistrate.”

13. This Court has further contrasted the provisions of the orderof that of Preventive Detention Act, when where District Magistrate isspecially empowered. Paragraph No. 8 of the judgment is as follows:- “8. We may in this connection contrast the language of section3(2) of the Preventive Detention Act, No. 4 of 1950, which laysdown that any of the following officers, namely :- (a) district magistrates, (b) additional district magistrates specially empowered in thisbehalf 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 AdditionalDistrict Magistrate may also exercise the power of detentionconferred thereunder we would have found a provision similar tothat contained in the Preventive Detention Act.”

14. Applying the ratio of the above judgment in the facts of thepresent case, it is clear that in the Statutory Scheme of the Adhiniyam,1990, there is no provision, which prohibit passing an order by an officerlower than the rank of District Magistrate rather under Section 13, thereis no limitation on the State Government while specially empowering anofficer of the State to exercise the power of District Magistrate underSections 3, 4, 5 and 6 and further under Section 18, the powers andduties of District Magistrate can be directed to be exercised or performedby Additional District Magistrate or Sub -Divisional Magistrate for suchareas as may be specified in the order. Thus, the Scheme of theAdhiniyam, 1990 clearly contemplate exercise of the power of DistrictMagistrate under Sections 3, 4, 5 and 6 by an Additional DistrictMagistrate or Sub -Divisional Magistrate. The Notification dated05.03.2003 was not under challenge in the writ petition.

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A15. We are, thus, of the view that Constitution Bench Judgmentof this Court in Ajaib Singh (supra) was not applicable in the facts ofthe present case and High Court committed the error in relying on thesaid judgment for holding that Additional District Magistrate had nojurisdiction. The impugned judgment is, thus, unsustainable on the aboveground. We further notice that the period of externment being one year,Bwhich has already expired, there is no useful purpose in considering theother grounds of challenge as contended by the counsel for therespondent.

16. In result, the appeals are allowed. The impugned judgmentsof the High Court are set aside.C

Kalpana K. Tripathy

Appeals allowed.

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