1. By this application under articles 226 and 227 of the Constitution, the petitioner seeks a writ of certiorari for quashing an order passed by the District Magistrate. Sagar, on 23rd March 1967 under sections 4 and 5 of the Madhya Pradesh Maintenance of Public Order Act, 1965, (hereinafter called the Act), directing him to remove himself on or before 2nd April 1967 outside the Sagar district and the contiguous districts of Chhatarpur, Damoh, Narsinsghpur, Raisen Vidisha and Guna, and not to enter or return to the aforesaid districts for a period of one year. The petitioner filed an appeal to the State Government against this order of the District Magistrate. But it was not entertained on the ground that it was barred by time.
2. This petition was heard by us on 22nd January 1968. At the end of the hearing, we recorded an order allowing the petition and quashing the order dated the 23rd March 1967 of the District Magistrate, Sagar, saying that we would give our reasons in support of our conclusion later. Accordingly, we are now giving our reasons for allowing the petition.
3. Sections 4 and 5 of the Act, in so far as they are material here, are as follows:
"4. Removal of persons about to commit offence.--Whenever it appears to the District Magistrate-
(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property: or
(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII under Section 506 or 509 of the Indian Penal Code. 1860 (Act XLV of 1860) or in the abetment of any such offence, and when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property; or
(c) ***** the District Magistrate may, by an order in writing duly served on him or by beat of drum or otherwise as the District Magistrate thinks fit. direct such person or immigrant-
(a) *****
(b) to remove himself outside the district or any part thereof or such area and anv district or districts, or any part thereof, contiguous thereto by such route and within such time as the District Magistrate may specify and not to enter or return to the said district or part thereof or such area and such contiguous districts or part thereof, as the case may be, from which he was directed to remove himself,"
5. Removal of persons convicted of certain offences,-- If a person has been convicted-
(a) if an offence under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (Act XLV of 1860): or
(b) *****
(c) thrice, of an offence within a period of three years under any of the provisions of the aforesaid Prohibition Act. other than those mentioned in Sub-clause (ii) of Clause (b) above or Section 3 or 4 of the Public Gambling Act, 1867 (3 of 1867) in its application to the State of Madhya Pradesh;
the District Magistrate may, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, direct such person to remove himself outside the district or part thereof or such area and any district or districts, or any part thereof, contiguous thereto by such route and within such time, as the District Magistrate may order and not to enter or return to the district or part thereof or such area and such contiguous districts or part thereof, as the case may be, from which he was directed to remove himself.
***** By Section 7 (i) oi the Act. 11 is provided that before making an order under Section 4 or 5 against anv person, the District Magistrate shall 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. The other two sub-sections of Section 7 lay down that if such a person makes an application for examination of the witnesses produced by him. the District Magistrate shall grant such application and examine such 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; any written statement put in by a person against whom an order is intended to be made has to be filed with the record of the case and such person is entitled to appear before the District Magistrate by a legal practitioner for the purpose of tendering his explanation and exa-minine the witnesses produced by him.
4. On 30th January 1967, the District Magistrate issued the followine notice to the petitioner-
‘‘चूंकि मेरे ध्यान में यह लाया गया है कि तुम, जगाथ प्रसाद वल्द वासुदेव जाडिया, सा बंडा बाजार, सागर पर सामान्य जनता क सदस्यों को मारपीट करते, धमकाते हमला करते गालियां देते एवं परशा करते हो, आर कई रिपोर्ट इस सम्बन्ध से तुम्हारे विरूद्ध समय समय पर प्राप्त हो चुकी है; जिनमें के प्रमुख आरोपों का सामान्य विवरण सम्मिलीत है। आर चूंकि तुम भा. दं. सं. कि धारा श्श् के अंतर्गत दि. -श्-श्ष् को दं. प्र. श्रे. सागर द्वारा सिद्धदोष ठहराए जा चुके हो, तथा सार्वजनिक जुआ अधिनियम ष्ष् की धारा या के अंतर्गत अपराध्ी में तीन वर्ष की अवधि में तीन चार सिद्धदोष ठहराया गया हो, और चूंकि यह विवास करने के लिये युक्तियुक्त है कि तुम अपने आपको ऐसे अपराधों के जिसमें बल या हिंसा अंतवर्ेलीत हो, या भा. दं. संहिता के बारहवें अध्याय अथवा उसकी धारा श्श् के अधीन दंडनीय किसी अपराध के करन में, या ऐसे किसी अपराध के अभिप्रेरण में, संलग्न हो अथवा संलग्न होने में आभादा हो, तथा तुम्हारे विरूद्ध साथीगण अपने शरीर या संम्पति की सुरक्षितता के विषय में तुम्हारी ओर से आशंका होने के कारण खुले आम साक्ष्य देने हेतु आगे आने के लिये रजामंद नहंी है, और चूंकि यह विवास करने का कारण है कि तुम्हारे संबंध में वह संभावना है कि तुम उस अपराध के, जिसके लिये तुम्हे सिद्धदोष ठहराया गया था, सदृश्य अपराध करने में स्वयं का पुनः सलग्न करोगे, इसलिये तुमको धारा ष् म. प्र. सार्वजनिक व्यवस्था अधिनियम श्श् के अंतर्गत इस संबंध में दि. -2-श्ष्
तक अपना स्पष्टी करण देने हेतु कहा जाता है क्यों ना तुम्हें उपरोक्त अधिनियम की धारा एवं श् के अंतर्गत जिला सागर तथा इसकसे सीमावतर्ी जिलों जैसे जिला छतरपुर, दमोह, नरसिंगपुर, रायसेन, विदीशा, मुना और टीकमगढसे बाहर निकल जाने हेतु आदेश दिया जावे एवं आदेश की तिथि से एक वर्ष तक वापिस आने अथवा लौटने न दिया जावे।’’ By this notice, the applicant was called upon to offer his explanation and to show cause on or before 10th February 1967 why an order externing him from the districts referred to earlier for a period of one year should not be made against him. After the issue of this notice, the District Magistrate examined on different dates thirty-seven witnesses in support of the allegations made against the petitioner in the notice dated the 30th January 1967 issued to him. It is the grievance of the petitioner that these witnesses were examined in his absence and he was not allowed to cross-examine them. The applicant was, however, informed of the general nature of the material allegations against him. He gave his explanation, and he was allowed to appear through a legal practitioner. The evidence of six witnesses on his behalf was also recorded by the District Magistrate.
5. Ultimately on 23rd March 1967 the impugned order of externment was passed by the District Magistrate. In the order of externment, the District Magistrate has stated that after considering the evidence before him & the explanation offered by the petitioner, it appears to him that the petitioner's movements are causing or are calculated to cause alarm, danger or harm to persons and property, and that there are reasonable grounds for believing that he is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence under Section 506 I. P. C. or in the abetment of these offences and that, in his opinion, the witnesses are not willing to come forward to give evidence in public against him by reason of apprehension on their part as regards the safety of their person and property.
6. The District Magistrate also said in the order of externment that the petitioner has been convicted under Sections 3 and 4 of the Public Gambling Act, 1867, in two cases each on 29th April 1965 and 24th October 1966; that thus he was convicted thrice for these offences within a period of three years, and that he had reason to believe that the applicant was likely again to engage himself in the commission of an offence similar to that for which he was convicted.
7. It will be seen from Section 4 of the Act that the activities on the basis of which an order can be made against a person under that provision must be those as existing at the time when the order is proposed to be made. This is clear from the use of the expressions in Clauses (a) and (b) of Section 4, namely, "movements or acts of any person are causing or calculated to cause", "such person is engaged or is about to be engaged in the commission of an offence", and "when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person". All these expressions connote present time. The provision is not punitive in its nature, and a person cannot be externed under Sec-:ion 4 for his past acts. The power of externment under Section 4 is for the purpose of restraining a person from indulging in activities of the type referred to in clauses (a) and (b) of section 4. Although the past activities of a person may afford a guide as to his behaviour in future, they must be reviewed in the context of the time at which the order under Section 4 is proposed to be made; the past activities must be related to the situation existing at the moment when the District Magistrate makes the order. An order under Section 4 is no doubt based on the opinion and iudgment of the District Magistrate, formed by him on the material before him. But the opinion, which the law requires the District Magistrate to form, and the sufficient cause he must have to believe must be as regards the activities of the person intended to be proceeded against at the time when the order is proposed to be made. It is perfectly true that the opinion of the District Magistrate cannot be questioned by the Court; but the opinion must be arrived at on materials placed before him and on a iudgment, which he himself must make, that the movements or acts of the person a gainst whom an order is to be made are causing or are calculated to cause alarm, danger etc. or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence mentioned in Clause (b) of Section 4.
8. Now, in the present case, such an opinion for the making of an order under Section 4 of the Act was never formed by the District Magistrate. As is evident from the order passed by the District Magistrate on 23rd March 1967, the material before him related to the activities of the petitioner during the years 1961 to 1966. The District Magistrate said that after considering this material about the petitioner's past activities it appeared to him that the petitioner's movements are causing or are calculated to cause alarm, danger or harm to persons and property, and that there are reasonable grounds for believing that he is engaged or is about to be engaged in the commission of an offence under Section 506, Indian Penal Code, or of an offence involving force or violence. Thus the opinion, which the District Magistrate formed under Section 4 of the Act, was on the basis of the petitioner's activities which had no relation whatsoever to the situation existing at the moment when the order under Section 4 was made against him. The opinion, which the law requires the District Magistrate to form, is as regards the activities of the person at the time when the order under Section 4 is made. It is, therefore, plain that in this case the District Magistrate did not form the opinion which the law required him in form under Section 4 before making an order against the applicant under that provision. The order made against the petitioner under Section 4 cannot, therefore, be sustained.
9. The order of externment cannot be upheld even with reference to Section 5 of the Act. The District Magistrate thought that as the applicant had been convicted under Sections 3 and 4 of the Public Gambling Act, 1867 in two cases, one on 29th April 1965 and another on 24th October 1966, he was, therefore, convicted more than three times within a period of three vears. But Clause (c) of Section 5, when it says that a person must have been convicted thrice of an offence under Section 3 or 4 of the Pub-lie Gambling Act, 1867. means that the person must have been convicted thrice of an offence under Section 3 or thrice of an offence under Section 4 of the Public Gambling Act, 1867. The District Magistrate thought that when the petitioner was convicted in one case under Sections 3 and 4 of the Public Gambling Act, he was convicted twice, and when he was again convicted for those offences in another case there were two more convictions and hence he was convicted four times of those offences. The plain construction of Clause (c) of Section f is that the person must have been convictec three times of an offence under Section 3 or Section 4 of the Public Gambling Act, 1867 If, therefore, as we think, the petitioner was not convicted thrice of an offence under Section 3 or 4 of the Public Gambling Act. 1867 within a period of three years, then clearly the District Magistrate had no jurisdiction to make any order against him under Section 5 of the Act.
10. In this view of the matter, it is not necessary to consider the contention of the petitioner that the District Magistrate examined witnesses in his absence and that he was not allowed to cross-examine them. But it may, however, be pointed out that in Gurbachan Singh v. State of Bombay, AIR 1952 SC 221 a similar argument, with reference to Section 27(4) of the City of Bombay Police Act, 1902, somewhat analogous to Section 7(1) of the Local Act, was rejected by the Supreme Court by making the following observations;
"The only point which Mr. Umrigar attempts to make in regard to the reasonableness of this procedure is that the suspected person is not allowed to cross-examine the witnesses who deposed against him and on whose evidence that proceedings were started. In our opinion, this by itself would not make the procedure unreasonable having regard to the avowed intention of the legislature in making the enactment. The law is certainly an extraordinary one and has been made only to meet those exceptional cases where no witness for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety of the public residing therein. This object would be wholly defeated if a right to confront or cross-examine these witnesses was given to the suspect. The power to initiate proceeding under the Act has been vested in a very high and responsible officer and he is expected to act with caution and impartiality while discharging his duties under the Act."
11. For these reasons, the order dated the 23rd March 1967 of the District Magistrate, Sagar, under Sections 4 and 5 of the Madhya Pradesh Maintenance of Public Order Act, 1965. directing the petitioner to remove himself outside the Sagar District and certain contiguous districts is quashed. The petitioner shall have costs of this application. Counsel's fee is fixed at Rs. 100. The outstanding amount of security deposit shall be refunded to the petitioner.