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Externment order passed without showing immediate engagement liable to be set aside: MP High Court

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In a petition under Article 226 of the Constitution under Section 9 of the M.P. Rajya Suraksha Adhiniyam, 1990,MP High Court Held that If the satisfaction recorded by the authority in an order of externment, isobjective and is based on material on record then the Court would not interfere with the order passed by the authority, only because another view can possibly be taken.

However, the satisfaction of the authority can be interfered with if the same is demonstrably perverse, based on no evidence, misleading evidence or no reasonable person could have, on the basis of materials on record, being satisfied of the expediency/ necessity of passing an order of externment.

The Supreme Court in the matter of Rahmat Khan @ Rammu

Bismillah Vs. Deputy Commissioner of Police9 has considered the

validity of an order of externment under the provisions of Maharashtra

Police Act, 1951. While setting aside the order of externment in

Paragraph No. 26, the Apex Court has held that the authority passing

the order must be satisfied by the expediency of passing the order. If

the satisfaction recorded by the authority is objective and is based on

material on record then the Court would not interfere with the order

passed by the authority only because another view can possibly be

taken. However, the satisfaction of the authority can be interfered with

if the same is demonstrably perverse, based on no evidence,

misleading evidence or no reasonable person could have, on the basis

of materials on record, being satisfied of the expediency/ necessity of

passing an order of externment.

Court also held that Requirement of the law is existence of “some material” on record. It is not the “sufficiency of the material.’ “Existence of the material’’ which is sine qua non of order of externment.

The requirement of provision of Section 5(b) the Act of 1990 also provides

that District Magistrate has to form a specific opinion that the witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension or there is an apprehension on their part as regards the safety of their person or property.

The exercise of such a power causes serious restrictions on the fundamental right to freedom under Article 19(1) of the Constitution and the fundamental right to personal liberty under Article 21 of the Constitution and unless the conditions mentioned under Section 5(b) of the Act of 1990 are strictly satisfied, an order of externment cannot be justified.

A matter involving valuable fundamental rights i.e. Right to Freedom or Right to personal liberty needs to be considered seriously and in cases of this nature it is expected that the authorities should file para-wise reply atleast clarifying the factual position.

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