THE STATE OF MADHYA PRADESH & ORS.versusDHARMENDRA RATHORE

                        [2019] 1 S.C.R. 707                            707


         THE STATE OF MADHYA PRADESH & ORS.                            A
                                 v.
                   DHARMENDRA RATHORE
                 (Criminal Appeal No. 171 of 2019)
                       JANUARY 29, 2019                                B
        [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
      Madhya Pradesh Rajya Suraksha Adhiniyam, 1990:
      ss. 3, 4, 5, 6, 13 and 18 – Power of externment – Competence
of Additional District Magistrate – Held: Scheme of the Adhiniyam      C
contemplates exercise of power of District Magistrate u/s. 3, 4, 5
and 6 by Additional District Magistrate or Sub-Divisional Magistrate
– Hence, Additional District Magistrate is competent to pass the
externment order.
      Allowing the appeals, the Court                                  D
      HELD: 1. In the Statutory Scheme of the Madhya Pradesh
Rajya Suraksha Adhiniyam, 1990, there is no provision, which
prohibits passing an order by an officer lower than the rank of
District Magistrate, rather under Section 13, there is no limitation
on the State Government while specially empowering an officer          E
of the State to exercise the power of District Magistrate under
Sections 3, 4, 5 and 6 and further under Section 18, the powers
and duties of District Magistrate can be directed to be exercised
or performed by Additional District Magistrate or Sub -Divisional
Magistrate for such areas as may be specified in the order. Thus,
the Scheme of the Adhiniyam, 1990 clearly contemplate exercise         F
of the power of District Magistrate under Sections 3, 4, 5 and 6
by an Additional District Magistrate or Sub -Divisional Magistrate.
The Notification dated 05.03.2003 was not under challenge in
the writ petition. [Para 14][715-F-H]
      Ajaib Singh v. Gurbachan Singh AIR 1965 SC 1619 :                G
      [1965] SCR 845 – distinguished.
      2. The period of externment being one year, which has
already expired, there is no useful purpose in considering the
other grounds. [Para 15][716-B]
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                                707
708            SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A                              Case Law Reference
            [1965] SCR 845              distinguished            Para 4
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      171 of 2019.
B           From the Judgment and Order dated 20.06.2014 of the High Court
      of M.P., Bench at Gwalior in WA No. 71 of 2014.
                                        WITH
            Crl. Appeal No. 172 of 2019.
            Varun Chopra, AAG, Mrs. Swarupama Chaturvedi, B. N. Dubey,
C
      Advs. for the Appellants.
            Ms. Nidhi, Adv. for the Respondent.
            The Judgment of the Court was delivered by
            ASHOK BHUSHAN,J. 1. Leave granted.
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            2. These two appeals raising similar question of law has been
      heard together and are being decided by this common judgment. State
      of Madhya Pradesh has filed the appeal questioning the judgment of
      Division Bench of the High Court dated 30.10.2013 passed in Writ Appeal
      No. 244 of 2013 and judgment of Division Bench in Writ Appeal No. 71
E     of 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 the
      facts in Criminal Appeal – The State of Madhya Pradesh & Ors. Vs.
      Dharmendra Rathore. The Additional District Magistrate, Gwalior has
      passed an order dated 26.02.2013 externing the respondent for a period
F     of one year from the district concerned. An appeal was filed by the
      respondent against the order of the Additional District Magistrate before
      the Commissioner, Gwalior Division, which too was dismissed on
      17.06.2013. A writ Petition No. 4818 of 2013 was filed by the respondent
      challenging the order of the Additional District Magistrate as well as of
G     the Commissioner, Gwalior Division. The main ground taken by the
      respondent before the High Court was that the Additional District
      Magistrate had no jurisdictionto pass the order under the Madhya
      Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as
      “Adhiniyam, 1990”). The order can be passed only by District
      Magistrate. Reliance was also placed on an order passed by another
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    THE STATE OF MADHYA PRADESH v. DHARMENDRA                                  709
            RATHORE [ASHOK BHUSHAN, J.]

learned Single Judge dated 30.05.2013 in Writ Petition No. 8555/2012 –         A
Arvind Sharma Vs. State of Madhya Pradesh & Ors. The High Court
relying on judgment of Arvind Sharma Vs. State of Madhya Pradesh &
Ors. allowed the writ petition holding that Additional District Magistrate
was incompetent to pass the order under the Adhiniyam, 1990. Writ
Appeal was filed against the judgment of the High Court by the State of
                                                                               B
Madhya Pradesh being Writ Appeal No. 71 of 2014. By judgment and
order dated 20.06.2014, the writ appeal has been dismissed by Division
Bench relying on its judgment in Writ Appeal No. 244 of 2013 dated
30.10.2013 – State of Madhya Pradesh Vs. Arvind Sharma, in which
judgment, the High Court after considering the provisions of Sections 3,
13 and 29 of the Adhiniyam, 1990 and relying on the Constitution Bench         C
judgment of this Court in Ajaib Singh Vs. Gurbachan Singh, AIR
1965 SC 1619 held that the order could not have been passed by any
authority lower than the rank of District Magistrate. State aggrieved by
the order has come up in this appeal.
      4. Learned counsel for the appellant in support of the appeal            D
contends that High Court committed error in relying on the Constitution
Bench Judgment of this Court in Ajaib Singh Vs. Gurbachan Singh
(supra). He submits that in the case of Ajaib Singh (supra), this Court
had occasion to consider the provisions of Defence of India Act,1962
and Defence of India Rules, which contained a different statutory scheme.
The Statutory Scheme in the Adhiniyam, 1990 being different, the said          E
judgment was not applicable. It is submitted that Additional District
Magistrate was fully competent to pass the order under the Adhiniyam,
1990.
       5. Learned counsel for the respondent supporting the order of the
High Court contends that when Sections 3, 4, 5 and 6 empowers the              F
District Magistrate to pass the order, an authority lower in rank could
not have been passed the order. It is further submitted that the State
Government, in exercise of power under Section 13, can also not delegate
its power to any authority lower in rank to the District Magistrate. It is
further submitted that there were other grounds to challenge the order         G
of Additional District Magistrate in the writ petition but High Court having
considered only one ground, other grounds were not considered.
      6. We have considered the submissions of the learned counsel for
the parties and have perused the records.
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710           SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A           7. It is necessary to notice the statutory scheme under the
      Adhiniyam, 1990. Sections 3 and 4 of the Adhiniyam, 1990 are as
      follows:-
           3. Power to make restriction order. - (1) If a District
           Magistrate is satisfied with respect to any persons that he is acting
B          or is likely to act in a manner prejudicial to the security of the
           State or the maintenance of public order and that, in order to
           prevent him from so acting it is necessary in the interest of the
           general public to make an order under this Section, the District
           Magistrate, may make an order,-
C             (a) requiring him to notify movements or to report himself or
              both to notify his movements and report himself in such manner
              at such times and to such authority or persons as may be
              specified in the order;
              (b) imposing upon him such restrictions as may be specified in
D             the order, in respect of his association or communications with
              such persons as may be mentioned in the order;
              (c) prohibiting or restricting the possession or use by him of
              any such article or articles as may be specified in the order.
           (2) A restriction order made under sub-section (1) shall remain in
E          operation for such period as may be specified therein and shall in
           no case exceed a period of one year from the date of the order.
           4. 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
F          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 an
           order addressed to the persons appearing to be the leaders or
           chiefmen of such gang or body and published by beat of rumor
           otherwise, as the District Magistrate thinks fit, direct the members
G
           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
H             district or any part thereof or such area, and any district or
    THE STATE OF MADHYA PRADESH v. DHARMENDRA                                   711
            RATHORE [ASHOK BHUSHAN, J.]

         districts, or any part thereof contiguous thereto with such time       A
         as the District Magistrate may specify, and not to enter the
         said district or part thereof or such area and such contiguous
         districts, or part thereof, as the case may be or not to return to
         the place from which each of them was directed to remove
         himself.
                                                                                B
       8. Sections 5 and 6 are other provisions, which confer some power
to District Magistrate to remove a person about to commit offence and
remove a person convicted of certain offences. Sections 7 provides
that period of operation of orders under Sections 4, 5 or 6 shall in no
case exceed a period of one year. Section 13 provides for power of
externment of the State Government, which is to the following effect:-          C

      13. Power of externment of State Government. - (1) The
      State Government or the officer specially empowered by the State
      Government in that behalf, may, in like circumstances, and in like
      manner, exercise the powers exercisable in a district by the District
      Magistrate under Section 3, 4, 5 or 6 with this modification that it      D
      shall be lawful for the State Government or the officer specially
      empowered to direct the members of such gang or body, or persons
      or immigrants, or persons convicted, as the case may be, to remove
      themselves from and not to enter or return or any district or districts
      or parts thereof whether contiguous thereto or not.                       E
      (2) The provisions of Sections 7, 8,10, 11 and 12 and of Section 9
      where the order is passed by the officer specially empowered by
      the State Government under sub-section (1) shall mutatis
      mutandis apply to the exercise of any powers under this section
      as they apply to the exercise of any powers under Section 3, 4, 5         F
      or 6.
      (3) Where the order is passed by the State Government under
      sub-section (1), the State Government may, either on its own
      motion or on an application of the person aggrieved, review any
      order passed by itself and pass such order in reference thereto as        G
      it thinks fit :
      Provided that no order shall be varied or reversed unless notice
      has been given to the person concerned to appear and be heard in
      support of such order.
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712            SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A          9. Section 18 deals with delegation of powers and duties of District
      Magistrate, which is to the following effect:-
            18. Delegation of power and duties of District Magistrates. -
            Notwithstanding anything contained in the Code of Criminal
            Procedure, 1973 (2 of 1974), the State Government may by order
B           direct that any power on duty conferred or imposed on a District
            Magistrate under this Act shall be exercised or performed by such
            additional District Magistrate or Sub-Divisional Magistrate and
            for such areas as may be specified in the order
             10. In the present case, the State Government had issued a
C     notification under Section 13 delegating the power of the District
      Magistrate to the Additional District Magistrate divisional head quarter,
      Indore, Jabalpur, Rewa, Ujjain, Bhopal, Gwalior, Hoshangabad, Sagar
      and Chambal (Murena). Notification dated 05.03.2003 is to the following
      effect:-
                            “Madhya Pradesh Gazette
D
                                   Extra-ordinary
                              Published by Authority
                     Bhopal Wednesday dated 5th March, 2003
                          Home Department (C section)
E                        Ministry, Vallabh Bhawan Bhopal
                          Bhopal dated 5th March 2003
            No. F35-116-2001-P-one- In exercise of powers conferred by
            sub section (11) of section 13 of Madhya Pradesh State Security
            Act, 1990 (No. 4 of 1991) and superseding the notification no.
F           F17-1-51-B(1)-2, dated 7th May 1991 and F35-116-2001-T-one
            dated 10th July, 2001 of this very department, the State Government
            hereby empowers the Additional District Magistrate of divisional
            head quarter, Indore, Jabalpur, Rewa, Ujjain, Bhopal, Gwalior,
            Hoshangabad, Sagar and Chambal (Murena) for the purposes of
G           the aforesaid sub section.
                                                                       By order
                                         & in the name of the Governor of MP
                                            Rakesh Sahni, Principal Secretary”


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    THE STATE OF MADHYA PRADESH v. DHARMENDRA                                  713
            RATHORE [ASHOK BHUSHAN, J.]

       11. The entire basis of impugned judgment of the High Court is          A
the Constitution Bench judgment of this Court in Ajaib Singh (supra).
In Ajaib Singh’s case (supra), this Court had occasion to consider the
provisions of Defence of India Act, 1962 and the Rules framed thereunder,
where in that case, one Lall Singh, who was working as Additional District
Magistrate, was invested with the power of District Magistrate under
                                                                               B
Section 10(2) of the code of Criminal Procedure, 1898, had passed an
order of detention of the appellant under the Defence of India Act as
District Magistrate. The challenge was that he was incompetent to
pass an order being not the District Magistrate. It is necessary to consider
theScheme of Section 3(i) of the Act and notice relevant provision in
Paragraph No.6, which is to the following effect:-                             C
      “6. We do not think it necessary for purposes of this case to decide
      the first point raised by the learned Advocate General, for we
      have come to the conclusion that no officer other than the District
      Magistrate 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 the          D
      Rules to which we shall now refer. Section 3(1) of the Act gives
      power to the Central Government by notification in the Official
      Gazette to make such rules as appear to it necessary or expedient
      for securing the defense of India and civil defense, the public
      safety, the maintenance of public order or the efficient conduct of
      military operations, or for maintaining supplies and services            E
      essential to the life of community. Section 3(2) then provides for
      the making of rules for various purposes without prejudice to the
      generality of the powers conferred by section 3(1), and the 15th
      clause thereof provides for detention. The relevant portion of that
      clause necessary for our purposes reads thus :-                          F
          “(15). Notwithstanding anything in any other law for the time
          being in force -
          (i) the apprehension and detention in custody of any person
          whom the authority empowered by the rules to apprehend or
          detain (the authority empowered to detain not being lower in         G
          rank than that of a District Magistrate), suspects, on grounds
          appearing to that authority to be reasonable, of being of hostile
          origin or having acted, acting, being about to act or being likely
          to act in a manner prejudicial to the defense of India and civil
          defense, the security of the State, the public safety or interest,   H
714            SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A               the maintenance of public order, India’s relations with foreign
                States, the maintenance of peaceful conditions in any part or
                area of India or the efficient conduct of military operations, or
                with respect to whom that authority is satisfied that his
                apprehension and detention are necessary for the purpose of
                preventing him from acting in any such prejudicial manner.”
B
                It would be seen that section 3(2)(15)(i) which is the source of
                power to detain according to the Rules to be framed thereunder
                itself lays down that the authority empowered to detain shall
                not be lower in rank than that of a District Magistrate.”
C            12. It is to be noted that under the Statutory Scheme under the
      Defence of India Act, detention order can be passed by the authority
      empowered by the rules to apprehend or detain with restriction that the
      authority empowered to detain not being lower in rank than that of a
      District Magistrate.In view of the above Statutory Scheme, this Court
      held that Additional District Magistrate being not the District Magistrate
D     was incompetent to pass the impugned order. In Paragraph No.7, following
      has been held:-
            “7. Then we came to section 40(2) of the Act, which gives power
            to the State Government to delegate its powers to any officer or
            authority subordinate to it. This power of delegation, however,
E           must be read harmoniously with section 3(2)(15) and therefore
            under section 40(2) the State Government cannot delegate its
            power to detain to any officer below the rank of a District
            Magistrate. Rule 30 of the Rules then provides for detention and
            under that rule that power is conferred on the Central Government
F           or the State Government to detain any person. That power of the
            State Government can however be delegated under section 40(2)
            to any officer subordinate to it. But as we have already indicated
            the power of delegation must be read harmoniously with section
            3(2)(15) and therefore the State Government cannot delegate the
            power to detain to any officer who is lower in rank than the District
G           Magistrate. The position is further clearly brought out in r. 30-A
            which provides for review of a detention order made by an officer.
            It is made clear there also that the officer shall in no case be
            lower in rank than a District Magistrate. The effect of these
            provisions thus is that the power of detention can either be
H           exercised by the State Government or by its delegate who however
    THE STATE OF MADHYA PRADESH v. DHARMENDRA                                715
            RATHORE [ASHOK BHUSHAN, J.]

      can in no case be lower in rank than a District Magistrate. The        A
      Act and the Rules therefore show unmistakably that the power of
      detention can only be exercised by the State Government or an
      officer or authority to whom it might be delegated but who shall in
      no case be lower in rank than a District Magistrate.”
       13. This Court has further contrasted the provisions of the order     B
of that of Preventive Detention Act, when where District Magistrate is
specially empowered. Paragraph No. 8 of the judgment is as follows:-
      “8. We may in this connection contrast the language of section
      3(2) of the Preventive Detention Act, No. 4 of 1950, which lays
      down that any of the following officers, namely :-                     C
          (a) district magistrates,
          (b) additional district magistrates specially empowered in this
          behalf by the State Government,
          (c)......                                                          D
          (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 Additional
      District Magistrate may also exercise the power of detention
      conferred thereunder we would have found a provision similar to        E
      that contained in the Preventive Detention Act.”
        14. Applying the ratio of the above judgment in the facts of the
present case, it is clear that in the Statutory Scheme of the Adhiniyam,
1990, there is no provision, which prohibit passing an order by an officer
lower than the rank of District Magistrate rather under Section 13, there    F
is no limitation on the State Government while specially empowering an
officer of the State to exercise the power of District Magistrate under
Sections 3, 4, 5 and 6 and further under Section 18, the powers and
duties of District Magistrate can be directed to be exercised or performed
by Additional District Magistrate or Sub -Divisional Magistrate for such
areas as may be specified in the order. Thus, the Scheme of the              G
Adhiniyam, 1990 clearly contemplate exercise of the power of District
Magistrate under Sections 3, 4, 5 and 6 by an Additional District
Magistrate or Sub -Divisional Magistrate. The Notification dated
05.03.2003 was not under challenge in the writ petition.
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716             SUPREME COURT REPORTS                        [2019] 1 S.C.R.


A            15. We are, thus, of the view that Constitution Bench Judgment
      of this Court in Ajaib Singh (supra) was not applicable in the facts of
      the present case and High Court committed the error in relying on the
      said judgment for holding that Additional District Magistrate had no
      jurisdiction. The impugned judgment is, thus, unsustainable on the above
      ground. We further notice that the period of externment being one year,
B
      which has already expired, there is no useful purpose in considering the
      other grounds of challenge as contended by the counsel for the
      respondent.
             16. In result, the appeals are allowed. The impugned judgments
      of the High Court are set aside.
C

      Kalpana K. Tripathy                                       Appeals allowed.




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