REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL     NO. 171 of     2019  

(arising out of SLP (Crl.) No.10681/2015)

THE STATE OF MADHYA PRADESH & ORS.    ...APPELLANT(S)

VERSUS

DHARMENDRA RATHORE             ...RESPONDENT(S)

WITH

CRIMINAL APPEAL     NO.  172 of     2019  

(arising out of SLP (Crl.) No.10671/2015)

THE STATE OF MADHYA PRADESH & ORS.    ...APPELLANT(S)

VERSUS

RAMU @ BRAJMOHAN JADON             ...RESPONDENT(S)

J     U     D     G     M     E     N     T

ASHOK     BHUSHAN,J.

Leave granted.

2. These two appeals raising similar question of law

has been heard together and are being decided by this

1

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  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 Civil 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 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 the Commissioner, Gwalior Division.  The main

ground taken by the respondent before the High Court

2

was that the Additional District Magistrate had no

jurisdiction  to  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 learned

Single Judge dated 30.05.2013 in Writ Petition No.

8555/2012 – 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 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

3

of  the  Adhiniyam,  1990  and  relying  on  the

Constitution Bench 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 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 judgment was not applicable.  It

is submitted that Additional District Magistrate was

fully  competent  to  pass  the  order  under  the

Adhiniyam, 1990.   

4

5. Learned counsel for the respondent supporting the

order of the High Court contends that when Sections

3, 4, 5 and 6 empowers the 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  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.

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 or

5

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,-

(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 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 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 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,

6

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 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 with such time 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.

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:-

7

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  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.

(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 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  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.

8

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  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 notification under Section 13 delating 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 Extra-ordinary

Published by Authority Bhopal Wednesday dated 5th March, 2003

Home Department (C section) 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

9

section 13 of Madhya Pradesh State Security Act, 1990 (No. 4 of 1991) and superseding the notification no. 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 the aforesaid sub section.

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

11. The entire basis of impugned judgment of the High

Court  is  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  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 the

10

Scheme  of  Section  3(i)  of  the  Act  and  noticed

relevant provision in Paragraph No.6, which is to the

following effect:-

“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  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 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 :-

"(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

11

in  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, 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."

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.”

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

12

above  Statutory  Scheme,  this  Court  held  that

Additional District Magistrate being not the District

Magistrate  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, 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  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 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 exercised by the State  Government  or  by  its  delegate  who however can in no case be lower in rank than a District Magistrate. The Act and the Rules therefore show unmistakably that the

13

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 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 :-

(a) district magistrates,

(b)  additional  district  magistrates specially empowered in this behalf 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 Additional District Magistrate may also  exercise  the  power  of  detention conferred thereunder we would have found a provision similar to that contained in the Preventive Detention Act.”

14

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 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

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.

15

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,  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.  

......................J.                              ( ASHOK BHUSHAN )

......................J.                              ( K.M. JOSEPH )

New Delhi,  January 29, 2019.        

16