Delhi High Court
Bharat Singh vs State Of Nct Of Delhi & Anr. on 29 April, 2019
Author: Sangita Dhingra Sehgal
Bench: Sangita Dhingra Sehgal
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL.) 260/2019
% Judgment reserved on: 2nd April, 2019
Judgment pronounced on: 29th April, 2019
BHARAT SINGH ..... Petitioner
Through: Ms.Isha Khanna, Ms. Nidhi Raman,
Mr. Anam Ahmed and Mr. Rajan Lal
Advocates.
versus
STATE OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Rajesh Mahajan, ASC (Crl.) for
Ms. Nandita Rao, ASC (Crl.) with
SI Jitender Kumar, PS- Sonia Vihar
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
W.P.(CRL.) 260/2019
1. The petitioner has invoked the writ jurisdiction of this court under
Article 226 of the Constitution of India read with Section 482 of the
Code of Criminal Procedure, 1973 (hereinafter referred as
"Cr.P.C.") for setting aside the order dated 19.12.2018 passed by the
Lt. Governor, Delhi and order dated 11.10.2018 passed by Additional
Deputy Commissioner of Police, North-East District, Delhi.
2. Brief facts of the case are as under:
"(i) That the process of externment started when the
petitioner received a notice dated 03.02.2017 under
Section 50 of the Delhi Police Act, 1978 whereby the
W.P.(Crl.)260/2019 Page 1 of 12
petitioner was asked to tender his explanation
regarding the allegations leveled in the said notice.
As per the said notice, an externment proposal under
Section 47 of the Delhi Police Act, 1978 was sent by
the SHO/Sonia Vihar through ACP/Khajuri Khas for
the externment of the petitioner as he was involved in
the following cases:-
1) FIR No. 94/1992 under Section 452/34 IPC
registered at Police Station Gokal Puri
2) FIR No. 114/1992 under Section
354/506/34
IPC registered at PS Gokal Puri
3) FIR No. 330/1999 under Section 3/4
D.P.P.Act registered at PS Khajuri Khas
4) FIR No. 50/2001 under Section
420/379/506/34 IPC registered at PS
Khajuri Khas
5) FIR No. 53/2012 under Section
325/341/34IPC read with Section
27/54/59
Arms Act registered at PS Sonia Vihar
6) FIR No. 242/2013 under Section
308/323/34 IPC registered at PS Sonia
Vihar
7) FIR No. 349/2016 under Section
323/341/506/34 IPC registered at PS
Sonia Vihar
(ii) It was proposed, that the petitioner be externed
as he was found to be engaged in various offences
and his movements were calculated to cause alarm,
harm and danger to persons and property and his
presence in Delhi or any part thereof would be
hazardous to the community. It was also alleged that
witnesses were not willing to come forward to give
their evidence in public because of the apprehension
of retaliation by the petitioner.
W.P.(Crl.)260/2019 Page 2 of 12
(iii) The petitioner appeared before Additional
Deputy Commissioner of Police, North East District
and submitted his reply on 23.05.2017, wherein he
stated that he has been falsely implicated in the said
case. On 10.10.2017 the SHO/Sonia Vihar was
examined as Prosecution Witness and the petitioner
was asked to produce defence witness in his defence.
Accordingly on 21.11.2017 the petitioner produced
one defence witness namely 'Maha Singh' whose
statement was recorded and was kept on record.
During the course of proceedings before the Court of
Additional Deputy Commissioner of Police, North
East District the petitioner was found to be involved
in FIR No. 101/2018 U/s 308/354/323/341/506/34
IPC registered at Police Station Sonia Vihar.
Subsequently a supplementary notice was issued on
04.10.2018 under Section 47 of the Delhi Police Act,
1978 directing the petitioner to explain as to why an
order of externment should not be passed against
him.
(iv) Subsequently, on 11.10.2018 an order was
passed by the Additional Deputy Commissioner of
Police, North East District externing the petitioner
for a period of six months with effect from
18.10.2018, whereby the petitioner was directed to
not enter or return to the area of National Capital
Territory of Delhi within the said period without a
written permission from the competent authority.
(v) Further on 15.10.2018 an appeal U/s 51 of Delhi
Police Act was filed by the petitioner before the Lt.
Governor, Delhi impugning the order dated
11.10.2018 of the Additional Deputy Commissioner
of Police. The Lt. Governor, Delhi upheld the order
of the Additional Deputy Commissioner of Police and
noted that the 'appellant had been found involved in
eight cases involving offences like molestation,
causing grievous hurt, culpable homicide not
amounted to murder, criminal trespass etc and under
W.P.(Crl.)260/2019 Page 3 of 12
the Preventive of Damage to Public Property Act &
Arms Act, which adversely affects the normal life of
the citizens, particularly women.' By impugned order
dated 15.10.2018, the Lt. Governor concurred with
the findings of the Addl. DCP and held that even
during the pendency of the externment proceedings,
the petitioner has not desisted himself from indulging
in unlawful activities which shows that he has not
mended his ways."
3. Ms. Isha Khanna learned counsel appearing for the petitioner
contended that the petitioner cannot be termed as a 'habitual offender
because as per the explanation under Section 47 of the Delhi Police
Act, habitual offender would be a person who has involved himself
in cases on three occasions or more within one year immediately
preceding the commencement of the offence.
4. Learned Counsel for the Petitioner further contended that the mere
apprehension by the police that the petitioner might be involved in
criminal activities is not enough because a clear and foreseen danger,
based upon credible material which makes the movement and acts of
the person in question dangerous must be seen in order to warrant an
externment order under the Delhi Police Act. For supporting its
contention learned counsel for the petitioner relied upon the case of
Jugal Kishore Vs Lt. Governor, Delhi & Anr reported in 2017(2)
JCC 1335.
5. She further contended that the cases against the petitioner are inter-
spread over a long span of time from 1992 to 2018 and that too, after
long intervals, wherein both the authorities have failed to appreciate
that out of total seven cases pending, the petitioner has been
W.P.(Crl.)260/2019 Page 4 of 12
acquitted in two cases, two cases have been compromised and two
cases are pending for adjudication while in one case, he has been
released on a meager fine of Rs.2000. Counsel for the petitioner has
lastly urged that the impugned order being highly arbitrary has
resulted in curtailing the life and liberty of the petitioner.
6. Per contra, the learned Additional Standing Counsel for the State
while defending the orders submitted that the Additional DCP was
satisfied about the criminal proclivity of the petitioner based upon
the materials available on record; he further submitted that the
petitioner is involved in various criminal activities which are
unambiguous from the various First Information Reports registered
against him.
7. He further submitted that the scope of judicial review of the
administrative order is limited to the legality of the decision-making
process and not to the legality of the order per se. Therefore, no
judicial interference is required in the event of the possibility of any
plausible view with regard to the petitioner being dangerous and
hazardous to the society. Learned counsel for the state relied upon
the case of State of NCT Delhi & Anr vs Sanjeev Alia Bittoo
reported in 2005 5 SCC 181 and Suresh Vs Lt. Governor, Delhi &
Ors reported in 2014 (4) JCC 2913.
8. Learned Counsel for the State further contended that during the
pendency of the externment proceedings before the Additional
Deputy Commissioner of Police the petitioner was found to be
involved in one more case for the offence punishable under
Section 308/354/323/341/506/34 of the IPC, which shows that he
W.P.(Crl.)260/2019 Page 5 of 12
was a habitual offender and has no respect for law. He further
contended that he is a land grabber and due to his fear, the
prosecution failed to adduce any independent witness.
9. Counsel for the State lastly submitted that the impugned order was
based on correct material available on record and the settled legal
proposition and did not suffer from any impropriety or illegality and
therefore does not warrant any interference.
10. I have given my anxious consideration to the submissions advanced
on behalf of learned counsel for the parties and also perused the
material available on record.
11. At the outset, before delving into merits of the submissions made by
learned counsel for the parties, I find it appropriate to discuss the
relevant provisions of the Delhi Police Act, 1978
involved in the instant case:-
"47. Removal of persons about to commit
offences.--
Whenever it appears to the Commissioner of
Police--
(a) that the movements or acts of any person are
causing or are 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,
Chapter XVI, Chapter XVII or Chapter XXII of the
Indian Penal Code (45 of 1860) or under section 290
or sections 489A to 489E (both inclusive) of that
Code or in the abetment of any such offence; or
(c) that such person--
W.P.(Crl.)260/2019 Page 6 of 12
(i) is so desperate and dangerous as to render his
being at large in Delhi or in any part thereof
hazardous to the community; or
(ii) has been found habitually intimidating other
persons by acts of violence or by show of force; or
(iii) habitually commits affray or breach of peace or
riot, or habitually makes forcible collection of
subscription or threatens people for illegal pecuniary
gain for himself or for others; or
(iv) has been habitually passing indecent remarks on
women and girls, or teasing them by overtures; and
that in the opinion of the Commissioner of Police
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, the Commissioner of Police
may, by order in writing duly served on such person,
or by beat of drum or otherwise as he thinks fit,
direct such person to so conduct himself as shall
seem necessary in order to prevent violence and
alarm or to remove himself outside Delhi or any part
thereof, by such route and within such time as the
Commissioner of Police may specify and not to enter
or return to Delhi or part thereof, as the case may be,
from which he was directed to remove himself.
Explanation.--A person who during a period within
one year immediately preceding the commencement
of an action under this section has been found on
not less than three occasions to have committed or
to have been involved in any of the acts referred to in
this section shall be deemed to have habitually
committed that act.
50 - Hearing to be given before order under
section 46, 47 or 48 is passed-
(1) Before an order under section 46, section 47 or
section 48 is made against any person, the
Commissioner of Police shall by notice in writing
W.P.(Crl.)260/2019 Page 7 of 12
inform him of the general nature of the material
allegations against him and give him a reasonable
opportunity of tendering an explanation regarding
them.
(2) If such person makes an application for the
examination of any witness to be produced by him,
the Commissioner of Police shall grant such
application and examine such witness, unless for
reasons to be recorded in writing, the Commissioner
of Police is of opinion that such application is made
for the purpose of causing vexation or delay.
(3) Any written explanation put in by such person
shall be filed with the record of the case.
(4) Such person shall be entitled to be represented in
the proceeding before the Commissioner of Police by
a counsel.
(5) (a) The Commissioner of Police may for the
purpose of securing the attendance of any person
against whom any order is proposed to be made
under section 46, section 47 or section 48 require
such person, by order in writing, to appear before
him and to furnish a security bond with or
without sureties for attendance during the
inquiry.
(b) The provisions of sections 119 to 124 (both
inclusive) of the Code of Criminal Procedure,
1973 (2 of 1974), shall, so far as may be, apply in
relation to the order under clause (a) to furnish
security bond.
(6) Without prejudice to the foregoing provisions, the
Commissioner of Police, while issuing notice to any
person under sub-section (1) may issue a warrant for
his arrest and the provisions of sections 70 to 89
(both inclusive) of the Code of Criminal Procedure,
1973 (2 of 1974), shall, so far as may be, apply in
relation to such warrant. (7) The provisions of section
445, section 446, section 447 or section 448 of the
Code of Criminal Procedure, 1973 (2 of 1974), shall,
W.P.(Crl.)260/2019 Page 8 of 12
so far as may be, apply in relation to all bonds
executed under this section."
12. A bare perusal of the Section 47 of DP Act shows that it consists of
three parts. The First Part relates to satisfaction of the
Commissioner of Police that: -
(i) the movements or acts of any person are causing or calculated
to cause alarm or danger or harm to any person or property; or
(ii) there are reasonable grounds to believe that such person is
engaged or is about to be engaged in the commission of an
offence under Chapter XII (related to coins/Government
stamps) or Chapter XVI (offences affecting human body) or
Chapter XVII (offences against property) or Chapter XXII
(relating to criminal intimidation, insult and annoyance) or
Section 290 or Section 489A to 489E of IPC or in abetment of
any such offence, or
(iii) such person: -
(a) is so desperate and dangerous so as to render his roaming
at large in Delhi or in any part thereof would be hazardous
to the community; or
(b) has been found habitually intimidating persons; or
(c) causing affray; or breach of peace or riot, or habitually
makes forcible collection of subscription or threatened to be;
or
(d) has been habitually passing indecent remarks on women
and girls, or teasing;
W.P.(Crl.)260/2019 Page 9 of 12
13. Second Part of the section deals with forming further opinion and
satisfaction by the Commissioner of Police in conjunction with any
one of the grounds or all the grounds that out of fear witnesses are
not willing to come forward to depose against such person. Third
Part authorizes the Commissioner to Police to adopt any of three
options (i) to behave, or (ii) to remove himself outside Delhi, or (iii)
to remove himself from any part of Delhi.
14. Subsequently, the word 'habitually' mentioned in sub-clause (ii), (iii)
& (iv) of sub-section (C) of Section 47 of DP Act is elaborated by the
explanation which says that a person who within a period of one year
immediately preceding the commencement of an action under
Section 47 of DP Act is found in not less than three occasions to have
committed or to have been involved in any of the acts referred in sub-
clauses, shall be deemed to have been habitually committed that act.
15. The provisions of Section 47 and 50 therefore, have to be read
strictly, considering the strain that it puts on an externee. The
considerations for externing a person ought to be in consonance with
the requirements of law and the satisfaction arrived at by the
executive authorities, which must pass the test of reasonableness.
Hence any executive order which is not executed with fairness
cannot be sustained on any account.
16. Returning to the facts of the present case, admittedly the cases
registered against the petitioner were inter-spread over a long span of
time from 1992 to 2018 and that too, after long intervals, hence the
petitioner fails to falls within the purview of explanation of Section
47 of DP Act and is not covered within the criteria of habitual
W.P.(Crl.)260/2019 Page 10 of 12
offender. It may be added that as per Section 50 of the DP Act the
accused were to be provided legal assistance and were entitled to be
represented through a pleader but in the present case, he was neither
provided any legal assistance before the Additional Deputy
Commissioner of Police nor before the Lt. Governor, Delhi.
17. On the issue of judicial review in administrative orders, it is
important to see whether the action of the executive is within the
parameters of law and that the order of externment passes the test of
reasonableness. If the administrative order is irrational, or has been
arrived at without taking into consideration the relevant factors which
ought to have been taken into account or suffers from the procedural
irregularities, then the same can definitely be reviewed. The relevant
provisions of Delhi Police Act which have been referred are enacted
for the purpose of preventing commission of crime by pathological
law breakers. This Court is mindful of the fact that in many cases, for
tracking down law breakers, stringent measures are required to be
adopted and unless such stringent measures are not taken against
such law breakers, it would be very difficult for the police authorities
to maintain an even tempo of the society. At the same time an
important fundamental right of every Indian Citizen namely personal
liberty cannot be interfered and relegated to the background and be
left entirely in the hands of the police.
18. Nonetheless, there can be no dispute to this fact, that an externment
order brings societal and personal deprivation and is a great blow on
the finances of the externee because an order of externment makes an
inroad into the cherished and valuable right of a person to have his
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domicile at the place of his choice. Accordingly, for enforcing such
stringent measures there must be a clear and present danger on the
ground that the presence of the petitioner would be alarming,
dangerous and could lead to serious repercussions in the National
Capital Territory of Delhi.
19. Hence, after analyzing the material available on record, this Court is
of the opinion that, the impugned order dated 19.12.2018 passed by
the Lt. Governor, Delhi and the externment order dated 11.10.2018
passed by Additional Deputy Commissioner of Police cannot be
sustained in the eyes of law and are hereby set aside.
20. Accordingly, the petition stands disposed of.
Crl. M. A. No. 1765/2019 (for suspension of externment order)
1. In view of the order passed in the main petition, the present
application is rendered infructuous.
2. Application stands disposed of.
SANGITA DHINGRA SEHGAL, J.
APRIL 29, 2019 SU W.P.(Crl.)260/2019 Page 12 of 12