Delhi High Court - Orders
Aakash vs State Of Nct Of Delhi on 18 October, 2022
$~50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 375/2022 & CRL. M.A. 3257/2022
AAKASH ..... Petitioner
Through: Mr Jitender Tyagi, Mr Rajesh Pandey,
Mr Kuldeep Singh, Ms Sushlata Jha
and Mr Gaurav Bidhuri, Advocates.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Ms Rupali Bandhopadhyay, ASC for
the State with Mr Akshay Kumar and
Mr Abhijeet Kumar, Advocates
SI Salman Ahmed, PS Hauz Khas
CORAM:
HON'BLE MS. JUSTICE POONAM A. BAMBA
ORDER
% 18.10.2022 1.0. This is a writ petition under Article 226/227 of the Constitution of India read with Section 482 Cr.P.C for setting aside the order dated 19.01.2022 of the Lt. Governor of Delhi passed in the Appeal under Section 51 of Delhi Police Act 1978 (in short, 'DP Act) filed by the petitioner against the order dated 16.12.2021 of Addl. DCP, South, New Delhi in File no. 71/23021, under Section 47 DP Act. PS Hauz Khan, whereby the petitioner was directed to remove himself beyond the limits of NCT of Delhi for a period of 1 year within 7 days from the aforesaid date i.e. 16.12.2021.
Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 1 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:382.0. Brief facts relevant for disposal of the petition are that as per the report of the SHO, PS Hauz Khas, the petitioner was found engaging himself in illegal acts and criminal activities since 2001; same were sufficient to cause alarm, danger, harm to the public at large and to disturb the social peace and as such, the concerned SHO made a proposal for initiation of externment proceedings against the petitioner. On the basis of the said proposal, the then Addl. DCP initiated externment proceedings against the petitioner on 12.07.2021. A notice under Section 50 was served upon the petitioner. It is submitted that the petitioner filed reply to the same and also appeared before the Addl. DCP on 27.07.2021 with documents filed as Annexure-C. After considering the testimony of witnesses i.e. the SHO/ PW-1 and MHCH/PW-2 as well as that of defence witnesses of the petitioner and hearing the petitioner on 10.12.2021, the Addl. DCP passed the order dated 16.12.2021 against the petitioner.
2.1. The petitioner preferred an appeal against the said order under Section 51 of DP Act before the Lt. Governor, Delhi, but same was dismissed vide order dated 19.01.2022 i.e. the impugned order. Hence the present petition.
3.0. Ld. Counsel for the petitioner submits that the petitioner is a young family man having a family consisting of wife, two minor sons aged about 9 years and 1 year, respectively and aged widow mother, to support. Petitioner is the only bread earner of the family as his father expired in the year 2014; and his younger brother is mentally ill Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 2 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:38 whose wife has already expired. The petitioner is a permanent resident of Delhi and is employed in Delhi since long and with his externment, the entire family would get disturbed.
3.1 It is further submitted that the impugned order dated 19.01.2022 has been passed without application of mind and appreciating the merits of the case. The petitioner was shown to have been involved in about 8 cases, but the Lt. Governor failed to consider that in three cases i.e. the FIRs no. 241/01, 93/2010 and 238/2012, P.S. Defence Colony, have been quashed by this Court vide orders dated 14.02.2008, 14.05.2015 and 18.03.2013, respectively. Further, in FIR no. 774/2014, PS Hauz Khas, petition for quashing has already been filed which is pending before this Court; in FIR no. 279/21 under Sections 324/341 IPC, PS Defence Colony, the petitioner was convicted and released on probation; in FIRs no. 405/2006 and 39/2009, P.S. Defence Colony, the matter was compounded and the petitioner was acquitted vide orders dated 24.10.2010 and 02.02.2012, respectively. It is stated that in case FIR no. 199/2021, PS Hauz Khas registered against other accused persons under Section 25 of Arms Act, the petitioner has not been named and is on bail in that case.
3.2 It is further submitted that the Addl. DCP did not consider the evidence of two defence witnesses examined by the petitioner and proceeded to pass the order considering the testimony of SHO and MHCM as gospel truth.
Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 3 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:384.0. Per contra, Ld. Addl. Standing Counsel strongly opposes this petition submitting that as the activities and movement of the petitioner in the area were causing danger and harm to the person and property in the locality, the SHO, PS Hauz Khas filed an application under Section 47 DP Act with the office of DCP South for externment of the petitioner. He also submits that the petitioner has been involved in 8 cases, as detailed in the status report, which is not disputed by the petitioner.
5.0. Ld. Prosecutor submits that even recently, the petitioner was involved in case FIR no. 199/2021, under Sections 25/54/59 Arms Act, PS Hauz Khas and has been charge-sheeted in the said case under Section 212 IPC. It is submitted that during the course of externment proceedings, a notice u/S 50 DP Act was served upon the petitioner and a fair opportunity of hearing was given to the petitioner to cross- examine the witnesses and to lead defence evidence. On the basis of the material on record, it was found that the petitioner has been indulging in illegal activities in the area, which are causing harm and danger to the public at large. In view of this, a well reasoned order dated 16.12.2021 was passed by the Addl. DCP. It is further submitted that appeal filed by the petitioner against the said order, was dismissed by the Lt. Governor, Delhi, vide order dated 19.01.2022, after due consideration of all the material.
6.0. I have duly considered the submissions made by both the sides.
Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 4 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:387.0. At the outset, reference may be made to the relevant provisions of law i.e. Sections 47 and 51 of Delhi Police Act, 1978 which read as under:
"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;
(c) that such person-
(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 Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 5 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:38 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 im- mediately 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."
"51. Appeal against orders under section 46, 47 or 48.-
(1) Any per- son aggrieved by an order made under section 46, section 47 or section 48 may appeal to the Administrator within thirty days from the date of the service of such order on him. (2) An appeal under this section shall be preferred in duplicate in the form of a memorandum, setting forth concisely the grounds of objection to the order appealed against, and shall be accompanied by that order or a certified copy thereof.
(3) On receipt of such appeal, the Administrator may, after giving a reasonable opportunity to the appellant to be heard either personally or by a counsel and after such further inquiry, if any, as he may deem necessary, confirm, vary or set aside the order appealed against: Provided that the order appealed against shall remain in force pending the disposal of the appeal, unless the Administrator otherwise directs.
(4) The Administrator shall make every endeavour to dispose of an appeal under this section within a period of three months from the date of receipt of such appeal.
(5) In calculating the period of thirty days provided for an appeal under this section, the time taken for obtaining a certified copy of the order appealed against, shall be excluded"
.
Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 6 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:388.0. From the above, it is clear that Section 47 DP Act empowers Commissioner of Police to direct a person either to conduct himself or to remove himself and not to enter or return to Delhi, in case, it is believed on reasonable grounds, that movements or acts of any person are causing alarm to any person or property. The order of the Commissioner of Police is appealable before the Lieutenant Governor of Delhi u/s 51 of the DP Act.
8.1 The petitioner has challenged the impugned order passed by Lieutenant Governor rejecting petitioner's appeal against the order of Addl. DCP dated 16.12.2021. Scope of judicial review and interference in the matters of administrative decisions came up for consideration in Avinash @ Janu V. Lt. Governor of Delhi [2017 SCC Online Del 10804] wherein this court has observed as under:
25. Similar view was taken subsequently by the Apex Court in Sate of NCT of Delhi & Another Vs. Sanjeev @ Bittoo, (2005) 5 SCC 181, where the nature of material required under Section W.P. (Crl.) 1232/2017 Page 13 of 19 47 of DP Act was also elaborated. Paras 15, 17 and 22 to 25 of the said judgment read as under: -
"15. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 7 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:38 of the power is manifestly arbitrary (see State of U.P. v. Renusagar Power Co. [(1988) 4 SCC 59 : AIR 1988 SC 1737] ). ........ Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn. at pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarised as follows: The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner.....
17. The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established.
Mere assertion in that regard would not be sufficient ........
22. These principles have been noted in the aforesaid terms in Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806] . In essence, the test is to see whether there is any infirmity in the decision making process and not in the decision itself.
23. Though Section 52 limits the scope of consideration by the courts, the scope for judicial review in writ jurisdiction is not restricted, subject of course to the parameters indicated supra.
24. It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary the order directing externment should show existence of some material warranting an order of externment. While dealing with the question mere repetition of the provision would not be sufficient. Reference is to be made to some material on record and if Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 8 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:38 that is done, the requirements of law are met. As noted above, it is not W.P. (Crl.) 1232/2017 Page 15 of 19 the sufficiency of material but the existence of material which is sine qua non.
25. As observed in Gazi Saduddin case [(2003) 7 SCC 330 : 2003 SCC (Cri) 1637] satisfaction of the authority can be interfered with if the satisfaction recorded is demonstratively perverse based on no evidence, misreading of evidence or which a reasonable man could not form or that the person concerned was not given due opportunity resulting in prejudice. To that extent, objectivity is inbuilt in the subjective satisfaction of the authority."
9.0. Now reverting to the instant case, perusal of order dated 16.12.2021 of Additional DCP shows that notice was issued to the petitioner giving him an opportunity to appear and explain. On his appearance on 27.07.2021, the material allegations were explained to the petitioner in vernacular. It is seen that the petitioner was represented by advocates. The witnesses produced by the State were even cross examined on behalf of the petitioner. Not only this, the petitioner even produced two witnesses in his defence.
9.1 It is also noted that even personal hearing was given to the petitioner on 10.12.2021. Thereafter on 16.12.2021, the Additional DCP passed the impugned order observing that the respondent is actively involved in several cases punishable under IPC and Arms Act, there being eight cases registered against him; and that he is a habitual offender and is repeatedly involving himself in crime/bodily offences like hurt and molestation etc.; and the petitioner was directed to remove himself Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 9 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:38 beyond the limits of NCT of Delhi for a period of one year.
10.0. Learned counsel for the petitioner has submitted that the Learned Additional DCP as well as Lieutenant Governor failed to appreciate that the petitioner has already been either acquitted or the FIRs have been quashed in five out of eight cases. Presently only two cases are pending against him i.e. FIR no. 774/14 under Sections 451/506/427/379/34 IPC PS Hauz Khas and FIR No. 199/21 under Sections 25/54/29 Arms Act IPC PS Hauz Khas.
11.0 As per the petitioner himself, FIR no. 241/2001 under Sections 186/32/353/147/325 IPC, PS Defence Colony, FIR no. 405/2006 under Section 354 IPC, PS Defence Colony, FIR no. 39/2009 under Sections 323/324 IPC, PS Defence Colony, FIR no. 93/2010 under Sections 323/324/308/34 IPC, PS Defence Colony, and FIR no. 238/12 under Sections 323/452/506 IPC, PS Defence Colony, were quashed pursuant to settlement/compounding. Thus admittedly, these cases were not decided on merits. In case FIR no. 279/2001, under Sections 324/341 IPC, PS Defence Colony, the petitioner was convicted though released on probation. In view of the same, I find substance in the observations made by Additional DCP in the order dated 16.12.2021 that quashing of FIRs/compounding of cases due to compromise by the complainant may only reflect that the petitioner has been able to win over the complainants. Additional DCP has also observed that the petitioners repeated involvement shows very bleak possibility of his reformation; and such repeated involvement is causing alarm and sense of insecurity Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 10 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:38 amongst public, unless he is weaned away.
12.0 I have also perused the order of Lieutenant Governor dated 19.01.2022 which also is a reasoned order.
13.0 Learned counsel for the petitioner submits that the Lieutenant Governor's order mentions about petitioner's involvement in cases like culpable homicide not amounting to murder. Whereas, he was never charged with any such offence, which itself shows non application of mind.
14.0 Admittedly, the FIR no. 93/10 was registered under Section 323/324/308/34 IPC PS Defence Colony against the petitioner. Hence, there is no substance in the argument advanced by the learned counsel for the petitioner.
15.0 For the aforesaid reasons, I find no merit in this petition.
16.0 Petition is accordingly dismissed.
POONAM A. BAMBA, J OCTOBER 18, 2022 g. joshi Click here to check corrigendum, if any Signature Not Verified Digitally Signed W.P. (Crl.) 375/2022 Page 11 of 11 By:GEETA JOSHI Signing Date:24.11.2022 11:48:38