Delhi High Court
Vijay Singh @ Vijay Pahalwan vs State And Ors. on 1 March, 1999
Equivalent citations: 1999(50)DRJ599
Author: S.N. Kapoor
Bench: S.N. Kapoor
JUDGMENT S.N. Kapoor, J.
1. The petitioner has taken exception to the externment order under Section 47 of the Delhi Police Act dated 30th April 1998 confirmed in appeal under Section 51 of the Act by the Lt. Governor of Delhi by Judgment dated 15th June 1998.
2. The relevant facts in brief are as under:
2.1 According to the Dy. Commissioner of Police of South West District, New Delhi, since October 1991, the petitioner was engaged in the commission of illegal acts and offences and his activities and movements in the area of PS Vasant Kunj, New Delhi were causing alarm, harm and danger to the residents of the said locality. The petitioner had been found involved in the following cases:
S. No. FIR No./Date Under Section IPC P. Station Present Position
1.
353/8.10.91 451/509 V. Kunj Acquitted
2. 366/20.10.91 506
-do-
-do-
3. 85/24.2.92 323/324/34
-do-
-do-
4. 117/11.5.94 447/34
-do-
PT-Compromise
5. 263/22.6.95 341/506
-do-
PT
6. 429/14.9.95 506/341/324/34
-do-
PT
7. 67/2.2.97 342/452/506/323
-do-
PT 2.2 According to the DCP South West District, the witnesses were not willing to come forward to give evidence in public against the petitioner by reason of fear of harm and danger to their person and properties at the hands of the petitioner. Accordingly, a notice under Section 50(1) of the Act dated 8th January 1998 was given for the purpose of Section 47 of the Act.
3. In his reply to the show cause notice, the allegations have been denied and it is claimed that prior to the said notice, a similar notice was served relying on the same allegations but the same was withdrawn. The petitioner claims to be a wrestler ' and has represented India and has received many awards in sports activities. There is no credible material which could lead to draw an inference to the effect that movement and acts of the petitioner were causing alarm or danger and no order under Section 47 of the Delhi Police Act could be passed against the respondent.
4. On considering the reply, past conduct of the petitioner and finding that the respondent was involved in as many as eight cases of causing hurt, house trespass, criminal intimidation, land grabbing and eve-teasing and the statements recorded by the ACP, the concerned DCP felt satisfied that the petitioner was a desperate person and was causing terror among peace-loving citizens of area. The concerned DCP also felt that the witnesses were not willing to come forward to make any statement in public against him on the apprehension with regard to safety of their person and the property. Accordingly, the DCP passed the order of externment under Section 47 of the Act on the basis of the facts and the past conduct.
5. In appeal, the Lt. Governor of Delhi found that the appellant had been involved in serious offences such as causing hurt, criminal intimidation, house trespass, wrongful confinement etc. He further found that even if the eighth case which did not find mention in the show cause notice was to be ignored, there was enough material before the DCP to justify his apprehension about the appellant's conduct. The appellant had been indulging in criminal activities involving use of force and violence since October 1991. The appellant's conduct over these years was cause enough for the externing authority to invoke the provisions of Section 47 of the Act.
6. Feeling aggrieved by the aforesaid order approving externment and dismissing the appeal, the present petition has been filed, inter alia, on the ground that the order has been passed without application of mind and after taking into consideration the old and stale material of the year 1991 and 1992. The petitioner had already been acquitted in those cases. In other two cases, the complainants have been examined and have not supported the prosecution case with the result that the prosecution evidence has been closed and the petitioner was acquitted. In the remaining one case, challan has not yet been filed by the I.O. till date. The order of externment should be passed with circumspection, rationally and reasonably and on relevant material not on the whimsical and mala fide report of the SHO. The stale and old cases of the year 1991 onwards have no proximity to the offence allegedly committed by the petitioner. There was no material on record that the petitioner had either committed an offence in other parts of Delhi which is hazardous to the community or against the community. The term "community" could not be interpreted to mean one person. When the parties residing in the same village of the area come forward voluntarily without fear and the petitioner is acquitted, the DCP could not take those offences into consideration which were remote in nature.
7. We have heard the learned counsel for the parties at length and gone through the record.
8. The externment order in this case appears to have been passed under Section 47(a) of the Act. Section 47 reads 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, 1860 (45 of 1860) or under Section 290 or Sections 489A to 389E (both inclusive) of that Code or in the abetment of any such offence; or
(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 on riot, or habitually makes forcible collection of subscription or threatens people for illegal pecuniary gain for himself or tor 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 of 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.
Section 47(a) in essence provides for removal of persons who are about to or have distinct inclination to commit offences.
9. Such an order can be passed whenever it appears to the Commissioner of Police that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property 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 serve on such persons or by beat of drum or otherwise as he thinks fit, direct that such person should 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. Clause (a) of Section 47 has nothing to do with the explanation to Section 47 containing the deeming provision relating "to have habitually committed that act". Seeing in this light the submissions of the learned counsel for the petitioner that the old and stale cases of 1991, 1992, 1994, 1995 and 1997 should not have been considered by the Dy. Commissioner of Police, does not appear to have any force, for considering an order under Clause (a) of Section 47, it is required to be seen that the movements of petitioner were causing or were calculated to cause alarm, danger or harm to the person or property.
10. Before proceeding further, one has to take note of certain distinction between preventive detention and an order of externment. While in preventive detention, the person is confined, in externment, a person is not confined in any jail or anywhere else; he is a free person to move about excepting a certain area. The moment this distinction is kept in mind, the principles which have been laid down in respect of preventive detention in essence would not apply to the case of externment.
11. In this light, we feel that the case of Vijay Narain Singh v. State of Bihar and Ors., which related to preventive detention, may not be of much help. While we may be inclined to accept the submission of the learned counsel for the petitioner that remoteness in point of lime makes a ground of detention irrelevant, it may not be so in case of an order of externment under Clause (a) of Section 47 of Delhi Police Act for it does not relate to "habitual commission of offences" attracting the explanation to Section 47. Moreover, it is not one or two cases which took place once at the spur of the moment; there arc seven or eight cases, of the years 1991, 1992, 1994, 1995 and 1997, forming a virtual chain. Consequently, the case of Vijay Narain Singh v. State of Bihar and Ors. (supra) is of no help to the petitioner.
12. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases to some extent, on suspicion or anticipation, as distinct from proof. This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The court cannot, on a review of the grounds, substitute its own opinion for that of the authority, for what is made a condition precedent to the exercise of the power of detention, is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion of the detaining or externing authority. Once subjective opinion on reasonable basis is formed by the externing authority the condition of exercise of the power would be fulfillled. Moreover, like cases of preventive detention, in cases of externment the courts can- , not act as an appellate authority but as a judicial authority which is concerned and concerned only to see whether the statutory authority has contravened the law by acting in excess of the power which the legislature has confided in it though the last mentioned ground above tends to blur the dividing line between subjective satisfaction and objective determination. The dividing line is very much there howsoever faint or delicate it may be and courts have never failed to recognise it. However, it is also apparent that in India, the courts stop short at merely inquiring whether the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. If the authority has come to conclusion so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. If the authority did not act honestly in forming the view or that in forming it, the authority did not apply his mind to the relevant facts, the statutory authority could not be allowed to contravene by acting in excess of the power which the legislature has confided in it. (See paras 8 and 10 of Khudiram Das v. The Stale of West Bengal and Ors., .
13. From the case of Pandharinath Shridhar Rangnekar v. Dy. Commr. of Police, the State of Maharashtra, it is apparent that the Supreme Court expects this court to ensure that terms of Section 47 and 50 are strictly complied with, but it is left primarily for the externing authority to decide how best the internment order can be made effective so as to subserve its real purpose. Extent of the period - within the statutory limit of two years fixed by Section 58 the order shall operate and to what territories, within the statutory limitations of Section 56 it should extend, are matters which must depend for their decision on the nature of the data which the externing authority is able to collect in the externment proceedings. There are cases and cases and therefore no general formulation can be made that the order of extranet must always be restricted to the area to which the illegal activities of the externee extend. An excessive order can undoubtedly be struck down.
14. In the light of above said legal position, let us examine the factual position. It is not in dispute that the accused was involved in the seven cases enumerated and these cases related to years 1991, 1992, 1994, 1995 and 1997. He was also involved in the eighth case which was registered for offence under Section 341/323/34 IPC at PS Mehrauli on 21st November 1997. While passing the impugned order, no doubt, the DCP who passed the impugned order dated 30lh April 1998 considered that case also but the Lt. Governor of Delhi ignored this last case. In case we apply the standard of subjective satisfaction and in case it is undisputed fact that the petitioner was involved in the eighth case also, the concerned authority could take into consideration the eighth case also while passing the order of externment for it is the subjective satisfaction of the concerned authority on ihe date of passing of the order provided the externee is given an opportunity in that respect. However, the fact remains that the accused was involved in as many as eight cases since 1991. In two cases of 1991, one of 8th October 1991 and another of 20th October 1991, the complainant appears to be one and the same person namely Nalini Rao. Both these cases ended in acquittal on ground of compromise. The compromise took place on 10th January 1995 as is apparent from the copies of the order. Similarly, the case relating to FIR 85/92 for offence under Section 323/324/34 IPC, the matter was allowed to be compromised by the court. Though initially the complainant supported the prosecution case, but later compromised and permission was granted to compound. In FIR 117/94 for the offence under 447/34 IPC, Jai Narain Sahu compromised the matter with the accused. In FIR 263/95 for offence under Section 341/506 IPC, the complainant Jagdish @ S'onu did not support the prosecution case and he turned hostile and the case ended in acquittal. The same is true about FIR 429/95 for offence under Section 506/341/324/34 IPC and that case also ended in acquittal.
15. It may also be noted that FIR 67/97 of PS Vasant Kunj had been registered at the instance of petitioner's own mother. Nothing has been said in respect of this case relating to offence under Section 342/452/506/323 IPC and that case is still pend ing. A person, who has allegedly harmed his own mother, in addition to harming others, is likely to cause much more alarm for others and ordinary man on the street is bound to feel insecure while dealing with such a person. It appears that she was compelled by behaviour of the petitioner to lodge the FIR No. 67/97 on one hand and on the other, she might have been forced to write complaint against the police. These complaints and subsequent hostility of the complainants including his own mother, speaks volumes in favour of subjective satisfaction of the externing authority. And in so far as the eighth case is concerned, the petitioner is keeping quiet and did not disclose anything, for no notice was given, the Lt. Governor did not consider it and therefore we are also ignoring it.
16. Seeing the history of these cases along with subjective satisfaction of the concerned authorities, it appears difficult to accept the proposition that the externment proceedings have been launched on flimsy and trifling grounds having no basis at all. It is clarified that for an order for externment under Clause (a) of Section 47 it is not required at all that the accused should commit the same type of crimes habitually within the meaning of the explanation to Section 47. It is sufficient if the movements and acts of the petitioner were causing or were calculated to cause alarm or danger to person or property, then an externment order could be passed. In this light, it does not appear possible to accept the submission of the learned counsel for the petitioner that externment order was not justified at all and the authority concerned had exceeded the statutory limits of Section 47 of Delhi Police Act.
17. The learned counsel for the petitioner relied upon Mukhtianuddin v. Lt. Governor of Delhi and Anr., in support of his contention that the accused has been acquitted in as many as six cases for the matter was either compromised or the witnesses turned hostile and therefore, the offence under Section 47 of Delhi Police Act had not been proved. It has already been mentioned by the Supreme Court that it is not a matter of proof but of subjective satisfaction of the concerned authorities that the movements and acts of the petitioners were causing or are calculated to cause alarm, danger of harm to person or property and that subjective satisfaction is based not on conviction or acquittals but on the fact that witnesses arc not willing to come forward to depose against him on account of the fear of.thc petitioner. In this view of the matter, we feel that Mukhtiaruddin v. Lt. Governor of Delhi and Anr. (supra) does not lay down good law especially in view of the observations of Supreme Court in Pandharinath Shridhar Rangnekar v. Dy. Commr. of Police, the State of Maharashtra, 1972 SCC 372, State of Maharashtra and Anr.: v. Salem Hasan Khan, as well as Hari Khemu Gawali v. Dy. Commissioner of Police, Bombay and Anr.:, . It may be mentioned that attention of the learned Single Judge was not drawn to any of these cases in the aforesaid matter.
18. For the foregoing reasons, we do not feel it appropriate to interfere with the impugned order and dismiss this petition.