Mahinder Kumar (Jagdeep) vs Kiran Bedi And Anr.
1987 Latest Caselaw 557 Del

JUDGMENT

M.K. Chawla, J.

(1) Shri Jagdeep and Shri Mahinder Kumar claim to have been working as Chowkidars of Block A and C in Subzi Mandi, Azadpur, Delhi, for the last 10 years. Their duties are to keep a watch on the stores of vegetables/fruits etc., the goods brought to the market for auction. In return, they are given commission ranging between Rs.10.00 to Rs. 100.00 per mensum according to the quantum of the business of the respective traders. In case of any loss of goods on account of theft/pilferage, the petitioners are required to compensate the traders.

(2) It is their case that S/Shri Rajinder Kumar, Sri Lal @ Kashmira Lal and his brother Harish are known bad characters of the area. These persons wanted to break the system of chowkidars. They are alleged to have shot dead one Rajinder @ Lala on 10-12-85 in broad day light. Both the petitioners were the eye-witnesses of the occurrence. Mahinder Kumar lodged the F.I.R. No. 999/85 with Police Station Adarsh Nagar, under Section 302 Indian Penal Code . read with Section 27 of the Arms Act. After being released on bail, Harish one of the accused is stated to be absconding and during this period, he is also alleged to have committed many more murders. As per the allegations, the local police in connivance with the accused persons started pressurising the petitioners to resile from their statements and not to support the prosecution case so that the accused could earn acquittal. On their refusal to oblige the local police, they became inimical towards the petitioners.

(3) In order to further pressurise the petitioners, the local police arrested the petitioners under Sections 107/151 Cr.P.C. on 28th October, 1986 on the allegation that the petitioners were giving threats publicly, that anybody who came in the way of their giving evidence against the accused would be liquidated. The petitioners' case is that no public person was cited as a witness in the said trumped up charges. They were produced before Shri S.B.S. Tyagi, Special Executive Magistrate on the next day and were served with notices under Section Iii, Criminal Procedure Code. Both the petitioners challenged the said notice as being mala fide and without jurisdiction by means of Cr. M(M) 1684/86.

(4) The petitioners were further deprived of their right to carry on their lawful trade by the D.C.P. (North) and the local Police inasmuch as they were physically prevented from attending to their duties. The petitioners filed C.W.P.2 421/86 before this Court complaining about the highhandedness of respondent No. 1, Mrs. Kiran Bedi, and sought directions for issuance of a writ/order to the respondents not to interfere in the carrying on of their peaceful trade and from prohibiting them from entering the precincts of Sabzi Mandi, Azadpur, Delhi. Respondent No. I in her counter-affidavit refuted all the allegations and asserted that she was in no way preventing any of the petitioners to enter the New Sabzi Mandi, Azadpur, Delhi, to carry on their avocation of chowkidars. In view of the reply of respondent No. 1, the writ petition was disposed of.

(5) In spite of the orders of this Court, the petitioners' case is that Mabinder Kumar was again arrested on 25-12-86 under Sections 107/151 Cr. P.C., given beating, causing fracture of the arm and was sent to judicial lock-up. He was produced before the same Executive Magistrate on the next day. This very order of arrest was challenged by the petitioner in Cr.M(M) 1891/86 which was ultimately accepted and the petitioner was released on bail on his furnishing one surety instead of three in the sum of Rs. 5000.00 only.

(6) From the counter-affidavit of Mrs. Kiran Bedi filed before the Division Bench of this Court, the petitioners discovered that the local police had already issued a notice under Section 50 of the Delhi Police Act and the court of Mrs. Kiran Bedi issued non-bailable warrants for their arrest, presumably on the ground that the petitioners were not available. The petitioners challenged the issuance of the non-bailable warrants by filing Cr.M(M)1870/86 which was ultimately allowed by this Court after the respondent failed to file the counter-affidavit despite repeated opportunities having been granted to her.

(7) The petitioners in the present Cr.W. 336-87-Mahinder Kumar v. Mrs.Kiran Bedia and Cr. W> 337/87- Jagdeep v. Mrs. Kiran Bedi, have challenged the issuance of and for the quashing of the notice under Section 50 of the Delhi Police Act, dated 31st October, 1986 issued by respondent No. 1 Mrs. Kiran Bedi. They have also challenged the order of respondent No. 1 whereby she had directed the petitioners to report at the Police Station Roshanara on every second Saturday of the month as well as to be present at their residential house for every day of the week when the Police Officers of the local police station would visit the house for taking their attendance. As the question of fact and law involved are similar in both the petitions, they are being disposed of by a common Judgment.

(8) The case of the respondent as stated in the counter of Mrs. Kiran Bedi, D.C.P. is otherwise. According to her, none of the petitioners has ever worked as chowkidar in the New Sabzi Mandi, Azadpur, Delhi. It is averred that in fact both the petitioners are anti-social elements who thrust themselves on the traders and extort money from them on one pretext or the other. The local Police had received number of complaints oral as well as written against both the petitioners that they were threatening the traders and pressurising them to pay them money. These complaints were found to be of some substance. Both the petitioners as per the averments were involved in cases of robbery, hurt and under the Arms Act. They got themselves acquitted in most of the cases on one ground or the other. The local police never arrested the petitioners on trumped up charges, as alleged.

(9) As regards the impugned notice, the case of the respondents is that notice under Section 50 of the Delhi Police Act was duly served on the petitioners on 15th June, 1987 but as they failed to produce the requisite sureties, they were sent to judicial lock-up. The petitioners as per the counter are a potential threat to the society and their activities, movements and acts are causing and are calculated to cause alarm, danger and harm to the persons and property of the area. The deponent is fully convinced that their involvements in criminal cases and their defiant attitude to the lawful authorities and directions is a good ground to initiate proceedings against them. The deponent has exercised her powers under the Delhi Police Act with a view to prevent the petitioners from indulging in any unlawful activities within the Union Territory of Delhi.

(10) In the rejoinder, the petitioners have controverter the averments in the counter-affidavit and have reiterated their stand in the petition.

(11) In the impugned notices under Section 50 of the Delhi Police Act, the allegations against the petitioners are almost the same. They are shown to have been involved in four Indian Penal Code . cases and one case under Section 107/151 Cr.P.C. It is alleged in the notice that as the petitioners are involved in committing the offences of murder, hurt and attempt to murder, there are reasonable grounds for believing that they are engaged in the commission of offences under Chapter xxvi of Indian Penal Code . It is also alleged that their movements and acts are causing or are calculated to cause alarm, danger and harm to the persons and property. As such, their presence in Delhi or any part thereof is hazardous to the community. It is also alleged that the witnesses are not coming forward to depose against them in public due to fear of their person and property.

(12) The submission of the learned counsel for the petitioner is that none of the allegations which have been made the basis of the notice are borne out from the record. According to the learned counsel, the petitioners were acquitted in all the four cases under Indian Penal Code which were registered long-time back and in the last case under Sections 107/151 Criminal Procedure Code, the proceedings were quashed by this Court (M.K. Chaw la, J.) on 15th May, 1987. Thus, there was no immediate use for the respondent to issue notice or to initiate proceedings against the petitioners under Section 50 of the Delhi Police Act. The notice in question is illegal and without jurisdiction, it is urged.

(13) The respondents have not denied the assertion of the petitioners that they have been acquitted in all the cases listed in the impugned notice. The averment that no case against any of the petitioners under Sections 325/34 I.P.C. as shown against item No. 4 in the impugned notice of Mahinder Kumar is pending has not been denied.

(14) The first question that arises for consideration is as to whether this Court is justified in quashing the impugned notice without the petitioners herein having replied to the same and the decision thereon by the respondent No. I-Deputy Commissioner of Police.

(15) It is not disputed that when the bonafides of the impugned notice are questioned, the writ petition under Article 226 of the Constitution challenging the impugned order is competent and the petitioners will not be compelled to wait for the enquiry into the allegations of the impugned notice against the petitioners by the respondent authorities as contemplated under Section 47 of the Act.

(16) In this case mala fides in law by the issuance of notice to the petitioners is writ large. The history of events given in the petition which is not specifically denied go to show that there is a long-drawn ill-will between the petitioners and the local police, the attempt of the petitioners is to continue with their avocation of chowkidara while the desire of the local police is to remove them from the precincts of New Sabzi Mandi, Delhi. On numerous occasions, the local police attempted to either physically prevent them from entering New Sabzi Mandi or on one pretext or the other arrested them under the provisions of the Criminal Procedure Code but at every stags, the petitioners moved the courts and obtained the relief thereby leaving the local police in a helpless situation.

(17) Section 47 no doubt empowers the Commissioner of Police to extern persons, about to commit offence. Two conditions have to be satisfied before the Commissioner can pass an order of externment. Firstly, the person concerned must fall under one of the clauses of this provision. Secondly, The Commissioner must be satisfied that witnesses are afraid to give evidence in public against such a person. This situation would only arise when the person concerned becomes a danger to the society at large and has terrorised the society to such an extent that witnesses being afraid of their safety refused to depose against him in public. Section 48 authorises the Commissioner to extern persons who have already been convicted of certain offences. In order to bring the case within this provision, two conditions have to be satisfied. Firstly, the proposed externee should have been convicted by a Court of law of one of the offences mentioned in Clauses (a) to (h) of this section. It may be noticed that some of these clauses require more than one conviction. Secondly, the Commissioner must have reason to believe that such person is likely again to indulge himself in commission of any of the offences mentioned in the said sub-clauses.

(18) The impugned notices appear to have been issued in ignorance of the provisions of Sections 47 or 48 of the Delhi Police Act. Out of four cases mentioned in the impugned notice, the last one was never registered against any of the petitioners. The first three cases relate to the year 1978 and 1979. In these cases also, it is not disputed that the petitioners were honourably acquitted. We are of the view that those cases in which the petitioners were tried and acquitted cannot form the basis of an action for externment under Section 47. We also find that most of the cases taken into consideration by the Deputy Commissioner of Police pertain to the period prior to 1979. Therefore, the order is largely based on the material too remote in time to the making of the impugned order. The Division Bench of this Court in case reported as Janki Dass Gupta v. Administrator Union Territory of Delhi, Ch. Cr. Cases, 333, in similar circumstances, quashed the notice under Section 50 of the Delhi Police Act. It was observed that if a sufficiently long time has elapsed between the previous conviction and the time when decision to extern is sought to be taken, it cannot be said that the previous conviction had any nexus or was proximate in time. In the said case, the last conviction of the petitioner was in the year 1960. Such a conviction was, therefore, held to have no relevance nor could be taken into consideration under Section 47 of the Act. Before us, in between the last acquittal in the year 1979 and the issuance of the notice in October, 1986, admittedly, the petitioners were not involved in any case nor were their activities found to be prejudicial to the interest of any of the inhabitants or traders of New Subzi Mandi, Delhi.

(19) The petitioners were last arrested in a case under Sections 107/151 Cr. P.C. on 28th October, 1986. In order to bring the case within the four corners of the provisions of Sections 46 and 47, the D.C.P. (North) thought it fit to include this arrest and enumerate the past cases in the impugned notice under Section 50 of the Delhi Police Act dated 31-10-1986. Without waiting for the result of the last arrest, the D.C.P. (North) restrained the petitioners from going and performing their avocation in the area of New Sabzi Mandi, Delhi. They were produced before the Special Executive Magistrate, who did not consider it fit to release them on bail even though numerous respectable persons were produced to stand sureties. It was only on the order of the High Court that the sureties be accepted by the C.M.M., Delhi, that the petitioners were able to get themselves released. At this stage, it will be relevant to note that this very arrest and initiation of proceedings under Section 107/151 Cr. P.C. were held illegal and quashed by this Court (M.K.Chawla, J.) on 15th May, 1987. If the substrata of the notice is knocked down, the whole of the notice must fall of the ground.

(20) Further more, we are surprised to note the directions alleged to have been issued by the D.C.P. (North) to the petitioners. She has handed over a diary duly stamped by her to the petitioners, in which it is specifically mentioned that the petitioners should appear before the S.H.O. of Police Station Roshnara on every Saturday of the month. The petitioners were further informed that they should remain present at their respective houses after 7 P.M. in the evening during which time the officials of the local police would visit them and if not found present, non-bailable warrants would be issued. Learned counsel for the petitioners has shown us the diary of 1987 issued by respondent No. 1. We have not been shown any law, rules or regulations under which the Police officials are authorised to issue such like diaries or restrict the movements of the petitioners after a particular time on each day of the month. We have no hesitation to condemn the exercise of such powers by the senior Police officials which restricts the movements of the persons with clean antecedents. The exercise of such power is intended to cause harassment, intimidation, coercion to the petitioners to leave their profession as chowkidars. It is a mala fide exercise of power by respondent No. 1.

(21) From the perusal of the record we are of the opinion that the respondent has not been able to bring any material on record to support the plea that the petitioners are persons of desperate character and their presence in the area is hazardous to the public at large. They have also not been able to show or prove any complaint from any quarter indicating that their activities in the New Sabzi Mandi area, are likely to cause alarm or danger to the lives of the citizens or their property. The action of the respondents to initiate proceedings under Section 50 of the impugned notice are prima facile bad and against the facts and law. We have no hesitation to quash the same. Ordered accordingly.