Shri Ajay Pal Singh vs State (Nct Of Delhi) And Ors.
2001 Latest Caselaw 152 Del

ORDER

Usha Mehra, J.

1. This writ petition by Shri Ajay Pal Singh is directed against the order of respondent No.3, Additional Dy. Commissioner of Police dated 22nd June, 2000 thereby directing externment of the petitioner for a period of one year from Delhi or any part thereof, with immediate effect. He has also assailed the order of the confirmation passed by the respondent No.2 Lt. Governor of Delhi in appeal.

2. The petitioner received a show cause notice dated 11th May, 1999 from respondent No.3 asking as to why externment proceedings be not initiated against him. The said notice was issued under Section 50 of the Delhi Police Act (hereinafter called the Act). It was duly served on 21st May, 1999. It was alleged that petitioner was engaged in commission of Criminal offences and to illustrate six cases were cited therein to show his involvement. It was also pointed out that the movement of the petitioner was causing and calculated to cause alarm, danger, harm to person or property. That the petitioner was desperate and dangerous person. Therefore, it was found by the authority that his presence in Delhi was not required and he should be externed from Delhi or any part thereof. After affording opportunity of being heard, respondent No.3 passed externment order which was subsequently on appeal was confirmed by respondent No.2, the Lt. Governor.

3. That the main plank of attack to the impugned order is that externment order stood vitiated as it was not based on any material. Even otherwise the alleged material relied by the externing authority was not supplied to him. Statements of persons or alleged witnesses recorded "in camera" could not have been used against him without supplying copy thereof to him. Moreover, he having been acquitted in four out of the six case in the said notice prior to the issuance of the notice, hence those cases could not have formed the basis for declaring him a desperate or dangerous person.

4. On the other hand it has been pleaded by respondent No.3 that petitioner is a registered Bad Character of Police Station Khajoori Khas, Delhi. He started his criminal activities in the year 1981 and since then he is continuing the same. In order to keep a check on his criminal activities history Sheet was opened under the orders of the competent authority. The acquittal in four cases as alleged by him was in fact managed by him by terrorising and pressuring the witnesses as well as the victims and thus the cases landed up in his acquittal. In one of the cases he forced the victim to compromise with him. In a murder case instituted against him vide FIR No.75/97 under Section 25/54/59 Arms Act, he was arrested red handed by the Crime Branch along with his co-accused and the Maruti Car. One English pistol loaded with five round and five live round were recovered from his possession apart from other recovery from co-accused. The witnesses had to be examined in camera because they were not willing to depose against him due to the threat extended by him. Even during the pendency of the proceedings this petitioner had been extending threats to the people of the area. In this regard number of complaints had been received. One such complaint was received from Shri Kailash Chand. This shows how desperate and dangerous the petitioner can be. he has no respect for law.

5. The main point for our consideration and as urged at the Bar was whether externing authority had no material to arrive at the conclusion that the petitioner was involved in dangerous criminal activities and that he was desperate & dangerous person. And if there was any such material the same was not supplied to him. Even the statements of witnesses alleged to have been recorded "in camera", copies thereof had not been supplied to him.

6. Admittedly the petitioner had been acquitted in four out of the six cases mentioned in the impugned notice. But the perusal of the judgment of those cases show that in FIR No.220/81 decided on 26th July, 1985 four witnesses i.e. PW-1 to PW-4 including the injured/victim himself gone hostile. Ram Bharose the victim and author of the FIR resoled from his earlier statement. Neither the victim nor witnesses supported the case of the prosecution. Therefore the trial court while acquitting his observed:-

"As all the eye witnesses including the victim witness resoled from their earlier statements. PW-5 is formal nature of witness and as such no evidence has come against the accused persons. Hence the statement of the accused persons u/s 313 Cr.P.C. are dispensed with. Accused are acquitted."

7. Similarly in FIR No.76/85 decided on 21st July, 1997 both the witnesses resoled from their earlier statements though they described the incident in full details but refused to identify the accused i.e. the petitioner herein. They denied petitioner's presence at the shop on that date. It was for this reason that Court acquitted the accused i.e. the petitioner because the complainant therein went hostile and did not support the case of the prosecution. In third case being FIR No.257/89 both the victims who sustained injuries because of the fire being shot at them did not support their complaint against this petitioner accused in that case. Victims resoled from their earlier statements. They were declared hostile. In fourth case bearing FIR No.122/94 Mr. Habib Ahmad, the complainant deposed before the Court that he was not interested to pursue his case against the accused i.e. the present petitioner, as he had compromised the matter with him. Because of the said compromise and complainant's showing disinclination to proceed with the case against the accused i.e. this petitioner that the Court acquitted him.

8. It is in this backdrop the petitioner was acquitted in the above four cases. The Additional Dy. Commissioner in his order has specifically mentioned that due to the threat given by the petitioner and on account of his criminal activities in the area even the victims did not support their case as they dare not do so under threat from petitioner. If the victims could resile from their statements what can be said about the witnesses. Because of fear of petitioner no witness and not even complainant dare come forward to depose against him. It is for this reason witnesses were examined in camera.

9. We had opportunity to peruse the record. Perusal of the same shows that during the pendency of the proceedings complaints were received against the petitioner. One such complaint was lodged by Shri Kailash Chand alleging therein that he was threatened by the petitioner. This fact is sufficient to hold that petitioner was a desperate and dangerous man. He had been indulging in criminal activities since 1981. The above fact is a clear pointer to the criminal involvements of the petitioner and the fear he veiled on the witnesses and even on the victims which resulted in their refusing to depose the truth.

10. Mr. S.K. Puri's contention that if witnesses or for that matter victims did not support the case of the prosecution no adverse presumption should be drawn against him nor he could be declared villain of the peace. Unfortunately we don't subscribe to this argument of Mr. Puri because we find no substance in the same. His contentions are contrary to the record. Record placed on file does not support his contention otherwise why would in all the four cases mentioned above witnesses and even the victim resoled from their earlier statements. Why the victim and author of FIR turned hostile and did not support his case. The only irresistible inference which in such circumstances can be drawn is that he was afraid of the petitioner, therefore, could not come forward openly to depose against him. Similarly witnesses having been threatened by him did not come forward to depose fearlessly. Therefore for the safety of the complainant and the witnesses their statements were recorded in camera. We also find no substance in the contention of Mr. S.K.Puri that all the material was not supplied to the petitioner. Record shows that the particulars of his criminal activities in substance were provided to him. He was also made aware that the witnesses were not willing to give evidence against him in public. Material allegations against and their general nature were informed to him. We feel that it was not necessary for the respondent to inform him specific particulars relating to the material allegations. It is well settled that externing authority has only to make the externee know the material allegations against him. That is precisely the requirements of Section 47 read with Section 50 of the Act. The said requirement stood complied with in the facts of this case.

11. Perusal of the notice shows that the allegations contained therein and as communicated are not vague. Material allegations and specific particulars were conveyed to him and to which he filed his reply. He was given opportunity of being heard. He adduced two witnesses. Therefore, to out mind, the safeguard offered by the provisions of Section 47 and 50 of the Act had in fact adhered to. In support of our conclusion reference can be made to the decision of Supreme Court in the case of Bhagubhai Dullabhai Bhandari V. The District Magistrate. Thana , where the Apex Court observed:-

"Though, in order to attract the operation of Section 56 of the Act, the officer concerned has to satisfy himself that witnesses are not willing to come forward to give evidence in public, it is not necessary that all the witnesses must be found thus unwilling to give evidence."

12. Apex Court was dealing with the provision under Bombay Police Act which are paramateria the same as that of the Act.

13. In the case in hand it is on record that the witnesses were not willing to come forward openly because of the desperate and dangerous criminal activities of the petitioner. The receipt of the complaint of one Kailash Chand has already been mentioned above wherein he declined to depose in open against the petitioners. Therefore, witnesses had to be recorded "in camera", and therefore the action of the respondent as per the decision of Apex Court in Bhagubhai Bullabhai Bhandari (supra) was justified.

14. Whether the authority was under obligation to supply copies of these statements recorded in camera? The answer is in the negative. Similar question came up before this Court in the case of Surjit Singh Vs. State and Anr. reported in 1998 (1) JCC [Delhi] 191 where the plea of the externee was that the witnesses examined in camera their statements were not supplied to him, therefore, there was violation of principle of natural justice. Rejecting this plea, the court observed:-

"In case the names of such witnesses are disclosed to the accused person, the very purpose of enactment of Sec.47 of the Act would be frustrated because this section is meant to deal with desperate type of criminals under extra-ordinary situations who do not allow witnesses to appear against them and so witnesses do not come to depose against them for fear of repraisal."

15. Contention of Mr. Puri that those statements recorded in camera could not have been used by the externing authority nor could be based for arriving at subjective satisfaction. This argument has no merits in view of the decision of Supreme Court in the case of Phulwari Jagdamba Prasad Pathak (Smt.) Vs. R.H. Mendonca and Ors. , where the Apex Court observed that:

"In-camera statements of persons/witnesses regarding alleged acts of the detenu adversely affecting the public order, held, can be utilised by the detaining authority for arriving at the subjective satisfaction for passing the detention order."

16. Respondent's plea was that the petitioner was a registered Bad Character of Police Station Khajoori Khas. He was involved in six criminal cases out of which in few he managed to get acquittal by exerting fear on the witnesses as well as on the victims. Two cases are still pending. Ms. Mukta Gupta, counsel for the State drew our attention to the track record of criminal activities of the petitioner, therefore urged that he can be described as a desperate and dangerous person. It is a fact that he was not involved in a single isolated incident but indulged in criminal activities since 1981 and continued the same. Because of his continuous persistent activities he can be called dangerous person. Supreme Court in the case of Amanulla Khan Kudeatalla Khan Pathan Vs. State of Gujarat and Ors. opined that person can be called dangerous person if he is habitual offender. "Habitually" would obviously mean repeatedly or persistently. In the present case since the activities of the petitioner were persisting since 1981, therefore, it would not have been wrong for the authorities to declare him a dangerous person. His activities are continuing and even during the pendency of those criminal proceedings in Court he had been exerting threat.

17. The said case was under the Preventive Detention Act, but the principle laid down by the Supreme Court can be taken advantage of in the facts of this case. Since the activities of the petitioner were dangerous and he being desperate man and there being danger of breach of tranquillity and peace of the area, the authority arrived at its subjective satisfaction in passing the impugned order. We see no infirmity in the same.

18. For the reasons stated above we find no merits in the pleas raised by the petitioner. In fact full opportunity was given to him and he in fact led evidence before the authority and also addressed arguments, therefore, it cannot be said that he was deprived of any opportunity of being heard. So far as the appreciation of evidence that was the sole subjective satisfaction of the externing authority. This Court is not sitting in appeal over it. Perusal of the record show that there was material available on record to arrive at the subjective satisfaction by the authority concerned.

19. For the reasons stated above we find no merits in the petition. In fact the order of externment does not suffer from any infirmity. The writ petition being devoid of merit is accordingly dismissed.