Jai Pal vs State (Govt. Of Nct Of Delhi)
2002 Latest Caselaw 502 Del

JUDGMENT

Khan, J.

1. Petitioner is challenging externment order passed by Additional DCP dated 16.5.2001 asking him to remove himself outside Delhi and Lt. Governor's order dated 18.7.2001 rejecting his appeal.

2. A show-cause notice was issued to petitioner under Section 50 of Delhi Police Act on 25.10.2000 charging him of including in illegal activities and criminal offences punishable under Chapter XII IPC, resorting to force and violence, causing danger and alarm to person and property. He was also informed that six FIRs (Nos. 594, 605, 628, 647, 440 and 756) under Section 379 IPC stood registered against him and that witnesses were not willing to come forward to openly depose against him.

3. Petitioner replied to this notice on 13.11.2000 denying the allegations. He also led some defense evidence to show that he was engaged in lawful business along with his father who was the President of Fruit & Vegetable Wholesalers Association, Tilak Nagar and was not involved in any criminal activity prior to his arrest on 2.9.2000 in one of the cases. Additional DCP rejected his explanation holding amongst other things that he was involved in six cases punishable under Chapter XII IPC and that he had personally examined some witnesses in camera who had refused to depose against him in the open for their safety and passed the impugned externment order. Petitioner took appeal against this but failed. Hence this petition.

4. Petitioner's case is that he was a law abiding citizen engaged in lawful business. His father was also a respectful person and President of an Association. He had no past criminal record and was not engaged in any criminal activity prior to his arrest on 2.9.2002 or after his release on bail in one of the cases. He also asserts that police had on their own asked for his discharge in three out of six cases registered against him taking away the very basis of the externment order. The LG's order rejecting his appeal also suffered from non-application of mind as it did not deal with the pleas raised by him.

5. Respondent has justified the order of externment reiterating that petitioner was involved in six criminal case under Section 397 IPC. Even though he was discharged in three cases, he had continued his criminal activity justifying the impugned order.

6. Section 47 of DPA empowers the Police Commissioner to remove a person outside Delhi limits when it appears to him that (a) his movements were causing or were calculated to cause danger, alarm or harm to the person or property; or (b) where he had reasonable ground to believe that he had engaged or was about to engage himself in commission of offences involving force or violence or offences punishable under Chapters XII, XVI, XVII, XXII of IPC; or (c) if such person was so desperate and dangerous as to render his being at large hazardous to the community; or (d) was habitually intimidating to other persons by acts of violence or by show of force; or (e) was habitually committing affray, alarm or breach of peace or riot, or was threatening people for illegal gains for himself and others; or (f) was passing indecent remarks against women and girls AND in the opinion of the Commissioner, witnesses were 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.

7. The power was exercisable by the Police Commissioner or the competent delegatee on anyone of the prescribed grounds and on formation of opinion that witnesses were not willing to come forward to depose against such person for fear of danger to their person and property. Though his satisfaction was subjective, it was to be based on some material but its sufficiency or otherwise was not subject to judicial scrutiny. In other words, Commissioner's satisfaction was to arise from any one of the situations contemplated by provisions of Section 47 accompanied by his opinion that witnesses were not willing to come forward to depose against the person sought to be externed. If his order was based on no material or mere apprehension and failed to reflect formation of any opinion regarding unwillingness of witnesses to come forward to depose against such person concerned, it would not sustain.

8. Dealing with corresponding Sections of Bombay Police Act, Supreme Court held in Hari v. Dy. Commissioner of Police as under:-

"These are all matters which can't be examined by this court in an objective way when the legislature has provided for subjective satisfaction of the authorities or officers who have been entrusted with the duty of enforcing those special provisions of the Act.....

It is not for us to examine afresh the material and to be satisfied that the order impugned is correct. But the materials placed on the record of this case shown at least one thing namely that the petitioner had not been a victim of an arbitrary order."

9. Later the Apex Court held in Prem Chand v. Union of India as under:-

"Section 47 and 50 have to be read strictly. Any police apprehension is not enough. Some ground or the other is not adequate. There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that person proceeded against is so desperate and dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety. We are clear that easy possibility of abuse of power to the detriment of fundamental freedom of citizens persuades us to insist that stringent test must be applied. We are clear that natural justice must fairly be complied with and vague allegation and secret hearings are gross violations of constitutional guarantees."

10. Tested on all this, it does not appear to us that impugned externment order was passed arbitrarily or had no basis. Petitioner wants to be left off the hook merely because he had earned acquittal in three out of six criminal cases. But that by itself was not enough to invalidate the externment order so long as it satisfied the requirements of Sections 47 and 50 of DPA. An acquittal could result in various circumstances and could not be taken as a proof of accused having shed his criminal past or propensity. This court in Kaushalya v. State 1989 C.C. Cases 110 (HC) observed:-

"The acquittal in the cases could be because of the reason that there may not be sufficient evidence to bring the charge home to the accused. The witnesses may not be available or willing to depose in open court against the accused. A judicial notice can be taken of the fact that in cases where the accused is a bad character, the witnesses are terrified and they are not willing to become witnesses to the crime and even if they become witnesses, they are not willing to testify against the accused in the open court. Our experience is that in a case where a bad character is involved, even if the witnesses come they on material facts do not support the prosecution case."

11. Therefore, all told, it can't be said or held that impugned order was passed in excess or abuse of the power conferred on the Commissioner or in breach of the relevant statutory provisions. It is also not petitioner's case that requisite safeguards guaranteed under relevant provisions of DPA were not observed by the Authority. The impugned order which we found to be a reasoned and detailed one could not be upset even if it was assumed that Appellate Authority had failed to deal with all the issues raised by petitioner in his Appeal.

12. This petition accordingly fails and is dismissed.