Anil Kumar @ Lala vs State Govt. Of Nct Of Delhi & Anr.
2013 Latest Caselaw 5708 Del

$~21.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                          Date of Decision: December 10, 2013

+                         W.P.(CRL) 1555/2013
       ANIL KUMAR @ LALA                                          ..... Petitioner
                    Through :         Mr.R.K. Bali, Adv.

                          versus

       STATE GOVT. OF NCT OF DELHI & ANR.              ..... Respondents
                     Through : Ms.Charu Dalal, Adv. for Mr.Saleem
                               Ahmed, ASC for the State.
                               SI Rajender Dhaka, P.S. Rajouri Garden.

       CORAM:
              HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J. (Oral)

1. Present petition is directed against the order of externment dated 27.9.2012 passed by Additional Deputy Commissioner of Police, District (West), Delhi, and the order dated 31.7.2013, passed by learned Lieutenant Governor of Delhi, whereby the appeal filed by the petitioner was dismissed and the order of externment dated 27.9.2012 was upheld.

2. Learned counsel for the petitioner submits that by the impugned order of externment the petitioner was directed to remove himself beyond the limits of NCT of Delhi, for a period of one year w.e.f. 4.10.2012. The petitioner thereafter filed an appeal and the said order of externment was stayed by the Lieutenant Governor, however, on 31.7.2013 while dismissing the appeal, the Lieutenant Governor directed that the period of externment would start from 10.8.2013. Counsel contends that the petitioner has been falsely implicated in three cases, which have been lodged against him, within a span of three days i.e. from 10.3.2011 to

13.3.2011. It is further submitted that both the orders dated 27.9.2012 and 31.7.2013 are stereotyped orders and the same have been passed without any application of mind.

3. Counsel submits that there is no material on record to show as to how the respondent No.2 has reached the following conclusions:-

(a) That the respondent is engaged in the commission of illegal acts and offences since 10.03.2011.

(b) His activities and movements in the limits of the NCT of Delhi are causing and calculated to cause alarm, danger and harm to the person and property.

(c) His criminal activities are great menace and he is as desparate and dangerous as to render his being at large in the NCT of Delhi OR any part thereof hazardous to the community.

(d) He is a notorious criminal and habitual offender.

       (e)    He is a man of criminal propensity.
       (f)    Nobody is ready to dare to come forward to depose against him in
              open due to fear of their person and property.
       (g)    His continuous presence in the area is a constant source of tension

and disturbance to other law abiding citizens of the area who also have a right of peaceful life.

4. It is also submitted that the action of the respondent is totally arbitrary, without any application of mind and without any basis. It is submitted that for passing an order of externment, respondent No.2 cannot take a decision on whims and fancies. It is also contended that besides three cases which were filed against the petitioner within 10.03.2011 to 13.03.2011, the petitioner has not been involved in any criminal activity in the past.

5. Learned counsel for the State has justified passing of the orders on the

ground that three cases registered against the petitioner were registered against him within a period of three days and, thus, there is no illegality or infirmity in the order passed by Additional Deputy Commissioner of Police, which has been upheld by the Lieutenant Governor of Delhi.

6. I have heard learned counsel for the parties and carefully perused the order of externment dated 27.9.2012 and the order passed by Lieutenant Governor of Delhi on 31.7.2013. Section 47 of Delhi Police Act, 1978, 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 (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; 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 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 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."

7. A bare perusal of Section 47 shows that it authorises the Commissioner of Police, in case it appears to him that the movement of a person is causing or is likely to cause danger or harm to any person or property or there are reasonable grounds to believe that a person is engaged or about to be engaged in the commission of an offence, involving force or violence and such person is a desperate and dangerous person for the community at large or he has been found habitualy intimidating other persons by his acts of violence, to pass an order of externment against such person. Further Section 50 of Delhi Police Act, 1978, provides for hearing, which is to be granted to such person.

8. While passing the order of externment a public authority must act with caution and only when there are compelling circumstances and there seems no alternative left only then the liberty and freedom of a citizen can be curtailed.

9. It will be useful to refer to the observations made by the Supreme Court of India in the case of Prem Chand v. Union of India and Ors., reported at (1981) 1 SCC 639. It was held that mere apprehension is not enough for passing an order of externment; and there must be clear and present danger based on credible material before passing such an order. Relevant paragraph of the judgment reads as under:

"... We are conscious of the difficulties of detection and proof and the strain on the police in tracking down criminals. But fundamental rights are fundamental and personal liberty cannot be put at the mercy of Police. Therefore, Sections 47 and 50 are to be read strictly. Any police apprehension is not enough for passing the order of externment. 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 the person proceeded against is so desperate and dangerous that his mere presence in the locality or any part thereof is hazardous to the community and its safety. A stringent test must be applied in order to avoid easy possibility of abuse of this power to the detriment of the fundamental freedoms. Natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Articles 14, 19 and 21 of the Constitution. The Act permits externment, provided the action is bonafide. All powers, including police power, must be informed by fairness if it is to survive judicial scrutiny."

10. The present case is to be decided on the touchstone of the law laid down by the Supreme Court. A careful reading of the order of externment dated 27.9.2012 would show that three cases have been registered against the petitioner from 10.3.2011 to 13.3.2011. Out of the three cases, two cases are with regard to theft and one case pertains to Section 25 of the Arms Act read with Section 411/34 IPC. It is not in dispute that out of the three cases, in one case the petitioner has been discharged, in the second case the petitioner has already undergone the sentence, and the third case is

pending trial.

11. Admittedly the petitioner has been convicted in one case. It cannot be said that the witnesses are not willing to come forward to give evidence against the petitioner, which is clearly evident from the supplementary status report, which has been handed over in Court by the State. Although the order of externment suggests that the petitioner has been engaging himself in criminal activities, which are a great menace and he is desperate and dangerous to the society at large, but the status report, which has been filed, does not support the same. There is nothing on record to show that the petitioner is a man of criminal propensity and nobody is ready to come forward to depose against him due to fear. The fact that the petitioner has undergone the sentence in one matter would by itself show that somebody would have deposed against him. There is nothing to suggest in the status report, on the basis of information sought, that the settlement arrived at in one matter was out of fear, coercion or pressure. The grounds for externment must be clear and the respondents must show that the movement of a person are causing or likely to cause danger or harm to a person or property. Such danger is to be based on credible material and not merely a vague assertion.

12. Accordingly, present petition is allowed. The orders dated 27.9.2012 and 31.7.2013 are quashed.

13. Petition stands disposed of.

                                                                     G.S.SISTANI, J
DECEMBER                10, 2013
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