Gaurav Shokeen vs State & Ors.
2014 Latest Caselaw 6940 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Decided on : 18th December, 2014

+        W.P.(CRL) 1161/2014
         GAURAV SHOKEEN                                    ......Petitioner
                     Through:             Mr.Vaibhav Sinha, Adv.
             versus

         STATE & ORS.                                       ..... Respondents
                               Through:   Mr.Mukesh Gupta, ASC for the State
                                          with SI Vikram Singh, PS Mianwali
                                          Nagar.

         CORAM:
         HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J. (ORAL)

1. By filing this writ petition, the Petitioner has questioned the order dated 22.04.2014 passed by Addl. DCP (West District), Delhi whereby the Petitioner has been externed from NCT of Delhi for a period of two years and the order dated 07.05.2014 passed by Lt.Governor whereby the appeal filed by the Appellant was dismissed.

2. On 04.09.2013, the Addl. DCP (West District) issued a notice to the Petitioner under Section 50 of Delhi Police Act calling upon him to show cause why he should not be externed from NCT of Delhi on account of his involvement in four cases registered within a span of two days i.e. from 25.02.2013 to 27.02.2013.

3. The Petitioner filed reply to the show cause notice and was given an opportunity to engage a counsel to defend him. Opportunity of being heard

was also given to the Petitioner. However, Addl. DCP (West District) vide impugned order dated 22.04.2014 arrived at the conclusion that the Petitioner was a criminal who was not likely to reform his way of life. His activities in the area of NCT of Delhi were considered to be harmful to the citizens of the area and his continuous presence in the area to be source of tension and disturbance to the law abiding citizens. The Addl. DCP also took into account the fact that witnesses were not willing to depose against him because of threat from the Petitioner to their safety.

4. The order dated 22.04.2014 by Addl. DCP was challenged by filing an appeal on 25.04.2014 before Lt.Governor. After hearing the Petitioner and the State, the said appeal was dismissed by Lt.Governor on 07.05.2014.

5. Learned counsel for the Petitioner submitted that in the externment order, the Petitioner has been shown to be involved in following four cases :

(i) FIR No.44/2013 under Section 356/379/34 IPC, PS Mianwali Nagar

(ii) FIR No.47/2013 under Section 356/379/411/34 IPC, PS Mianwali Nagar

(iii) FIR No.74/2013 under Section 356/379/34 IPC, PS Vikas Puri

(iv) FIR No.75/2013 under Section 356/379/34 IPC, PS Vikas Puri.

6. Learned counsel for the Petitioner submitted that neither before registration of above four cases nor thereafter the Petitioner was found involved in any other case. He further submitted that while the Petitioner stands acquitted in case FIR No.75/2013, PS Vikas Puri, FIR No.74/2013 PS Vikas Puri was sent as 'untraced' and in FIR No.44/2013 PS Mianwali Nagar, the Petitioner stands discharged. Only case FIR No.47/2013 PS Mianwali Nagar is pending trial as on date, however ignoring all these aspects, the Petitioner was ordered to be externed. It has been further

submitted that mere apprehension by the police is not sufficient to order for externment and there must be some credible material to arrive at a conclusion that the Petitioner's presence in the area is a threat to the society or that the person proceeded against is so desperate and dangerous that his presence in the locality is hazardous to the community. Learned counsel for the Petitioner submitted that the fundamental right of the Petitioner cannot be put at mercy of the police and merely because certain vague allegations were made against the Petitioner, is not sufficient to pass an order for externment, hence the impugned order may be set aside.

7. On behalf of State, learned Addl. Standing Counsel submitted that merely because the Petitioner stands acquitted in one case is no ground to set aside the impugned orders. It has been submitted that the Petitioner was involved in four cases and one is still pending trial. Learned ASC for the State has drawn the attention of this Court to the judgment dated 22.06.2013 in case FIR No.75/2013 PS Vikas Puri wherein the reason for acquittal is that the Complainant turned hostile.

8. Learned ASC for the State has relied upon decision of this Court in Khalid @ Aminuddin @ PAhalwan vs. Addl. Dy.Commissioner of Police & Anr. 115 (2004) DLT 670 wherein it was held that acquittal of the Petitioner in most of the cases is of no help to the Petitioner as main reason for acquittal was that the public witnesses turned hostile which rather confirms that the public witnesses are afraid of the Petitioner and have no courage to make deposition against him,

9. I have considered the rival contentions. All the FIRs registered against the Petitioner within a span of two days are under Sections 356/379 IPC. The judgment of acquittal in case FIR No.75/2013, PS Vikas Puri

shows that it was a case of chain snatching and the Complainant turned hostile. The discharge order dated 02.03.2013 in case FIR No.44/2013, PS Mianwali Nagar shows that discharge was on the ground that no recovery could be affected. The contention of learned counsel for the Petitioner that the Petitioner stands acquitted in case FIR No.75/2013, PS Vikas Puri and in other two cases, he has been discharged/sent 'untraced' in itself is no ground to quash the impugned order for the reason that insufficiency of evidence and turning witnesses hostile resulted in acquittal/discharge of the Petitioner. In this regard, reliance can be placed on Hari Khemu Gawali vs. Deputy Commissioner of Police 1956 CriLJ 1104 wherein it was held by Supreme Court that discharge or acquittal in a case can be taken into account for passing an order of externment.

10. In the case of State of NCT of Delhi & Anr. vs. Sanjeev @ Bittoo (2005) 5 SCC 181 while considering the scope of judicial review by the Courts in writ jurisdiction, the Supreme Court has observed as under :

'24. It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary the order directing externment should show existence of some material warranting an order of externment. While dealing with question mere repetition of the provision would not be sufficient. Reference to be made to some material on record and if that is done the requirements of law are met. As noted above, it is not the sufficiency of material but the existence of material which is sine qua non.

25. As observed in Gazi Saduddin's case (supra) satisfaction of the authority can be interfered with if the satisfaction recorded is demonstratively perverse based on no evidence, misreading of evidence or which a reasonable man could not form or that the person concerned was not given due opportunity resulting

in prejudice. To that extent, objectivity is inbuilt in the subjective satisfaction of the authority.

26. The material justifying externment can also throw light on options to be exercised. If referring to the materials, the authority directing externment also indicates the option he thinks to be proper and appropriate it can not be said to be vitiated even though there is no specific reference to the other options. It is a matter of legitimate inference that when considering materials to adjudicate on the question of desirability for externment, options are also considered and one of the three options can be adopted. There can not be any hair splitting in such matters. A little play in the points is certainly permissible while dealing with such matters.'

11. On examining the impugned orders on above settled principles, I am of the considered view that the Addl. DCP has taken into account all the aspects including fear in the witnesses not to come forward to make statement against the Petitioner. There is no material on record to suggest any enmity with the police or the SHO who deposed against the Petitioner during externment proceedings. Rather the contention by the Petitioner that except four cases registered against him within a span of two days, there is no other involvement, establishes that there was no ill- will or enmity to falsely implicate the Petitioner to initiate externment proceedings against him.

12. The impugned order of externment, therefore, does not call for any interference by this Court in exercise of writ jurisdiction for the simple reason that if the competent authority, on the basis of material produced, has recorded satisfaction that the Petitioner was causing danger to the respectable citizens of the society and people are not ready to come forward to depose against him, the view of the competent authority

cannot be substituted by the Court.

13. There being no merit in the writ petition, the same is hereby dismissed.

DECEMBER 18, 2014                             PRATIBHA RANI, J
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