Delhi High Court
Jugal Kishore vs Lt.Governor, Delhi & Anr. on 3 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 17.04.2017
Delivered on: 03.05.2017
+ W.P(CRL) 2883/2015
JUGAL KISHORE ..... Petitioner
versus
LT.GOVERNOR, DELHI & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. V.S.Aggarwal.
For the Respondents : Ms.Richa Kapoor, ASC with Mr.Ashish Negi.
CORAM:-
HON'BLE MR JUSTICE ASHUTOSH KUMAR
JUDGMENT
ASHUTOSH KUMAR, J
1. Jugal Kishore, the petitioner, has challenged the order dated
26.05.2015 passed by the Additional Deputy Commissioner of Police-I,
District East Delhi in connection with File No.21/2013 whereby he was
externed for a period of two years with a direction not to enter or return to
NCT of Delhi within the aforesaid period without written permission of
the competent authority. However, he was permitted to attend the Court
at Delhi/New Delhi on all dates of hearing but with the condition that he
would immediately remove himself outside the limits of NCT of Delhi
thereafter and shall not visit any place other than the Court premises. The
aforesaid relaxation was afforded to him only for the date of hearing in
the Court for coming and going out of the limits of the NCT of Delhi.
2. The petitioner is also aggrieved by the order dated 04.11.2015
passed in case No.169/2015-CA whereby the order of the externment
referred to above has been affirmed and upheld.
3. It may be noted here that earlier petitioner had approached this
Court vide W.P(C) No.1828/2015 challenging the order of the Lieutenant
Governor, the appellate authority, dated 01.07.2015 in case No.91/2015
against the externment order passed by the Additional Deputy
Commissioner of Police-I, District East Delhi. Since the appellate order
was found to be cryptic and without any reasoning, a Bench of this Court
set aside the aforesaid order and remitted it back to the Lieutenant
Governor, Delhi to decide the petitioner's appeal under Section 51 of the
Delhi Police Act, 1978 de novo after affording the parties a reasonable
opportunity of being heard in accordance with law. The present appellate
order has been passed after giving a fresh hearing to the parties.
4. An externment proposal under Section 47 of the Delhi Police Act,
1978 was sent by the SHO, Gandhi Nagar through ACP, Gandhi Nagar
for the externment of the petitioner as he was involved in the following
cases:-
S. FIR Date Section of Law Police Present
No. No. Station Status
1. 108 29.01.1978 12/9/55 Shahdara Untraced (not
Gambling Act involved)
2. 236 17.09.1988 12/9/55 Gandhi Conviction
Gambling Act Nagar
3. 210 30.08.1992 323/452/506/34 Gandhi Conviction
IPC Nagar
4. 89 12.07.1998 147/149/186/341 Gandhi Conviction
/427 IPC Nagar
5. 379 18.10.2004 3/4/9/55 Gandhi Conviction
Gambling Act Nagar
6. 102 22.03.2006 3/4/9/55 Gandhi Conviction
Gambling Act Nagar
7. 114 06.05.2010 3/4/8/9/12/55 Gandhi Conviction
Gambling Act Nagar
8. 408 26.10.2012 323/363/377/506 Krishna Pending Trial
/511/34 IPC Nagar
5. It was proposed, that the petitioner be externed as he was found
engaged in various offences and his movements were calculated to cause
alarm, harm and danger to persons and property and his presence in Delhi
or any part thereof would be hazardous to the community. It was also
alleged that witnesses were not willing to come forward to give their
evidence in public because of the apprehension of retaliation by the
petitioner.
6. From the perusal of the records and the proposal sent for the
externment of the petitioner, it appears that the petitioner was made
accused in gambling act cases, first time in 1978 and thereafter only in
the year 1988. Later, offences under the gambling act were registered
against the petitioner in 2004 and 2006. In between 1988 and 2004, the
petitioner was made accused twice: one in the year 1992 and the other in
1998 for minor offences under the Indian Penal Code. The petitioner has,
in the last been shown to have been made accused in the year 2012 for
offences under Sections 323/363/377/506/511 and 34 of the IPC. Out of
the aforesaid cases, in most of the offences relating to gambling act, the
petitioner has been convicted. Even with respect to cases instituted for the
offences under the Indian Penal Code, the petitioner has been convicted.
Two cases, one of the year 2004 and the other of 2012 are pending trial.
7. The Additional Commissioner of Police took into account the
deposition of Inspector D.P.Singh, East District Lines Delhi who stated
before him that he in his capacity as SHO, Gandhi Nagar had sent the
proposal of externment for checking the criminal activities of the
petitioner and that the petitioner had become almost a terror of the area.
As opposed to this assertion of the SHO of the Gandhi Nagar, the defence
witnesses namely Pandit Dinesh Chand (DW-1) and Guru Charan Singh
(DW-2) stated before the Additional Commissioner that they knew the
petitioner as a neighbour who was peacefully living in the area and for
the last several years had been pursuing the life of an ordinary citizen.
Both the witnesses stated that he has been falsely implicated.
8. The petitioner personally represented before the Additional
Commissioner and stated that only because he had filed complaint against
the local police that he was falsely implicated for the purposes of
destabilising him by slapping externment proceedings against him.
9. Learned counsel for the petitioner has argued that the cases against
the petitioner are interspersed over a long span of time from 1978 to 2012
and that also, after long intervals. All the offences alleged are of petty
nature. It was submitted that neither the Additional Commissioner of
Police nor the appellate authority took into account the defence of the
petitioner and the probability of the same and wrongly externed the
petitioner. From the aforesaid list of cases, it was urged, the petitioner
could not be said to be a habitual offender. The contention of the police
that nobody was coming forward to depose against the petitioner in
public is belied by the very fact that out of eight cases referred to in the
proposal, the petitioner stands convicted in five cases. In one of the case
of 1978, the records could not be traced and for the rest of the two, the
petitioner is facing trial. Thus both the orders, it was argued, suffers from
the vice of non application of mind. That there is no case after 2012, is an
evidence of the fact that the petitioner is on a reformed path and his
externment from the local limits of Delhi is without any valid cause.
10. In order to appreciate the contention of the petitioner, it is
necessary to have a look at the provisions of the Delhi Police Act, 1978
which deal with externment of a person.
"Section 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.
Section 50 - Hearing to be given before order under section
46, 47 or 48 is passed
(1) Before an order under section 46, section 47 or
section 48 is made against any person, the
Commissioner of Police shall by notice in writing
inform him of the general nature of the material
allegations against him and give him a reasonable
opportunity of tendering an explanation regarding
them.
(2) If such person makes an application for the
examination of any witness to be produced by him,
the Commissioner of Police shall grant such
application and examine such witness, unless for
reasons to be recorded in writing, the
Commissioner of Police is of opinion that such
application is made for the purpose of causing
vexation or delay.
(3) Any written explanation put in by such person shall
be filed with the record of the case.
(4) Such person shall be entitled to be represented in
the proceeding before the Commissioner of Police
by a counsel.
(5) (a) The Commissioner of Police may for the
purpose of securing the attendance of any person
against whom any order is proposed to be made
under section 46, section 47 or section 48 require
such person, by order in writing, to appear before
him and to furnish a security bond with or without
sureties for attendance during the inquiry.
(b) The provisions of sections 1.19 to 1.24 (both
inclusive) of the Code of Criminal Procedure, 1973
(2 of 1974), shall, so far as may be, apply in
relation to the order under clause (a) to furnish
security bond.
(6) Without prejudice to the foregoing provisions, the
Commissioner of Police, while issuing notice to
any person under sub-section (1) may issue a
warrant for his arrest and the provisions of
sections 70 to 89 (both inclusive) of the Code of
Criminal Procedure, 1973 (2 of 1974), shall, so far
as may be, apply in relation to such warrant.
(7) The provisions of section 445, section 446, section
447 or section 448 of the Code of Criminal
Procedure, 1973 (2 of 1974), shall, so far as may
be, apply in relation to all bonds executed under
this section.
Section 51 - Appeal against orders under sections 46, 47 or
(1) Any person aggrieved by an order made under
section 46, section 47 or section 48 may appeal to
the Administrator within thirty days from the date
of the service of such order on him.
(2) An appeal under this section shall be preferred in
duplicate in the form of a memorandum, setting
forth concisely the grounds of objection to the
order appealed against, and shall be accompanied
by that order or a certified copy thereof.
(3) On receipt of such appeal, the Administrator may,
after giving a reasonable opportunity to the
appellant to be heard either personally or by a
counsel and after such further inquiry, if any, as he
may deem necessary, confirm, vary or set aside the
order appealed against:
Provided that the order appealed against
shall remain in force pending the disposal of the
appeal, unless the Administrator otherwise directs.
(4) The Administrator shall make every endeavour to
dispose of an appeal under this section within a
period of three months from the date of receipt of
such appeal.
(5) In calculating the period of thirty days provided
for an appeal under this section, the lime taken for
obtaining a certified copy of the order appealed
against, shall be excluded.
Section 52 - Finality of order in certain cases - An order
passed by the Commissioner of Police under section 46,
section 47 or section 48 or the Administrator under section
51 shall not be called in question in any court except on the
ground--
(a) that the Commissioner of Police or the
Administrator, as the case may be, had not
followed the procedure laid down in sub-section
(1), sub-section (2) or sub-section (4) of section
50 or in section 51, as the case may be; or
(b) that there was no material before the
Commissioner of Police or the Administrator, as
the case may be, upon which he could have based
his order; or
(c) in the case of an order made under section 47 or
an order in appeal therefrom to the Administrator
under section 51, the Commissioner of Police or
the Administrator, as the case may be, was not of
the opinion that witnesses were unwilling to come
forward to give evidence in public against the
person against whom such order has been made."
11. Section 47 of the Act refers to the situation under which a person
could be removed from the territory of Delhi. The situation enumerated
are that if the movement of such person causes alarm, danger or harm or
the proceedee is or about the commit offences under various sections of
the Indian Penal Code or that such person is so desperate and dangerous
so as to render his roaming at large in Delhi would be hazardous to the
community or has been habitually intimidating persons or causing affray
or passing indecent remarks on women and girls. If, in conjunction with
any one of the grounds or all the grounds, the competent authority frames
his opinion that out of fear nobody is coming forward to depose against
such person, he could either be directed to behave or to remove himself
outside Delhi or to remove himself from any specified part of Delhi for a
fixed duration/tenure.
12. The explanation appended to the section defines habitual offender.
If a person has involved himself in cases on three occasions or more
within one year immediately preceding the commencement of the action,
he is a habitual offender.
13. Section 47 of the Act, therefore, refers to two aspects. The
Commissioner of Police has first to be satisfied about the proceedee to be
a dangerous person and that allowing him to roam at large would be
hazardous to the society or cause harm and danger to any person or
property or reasonable grounds for believing that he would involve
himself in offence affecting human body, property, counterfeiting coins
and currency notes. Thereafter, the Commissioner of Police is required to
formulate his opinion that witnesses are unwilling to come in open to
depose against such person for the fear of their lives. Then only a
person/offender/proceedee could either be directed to behave himself or
remove himself outside any part of Delhi or remove himself completely
outside Delhi.
14. From the records of the case, it appears that the two witnesses who
were called on behalf of the petitioner testified to the good behaviour of
the petitioner in the locality and his false implication. The petitioner has
subjected himself to the process of law in the past and, therefore, was
convicted in five of the cases lodged against him. The cases are also not
in quick succession but after long intervals. The order of the Additional
Commissioner of Police and the appellate Authority do not evince that
the defence of the petitioner was seen in the correct perspective.
15. Ms.Richa Kapoor, learned Additional Standing Counsel, while
defending the orders submitted that the Additional DCP was satisfied
about the criminal proclivity of the petitioner. It is only the subjective
satisfaction of authorities, based on materials available on record that the
externment order has been passed. It is further submitted by her that the
sufficiency of materials on which the externment order was passed cannot
be gone into. What is required to be seen is the existence of materials and
not the sufficiency of materials. If the materials available on record,
satisfies the competent authority to arrive at such conclusion, the same
ought not to be interfered with.
16. It is further submitted on behalf of the State that the petitioner has
undergone most of the period of the externment order. Learned counsel
for the petitioner in response to the above statement submits that it would
not make any difference to his submissions regarding the correctness of
both the orders and if the orders are not good enough to be sustained in
the eyes of law, it would be no ground for not interfering with them that
the externment order has, for most of the part, been executed.
17. The scope of judicial review of the administrative order, it has been
argued, is limited to the legality of the decision making process and not
the legality of the order per se and no judicial interference is required in
the event of the possibility of any plausible view with regard to the
petitioner being dangerous and hazardous to the society.
18. The position of law with respect to judicial interference in matters
of administrative decisions has been well crystallized by now. The oft
quoted and referred decision in this regard is in Associated Provincial
Picture Houses Ltd vs. Wednesbury Corporation, (1947) 2 All E.R 680.
The principle enunciated in the aforesaid case is popularly known as
Wednesbury principles. The aforesaid decision takes note of the fact that
in order to test the "reasonableness" of the order, the Court has to find out
whether relevant factors have been taken into account for coming to any
conclusion. What is important to see is whether the action of the
executive is within the parameters of law and that the decision passes the
test of reasonableness. If the administrative order is irrational, or has been
arrived at without taking into consideration relevant factors which ought
to have been taken into account and/or suffers from the procedural
irregularities, the same can definitely be reviewed and corrected.
19. True it is that the sufficiency of the material for the police authority
to come to the conclusion about the petitioner being dangerous cannot be
gone into; nonetheless such executive order cannot be sustained if it is
based on distorted/illogical grounds.
20. The relevant provisions of the Delhi Police Act have been enacted
for the purpose of preventing crime and making society worth living.
Keeping this object in mind, even before the threshold of the commission
of crime by any person, considering his criminal dispensation and
proclivity, he could be removed from the confines of Delhi.
21. Nonetheless, there can be no dispute that an externment order
brings in societal and personal deprivation and is a great blow on the
finances of the externee. An order of externment makes an inroad into
the cherished and valuable right of a person to have his domicile at the
place of his choice.
22. This Court is mindful of the fact that unless such stringent
measures are taken against such law breakers, it would be difficult for
police authorities to maintain an even tempo of the society. At the same
time the rights and liberties of a person cannot be lightly interfered with
and has to be guarded with utmost zeal.
23. The provisions of Section 47 and 50 therefore, have to be read
strictly. Considering the strain that it puts on an externee, the
considerations for externing a person ought to be in consonance with the
requirements of law and the satisfaction arrived at by the executive
authorities must pass the test of reasonableness. Any executive order
which is not informed with fairness cannot be sustained on any account.
24. There must be a clear and present danger in allowing the petitioner
to remain at large in jail for countenancing the order of externment.
25. From the perusal of the externment order as also the appellate
order, this Court is of the opinion that there was no sufficient reason to
believe that the petitioner was so desperate and dangerous that his
presence in NCT or any part thereof would be hazardous to the
community and its safety. Both the orders referred to above, suffer from
vice of non application of mind with respect to relevant considerations
namely
i. the frequency of the cases in a particular year,
ii. consideration of the fact whether the petitioner has improved
himself,
iii. the urgency of externing the petitioner in 2015,
iv. requirement of the petitioner to be in Delhi to attend to cases
which are pending trial,
v. the financial burden on the proceedee in coming from
outside Delhi to Delhi Courts,
vi. the possibility of delay in disposal of cases and, therefore,
delay in vindication of the assertion of either i.e. the
petitioner or the prosecuting agency,
26. There does not appear to be any material so as to justify the
assessment that witnesses are not daring to come in open to depose
against the petitioner.
27. Tested on the touchstone of aforementioned facts and principles,
the externment and the appellate orders cannot be sustained in the eyes of
law.
28. The externment order dated 26.05.2015 passed by the Additional
DCP and the appellate order dated 04.11.2015 passed by the LG, Delhi
are, therefore, quashed.
29. The petition stands disposed of accordingly.
Crl. M.A. No.17973/2015
1. In view of the main petition having been allowed, this application
becomes infructuous.
2. This application is disposed of accordingly.
ASHUTOSH KUMAR, J
MAY 03, 2017
k
