Delhi High Court
Vimla vs State (Govt. Of Nct Of Delhi) on 31 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 26.05.2017
Delivered on: 31.05.2017
+ W.P(CRL) 3245/2016
VIMLA ..... Petitioner
versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr.Aditya Aggarwal with Ms.Samia Malik.
For the Respondent : Mr.Rajesh Mahajan, ASC with Mr.Lokesh
Chandra.
CORAM:-
HON'BLE MR JUSTICE ASHUTOSH KUMAR
JUDGMENT
ASHUTOSH KUMAR, J
1. Vimla, the petitioner, has impugned orders dated 19.05.2016 and
10.08.2016 passed by the Additional Deputy Commissioner of Police,
East District: Delhi, passed in File No.11/2015 and the Lieutenant
Governor in Case No.81/2016, respectively whereby she has been
externed from the limits of NCT of Delhi for a period of two years and
which order passed by the Additional Deputy Commissioner of Police has
been affirmed and upheld by the Lieutenant Governor of Delhi.
2. An externment proposal under Section 47 of the Delhi Police Act,
1978 was forwarded against the petitioner, listing 32 cases lodged against
her. The table of cases is being reproduced below:
S. FIR Date Under Section Police Present
No. No. Station Position
1. 247 16.09.1993 61/1/14 Excise Anand Conviction
Act Vihar
2. 376 05.10.1999 61/1/14 Excise Anand Acquittal
Act Vihar
3. 463 14.12.1999 61/1/14 Excise Anand Acquittal
Act Vihar
4. 196 22.06.2000 61/1/14 Excise Anand Acquittal
Act Vihar
5. 07 04.01.2001 61/1/14 Excise Anand Acquittal
Act Vihar
6. 366 16.10.2001 61/1/14 Excise Anand Acquittal
Act Vihar
7. 83 03.04.2002 61/1/14 Excise Anand Acquittal
Act Vihar
8. 127 29.04.2002 61/1/14 Excise Anand Acquittal
Act Vihar
9. 175 25.06.2002 61/1/14 Excise Anand Acquittal
Act Vihar
10. 387 02.12.2002 61/1/14 Excise Anand Acquittal
Act Vihar
11. 173 13.05.2003 61/1/14 Excise Anand Acquittal
Act Vihar
12. 334 28.08.2003 61/1/14 Excise Anand Acquittal
Act Vihar
13. 77 29.02.2004 61/1/14 Excise Anand Acquittal
Act Vihar
14. 166 21.04.2004 61/1/14 Excise Anand Acquittal
Act Vihar
15. 584 26.10.2004 61/1/14 Excise Anand Acquittal
Act Vihar
16. 603 02.11.2004 61/1/14 Excise Anand Acquittal
Act Vihar
17. 607 03.11.2004 61/1/14 Excise Anand Acquittal
Act Vihar
18. 665 29.11.2004 61/1/14 Excise Anand Acquittal
Act Vihar
19. 457 15.08.2005 61/1/14 Excise Anand Acquittal
Act Vihar
20. 562 19.10.2005 61/1/14 Excise Anand Acquittal
Act Vihar
21. 590 04.11.2005 61/1/14 Excise Anand Acquittal
Act Vihar
22. 141 11.03.2006 61/1/14 Excise Anand Acquittal
Act Vihar
23. 172 23.03.2006 61/1/14 Excise Anand Acquittal
Act Vihar
24. 529 08.10.2006 61/1/14 Excise Anand Acquittal
Act Vihar
25. 114 03.03.2007 61/1/14 Excise Anand Acquittal
Act Vihar
26. 202 15.04.2007 61/1/14 Excise Anand Acquittal
Act Vihar
27. 602 28.11.2008 61/1/14 Excise Anand Acquittal
Act Vihar
28. 78 23.02.2009 61/1/14 Excise Anand Acquittal
Act Vihar
29. 124 21.03.2009 61/1/14 Excise Anand Pending
Act Vihar Trial
30. 28 09.01.2014 61/1/14 Excise Farsh Bazar Pending
Act Trial
31. 333 25.04.2014 61/1/14 Excise Farsh Bazar Pending
Act Trial
32. 72 26.01.2015 61/1/14 Excise Farsh Bazar Pending
Act Trial
3. The Additional Deputy Commissioner of Police, on perusal of the
proposal and the materials on record, initiated the externment proceedings
against the petitioner as the materials disclosed that the movements and
acts of the petitioner were calculated to cause alarm, danger and harm to
persons and property and her presence in Delhi or in part thereof would
be hazardous to the community. It was also found that the witnesses are
not willing to give evidence in public against the petitioner due to
apprehension of backlash.
4. The petitioner in response to the notice, which was explained to
her, denied the allegations and submitted that in almost all the cases listed
in the proposal, she has been acquitted. It was further indicated by the
petitioner that majority of the cases, which have been listed in the present
proposal, were used as evidence of her criminal propensity for seeking
her externment twice earlier. The petitioner is stated to be 60 years of
age and suffering from various diseases. It was further submitted that she
maintained her children by running a small grocery shop and all the cases
which were lodged against her in the past were at the behest of her
neighbour, one Kamaljeet who had attempted to molest her daughter for
which she has filed a case. Even the sons of her neighbour, are now
harassing her.
5. Inspector Harish, SHO, Farsh Bazar, Delhi was examined as
prosecution witness who deposed that he had sent the externment
proposal against the petitioner on his satisfaction that her movements
were dangerous to the society.
6. Smt. Urmila and Shri Jagdish Chander were examined on behalf of
the petitioner, both of whom, spoke about the good conduct of the
petitioner. They have stated that the petitioner runs a small grocery shop
and has not been indulging in any unlawful activity.
7. However, during the pendency of the externment proceedings, the
petitioner was found to be involved in two other cases, namely, FIR
No.326/2015 instituted for offences under Sections 186, 353, 332, 308
and 34 of the IPC and another being FIR No.635/2015 instituted for
offence under Section 135 of the Indian Electricity Act (Amend), 2003.
8. With respect to the aforesaid two cases, a supplementary notice
was served upon the petitioner which also was replied by her saying that
the case under Section 308 is not in her knowledge whereas Indian
Electricity Act case has been compromised/settled on 04.11.2015.
9. In camera evidence of witnesses which were recorded by the earlier
Additional Deputy Commissioner of Police was also perused before the
impugned order was passed. The Additional Deputy Commissioner of
Police thereafter vide order dated 19.05.2016, directed the petitioner to
remove herself from the limits of NCT of Delhi for a period of two years
within 7 days from the date of the order. The petitioner was only
permitted to come to Delhi for attending court cases.
10. The aforesaid order was, as has been stated earlier, upheld in
appeal vide order dated 10.08.2016.
11. It has been argued on behalf of the petitioner that both the orders
impugned reflect complete non application of mind. All the cases lodged
against the petitioner and which have been cited in the externment
proposal have ended in acquittal. Both the orders do not reflect that the
defence of the petitioner was taken and appreciated in right perspective.
The nature and quality of accusation in all such cases did not clearly
make out that the petitioner is a habitual offender and that the provisions
of the Delhi Police Act, 1978 could have been invoked for externing the
petitioner. The other grounds of challenge are that there is no evidence to
suggest that witnesses are not forthcoming to depose in public against the
petitioner for the fear of reprisal; same set of cases were used by the
authorities to extern the petitioner earlier and that the petitioner was not
given the deposition of witnesses recorded „in camera‟ for her to
effectively rebut the charges levelled by them and that the orders are in
gross violation of the rights of the petitioner under Articles 14, 19 and 21
of the Constitution of India.
12. Mr. Mahajan, learned Additional Standing Counsel, in response to
the aforesaid contention, submitted that Section 47 of the Delhi Police
Act requires satisfaction of the authority that movements/acts of any
person are causing danger and alarm or that there are reasonable grounds
for believing that such person is or is about to be engaged in the
commission of an offence involving force or violence for an offence
punishable under various chapters of the Indian Penal Code or if a person
is so desperate and dangerous and has been found habitually intimidating
others or committing affray or passing any indecent remarks on women.
The explanation attached to Section 47, it has been argued, which
explains that a habitual offender is the one who is found for not less than
three occasions to have committed such offence immediately preceding
the commencement of the proceedings under the Delhi Police Act, is not
applicable in general as the requirements are in the alternative and cannot
be read to be in conjunction. The submission, in short, therefore is, even
if one of the clauses from (a) to (c) under Section 47 of the Delhi Police
Act is attracted, the order of externment cannot be termed as invalid or
illegal. The other submissions on behalf of the State are that there ought
to be some finality to such proceedings and that the cases which have
been taken into account are only for references regarding the criminal
propensity of the petitioner. It has been submitted that the authorities
were aware of the fact that some of the cases cited against the petitioner
were used in earlier externment proceedings. Mr. Mahajan submits that
the satisfaction of the competent authority is subjective in nature and
there is very limited scope of judicial review in such matters. It has been
argued that the cases in which acquittal has been recorded can also be
taken into consideration as orders of acquittal might have been passed
because of insufficient evidence but facing prosecution in many cases
would itself be an evidence of the mindset of an accused.
13. By virtue of decisions rendered in, Shailender Kaur v. Lt.
Governor & Ors.: 91 (2001) DLT 243 (DB) and Dheeraj v. State: 2001
(V) (AD) Delhi 672, it has been submitted that a person indulging in
commission of offences punishable under the Excise Act would also be
dangerous and harmful to the society and public in general. The
involvement in cases under the Excise Act, by its very nature, cannot be
confined to one or few but such activities affect large section of public.
14. With respect to the petitioner not having been made available the
deposition of the witnesses who were examined „in camera‟, it has been
submitted that it would not be expedient to give such evidence to a
proceedee as the very purpose of the proceedings would be frustrated.
Collecting of evidence „in camera‟ has been held to be permissible and
within parameters of such matters and the courts have been consistent in
ruling that such material can only be made known to a proceedee but
details need not be given, the reason being that it might spark off another
round of tyranny against the witnesses.
15. In order to appreciate the contentions of the parties, it would be
necessary to refer to the provisions of Sections 47, 48, 50 and 52 of the
Delhi Police Act, 1978.
"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 48 - Removal of persons convicted of certain
offences.- If a person has been convicted--
(a) of an offence under Chapter XII, Chapter XVI or Chapter
XVII of the Indian Penal Code or (45 of 1860 );
(b) of an offence under section 3 or section 4 of the Delhi
Public Gambling Act, 1955 (Delhi Act 9 of 1955 ), or
under section 12 of that Act in so far as it relates to satta
gambling or on two or more occasions under any other
provision of that Act (including section 12 of that Act in
so far as it does not relate to satta gambling); or
(c) of any offence under the Suppression of Immoral Traffic
in Women and Girls Act, 1956 (104 of 1956 ); or
(d) of any offence under section 25, section 26, section 27,
section 28 or section 29 of the Arms Act, 1959 (54 of
1959); or
(e) of any offence under section 135 of the Customs Act, 1962
or (52 of 1962 );
(f) of any offence under section 61, section 63 or section 66
of the Punjab Excise Act, 1955 (Punjab Act No. 1 of
1955), as in force in Delhi; or
(g) on two or more occasions of an offence under-
(i) the Opium Act, 1878 (1 of 1878 ); or
(ii) the Dangerous Drugs Act, 1930 (2 of 1930 ); or
(iii) the Drugs and Cosmetics Act, 1940 (23 of 1940 );
or
(iv) section 11 of the Bombay Prevention of Begging
Act, As 1959 (Bombay Act No. 10 of 1960 ), in force in
Delhi; or
(h) on three or more occasions of an offence under section
105 or section 107 of this Act, the Commissioner of
Police may, if he has reason to believe that such person is
likely again to engage himself in the commission of any of
the offences referred to in this section, by order in
writing, direct such person remove himself beyond the
limits of 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 any part
thereof, as the case may be, from which he was directed
to remove himself."
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 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."
16. 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.
17. 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.
18. 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.
19. It is noticeable from the orders impugned that the authorities were
conscious of the fact that most of the cases, which were cited in the
externment proposal, were used as evidence against the petitioner in two
earlier externment proceedings in the year 2004 and 2005. The impugned
order passed by the Additional Deputy Commissioner of Police further
indicates that with respect to cases from Sl. No.1 to 14 and 16 to 29, the
petitioner was directed to furnish a bond for maintaining good behaviour
for one year vide order dated 26.04.2011.
20. From record it further appears that after the year 2009, only two
cases were lodged in the year 2014 and one in the year 2015. During the
pendency of the externment proceedings, two more cases were brought to
the notice of the authority both of which were lodged in 2015 in the
months of April and August respectively. One of such case lodged in the
month of August, 2015 pertains to Indian Electricity Act which stands
compounded. The petitioner is completely unaware about the existence
of FIR No.326/2015 which is lodged for various offences under Indian
Penal Code including Section 308.
21. No doubt it is true that cases in which judgment of acquittal has
been recorded, can also be taken into account while conducting
proceedings under the Delhi Police Act, to establish the criminal
proclivity of a proceedee but what has to be seen is whether such a
proceeding is necessary for controlling law and order. What meets the
eye is that almost all the cases against the petitioner are of Excise Act and
in none of them except one which was lodged in the year 1993,
conviction was recorded. The petitioner has explained that in 1993, she
was wrongly advised to admit her guilt and therefore she was convicted
and asked to pay Rs.1000/- as fine. It has been submitted on behalf of the
petitioner that she did not ever go to jail in any one of the cases. The
orders impugned do not reflect that acquittal in almost all the cases was
because of the witnesses were not forthcoming to depose against the
petitioner. That ought to have been taken into consideration while
dealing with the issue of externment of proceedee. If the trial ended in
acquittal because of charges not being established, that would, at least,
prima facie show that the implication of the proceedee was false. There
is no denying of the fact that large number of cases indicate the criminal
bent of mind of a person but equally true would be the assumption that if
none of the cases out of such large number, ends in conviction, such
person has been falsely implicated in cases or is being hounded at the
instance of others who have some axe to grind. The orders impugned
also do not take note of the defence of the petitioner that she has been
running a grocery shop to maintain her children and that she is a senior
citizen. After 2011, when the petitioner was directed to furnish a bond of
good behaviour, for good many years, no case was reported till about
2014. Thereafter, two cases in the year 2014 were lodged against her and
out of the aforesaid two cases; one was under the Excise Act. In the year
2015, three cases are reported against the petitioner out of which one is
under the Indian Electricity Act, the other is not known to the petitioner
and the third one is pending trial. It also does not appear from the order
as to why the petitioner has not ever been arrested in any one of the cases
uptil now.
22. The position of law with respect to judicial interference in matters
of administrative decisions has been well crystallized by now. Though,
there is limited scope of judicial review of such an administrative order
but the decision in this regard in Associated Provincial Picture Houses
Ltd vs. Wednesbury Corporation, (1947) 2 All E.R 680, 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.
23. 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.
24. 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. But such a
decision has to be an informed decision.
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 her
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. acquittal in almost all cases,
ii. lack of frequency of the cases in a particular year,
iii. consideration of the fact whether the petitioner has improved
herself,
iv. the urgency of externing the petitioner in 2015,
v. requirement of the petitioner to be in Delhi to attend to cases
which are pending trial,
vi. the financial burden on the proceedee in coming from
outside Delhi to Delhi Courts,
vii. 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,
viii. The social status of the petitioner, namely her being an
elderly divorced lady who has to maintain a number of
children by running her grocery shop,
ix. The evidence of two of the neighbours who have spoken
about the good conduct of the petitioner.
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 petition stands disposed of accordingly.
CRL.M.A.17604/2016
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 31, 2017/ns
