Surender @ Chhinda vs Government Of Nct Of Delhi & Anr
2017 Latest Caselaw 5069 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(CRL) 862/2016

%                                        Date of Decision: 14.09.2017

SURENDER @ CHHINDA                                       ..... Petitioner
                 Through:             Mr.Nitin Tittal, Adv. with
                                      Ms.Supriya, Adv.

                       Versus
GOVERNMENT OF NCT OF DELHI & ANR         ..... Respondents

Through: Mr.Ashish Aggarwal, ASC with Mr.Piyush Singhal, Adv.

Insp.Pawan Kumar PS Geeta Colony.

CORAM:

HON'BLE MR. JUSTICE ASHUTOSH KUMAR

ASHUTOSH KUMAR, J (ORAL)

1. Surender @ Chhinda, the petitioner has challenged the order dated 29.01.2016 passed by the Additional Deputy Commissioner of Police-01, East District, Delhi in connection with file no.75/2015 whereby he has been externed from the limits of NCT of Delhi for a period of two years as well as the order passed by the Hon'ble Lieutenant Governor dated 17.02.2016 in case no.19/2016 whereby the order of the learned Additional Deputy Commissioner of Police-01, East District, Delhi, externing the petitioner, has been affirmed and upheld.

2. A proposal for externment of the petitioner was made by the SHO of Geeta Colony police station through the ACP, Gandhi Nagar police station alleging that the materials on record revealed that there were reasonable grounds to believe that the petitioner was engaged in various offences punishable under the IPC, Arms Act, Gambling Act and Delhi Police Act and that the movements and acts of the petitioner were calculated to cause alarm, danger and harm to person and property and his presence in Delhi or any part thereof is hazardous to the community. The proposal for externment also included the fact that witnesses are not willing to come forward to depose against the petitioner because of the fear of reprisal.

3. The cases cited in the proposal are as hereunder:

S. FIR No. Date Section of Law Police Station Present No. Status

1. 19 12.03.2008 420/468/471/482 Palam Airport Untrace IPC & 102 D.P. Act

2. 20 12.03.2008 25/54/59 Arms Palam Airport Acquittal Act

3. 304 23.11.2009 12/9/55 Geeta Colony Pending Gambling Act & Trial 25/54/59 Arms Act

4. 339 13.11.2011 324/341/506 IPC Geeta Colony Acquittal

5. 40 01.02.2012 12/9/55 Geeta Colony Pending Gambling Act Trial

6. 346 16.10.2012 323/341/34 IPC Geeta Colony Pending Trial

7. 960 29.12.2014 12/9/55 Geeta Colony Pending Gambling Act Trial

4. Pursuant to the proposal, proceedings for externment were initiated on 10.07.2015. The petitioner was noticed to appear before the Court of the Additional Deputy Commissioner of Police-01 on 17.07.2015.

5. It appears that the petitioner appeared before the Additional Deputy Commissioner of Police-01 on 27.07.2015 and submitted his reply. In his reply, the petitioner has stated that he is a married person and has been leading a peaceful life. He has been falsely implicated in the afore-noted cases at the instance of Sachin Malhotra and Anil Jaiswal, who have definite axe to grind against him. It was submitted by the petitioner that since 2014, no case has been registered against him and therefore, he cannot be called a habitual offender.

6. During the externment proceedings, Insp.Ranbir Singh, SHO of Geeta Colony police station was examined as a prosecution witness who deposed that the petitioner was involved in 7 cases and there was every likelihood of his indulging in such offences in future as well. The aforesaid witness also stated that the petitioner is a dangerous person and witnesses are not willing to come forward to give evidence against him because of the fear of backlash. The aforesaid witness was cross examined by the petitioner.

7. On behalf of the petitioner, two defence witnesses were examined namely Anil Kumar and Avinash, both of whom have spoken about the

good conduct of the petitioner in the past and his having been falsely implicated in criminal cases.

8. Some of the witnesses were also examined "in camera" by the Predecessor of the Additional Deputy Commissioner of Police-01.

9. Taking into account the materials before it, the Additional Deputy Commissioner of Police-01, by order dated 29.01.2016, externed the petitioner from the limits of NCT of Delhi for a period of two years and he was asked to remove himself from the limits of NCT of Delhi within 7 days from the date of passing of the order. The petitioner was further directed to come to Delhi only for the purposes of participating in the hearing, in courts of law with respect to the cases against him.

10. The aforesaid order has been affirmed and upheld in appeal by the Hon'ble Lieutenant Governor (LG) vide his order dated 17.02.2016.

11. From the perusal of the records, it appears that the petitioner was made accused in two cases in the year 2008. Out of the two cases referred to above, one was under the Arms Act and the other was under various sections of IPC. There is no trace of the case registered under various provisions of the IPC whereas in the Arms Act case, the petitioner has been acquitted. The petitioner, thereafter, was made accused in a solitary case in the year 2009 in which the trial is pending. Similarly, in the year 2011, only one case was registered against him under sections 324/341/506 of the IPC. In this case, the petitioner has been acquitted. The petitioner was thereafter made accused in two cases

in the year 2012 for minor offences and in both the cases, trial is pending. The last of the cases cited in the externment proposal is of the year 2014 which was registered under the Gambling Act which is pending trial. Thus after 2014, there is no reported case against the petitioner.

12. It has been submitted on behalf of the petitioner that with this array of cases, the petitioner cannot at all said to be a habitual offender as for dubbing a person a habitual offender, there ought to be three cases in a row in a year.

13. The other grounds of challenge are that the competent authority as well as the appellate authority did not address themselves to the issues namely that the conduct of the petitioner is not such as to instill fear in the minds of people and that there was no material to suggest that his movement and actions caused alarm in the society. It was also canvassed on behalf of the petitioner that there is no material to justify the presumption of the competent authority as well as the appellate authority that witnesses are not coming forward to depose freely against the petitioner because of fear. This presumption is without any basis as in two cases, the petitioner has been acquitted whereas the other cases are pending trial. The petitioner has been pursuing his livelihood and has been diligently performing his social and family commitments.

14. Section 47 of the DP Act provides for the powers of the police to extern a person whose movements are calculated to cause alarm, harm or danger to person and property but the Additional Commissioner of Police

was required to be satisfied about the proceede being a dangerous person and that allowing him to roam at large would be hazardous to the society. Then, an opinion is required to be formulated that witnesses are unwilling to come in open to depose against the proceedee.

15. The orders impugned do not reveal any material/sufficient material to warrant externment of the petitioner. The petitioner cannot be stated to be a habitual offender as he is not found to be involved in cases on three occasions or more within one year immediately preceding the commencement of the proceedings.

16. On a broad analysis of the nature of cases in which the petitioner is said to have been involved, it is very clear that the offences are interspersed over a period of five years i.e. from 2008 to 2014. The proceeding for externment was initiated in the year 2015 without there being any reason for the same

17. Mr.Ashish Aggarwal, learned Additional Standing Counsel, while defending the orders impugned submitted that the Additional Deputy Commissioner of Police-01 was satisfied about the criminal proclivity of the petitioner. It is only the subjective satisfaction of authority based on materials available on record that the externment order has been passed. It was further submitted that the sufficiency of the material 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 be interfered with.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. There must be a clear and present danger in allowing the petitioner to remain at large in jail for countenancing the order of externment.

26. 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 is 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 the 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 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, vii. two acquittals and one conviction of the petitioner and so on and so forth.

27. 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.

28. Tested on the touchstone of aforementioned facts and principles, the externment and the appellate orders cannot be sustained in the eyes of law.

29. The externment order dated 29.01.2016 passed by the Additional DCP and the appellate order dated 17.02.2016 passed by the LG, Delhi are, therefore, quashed.

30. The petition stands disposed of accordingly.

Crl. M.A. No.4843/2016

1. In view of the main petition having been allowed, this application becomes infructuous.

2. This application is disposed of accordingly.

ASHUTOSH KUMAR, J SEPTEMBER 14, 2017 ab