By – Utkarsh Sahu
IN THE HIGH COURT OF DELHI AT DELHI
|NAME OF THE CASE||BHARAT SINGH VS. STATE OF NCT OF DELHI|
|CITATION||W.P. CRIMINAL APPEAL NO. 260 OF 2019|
|DATE OF THR CASE||29 APRIL, 2019|
|RESPONDENT||STATE OF NCT OF DELHI AND ANR.|
|BENCH/JUDGE||JUSTICE SANGITA DHINGRA SEHGAL|
|STATUTES/CONSITUTION INVOLVED||CONSTITUTION OF INDIA, INDIAN PENAL CODE,1860, DELHI POLICE ACT,1978.|
|IMPORTANT ARTICLE & SECTION||ARTICLE 226, SECTION 34,308,452,506,379,323,341 OF IPC, SECTION 47,50 OF DP ACT,1978.|
This case is dealt with a criminal matter where the accused filed the writ petition under Article 226 of the Indian Constitution with section 482 of the Code of Criminal Procedure,1973. As he was charged with many offences which fall under section 452/34/ 354/506/420/308/379/341/325 of IPC. The case was tried before the Court of Additional Deputy Commissioner of Police, North-East District. Later, the accused approached the High Court of Delhi with a writ petition under Article 226 of the Constitution of India with 482 of Code of Criminal Procedure,1973.
In This case, the accused invoked a writ petition under Article 226 read with section 482 of Code of Criminal Procedure,1973 before the honourable High Court of Delhi for saving the request dated 19.12.18 passed by the Lt. Governor, Delhi, and request dated 11.10.2018 passed by Additional Deputy Commissioner of Police, North-East District, Delhi. As an accused was involved in many offences, he was charged with being the habitual offender.
BACKGROUND OF THE CASE:
“A habitual criminal offender, also known as a repeat offender, refers to a person who has been previously convicted of one or more crimes in the past and is currently facing new charges. Although many habitual offenders tend to commit the same type of crime over and over again, a person does not necessarily have to commit the same crime to be called a repeat or habitual offender.”
In this case, the accused was also charged with the habitual offender, and the accused was asked to send his explanation over the allegation when the notice was sent to him under section 50 of the Delhi Police Act,1978. As per the said notice, an externment proposal under Section 47 of the Delhi Police Act, 1978 was sent by the SHO/Sonia Vihar through ACP/Khajuri Khas for the externment of the petitioner as he was involved in many cases.
FACT OF THE CASE:
In this case, the petitioner filed a writ jurisdiction before the high court of Delhi under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) for saving the request dated 19.12.2018 passed by the Lt. Governor, Delhi, and request dated 11.10.2018 passed by Additional Deputy Commissioner of Police, North-East District, Delhi. That the interaction of externment began when the petitioner got a notification dated 03.02.2017 under Section 50 of the Delhi Police Act, 1978 whereby the petitioner was approached to delicate his clarification in regards to the charges evened out in the said notice. According to the said notice, an externment proposition under Section 47 of the Delhi Police Act, 1978 was sent by the SHO/Sonia Vihar through ACP/Khajuri Khas for the externment of the petitioner as he was associated with the accompanying cases: –
- “FIR No. 94/1992 under Section 452/34 IPC registered at Police Station Gokal Puri”
- “FIR No. 114/1992 under Section 354/506/34 IPC registered at PS Gokal Puri”
- “FIR No. 330/1999 under Section 3/4 D.P. Act registered at PS Khajuri Khas”
- “FIR No. 50/2001 under Section 420/379/506/34 IPC registered at PS Khajuri Khas”
- “FIR No. 53/2012 under Section 325/341/34IPC read with Section 27/54/59 Arms Act registered at PS Sonia Vihar”
- “FIR No. 242/2013 under Section 308/323/34 IPC registered at PS Sonia Vihar”
- “FIR No. 349/2016 under Section 323/341/506/34 IPC registered at PS Sonia Vihar”
It was proposed, that the petitioner be externed as he was discovered to be occupied with different offences and his developments were determined to cause an alert, damage, and risk to people and property, and his quality in Delhi or any part thereof would be dangerous to the local area. It was likewise asserted that witnesses were not able to approach to give their proof in open due to the fear of counter by the petitioner.
Throughout procedures under the steady gaze of the Court of Additional Deputy Commissioner of Police, North-East District the petitioner was discovered to be engaged with FIR No. 101/2018 U/s 308/354/323/341/506/34 IPC registered at Police Station Sonia Vihar. Hence a strengthening notice was given on 04.10.2018 under Section 47 of the Delhi Police Act, 1978 guiding the petitioner to disclose why a request for externment ought not to be passed against him.
“The Lt. Governor, Delhi upheld the order of the Additional Deputy Commissioner of Police and noted that the appellant had been found involved in eight cases involving offences like molestation, causing grievous hurt, culpable homicide not amounting to murder, criminal trespass, etc., and under the Preventive of Damage to Public Property Act & Arms Act, which adversely affects the normal life of the citizens, particularly women. By impugned order dated 15.10.2018, the Lt. Governor concurred with the findings of the Addl. DCP and held that even during the pendency of the externment proceedings, the petitioner has not desisted himself from indulging in unlawful activities which shows that he has not mended his ways.”
ISSUE RAISED BEFORE THE COURT:
“Whether the action of the executive is within the parameters of the law and that the order of externment passes the test of reasonableness.”
ARGUMENT FROM PETITIONER SIDE:
- The learned counsel Ms. Isha Khanna who appeared for the petitioner contended that the petitioner cannot be called a habitual offender because as per the explanation under Section 47 of the Delhi Police Act, habitual offender would be an individual who has included himself in cases on three events or more inside one year promptly going before the initiation of the offense.
- Ms. Isha Khanna further contended that the simple misgiving by the police that the petitioner may be associated with crimes isn’t sufficient because an unmistakable and predicted risk, because of tenable material which makes the development and demonstrations of the individual being referred to perilous should be found to warrant an externment request under the Delhi Police Act. In support of her argument, she mentioned a relevant case i.e., Jugal Kishore Vs Lt. Governor, Delhi & Anr.
- She also argued that the “cases against the petitioner are inter-spread over a long period from 1992 to 2018 and that too, after long intervals, wherein both the authorities have failed to appreciate that out of total seven cases pending, the petitioner has been acquitted in two cases, two cases have been compromised and two cases are pending for adjudication while in one case, he has been released on a meager fine of Rs.2000.”
- Lastly, she urged that the impugned request being profoundly discretionary has brought about shortening the life and freedom of the petitioner.
ARGUMENT FROM RESPONDENT:
- The learned Additional Standing Counsel for the State while defending the orders presented that the Additional DCP was fulfilled about the criminal proclivity of the applicant dependent on the materials accessible on record; he further presented that the petitioner is engaged with different crimes which are unambiguous from the different First Information Reports enlisted against him.
- The learned counsel further presented that the extent of a legal survey of the administrative order is restricted to the lawfulness of the decision-making process and not to the legitimateness of the request in essence. In this way, no judicial interference is needed in case of the chance of any conceivable view to the petitioner being hazardous to the general public. He also mentioned relevant cases like State of NCT Delhi & Anr vs Sanjeev Alia Bittoo andSuresh Vs Lt. Governor, Delhi & Ors.
- The learned counsel stated that “during the pendency of the externment proceedings before the Additional Deputy Commissioner of Police the petitioner was found to be involved in one more case for the offense punishable under Section 308/354/323/341/506/34 of the IPC, which shows that he was a habitual offender and has no respect for the law.”As he also stated that the accused is a land grabber and due to his fear, the prosecution failed to give any independent witness.
- The learned counsel lastly stated that the impugned order was based on correct material available on record and the settled legal proposition and did not suffer from any impropriety or illegality and therefore does not warrant any interference.
RELATED PROVISIONS OF DELHI POLICE ACT:
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 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 a forcible collection of subscription or threatens people for illegal pecuniary gain for himself or 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 because 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 the beat of drum or otherwise as he thinks fit, direct such person to so conduct himself as shall seem necessary 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 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 to cause 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 secure the attendance of any person against whom an 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 119 to 124 (both inclusive) of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply 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 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 to all bonds executed under this section.”
- The honorable Court stated that the word ‘habitually’ mentioned in sub-clause (ii), (iii) & (iv) of sub-section (C) of Section 47 of DP Act explained that “if a person who within one year immediately preceding the commencement of an action under Section 47 of DP Act is found in not less than three occasions to have committed or to have been involved in any of the acts referred in sub-clauses, shall be deemed to have been habitually committed that act.”
- This Court also stated that there is no dispute in the fact that an externment order brings both societal and personal deprivation. It also brings a great blow on the finances of the externee as externment order creates a blockage into cherished and valuable right of a person, to choose a place of his choice. Besides, for enforcing this order there must be a clear and present danger on the ground that presence of petitioner would be alarming, dangerous and could lead to serious repercussions in NCT, Delhi.
- The Honorable Court held that as the petitioner were inter-spread over a long period from 1992 to 2018 and that too, after long intervals, the court found that the petitioner fails to falls under the purview of explanation of section 47 of Delhi Police Act and petitioner is not covers under the criteria of habitual offender
- The Honorable Court held that the impugned order which were passed by the Lt. Governor, Delhi and the externment order which were passed by the Additional Deputy Commissioner of Police cannot be sustained in the eyes of law and revoke the order which were passed by the Lt. Governor, Delhi and Additional Deputy Commissioner of Police.
In the above case, there were many cases were filed against the petitioner, the case registered against petitioner were inter-spread over a long time from 1992 to 2018 and the Honorable court found that the petitioner did not falls under section 47 of the DP Act as which mean he was not covered under the criteria of the habitual offender and Honorable Court held that the impugned order which was passed by the Additional Deputy Commissioner of Police cannot be sustained in the eyes of law.
 2017(2) JCC 1335.
 2005 5 SCC 181
 2014 (4) JCC 2913.