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Hari Ram Vs. Commissioner of Police Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 48 of 1978
Judge
Reported inILR1980Delhi102
ActsDelhi Police Act, 1978 - Sections 47
AppellantHari Ram
RespondentCommissioner of Police Delhi and ors.
Advocates: B.G. Singh and; K.K. Sud, Advs
Cases Referred(Hari Ram v. Commissioner of Police). Bawa Gurcharan Singh
Excerpt:
delhi police act (1978) - sections 47, 48 and 50--commissioner did not delegate powers to subordinate officers--order of externment issued by subordinate officers-whether valid.; in criminal writ nos. 48, 52, 58 and 59 of 1978, common questions of law have been raised. in criminal writ no. 48 and 52, the petitioners have been served with notices under section 50 of the delhi police act, 1978 calling upon them to show cause why they should not be externed under section 47 of the act from delhi for 2 years. petitioners in other petitions have been externed from delhi. the petitioners challenged the virus of the various provisions of the act. they challenged the validity of the notices as well as the orders of externment.; the petitioners challenged the constitutionality of sections 47.....v.d. misra, j.(1) common, questions of law have been raised in criminal writ nos. 48, 52, 58, 59 of 1978, and 3 of 1979. this judgment will govern all the petitions. (2) the petitioner in criminal writ no. 48 has been served with a notice under section 50 of the delhi police act, 1978 (act no. 34 of 1978) (hereinafter referred to as 'the act') by the deputy commissioner of police, north district, informing the petitioner of the allegations against him and calling upon him to show cause why he should not be externed under section 47 of the act from the limits of the union territory of delhi for a period of two years. the petitioner in criminal writ no. 52 of 1978 has been served with a notice under section 50 by the deputy ..commissioner of police, crime prevention, calling upon the.....
Judgment:

V.D. Misra, J.

(1) Common, questions of law have been raised in Criminal Writ Nos. 48, 52, 58, 59 of 1978, and 3 of 1979. This judgment will govern all the petitions.

(2) The petitioner in Criminal Writ No. 48 has been served with a notice under section 50 of the Delhi Police Act, 1978 (Act No. 34 of 1978) (hereinafter referred to as 'the Act') by the Deputy Commissioner of Police, North District, informing the petitioner of the allegations against him and calling upon him to show cause why he should not be externed under section 47 of the Act from the limits of the Union territory of Delhi for a period of two years. The petitioner in Criminal Writ No. 52 of 1978 has been served with a notice under section 50 by the Deputy ..Commissioner of Police, Crime Prevention, calling upon the petitioner to show cause why he should not be externed under section, 48 of the Act from the limits of the Union territory of Delhi for a period of two years. Petitioners in other petitions have been externed from the Union territory of Delhi. The petitioners challenge the virus of the various provisions of the Act. They have challenged the legality of notices issued to them as well as the orders of externment.

(3) We will first decide the questions of law and then advert to, wherever necessary, the facts of each case.

(4) Before the commencement of the Delhi Police Act, 1978 some of the provisions of Bombay Police Act, 1951 (Act No. Xxii of 1.951) (hereinafter referred to as 'the Bombay Act') with necessary modifications were extended to and enforced in Delhi. Sections 55, 56 and 57 of the extended Act empowered various Magistrates to order extemment of persons falling within the ambits of those sections. Section 59 provided for a hearing to be given to the proposed externee before any order of extemment was paused. The Delhi Police Ordinance, 1978 (2 of 1978) replaced, amongst others, the Bombay Police Act as extended to Delhi, The Ordinance was followed by the Delhi Police Act, 1978 (Act No. 34 of 1978). It was given a retrospective operation from July 1, 1978.

(5) We may now notice the salient features of the Act. The Act changes the organizational set up of police in Delhi by introducing the Commissionership system. The model followed is that of Bombay Police Act relating to Greater Bombay Police. The superintendencc of police force has been vested in the Administrator by section 4. Section 6 requires the Administrator to appoint a Commissioner of Police to perform the duties and functions specified by or under the Act. Section 7 empowers the Administrator to appoint one or more Additional Commissioners of Police to assist the Commissioner of Police. Section 8 authorises the Administrator to appoint Deputy Commissioners of Police or Additional Deputy Commissioners of Police or Assistant Commissioners of Police. Sub-section 2 of this section makes a provision for the delegation of powers by the Commissioner of Police to a Deputy or Additional Deputy or Assistant Commissioner of Police. Sections 46, 47 and 48 empower the Commissioner of Police to order the externment of persons. Section 50 requires the Commissioner of Police to give an opportunity to the proposed externce of being heard before passing an order of externment. These sections are substantially modelled on sections 55, 56, 57 and 59 of the Bombay Act. Section 51 of the Act provides for an appeal to the Administrator against orders passed under sections 46, 47 or 48.

(6) The petitioners challenge the constitutionality of sections 47 and 48 of the Act. It is contended that they impose unreasonable restrictions on the fundamental rights of free movement and residence guaranteed by the Constitution. It is submitted that in the externment proceedings the police is the prosecutor as well as the judge and so they offend the principles of natural justice. It is argued that there is no intelligible differentia or rational classification between convicts classified in clauses (a) to (h) of section 48. Gambling is said not to affect the society at large and persons convicted and punished with nominal fines under the relevant provision's of the Delhi Public Gambling Act (clause (b) of section 48) should not have been made liable for externment. It is also contended that extemment is a penalty which is in, addition to the punishment already awarded by the courts while convicting persons for offences mentioned in section 48, and that a person cannot be subjected to a penalty greater than that provided for an offence. The appeal provided by section 51 to the Administrator is stated to be illusory.

(7) Now we may read sections 47 and 48 of the Act.

'47.Removal of persons about to commit offences. Whenever it appear to the Commissioner of Police (a) that the movements or acts of any persons 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, 1860 (45 of 1860) or under Section 290 or Sections 489A to 489A (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 person's 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 accessary 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. Explanationn. 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.'

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 Pen,al Code, 1860 (45 of 1860); or 109 (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 Supperession 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 (54of 1959); or (e) of any offence under Section 135 of the Customs Act, 1962 (52 of 1962) ; or (f) of any offence under Section 61, Section 63 or Section 66 of the Punjab Excise Act, 1955 (Punjab Act No. 18 of 1955), as in force in Delhi, or (g) on' two or more occasions of an offence under (i) the Opium Act, 1878 (I 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 Ii of the Bombay Prevention of Begging Act. 1959 (Bombay Act No. 10 of 1960) as 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 to 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.' It will be advantageous to notice the provisions of section's 56,57 of the Bombay Act which are practically pari-materia with sections 47 and 48 of the Act. These are in the following terms :

'56.Removal of persons about to commit offence. Whenever it shall appear in, Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in; the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or 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 an offence punishable under Chapter Xii, Xvi or Xvii of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer 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, or (c) that an outbreak of epidemic disease is likely to result from the continued residen,ce of an immigrant the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto by such route and within, such time as the said officer may prescribe and not to enter or return to the said area or the area and such contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself.'

'57.Removal of persons convicted of certain offences. If a person has been convicted (a) (i) of an offence under Chapter Xii, Xvi or xviii of the Indian Penal Code, or (ii) of any offence under section 65, 66A or 68 of the Bombay Prohibition Act, 1949, or (iii) of an offence under section 3, 4, 5, 6 or 9 of the Suppression of Immoral Traffic in Women, and Girls Act, 1956, or Civ) of an offence under section 135 of the Customs Act, 1962, or (v) of an offence under section 4, or for accepting bets in any public street, or thoroughfare or in, any place to which the public have or are permitted to have access, or in any race course under clause (a) of section 12, or under section 12A of the Bombay Prevention of Gambling Act, 1887, or (b) twice or more of an offence under the Bombay Prohibition, Act, 1949, not being an offence under section 65, 66A or 68, or (c) thrice or more of an offence under section 122 or 124 of this Act. The Commissioner, the District Magistrate, or the SubDivisional Magistrate specially empowered by the State Government in this behalf, if he has reason to believe that such person is likely again to engage himself in, the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto by such route and within such time as the said officer may prescribe and not to enter or return to the area or the area and such contiguous district or districts or part thereof, as the case may be, from which he was directed to remove himself.'

(8) Under sections 46 and 47 of the Act the Commissioner has the power to extern a person from the territory of Delhi or any part thereof. There is n,o doubt that an order of externment affects the fundamental right of freedom of movement and residence guaranteed to a citizen by Article 19 of the Constitution. However, clause (2) of this Article allows the State to impose reasonable restrictions on this right in the interest of public order, decency or morality. Can, it be said that sections 46 and 47 of the Act impose unreasonable restrictions

(9) Let us analyze section 47 of the Act. It empowers the Commissioner of Police to extern persons about to commit offence. Two criteria have to be satisfied before the Commissioner can, order externment. Firstly, a person must fall under one of the clauses of this section. Secondly, the Commissioner must be satisfied that witnesses are afraid to give evidence in public against such a person. This situation would only arise when a person becomes a danger to the society at large and has terrorised the society to such an extent that witnesses being afraid of their safety refuse to depose against him in public. In these circumstances it is but reasonable to partially restrict the freedom of movement and residence of such a person in, the larger interest of the welfare of the society as a whole. It is necessary to uproot the moorings of such persons by throwing them out of the area of their nefarious activities. It is net correct to say that though externment will bring peace to persons living in one area, the lives of persons living in another area, where the externee decides to reside, will be endangered. It is public knowledge that desperadoes and their ilk succeed in endangering public order because of their having successfully projected a fiendish image of themselves. In a new area with strange surroundings objectionable activities of such persons come to an end because of fear of retaliation by the public and their willingness to depose publicly against them. Moreover, the externment is not for the rest of the life of a person. The maximum period of externment has been fixed at two years. In other words, the externment is only temporary.

(10) Section 48 of the Act authorizes the Commissioner to extern persons who have already been convicted of certain offences. Two conditions have to be satisfied before an order of extemment can be passed. First, the proposed externee should have been convicted by a Court of law of one of the offences mentioned in clauses (a) to (h) of this section'. It may be noticed that some of these clauses require more than one conviction. Secondly, the Commissioner must have reason to believe that such person is likely again to engage himself in commission of any of the offences mentioned in the said .subclauses.

(11) Taking note of deteriorating law and order situation, the legislature, in its wisdom, categorised the offences which affect the public order. While categorising the offences it laid down the preliminary condition of a person having already been convicted as well as the number of such convictions. Even the convictions by themselves are not sufficient to enable the Commissioner to extern a person. It is also necessary that further circumstances should exist which give rise to a reaonable belief in the mind of the Commissioner that such a person was likely again to engage himself in the commission of any of the offences mentioned in the section. This is a pure and simple preventive measure. It is a case where it can be justly said that prevention, is better than cure. It does not in any manner contravene Article 20(1) of the Constitution, because the externment order is not made as a penalty for the crime which the person has already committed. On the other hand only when, it is found that a person despite having undergone punishment awarded by a court of law, refuses to reform himself and is out to commit the offences, it may be necessary to prevent him from committing offences by externing him. The persons proceeded against under section 48 are neither accused nor are they prosecuted and punished.

(12) The submission that provisions of clauses (b) and (c) of section 48 which relate to offences under the Gambling Act and Arms Act respectively are ultra virus of Article 19 of the Constitution since the offences are very minor in character, has no force. Gambling has led not only to the ruin of persons indulging in it but is also the cause of many serious offences of causing bodily injury. Offences under the Arms Act cannot be taken lightly. We do not see any reason why any person, should keep prohibited arms without licenses. These arms are used not only for stabbing others, but also for robberies and dacoities. It is in the interest of society at large to ensure that persons who have already been found guilty of such offences and are likely to engage themselves in the commission of offences mentioned in the section should be prevented from carrying out their evil designs. Restriction on the freedom of movement of some by externing them is for the benefit of most of the members of the society and cannot be called an unreasonable restriction offending Article 19 of the Constitution.

(13) We find that the power of externment has been conferred on the Commissioner of Police who is the highest police officer. Of course he has been authorised to delegate his powers by sub-section (2) of section 8 of the Act. But the officers specified in, that section are also high ranking responsible officers. It is not expected of these officers to indiscriminately use these powers. These; powers are expected to be used as a last resort only. The officers are expected to act bona-fide and with care and circumspection.

(14) Contentions raised by the petitioners challenging the constitutionality of various sections of the Act, which, as already stated, broadly correspond to the provisions of Bombay Police Act, have, on different occasions, been advanced to assail the corresponding provision's of Bombay Police Act. We may now notice those cases.

(15) In Gurbachan Singh v. State of Bombay and another, : 1952CriLJ1147 , an' extemment order was passed against Gurbaohan Singh under section 27(1) of the City of Bombay Police Act (1902) directing him to remove himself out of Greater Bombay. After analysing section 27(1) the Supreme Court upheld the validity of the section on the ground that it was made in the interest of the general public and to protect them against dangerous and bad characters whose presence in a particular locality may jeopardize the peace and safety of the citizens. While holding that the restrictions imposed upon the rights of free movement of a citizen are reasonable, it observed: 'It is perfectly true that the determination of the question as to whether the restrictions imposed by a legislative enactment upon' the fundamental rights of a citizen, enunciated in Article 19(l)(d) of the Constitution are reasonable or not within the meaning of clause 5 of the Article would depend as much upon the procedural part of the law as upon its substantive part; and the Court has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed.' The Supreme Court then scrutinised the procedure laid' down by section 27(4) of that Act and came to the conclusion that 'the power to initiate proceedings under the Act has been vested in a very high and responsible officer and he is expected to act with caution and impartiality while discharging his duties under the Act.'

(16) The Bombay Police Act of 1902 was replaced by Bombay Police Act, 1951 (Act No. Xxii of 1951). Sections 55, 56 and 57 were exacted for extemment of persons while section 59 provided for an' opportunity to be given to the proposed externee before the order was made. The validity of various sections was challenged on various grounds in Hari Khemu Gawali v. The Deputy Commissioner of Police, Bombay and another, : 1956CriLJ1104 . Section 57 of the Bombay Act was assailed on the ground that : (1) ii con,travcned clauses (d) and (e) of Article 19(1) of the Constitution, since it imposed unreasonable restrictions on the fundamental rights of free movement and residence; and (2) that the order passed under section 57 against the petitioner was illegal inasmuch as it was based on vague allegations and on orders of discharge or acquittal. It was aIso contended that the provisions for granting hearing to the extcrnee by the police authorities and appeal to the State Government were illusory, and that the police was both the prosecutor and the judge. The remedy provided by the Act was stated to be a mere eyewash. After analysing the provisions of section 57 of the Supreme Court observed that the individual's right to reside in, and more freely in. any part of the territory of India had to yield to the larger interest of the community. It applied the test laid down by the Court in Gurbachan Singh's case (supra) and examined the substantive as well as the procedural part of the law. The Court repelled the argument that directing the removal of a person, from the whole of the State of Bombay by itself was an unreasonable restriction. It found that section 57 authorises authorities to direct the removal of a person from a local jurisdiction of each of the externing authorities 'unless a person makes himself so obnoxious as to render his presence in every part of the Bombay State a menace to public interest including public peace and safety, every Commissioner of Police or Disrict Magistrate or Sub-Divisional Magistrate would not think of acting in the same way in respect of the same.' While dealing with the convention that the police is the prosecutor as well as the judge in the proceedings of externment and so the provisions of the Act militate against the accepted principles of natural justice that the prosecutor could not also be the judge, the Court scrutinized the provisions of section 59 Along with provisions of section 55, 56 and 57 of the Act. The Court observed that the person proceeded against is not prosecuted but is put out of the harm's way. The orders of extemment have to be passed by police-officers of the higher rank, and that the legislature has provided certain safeguards against tyrannical or wholly unbounded order passed by the ranks of the police. It was also observed that the proceedings under sections 55, 56 and 57 'are not prosecutions for offences or judicial proceedings, though the officer or authority charged with the duty afore- said has to examine the information laid down before him by the police. The police force is charged with the duty not only of detection of offences and of bringing offenders to justice, but also of preventing the commission of offences by persons without previous records of conviction or of criminal propensities.'

(17) The Court repelled the contention that the right of appeal to the State Government was illusory because 'it was expected that the State Government which has been charged with duty of examining the material with a view to being satisfied that circumstances existed justifying a preventive order of that nature, will discharge its functions with due care and caution.

'FURTHERsafety provided by section 61 of the Bombay Act giving the right to a person to challenge the order of externment on. certain grounds was described by the Court as 'a further safeguard.'

(18) The contention that section 59 did not provide for particulars to be supplied to the proposed externee was repelled. It was held: 'The grounds available to an, extemee had necessarily to be very limited in their scope, because if evidence were available it could be adduced in public, such a person could be dealt with under the preventive sections of the Code of Criminal Procedure, for example, under S, 107 or S. 110.'

(19) The argument that the order of externment could not be passed on previous orders of discharge or acquittal, was rejected on the ground that the insufficiency of the evidence itself might have been due to witnesses not being available to depose in open court or they might have been overawed and their testimony tampered with. The court finally observed that matters could not be examined by the court in an objective way when, the legislature has provided for the subjective satisfaction of the authorities or officers who had been entrusted with the duty of enforcing those special provisions of the Act.

(20) In Bhagubhai Dullabhbai Bhandari v. District Magistrate, Thana, and others, : 1956CriLJ1126 , the observations of Mukherjea, J., in the case of Gurbachan Singh (supra) were explained. It was held that it could not be. laid down that unless each and every witness was unwilling to give evidence in open court, the provisions of section 56 of the Bombay Act were not available to the police, It was also observed that there was no' justification for the contention that members of the police-force or employees and oflicers of the Customs Department must always come in the open and give evidence against criminals or potential criminals.

(21) While dealing with the question whether Section 57 of the Bombay Act was retrospective in operation the Supreme Court in The State of Bombay (now Maharashtra), v.. Vishnu Ramchandra, : 1961CriLJ450 , reiterated that this section 'does not create a new offence nor makes punishable that which was not an offence. It is designed to protect the public from the activities of undesirable person's to have been convicted of offences of a particular kind. The section only enables the authorities to take note of their convictions and to put them outside the area of their activities, so that the public may be protected against a repetition, of such activities.' The court, however, observed: 'An externment order, however, to satisfy the requirements of section 57 of the Bombay Police Act, must be made bona-fide taking into account a conviction which is sufficiently proximate in time. Sin,ce no absolute rule can be laid down, each case must depend on its own facts.'

(22) Once again the validity of the provisions of section 56 and 59 of the Bombay Act came up for consideration in the Suite of Gujarat and another v. Mehbubkhan Usnmankhan, Air 1968 Sc 1468. The Supreme Court affirmed its earlier decisions in the cases of Hari Khemu Gawali and Bhagubhai Dullabhbhai (supra), and set aside the order of Gujarat High Court quashing the order of externment.

(23) In Pandharinath Shridhar Rangnekar v. Deputy Commissioner of Police, State of Maharashtra, : 1973CriLJ612 , the order of externment passed under section 56 of the Bombay Act was challenged. The nature of allegations made in the notice issued under section 59 of the Bombay Act were assailed as being too vague to be met, and 'it was contended that the externee had been denied reasonable opportunity to defend himself. The Court held that the petitioner was entitled only to know the material allegations against him and the general nature of those allegations, and that he was not entitled to be informed of specific particulars relating to the material allegations. The Court, however, added a caution in the following words:

'WEwill only add that care must be taken to ensure that the terms of sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee.'

It was also held that since the proposed externee was only entitled to be informed of the general nature of the material allegation, neither the externing authority nor the State Government in appeal could be asked to write reasonable order in the nature of judgment. While dealing with the question about the period of externment and the area of externment, it was observed that it would depend upon the nature of the data which the authority is able to collect in the externment proceedings and no general formulation call be made. It was also observed that 'an excessive order can undoubtedly be struck down because no greater restraint of personal liberty can be permitted than is reasonable in the circumstances of the case.' The decision of the Bombay High Court in Balu Shivling Dombe v. Divisional Magistrate, Pandharpur, : AIR1969Bom351 , was approved and died as an instance. While dealing with the case in hand the Court observed thus :

'Avast city like Bombay presents its own peculiar problems of law and order. It has an ever-growing industrial complex and the city has spread its arms fat and wide. A fair proportion of its teeming population is mobile, with large multitudes streaming in and out of the city in the pursuit of their daily avocations. An order of externment restricted to the particular area chosen by the extemee for his unlawful activities and to a small periphery thereof would in such circumstances fail of its true purpose. It would be impossible to secure obedience to such an order and its enforcement would raise practical problems which would impair the efficacy of the order. An order in the instant case if restricted, say, to the areas within the jurisdiction of the Vile Parle police station and its periphery would not serve its purpose. Rather than solving a problem of law and order, it would create yet one more'.

(24) Before us also, the petitioners have- contended that the powers to extern' a person from the whole of the Union territory of Deihi amounts to unreasonable restriction and so is ultra-vires. We have already referred to the decisions of the Supreme Court upholding similar provisions is the Bombay police Act. It may, however, be noticed that the territory of the State of Bombay is so large that it has been divided into various districts. For each district either a Commissioner of Police has been appointed or there is the District Magistrate. The powers of externment conferred by sections 55. 56 and 57 of the Bombay Act on the Commissioner of Police and in the District Magistrate can be exercised by these authorities in the local limits of their jurisdiction as well as any district or districts, or any part thereof, Contiguous thereto. To repeat the observations of their Lordships of the Supreme Court in Hari Khemu Gawali a person could be ordered to be externed out of the territory of the State of Bombay if each District Magistrate and/or the Commissioner of Police finds the person so obnoxious that each of them decides to extern him from their respective area. But the provisions of externment were not held ultra-vires. However, the territorial area of Delhi is very limited. For the whole of Dehi there has always been one District Magistrate. There was only one Inspector General of Police who has now been designated as the Commissioner of Police. It is true that for the purpose of efficient administration the police has divided Delhi into various Districts of Police. But the areas are so compact and the mobility of persons is so great that in some instances it may be useless lo extern a person from one police district only. However, the orders by which the Commissioner has delegated his powers, shows that except Deputy Commisiioner of Police (Crime Prevention) no one has been empowered to extern a person from the whole of the Union territory of Delhi. Other deputy Commissioner of Police and Addilional Deputy Commissioners ^f Police have been given the powers of externment only from their respective areas. The power of cxterninent from She territory of Delhi cannot be said to be an unreasonable restriction on the freedom of movement and residence. Whether the area of externment is unnecessarily excessive in a given case will depend on the facts of that case. As observed by the Supreme Court in Pandharinath Shridhar Rangnekar's case (supra) an excessive order can undoubtedly be struck down.

(25) We may record that the observations of the Supreme Court about the peculiar conditions of the city like Bombay apply with full force for the Union territory of Delhi.

(26) As already stated, provisions of sections 47, 48, 50 and 51 of the Act broadly correspond to sections 56, 57, 59 and 60 of the Bombay Act. The aforementioned decisions of the Supreme Court upholding the validity of various sections of the Bombay Act wi!l apply with full force to the contentions raised before us. We, thereforee. hold that sections 46, 47, 48, 50 and 51 are valid.

(27) It has been contended that the Commissioner of Police has no power to delegate his powers under the provisions of section 8(2) of the Act since it does not lay down any guidelines. It is also contended that since no general or special orders have been made by the Administrator under sub-section (2) of section 8 of the Act the Commissioner of PoKee could not delegate his powers. Lastly it is argued that the orders delegating the powers made (Turing the currency of the Delhi Police Ordinance, 1978 does not ensure to the benefit of the Act.

(28) We may now notice the provisions of sub-section (2) of section 8. It is in the following terms :

'(2)Without prejudice to the other provisions of this Act and subject to any general or special orders made by the Administrator in this behalf, every Deputy Commissioner of Police or Additional Deputy Commissioner of Police or Assistant Commissioner of Police shall, under the orders of the Commissioner of Police, exercise such of the powers (except the power to make regulations) and per form such of the duties of the Commissioner of Police and within such local limits as may be specified in such orders.'

We have been shown the order dated July 1, 1973 passed by the Administrator . It reads thus :

'INexercise of powers conferred by Clause 8 of Delhi Police Ordinance, 1978, the Administrator hereby appoints cach Deputy Commissioner of Police, Additional Deputy Commissioner of Police and Assistant Commissioner of Police to exercise such powers, except the power to make regulations and perform such of the duties of the Commissioner of Police within such local limits within the Union territory of Delhi, under the provisions of the said Ordinance as may be specified in the orders issued by the Commissioner of Police.'

It is not, thereforee, correct to say that the Administrator has not passed any order as envisaged in the sub-section.

(29) The Police Commissioner passes! two orders dated July 7. 1978 and August 5, 1978. delegating some of h's powers to the various officers authorising them to exercise the powers, mentioned the order, in the jurisdiction specified therein. The contention that this cannot ensure to the benefit of the Act is not well-founded. Section 152 of the Act is the repeal and saving section. Tl reads :

'152.Repeal and Saving. (1) The Delhi Police Ordinance, 1978 (2 of 1978), is hereby repealcd. (2) Notwithstanding such repea,l, anything done or any action taken under the 0rdinance so repealed shall be deemed to have been done or taken under the corresponding provisions of this Act.'

The Administrator and the Commissioner had passed orders under section 8(2) of the Ordinance. These would, thereforee, be saved under subjection (2) and would be deemed to have been passed under the Act.

(30) Mr. P. P. Grover, who challenged the validity of section 8(2), has not bean able to show how this provision is ultra-vires. The only contention that it docs not classify or lay down any guidelines as lo when the powers can be exercised by the police-officers named in this section is no reason for striking down this provision. The logislature 'itself has specified the police-officers to whom these powers can be delegated. The section has provided a check: on the powers of the Commissioner of Police. The Administrator has the right, by general or special orders, to limit, if necessary, the powers of delegation conferred on the Commissioner.

(31) It has been contended that since the Commissioner of Police has not delegated his powers under section 50 of the Act, no police- officer except the Commissioner can issue a notice under this section. Mr. K. K. Sud, Standing Counsel for the State, however, submits that this section docs not cover any power on the Commissioner but only lays down the procedure. He, thereforee, contends that the notice required to be issued to the proposed externee under this section can be issued by persons who have the power to extern under sections 47 and 48 of the Act.

(32) We may now read section 50. It is in the following terms:

'50.Hearing to be given before order under Sections 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 Explanationn 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 'uch 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 Explanationn 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 attendancc 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 119 to 124 (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 following 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.'

We may repeal that the Act has been modelled on the Bombay Act some provisions of which had been extended to Delhi before the present Act was enforced. The corresponding provisions in the Bonibay Act is section 59. It reads thus :

'59.(I) Before an order under section 55, 56 or 57 is passed against any person the officer acting under any of the said sections or any officer above the rank of an Inspector authorised by that officer shall inform the person in writting of the general nature of the material allegaion.s against him and give him a reasonable opportunity of tendering an Explanationn regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this section by an advocate or attorney for the purpose of tendering his Explanationn and examining the witness produced by him. (2) The authority or officer proceeding under sub-section (I) may, for the purpose of securing the attendance of any person enter any particular area or such area and any district or districts, or any part thereof, contiguous, there 123 to, as the case may be, shall be for such period as may be specified therein and shall in no case exceed a period of two years from the date on which the person removes himself or is removed from the area, district or districts or part aforesaid.'

On reading sections 55, 56, 57 and 59 of the Bombay Act we find that power of externment has been conferred on the Commissioner of Greater Bombay, and in other areas on the District Magistrates or Sub-Divisional Magistrates especially empowered by the State Government. Section 59 explicitly confers powers on the officers acting under those sections to issue the requisite notice to the proposed externee. The power to issue the notice call be delegated by these officers to an officer above the rank of Inspector. The provision's of Section 59 were examined by the Supreme Court in Hari Khemu Kawali's case (supra). It was observed thus :

'THEevidence or material on the basis of which a person may be proceeded against under an yone of the sections 55, 56, or 57 may have been collected by police officers of the rank of an Inspector of Police or of lower rank. The proceedings may be initiated by a police officer above the rank of Inspector who has to inform the per proceeded against of the general nature of the material allegations against him. But the order of extemment can be passed only by a Commissioner of Police or a District Magistrate or a SubDivisional Magistrate specially empowered by the State Government in this behalf.'

(33) In the Delhi Police Act the powers of extemment as well as of issuing the notice under section's 46, 47, 48 and 50 have been conferred by the legislature only on one person, i.e.. the Commissioner of Police. The question to be decided by us is : Whether the decision to issue a notice of externment on the basis of the material placed before the Commissioner of Police can be said to be a matter of procedure only It cannot be disputed that without issuing the notice as required under section 50, no order of externmernt against any person can be passed. And if, any such order is passed, it shall be without jurisidiction and will be non est. In other words, it is the notice which is the basis of the jurisdiction. Now the power of extemment of a person from a' given locality makes a serious inroad in, and vitally affects, the fundamental rights of a citizen guaranteed under Article 19 of the Constitution. Whether steps to extern a person on the basis of the material collected by the police should be taken or not is a; grave decision indeed. After all, a large number of persons may be found to have been convicted for the offences mentioned in clauses (a) to (h) of section 48. These convictions may be satisfying the requirements of the clauses. They may have committed the enecs again. Should all of them be externed Which of such person should only be externed These are vital decisions. It is not a question of procedure only. It was for these reasons that the Commissioner of Police was mad the sole repository of the powers of deciding the question of initiating proceedings of externment by issuing a notice. Powers under section 8(2), as already noticed, were given to the Commissioner to delegate his powers to police-officers named in that sub-section. All these are senior and responsible police-officers and it is expected that they would exercise these draconiann powers with full responsibility keeping in view the fundamental right granted to a citizen under Article 19. A notice under section 50 puts in motion a machinery of law which may result into an order of externment.' The person, who receivers the notice is put at his peril to show cause against the proposed extcWmcnt. If he fails to satisfy the authority concerned he is to leave his hearth and home for a long duration. It is thus not a minor matter or procedural matter for the proposed externee. If the intention of the legislature, as submitted by Mr. Sud, was that the officers exercising powers under sections 46, 47 or 48 of the Act were to be automatically authorised to issue a notice under section 50, it would have said so explicitly. The model of section 59 of the Bombay Act, which had been extended to Delhi was already before the legislature. The legislature had departed from the model and vested the power of issuing a notice in the Commissioner.

(34) We may test the proposition by another approach. The Commissioner of Police having been authorised to delegate his powers under section 8(2) to any of the police-officers mentioned therein, it was up to the Commissioner to delegate different powers to different police-officers. For example, power under section 46 may be delegated to Deputy Commissioners of Police only. Power under section 47 may be delegated to Additional Deputy Commissioners of Police only, and power under section 50 may be delegated to Assistant Coinmissioner of Police only. In these circumstances could the power delegated to the Assistant Commissioner of Police under section 50 be struck down on the ground that the Commissioner of Police could not delegate this power since it was meant to be exercised by those officers who were exercising powers of externment under sections 46. 47 or 48? The answer is 'No' Indeed, we find that to begin with the Commissioner delegated Ins powers under section 47 only to Deputy Commissioner of Police (Crime Prevention) and not to any other police-officer (Order dated July 7, 1978). Later on by a subsequent order of August 5, 1978, this power was also delegated on all District and Additional District Commissioners of Police. If the Commissioner of Police d

(35) We will now take up Criminal Writ No 48 of 1978 (Hari Ram v. Commissioner of Police). Bawa Gurcharan Singh, learned counsel for the petitioner, has alleged mala-fide against the Deputy Commissioner of Police, North District, who issued the notice and is holding the proceedings.

(36) The first objection raised is that the Deputy Commissioner of Police has not applied his mind to the facts of the case as is apparent from the notice issued under section 50 of the Act. This notice mentions 21 cases against the petitioner. The cases relate to a period starting from 1951 till 1978. We find that case at Seriall No. 15 relates to 1961 when security proceedings under section 107/151 of the Code of Criminal Procedure ended in a compromise between the parties. Thereafter, for a period of 17 years, no case was registered against the petitioner till 1978. Seriall No. 16 refers to first information report No. 883 of 1978 about an offence under the Delhi Public Gambling Act. This case is still under investigation. It seems to have been registered sometimes before April, 1978 by Police Station Kotwali. Seriall No. 17 refers to first information report No. 977 of 1978 of the same police station. This case is registered under section 420/34, Indian Penal Code. We are informed that it was registered onApril Ii, 1978. Its investigations have not been completed. At aerial No. 18 first information report No. 1260 of 1978 is mentioned. This case has been registered by the same police station under sections 353. 186 and 506, Indian Penal Code, on August 6, 1978. Oases at Seriall Nos. 19, 20 and 21 of 1978 are the repetitioners of cases mentioned at Seriall Nos. 16,17 and 18. There is no Explanationn. why the cases have been repeated. Apparently the Deputy Commissioner of Police did not apply his mind and seems to have signed the notice as a matter of routine. However, the record has been placed before us. We will presently advert to it, but at this stage we may take notice of some more facts.

(37) The petitioner alleges that he had been associated by the police in various matters relating to investigation of crimes. He goes on to say that in a number of cases he has been cited and produced as a prosecution witness. It is alleged that one Sat Narain. a relation of the petitioner, was harassed by Assistant Sub-Inspector Chitrakut of Police Station Kotwali. Chitrakut is stated to have demanded illegal gratification from Sat Narain. Sat Narain refused to oblige. He was, thereforee, given a beating by Chitrakut, Sat Narain had to be removed to lrwin Hospital where he was kept as an indoor patinent for some time. Sat Narain filed a complaint against Assistant Sub Inspector Chitrakut. Chitrakut came to know that Sat Narain was related to the petitioner. Chitrakut, thereforee, approached the petitioner and asked him to persuade Sat Narain to withdraw his complaint. On the refusal of the petitioner to intervene Chitrakut is said to have got, annoyed and got a false report lodged against the petitioner in Meerut which resulted into a case under section 420/34, Indian Penal Code, being registered against the petitioner vide first information report No. 977 of 1978 (serial No. 17). Assistant Sub-Inspector Chitrakut took over the investigation of this case. During investigation Chitrakut is alleged to have taken away some terricot thans from the shop of the petitioner in June, 1978. The petitioner succeeded in getting anticipatory bail in this case. It is further alleged that Chitrakut suggested to the petitioner to pay as sum of Rs. 500.00 to the complainant of the case and compromise. This payment was suggested to be made to Chitrakut who was to satisfy the complainant. The petitioner reported the matter to the Deputy Commissioner of Police Anti-Codruption. A raid was organized on July 1. 1978 by the Anti-Corruption Police. However, it did not succeed since the Assistant Sub-Inspector failed to turn up at the appointed time due to untimely death of his farther-in-law. Another raid was organized on July 10, 1978 but it could not succeed since, it is alleged, that by that time the Assistant Sub-Inspector came to know about the petitioners report to the Anti-Corruption Department. The petitioner alleges that thereafter one day A.S.I. Chitrakut gave him a beating. The petitioner received injuries and was medically examined by the police doctor. However, according to the petitioner. instead of registering a case against the Assistant Sub-Inspector. a false case under sections 353, 186 and 506, Indian Penal Code. was registered against the petitioner on August 6, 1978 on the allegation that petitioner has assaulted A.S.I. Chitrakut. The petitioner made various applications to the higher authorities against Chitrakut and other senior officers of Police Station Kotwali. It is suggested that in order to teach a lesson to the petitioner, all the police officers conspired together to extern the petitioner under section 47 of the Act.

(38) In this petition Commissioner of Police, Delhi Administration, as well as Mr, V. N. Singh, Deputy Commissioner of Police, North District, are respondents. A counter affidavit has been filed by Mr. V. N. Siagh, Deputy Commissioner of Police. North District, on behalf of all the respondents. There is a bare denial of the allegations referred to above. The only fact admitted is that A.S.I. Chitrakut is investigating the case against the petitioner under section 420/34, Indian Penal Code. It is also admitted that the petitioner had reported against the police officers to the higher authorities but the allegations were found groundless. No specific reply has been given to other allegations.

(39) It has been contended before us that since A.S.I. Chitrakut has not been made a party and as the Deputy Commissioner of Police. North District, is not in-charge of the Anti-Corruption Branch of the Delhi Police he was not in a position to give any reply, in our opinion, this is no excuse for not replying on affidavit the material allegations made by the petitioner. The Deputy Commissioner of Police was replying not -only on his behalf but also on behalf of the Delhi Administration as well as the Commissioner of Police. In these circumstances it was his duty to go through the relevant records of all the departments of the police, and answer the allegations made by the petitioner. This omnibus denial, as well we will presently discuss, is not correct even according to the record placed before us. The record shows that the petitioner did make a complaint to the Commissioner of Police against A.S.I. Chitrakut alleging, inter-alia, a demand for illegal gratification as well as the fact of the petitioner having met the Superintendent of Police (Anti-Corruption) on July 1. 1978 which resulted in a raid. This complaint is dated July 7, 1978. It was marked to Deputy Commissioner (Vigilance). Another complaint was made by the petitioner on July 14, 1978 to Superintendent of Police (Vigilance). Copies of the complaint were sent to Station House Officer Kotwali as well as to Assistant Superintendent of Police, Kotwali, The complaint was marked to A.S.I. Chitrakut for his comments. Chitrakut submitted his comments on July 27, 1978. After making a reference to first information report No. 977, dated June 21, 1978, registered against the petitioner under section 420/34, Indian Penal Code, he stated : 'The complainant had gone to the petitioner's shop on June 19, 1978 and asked for terrycot polyester 80 per cent 20 per cent cloth for marriage of his younger brother. On the assurance of the petitioner cloth was purchased. However, when this cloth was given for stitching by the complainant to tailor in his village, the tailor told the complainant that the cloth was of inferior cheap quality.' These were the allegationii on which the case of cheating was registered against the petitioner and his son. Investigation of the case was with Chitrakut. During investigation, stated Chitrakut in his comments, one piece of cloth was taken in possession by him from the petitioner's shop for the purpose of comparison by the Centra! Forensic Science Laboratory. Finally he states : 'He (the present petitioner) is in the habit of sending false complaints to demoralize the police. He has twice tried to get entrap me by Anti-Corruption'. The Station House Officer forwarded the comments to Assistant Commissioner of Police, Kotwali, with an endorsement to the effect that the petitioner was a had character, was trying to 'harass and overawe the officer' , and the allegations made against Chitrakut were all false. The Assistant Commissioner of Police added his comments on July 29, 1978. His comments are that the Station House Officer, Ko:wali, had been advised to put up petitioner's case for externment at the earliest since the petitioner is a notorious cheat. The Assistant Commissioner of Police sent the comments to Deputy- Commissioner of Police, North. On this file there is note dated August I, IQ78 about complaint sent by the present petitioner. The Assistant Commissioner of Police, Hcadquartcrs. lias made this endorsement : 'Applicant is a notorious history sheeter (bundle 'A') and is involved in a case of cheating. His extcrnment case is being prepared by the Kotwali Police. May be filed please.' It was sent to Deputy Commissioner. North. Who, on the same day. gave his assent by writing 'Yes'. In the meantime, still more complaints were sent by the present petitioner against A. S. 1. Chit.rakut. These are dated August 4, 10 and 16, 1978. Since the subsequent complaints were also based on the same facts, the Assistant Commissioner of Police (Headquarters) ordered that those may be filed.

(40) It was on August II. 1978 that the Station House Offieer. Kotwali, put up a case for externing the petitioner from the Union territory of Delhi. The proposal reproduces practically the full provisions of section 47 of the Act. Reference is made to the three cases registered against the petitioner in 1978. which we have already noticed. The record reveals that it was on September 1, 1978 that the Deputy Commissioner (North District) approved the proposal of the Station House Officer and directed that the proceedings for externment be held against the petitioner. Meanwhile, the Deputy Commissioner of Police (Vigilance) seems to have forwarded the petitioner's complaint dated August 8, 1978 to Deputy Commissioner of Police (North District). The Station House Officer, Kotwali. submitted his comments to Assistant Commissioner of Police, Kotwalii stating that the allegations against the Assistant Sub-Inspector were baseless The Assistant Commissioner of Police, Kotwali, forwarded the comments on August 28, 1978 with his endorsement to the effect that the petitioner was liable for externment under section 47 of the Delhi Police Act. On August 30, 1978 Deputy Commissioner of Police (North District), wrote a letter to Deputy Commissioner of Police (Vigilance), saying that 'the allegations leveled against police are totally false and baseless', and that the petitioner was liable for externment. Thereafter, notice under section 50 of the Act was issued to the petitioner.

(41) During the proceedings held by the Deputy Commissioner of Police the petitioner examined, on November 25, 1978, Assistant SubInspeclor Keshav Ram of Vigilance. On the basis of the records brought by him, Keshav Ram deposed that the complaints of the petitioner dated August 4, 1978 and September 21, 1978 were sent by the Vigilance Department to Deputy Commissioner of Police (North), (respondent No. 2) for report. The Deputy Commissioner (respondent No. 2) reported : 'Hari Ram alias Huria i B. C. bundle (A) of Police-Station Kotwali who indulges in all kind under seclions 307, Indian Penal Code, 25/54/59 Arms Act, 412/9/55 G. Act, 420. Indian Pe.nal Code etc. and liable for extemment under section 4 D. P. Act. The allegations leveled against the Police are totally false and baseless.' The witness also deposed that 'bacausc of this report the Vigilance Department dropped all enquiries against A. S. 1. Chirakut.'

(42) The above facts leave no doubt that '.he main reason for initiating extemment proceedings against the petitioner was that he was out to 'demoralize' the Police officers the comment made by A.S.i. Chitrakut. The petitioner was being considered a nuisance to the Police-officers of the Police-Station. We have not been shown any record which would reveal that persons were not even willing to come forward to depose in public against the petitioner. On the other hand, the first information report of the case registered against the petitioner for having beaten A.S.I. Chitrakut, shows that the alleged incident was witnessed by Constable Daya Chand, cunductor and driver of a bus. It has nowhere been suggested that any one of them was not willing to come forward to appear against the petitioner.

(43) In our opinion it is a case where the notice issued to the petitioner by Deputy Commissioner of Police (North) cannot be held to be bona-fide. As far back as August 1, 1978, this Deputy Commissioner had given his assent for preparing a case of extemment of the petitioner. He was instrumental in geting inquiry against A. S. 1. Chitrakut by Vigilance department being dropped. On August 30, 1978 he expressed his opinion in his letter to Deputy Commissioner of Police, Vigilance, New Delhi, that the petitioner was liable turn externment. He had thus already made up his mind and the rest was only an eye-wash. In this backdrop the respondent Deputy Commissioner signed the impugned notice issued to the petitioner without applying his mind to it. Otherwise, he would not have failed to notice that cases shown at Seriall Nos. 19, 20 and 21 were the repent-on of the three cases mentioned at Seriall No. 16, 17 and 18. The learned counsel for the petitioner is also justified in assailing the counter affidavit filed by the respondents for suppressing true facts. As already discussed, the Explanationn by A.S.I. Chitrakut slating, inter-aha, that two raids by Anti-Corruption Department were organized to entrap him at the behest of the petitioner, must have come to the notice of the respondent Deputy Commissioner of Police since these papers were placed before him. The records placed before us show that a number of constraints made by the petitioner were forwarded to the respondents deputy Commissioner from time to time. He was, thereforee, not right in making an omnibus denial of the facts alleged in the petition. It was his duty to meet the facts and to say what was true to his knowledge or true to the records which were in his office. It was also his duty to find out full facts from the Deputy Commissioner of Police (Vigilance) since he had decided to file an affidavit on behalf of not only Delhi Administration but also on behalf of Commissioner of Police. We would, thereforee, strike down the notice issued by the Deputy Commissioner of Police (North) respondent No. 2 on the ground of mala-fides also.

(44) Moreover, the power of externment delegated by the Commissioner of Police to Deputy Commissioner of Police (North District), under section 47 has been confined to the local juridiction of the Deputy Commissioner of Police. As already held, powers under section 50 of the Act have not been delegated by the Commissioner. thereforee, the respondent Deputy Commissioner neither had the jurisdiction to issue the impugned notice under section' 50 nor had he the jurisdiction to extern the petitioner from the whole of the Union territory of Delhi. He, thereforee, acted without jurisdiction in issuing the impugned notice to the petitioner. The said notice as well as all the proceedings conducted by respondent No. 2 are hereby quashed and set aside.

(45) Criminal Writ Nos. 52, and 59 of 1978 and Criminal Writ No. 3 of the 1979 notice un,der section 50 was issued to the petitioners by Deputy Commissioner of Police (Crime) calling up on the petitioners to show cause why they should not be externed from the Union territory of Delhi. This is the only policy-officer to whom the Commissioner of Police has delegated his powers of externment from the Union territory of Delhi. However, since even this officer has not been delegated the powers under section 50 of the Act. the impugned notices issued by him to the petitioners are without jurisdiction and are here by quashed set aside.

(46) Before parting with these cases, we many record that during the course of proceedings the learned counsel for the petitioners seriously insisted on the production of the orders passed by the Commissioner of Police delegating his powers to Police-officers who had issued notices of externment. We had called upon the respondents to file supplementary affidavits to state whether any general or special order had been passed by the Administrator under section 8(2.) of the Act and if so, produce the same. Orders passed by the commisioner under section 8(2) were also directed to be placed us. The respondents filed supplementary affidavits. It was seen as a special or general order was passed by the Administrator. A (rue copy of the Commissioner's order datcd July 7, 1978 was placed before us. During the course of hearing the learned counsel for the petitioners insisted that the original records be placed before us as false affidavits had been filed by the Police. We are constrained to say that the original records reveal that (1) a general order has been passed by the Administrator under section 8(2) of the Act; and (2) the copy of the order dated July 7, 1978 passed by the Commissioner of Police delegating his power to various police-officers was not a true copy. The records show that to begin with powers under section 47 were not delegated by the Commissioner of Police to any officer except Deputy Commissioner of Police (Crime Prevention). It was by a subsequent order that powers under section 47 were delegated by the Commissioner of Police to the District Commissioner of Police. Mr. Sud explains that mistakes had been made because of the failure to pursue the full records which were with the Commissioner of Police. This is no reason to file wrong affidavits. Though we do not propose to take any action' of this score, we will warn the respondents to be careful in future while filing their affidavits.

(47) The result is that all the petition are accepted. Notices of exterment issued by the respondents ad all subsequent proceedings based on these notices are hereby quashed and set aside.


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