Kamal Bhatia v. State of NCT of Delhi

16. The Petitioner further asserted that in the year 2017, the health of his mother deteriorated on account of cancerous tumour, which necessitated a mastectomy. The Petitioner‟s father was also involved in a serious accident and was rendered incapable to carry out many of his daily needs independently. The Petitioner started focussing on the medical needs of his ailing parents. The Petitioner got married in 2022 and since then, he has been fulfilling his obligations towards his family members.

17. The Petitioner claimed that he was engaged in various lawful businesses, though they were all unsuccessful. He started a Cloud Kitchen business under the name of Fit and Healthy Diet, which also suffered losses during the Covid Era. At present, the Petitioner is engaged in the finance business and is also operating a YouTube Channel “Glock Music Record, alongside taking care of his family responsibilities.

18. The Petitioner has submitted that he was surprised to receive the Externment Notice in December, 2023. He has explained that there were five FIRs registered against him, details of which are as under:- S.No FIR No.

DATE SECTION POLICE STATION STATUS REMARKS

1. 525 04.04.2015 341/323/506/ 34 IPC Seema Puri Acquitted Vide Order dated 07.12.2021 in Crl. Cases 88104/2016

2. 1628 27.11.2015 341/323/506/ 34 IPC Seema Puri Compounded Vide Order dated 09.03.2018 in Cr. Cases 87772/2016

3. 462 27.12.2016 341/323/506/ 427/34 IPC GTB Enclave Pending Trial The matters stands compromised and a quashing petition is due to be filed soon.

4. 14 24.01.2017 307/323/506/ 341/34 IPC and 25/27/54/59 of Arms Act GTB Enclave Pending Trial Case of cross FIR registered post-date after the registration of the FIR NO. 04/2017

5. 512 19.11.2022 195A/34 IPC GTB Enclave Pending Trial The FIR pertains to an alleged incident dated 09.05.2019 and is registered after a delay of over 3.[5] years

19. The Petitioner has explained that he has been acquitted in one FIR No. 525/2015; while the second FIR No. 1628/2015, has been compounded. No other FIR is pending in the Police Station Seema Puri and thus, there was no ground for the SHO, PS Seemapuri for initiating the Externment proceedings against him.

20. It is further submitted that the other three FIRs were of Police Station G.T.B. Enclave. The FIR No. 14/2017 is frivolous and superficial and is only an afterthought as a counter to the assertions made in FIR No. 14/2017.

21. The Petitioner has stated that from 2019 to 2022, he was having a clean record with no FIRs or Criminal Cases registered against him. FIR No. 512/2022 was registered under Section 95A/34 IPC, for an alleged incident which took place on 09.05.2019, after an unexplained delay of 3.[5] years.

22. The Petitioner has further asserted that no witnesses were summoned or examined during the Externment proceedings nor was he provided any opportunity of hearing, which is violative of principles of natural justice, making the Externment Order perverse. Moreover, he was not provided with any opportunity to cross-examine any witness. On 29.09.2024, he had presented two witnesses namely, Jaspreet and Mr. Sahej Singh, but the Additional DCP permitted only Mr. Jaspreet Singh, to depose on his behalf. This witness attested to the Petitioner‟s good character and his testimony was not contradicted.

23. It is further contended that the Hon‟ble Lieutenant Governor while dismissing his Appeal, did not conduct any independent analysis of the allegations or looked into the procedural irregularities as highlighted by him.

24. The Externment Order dated 11.12.2024 is challenged on the ground that the Respondent has failed to establish any immediate danger or threat posed by the Petitioner to public safety and that the Externment Order has been made without any substantive evidence. Reliance has been placed on Prem Chand vs. Union of India, 1981 (1) SCC 639 wherein it was observed that mere police apprehension is not enough and there must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence.

25. It is further asserted that the Respondent has acted in a biased and arbitrary manner without following due process of law and giving reasonable opportunity to the Petitioner, to defend himself. The Impugned Order lacks a reasonable foundation as it does not demonstrate a clear connection of the Petitioner with the alleged conduct or that he is an imminent threat to the public safety. It has not been demonstrated that the witnesses, if any, were indeed unwilling to testify against the Petitioner.

26. The Petitioner has further submitted that the Externment Order labels him as a person of ‘Bad Character’, yet no Notice of this allegation was ever provided to him. The Petitioner had consistently demonstrated his willingness for complying with all the directives of the Police and had cooperated in the investigations in the FIRs. This failure to recognise this co-operation in the Externment Order, reflects an arbitrary exercise of Power, undermining the principles of natural justice and fair play.

27. It is further submitted that this Externment Order would not only restrict his ability to earn his livelihood, but also would prevent him from taking care of his ailing parents.

28. Hence, the prayer is made for quashing of the impugned Externment Order dated 15.07.2024 and the Order of Hon‟ble Lieutenant Governor dated 11.12.2024 whereby the Externment Order has been upheld.

29. The State has filed a Status Report wherein it has been highlighted that the Petitioner‟s involvement in five Criminal Cases at different Police Stations. It is submitted that he is a habitual offender and a person of „Bad character‟ of Bundle-A of Police Station Seema Puri. It was, therefore, submitted that the present Writ Petition is liable to be dismissed.

30. Submissions heard and the record perused.

31. The Petitioner has challenged the Externment Order dated 15.07.2024 on various grounds including that it lacks any clear or cogent material justifying any imminent threat to public safety merely on the basis of stale FIRs.

32. The Scope of Judicial review by the Writ Court of a Quasi Judicial order is explained by the Supreme Court of India in the Case of State of NCT of Delhi v. Sanjeev alias Bittoo, (2005) 5 SCC 181wherein while dealing the scope of interference in an Externment Order, Apex Court observed that though, such order is an administrative Order and the Courts must be slow to interfere in such Orders made by the Competent Authority, but it is trite law that the Order may in exercise of power whether legislative or administrative, would be set-aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. The principles can be grouped in two categories. i) failure to exercise a discretion and (ii) excess or abuse of discretionary power. These two Clauses were held to be not mutually exclusive. Thus, discretion may be improperly exercised because irrelevant considerations have been taken into account.The Courts must be therefore, slow to interfere in matters relating to administrative functions unless the decision is tainted by any vulnerability as stated above.

33. Another principle of immense significance is “Reasonableness”. Lord Greene in Associated Provincial Picture Houses Ltd. vs. Wednesbury Corpn., (1947) 2 All ER 680, observed that the discretion must be exercised reasonably. The word ‘reasonably’ may be explained as a person entrusted with discretion,must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude such matters which are irrelevant. If he does not follow the rules, it is often said that he has acted „unreasonably‟.

34. Similarly, wheresomething so absurd is donethat no sensible person could even dream that it lay within the powers of the Authority, it may be termed as unreasonable. Another instance of acting unreasonable is when extraneous matters are taken into consideration. The term “ureasonable” may be described as being done in bad faith and in fact, all these things run into one another.

35. Lord Diplock in CCSU Case (1984) 3 All ER 935, defined the scope of judicial review of administrative action to be on the principles of ‘illegality’ ‘procedural impropriety’ and ‘irrationality’. The term „irrationality‟, which may be termed as „Wednesbury reasonableness‟ means a decision which is so outrageous in its defiance of logic or of accepted moral standards that no reasonable person, who had applied his mind to the question to be decided could have arrived at it. „Irrational‟ implies that it is a decision „so outrageous‟ as to be in total defiance of logic or moral standards. Adoption of „proportionality‟ into administrative law was left for the future.

36. These principles were noted by the Apex Court in the case of Union of India vs. G. Ganayutham, (1997) 7 SCC 463 wherein it was held that in essence, the test is to see whether there is any infirmity in the decisionmaking process and not in the decision itself.

37. Having considered the scope of S.482 and the parameters for judicial review in the quasi- judicial Orders, the facts of present case may be examined.

38. The objective behind passing an Externment Order under Section S.47 DP Act was for a benign purpose in the context of escalation of crime, wherein restrictions which, in normal times may appear unreasonable, may have to be clamped on the individuals. In the case of Deepak vs. State of Maharashtra, 2022 SCC OnLine SC 99, the Apex Court observed that there cannot be any manner of doubt that an Externment Order is an extraordinary measure. The effect of the Order is not to deprive a citizen of his fundamental right of free movement throughout the territory of India. In practical terms, such an Order prevents the person even from staying in his own house along with his family members during the period for which this Externment Order is in subsistence. It may even deprive the person of his livelihood. Therefore, recourse to this Section must be made sparingly keeping in mind that it is an extraordinary measure.

39. Before considering the facts of this case, it would be pertinent to consider Section 47 of Delhi Police Act which provides for the passing of an Externment Order. It reads as under:-

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 of 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 XVL, Chapter XVII or Chapter XXII of the Indian Penal Code (45 of 1860) or under Section 290 or Sections 489A to 489E (both inclusive) of that Code or in the abetment of any such offence; or

(c) that such person-

(i) is so desperate and dangerous as to render his being at large in Delhi or in any part thereof hazardous to the community; or

(ii) has been found habitually intimidating other persons by acts of violence or by show of force; or

(iii) habitually commits affray or breach of peace of riot, or habitually makes forcible collection of subscription or threatens people for illegal pecuniary gain for himself or for others; or

(iv) has been habitually passing indecent remarks on women and girls, or teasing them by overtures, and that in the opinion of the Commissioner of Police witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, the Commissioner of Police may, by order in writing duly served on such person, or by beat of drum or otherwise as he thinks fit, direct such person to so conduct himself as shall seem necessary in order to prevent violence and alarm or to remove himself outside Delhi or any part thereof, by such route and within such time as the Commissioner of Police may specify and not to enter or return to Delhi or part thereof, as the case may be, from which he was directed to remove himself. Explanation- A person who during a period within one year immediately preceding the commencement of an action under this section has been found on not less than three occasions to have committed or to have been involved in any of the acts referred to in this section shall be deemed to have habitually committed that act.

40. Section 50 of the Act defines the procedure to be followed for passing an Order of Externment.

41. The Order of Externment may be passed under the following circumstances:

(i) that the movement or the acts of any person is calculated to cause alarm, danger or harm to person or property; or

(ii) that there are reasonable grounds that he would be engaged in the commission of an offence; or

(iii) that he so desperate and dangerous that his being at large would be hazardous to the community; or

(iv) that he is found habitually intimidating to other persons or is habitually committing affray or breach of peace; or is habitually passing indecent remarks on women.

42. In this backdrop, the facts of present case may be considered to ascertain if Order under Section 47 of D.P. Act, was merited.

(i) Movement or the acts of any person is calculated to cause alarm, danger or harm to person or property:

43. The first requirement for Externment according to Clause 47 (a), is that any person whose movement is considered to be dangerous or harmful to the persons or property, may be. However, there is not an iota of averment, what to talk of evidence to show that there was any imminent threat to the person or property of any individual.

44. Inspector Devinder Singh was examined as Prosecution witness, who deposed about the involvement of the Petitioner in five criminal Cases. He also deposed that there is likelihood of him to indulge in such offences in future too. Further, the citizens were not willing to come forward to give evidence against him due to apprehension to the safety of their person and property at the hands of the Petitioner.

45. The Competent Authority must be satisfied while invoking Clause (b) of Section 56 that there is sufficient material on record to satisfy that witnesses are not willing to come forward to give evidence against such person by reason of apprehension of their safety or property. However, the entire evidence of the Prosecution witness conspicuously does not state a word about any act of the Petitioner which is calculated to cause any harm to the person or the property of any person.

46. The Petitioner, however, in his defence, had examined one witness Mr. Jaspreet Singh, who had deposed that the Petitioner has been residing in the locality peacefully and the members of the locality do not have any Complaints against him.

47. In the case of Deepak (supra), Apex Court observed there must be objective material on record on the basis of which the competent Authority may record its subjective satisfaction that the movements or acts of such person are causing or calculated to cause alarm, danger or harm to the persons or property.

48. No evidence has been led nor any circumstance spelled on behalf of the Respondent to show that movement of the Petitioner is an imminent threat to the members of the locality or their property.

(ii) Reasonable grounds that he would be engaged in the commission of an offence:

49. Section 47 (b) states that Order of Externment may be passed if there are reasonable grounds to believe that the person is going to commit the offence by using force or violence or the offence under Chapter XII, Chapter, XVI, Chapter XVII or Chapter XXII IPC or the abetment thereof.

50. In the case of Deepak (Supra), Apex Court observed that there must also be subjective satisfaction that there are reasonable grounds to believe that such person is engaged or is about to be engaged in the commission of offences involving force or violence of offences punishable under Chapter XII, XVI or XVII IPC.

51. However, in the entire pleadings or the detailed Order of the learned Additional DCP, there is no mention of there being any apprehension of imminent commission of the offences as detailed hereinabove.

(iii) He is so desperate and dangerous that his being at large would be hazardous to the community:

52. The only evidence led to the statement made by the Prosecution witness Inspector Devinder Singhthat there is likelihood of him to indulge in such offences in future too. Further, the citizens were not willing to come forward to give evidence against him due to apprehension to the safety of their person and property at the hands of the Petitioner.

53. The only instance which can be gathered from the record is FIR No.512/22 under S. 195A/34 IPC which was in regard to an incident of 2019 and was registered after three and a half years.

54. Additional DCP, in the Impugned Order of Externment, referred to the Statements of witnesses recorded by him in camera, who were not willing to come forward to make Statements in public, against the Petitioner due to the apprehension with regard to the safety of their person and property.

55. In the present case, while it has been deposed by Inspector Devinder Singh that such an assessment was made from the testimony of the witnesses recorded in camera, but aside from making bald assertions, it does not explain how his conduct is hazardous to the community. The only statement made was that the witnesses were not coming forth to depose against him,but the testimony is not supported by any details of the cases in which the witnesses were not forth coming. From the Criminal Cases against him, it is not believable that there are witnesses, who are required to appear against him or that they have any apprehension of harm or danger to their person or property, which is deterring them to come forth to depose against the Petitioner. Though they deposed so in camera, but no circumstances are detailed for such alleged apprehension. The most significant aspect is that no case or FIR or investigations are mentioned in respect of which they are not forth coming.

56. In the case of Deepak (Supra), it was observed that when Clause (b) of Section 49 is sought to be invoked to assert that the witnesses are not willing to come forward against the Petitioner, the competent authority must be satisfied on the basis of some material on record.

57. Merely by making assertions that there is a satisfaction of persons not coming forth to make the Statements in Public against the Petitioner, would not be sufficient to satisfy the threshold of Clause (b) of Section 49 thereby meriting the Order of Externment.

58. The main ground for the Prosecution to come to the conclusion of Petitioner being desperate and dangerous, are the five FIRs that were registered against him. In the Case of Deepak (Supra), it was observed that, even if multiple offences have been registered against an individual, that itself would not be sufficient to pass an Order of Externment against him.

59. In the present case, what to talk of subjective satisfaction, in fact the basic averments are found missing to justify the action of Externment.

60. In the case of Prem Chand vs. Union of India (Supra), the Apex Court observed that Section 47 and 50 must be read strictly. Any police apprehension is not enough for passing the Order of Externment. Some ground or the other, also is not adequate. There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in the locality or any other part thereof is hazardous to the community and its safety. A stringent test must be applied in order to avoid the easy possibility of abuse of this process power to the detriment of the fundamental powers. It was further observed that the principles of natural justice must be fairly complied with and the vague allegations and secret hearings are gross violation of Article 14, 19 and 21 of the Constitution of India.

61. Such sketchy evidence is not sufficient to establish that Petitioner is desperate or dangerous or that his letting being at large, would be hazardous for the Community. (iv)Habitually intimidating or is habitually committing affray or breach of peace or habitually passing indecent remarks on women:

62. The main ground around which the entire proceedings under S.47 DP Act revolves are the Five FIRs registered against the Petitioner since 2015 to claim that he is a Habitual Offender.

63. The terms Habitual has been explained in Explanation to Section 47, which reads as under:- “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 invoked in any of the acts referred to in this section shall be deemed to have habitually committed that act.”

64. From the very definition of the word „habitual‟ as given in the Explanation to Section 47, it is evident that in the year preceding to the commencement of an action, it must be found that on not less than three occasions, the person has committed or has been involved in any of the acts referred to in this Section.

65. There are five FIRs, which have been detailed against the Petitioner. Two are of 2015 under Section 341/323/506/34 IPC, Police Station Seema Puri. One FIR No. 462/2016 is also under the similar Sections, registered on 27.12.2016 at Police Station GTB Enclave. The next FIR bearing FIR No.14/2017 is under Section 307/323/506/34/1/34 IPC and 25/27/54/59 of Arms Act at Police Station GTB Enclave. The last FIR is 512/2022 under Section 195A/34 IPC dated 19.11.2022 registered at Police Station Anand Vihar.

66. The proceedings as per the Order of the DCP dated 15.07.2024, were initiated on 25.11.2023 thereby establishing that in the preceding year i.e. in the year 25.11.2022 to 25.12.2023, there is not even a single FIR that has been registered. In these circumstances, the Petitioner cannot be held to be habitual offender and cannot be held liable for Externment under Section 47 (c) (ii) to (iv) of D.P. Act.

(v) Additional Ground of being a Bad Character:

67. The DCP in this Order of Externment, also referred to the Petitioner being a „Bad Character of Bundle-A‟ of Police Station Seema Puri, Delhi. However, it has been contended by the Petitioner that this was never a part of the Notice served upon him under Section 50 and, therefore, he had no opportunity to counter the same. There are no details of when the Petitioner was declared a Bad Character or the circumstances in which he was put in Bundle-A of Police Station Seema Puri.

68. It is further observed in the Impugned Order that due to his continuous and persistent activities, the Petitioner is hazardous to the society. Again while reiterating the language of Section 49, no circumstances have been showed to explain the term “continuous and persistent activities”, which makes him hazardous to the society.

69. Pertinently, the two FIRs of 2015 already stand concluded. The other two FIRs are of 2016 and 2017 respectively. The last FIR is of 2022, which is also in respect of an incident, which was reported in the year 2019. The last FIR that was registered against him was prior to one year from the commencement of Externment proceedings. Conclusion:

70. Considering the nature and power under Section 56 of D.P. Act, the Competent Authority is not expected to write a Judgment containing elaborate reasons, but the subjective satisfaction of the Competent Authority, must be reflected in the reasons given to satisfy any of the grounds under Section 56 of D.P. Act, which rests on objective material placed on record. The application of mind must be evident from the Order. The Court considering the Externment Order, cannot question the sufficiency of material on which the subjective satisfaction has been recorded, but the Court can always consider whether there existed any material on the basis of which, subjective satisfaction has been recorded. The Courts are well within the jurisdiction to interfere when either there is no material or the relevant material has not been considered.

71. It is evident that the Impugned Order, which is essentially quasijudicial in nature, is bereft of any material, logic or reason. Result:

72. The Externment Order dated 15.07.2024, issued by the Additional Deputy Commissioner of Police-I, Shahdara District, Delhi, is hereby setaside.

73. The Writ Petition is allowed and disposed of accordingly. All the pending Application(s) also stand disposed of.

JUDGE JUNE 27, 2025