Delhi High Court (July 26, 2001) 2001 (TLS)125390 2001-DLT-93-183 :: 2001-AD (Del)-5-772 KALYAN KHARI Vs. State (National Capital Territory of Delhi) Usha Mehra ( 1 ) THE externment proceedings were initiated against the petitioner by the Additional Deputy Commissioner of Police, North-West District by giving the petitioner a notice under Section 50 of the Delhi Police Act, 1978 (hereinafter called the Act) dated 14/07/1999. In response to the said notice, petitioner filed Ms reply and contested the action of the respondent. However, by the order of 30/10/2000 passed under Section 47 of the said Act, the additional Deputy Commissioner of Police directed the externment of the petitioner from the limits of the North-West District, Delhi for a period of one year. Relaxation was, however, given that the petitioner could attend the date of hearing during the court hours and for such reasonable time as may be necessary for coming and going out of the limits of the North-West District, Delhi except with the permission of the court. ( 2 ) AGGRIEVED by the said order, petitioner preferred an appeal under Section 51 of the said Act. The. Lieutenant Governor, the Appellate Authority, vide the order of 27/12/2000 dismissed his appeal. ( 3 ) AGGRIEVED by the order of externing authority as well as of the Appellate authority, the present writ petition has been preferred, inter alia, on various grounds, but during course of arguments Counsel for the petitioner restricted his arguments to only one ground, namely that the externing authority relied on certain materials which did not form part of the notice under Section 50 of the Act dated 14. 7. 1999. In the notice the Additional DCP relied on two criminal cases instituted against the petitioner whereas while passing the impugned order under Section 47 of the Act the externing authority relied as many as five criminal cases instituted against the petitioner i. e. , three more cases for which no notice under Section 50 of the Act was given to him. In the notice under Section 50 of the Act, authority placed reliance on two FIRs bearing No. 33 dated 4/02/1997 under Sections 307/ 34, IPC of P. S. Keshavpuram and No. 178 dated 4/06/1999 under Sections 307/ 324/506/34, IPC of P. S. Keshavpuran whereas while passing the externment order under Section 47 of the Act, the materials pertaining to three more criminal cases were considered behind the back of the petitioner. Those cases bear FIRNo. 54dated 5/02/2000 under Sections 323/341/34, IPC of P. S. Keshavpuram, FIR No. 84 dated 24/02/2000 under Section 341 /506/354, IPC of P. S. Keshavpuram and DD No. 10 dated 26/02/2000 under Section 110-G, Cr. P. C. of P. P. Shantinagar. ( 4 ) COUNSEL for the appellant, therefore, contended that the petitioner has thus been deprived of his right of being heard and was not afforded a reasonable opportunity of defending himself. The cases which had been relied in the notice under Section 50 of the Act were not the only material on which externment order has been passed. The material which has been relied by the authority at the time of passing the externment order under Section 47 of the Act did not find mention in the notice nor any opportunity was given to the petitioner to defend or file reply to the same. Hence the impugned order is bad in law. ( 5 ) WITHOUT going to the other grounds taken by the petitioner in this petition, suffice it would be to dispose of this petition on the sole ground urged by the petitioner at the Bar, namely that the impugned order of externment passed under section 47 of the Act was violative of Section 50 of the Act. ( 6 ) ADMITTEDLY in the notice under Section 50 of the Act the Externing Authority relied upon the material pertaining to two criminal cases registered vide FIR No. 33 dated 4. 2. 97 and FIR No. 178 dated 4. 6. 99. It was only during the pendency of these proceedings that material of three other criminal cases registered against the petitioner which came to light of the externing Authority during pendency of the proceedings were also made basis for passing the externment order. If is so stated in the order passed under Section 47 of the Act. 6. 99. It was only during the pendency of these proceedings that material of three other criminal cases registered against the petitioner which came to light of the externing Authority during pendency of the proceedings were also made basis for passing the externment order. If is so stated in the order passed under Section 47 of the Act. The relevant extracts of the externment order is reproduced as under : "kalyan Khari s/o Ramesh Khari was found involved in the following cases of committing offences of attempt to murder, voluntarily causing hurt by dangerous weapons, criminal intimidation with common intention : ------------------------------------------------------------------- sl. No. FIR No. Dated Under Section Police Station ------------------------------------------------------------------- 1. 33 4. 2. 97 307/34, IPC Keshavpuram 2. 178 4. 6. 99 307/324/506/ Keshavpuram 34, IPC during the course of proceedings under Section 47, Delhi Police Act, 1978 he was involved in the following cases of committing offences of voluntarily causing hurt, wrongful restraint, criminal intimidation, assault or criminal force to woman with intent to outrage her modesty with common intention and D. D. Entry under Cr. P. C.- 1. FIR No. 54 5. 2. 2000 u/secs. 323/341 /34, IPC PS Keshavpuram 2. FIR No. 84 24. 2. 2000 u/secs. 341/506/354. IPC PS Keshavpuram 3. DD No. 10 26. 2. 2qoo u/secs. HOG, Cr. P. C. PP Shanti Bagar after going through the material and having satisfied that sufficient material existed the proceedings for externment of respondent were initiated. As required. under Section 50 of D. P. Act, 1978 the respondent was informed of the general nature of the material allegations against him by issuing-a notice under Section 50 of D. P. Act, 1978 on 14. 7. 99. He appeared before the then dcp/nw Sh. Satyendra Garg on 14. 7. 99 and was directed to file his reply to the notice, which he finally didonl6. 11. 99. " ( 7 ) READING of the impugned order shows that none of the cases bearing FIR No. 54 dated 5/02/2000 under Sections 323/341/34, IPC of P. S. Keshavpuram; fir No. 84 dated 24/02/2000 under Sections 341/506/354, IPC of P. S. Keshavpuram and D. D; No. 10 dated 26/02/2000 under Section 110g, cr. P. C. of P. P. Shantinagar were brought to the notice of the petitioner by way of notice nor confronted during the hearing nor any reply on the same was sought. P. C. of P. P. Shantinagar were brought to the notice of the petitioner by way of notice nor confronted during the hearing nor any reply on the same was sought. ( 8 ) IT is, thus, apparent that there was no proceeding initiated under Section 50 of the Act against the petitioner pertaining to those three criminal cases. The petitioner has been thus deprived of his right of defence and of hearing. He could not have been taken by surprise. Material of these three cases were not confronted to him nor given any opportunity to explain his point of view. This Court in similar circumstances set aside the order passed under Section 47 of the Act as well as of the appellate Court in the case of Smt. Shailender Kaur v. Lt. Governor and Ors. 91 (2001) dlt 243 (DB)=ii (2000) CCR 249 (DB), wherein it was observed: "section 50 requires the Commissioner of Police to give a notice in writing to the person in question informing him of general nature of material allegations against him and also give reasonable opportunity of tendering an explanation. The show-cause notice issued by the Addl. DCP (East Distt.) dated 2. 4. 1997, which has already been reproduced in the foregoing paragraphs. The facts, circumstances and the material which the Addl. DCP proposed to take into consideration before the power given by Section 47 was exercised were duly mentioned in it. Needless to state here that the Commissioner of Police has duly delegated power vested in him by Section 47 to the DCPs and Addl. DCPs, No dispute is raised about the competence of the Addl. DCP (East distt.) to make an order of externment under Section 47 before us. we show- cause notice dated 2. 4. 1997 showed that the Addl. DCP had before him the facts of 5 cases registered against the petitioner under Section 61 of the Punjab excise Act at the time of issuing notice but he has passed the impugned order dated 23. 6. 2000, under challenge, taking into consideration in all 16 criminal cases against her. The Lt. Governor who decided the appeal filed by the petitioner under Section 51 of the Act has also taken into consideration 16 criminal cases in which the petitioner was involved. 6. 2000, under challenge, taking into consideration in all 16 criminal cases against her. The Lt. Governor who decided the appeal filed by the petitioner under Section 51 of the Act has also taken into consideration 16 criminal cases in which the petitioner was involved. 15 cases out of 16 cases noted by them in their orders were under Punjab Excise Act and the one was for various offences under the IPC. Of them 9 cases were not mentioned in the show-cause notice dated 2. 4. 1997 and which formed the basis of initiation of the proceedings against the petitioner. Section 50 of the Act has mandated the commissioner of Police to give notice in writing and also inform the person in question of the general nature and the material allegations against him. The acts, movements and criminal cases which were proposed to be taken into consideration before passing orders under Section 47 were required to be mentioned in the notice served on the petitioner against whom the order of externment was proposed. It was necessary to give reasonable opportunity of hearing and tendering her explanation to the show-cause notice. It has not been stated before us that after the service of the show-cause notice dated 2. 4. 1997 the Addl. DCP (East Distt.) had given further notice to the petitioner or during the hearing had made it known to the petitioner the other cases in which she was involved whether under the Punjab Excise Act or under the IPC and they were also the material allegations which could be used against her in the proceedings. Admittedly it has not been done in this case. The order of externment of Addl. DCP (East, Distt.) and the order passed in appeal by the lt. Governor of Delhi, therefore are violative of Section 50 of the Act. The orders are vitiated and cannot be sustained". ( 9 ) SIMILAR view was taken by this Court in Pyare Lal v. State, Crl. W. No. 145/ 2000 decided on 21. 2,2000. ( 10 ) IN view of the law laid down by this Court as quoted above, we find force in the submission of the petitioner. The impugned order passed-under Section 47 of the Act and the order of the Appellate Authority confirming the externment order are violative of Section 50 of the Act, therefore, the order of extemment stand vitiated. ( 10 ) IN view of the law laid down by this Court as quoted above, we find force in the submission of the petitioner. The impugned order passed-under Section 47 of the Act and the order of the Appellate Authority confirming the externment order are violative of Section 50 of the Act, therefore, the order of extemment stand vitiated. It cannot be sustained. Accordingly the order passed by the Additional dcp dated 30/10/2000 under Section 47 of the Act and the order of the Lt. Governor passed in appeal filed by the petitioner dated 27/12/2000, cannot be sustained. The same are accordingly set aside leaving the parties to bear their own cost. Petition allowed. --- *** --- .