Prem Chand Vs. Union of India &
Ors [1980] INSC 212 (11 November 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION: 1981 AIR 613 1981 SCR (1)1262 1981
SCC (1) 639
ACT:
Delhi Police Act, 1978-Sections 47 and
50-Scope of- Allegations made in externment order vague-order if valid- order
should be passed only when there is clear and present danger based on credible
material
HEADNOTE:
Exercising power under sections 47 and SO of
the Delhi Police Act, 1978 (which clothe the Commissioner of Police with
externment powers for keeping the capital city free of crime) the Deputy
Commissioner of Police Delhi directed the appellant to show cause why he should
not be externed from the Union Territory of Delhi. The allegations against him
were that his activities in the area of police station Connaught Place and the
areas adjoining the police station were causing and were calculated to cause
harm, alarm and danger to the residents of the said localities and areas that
he kept a knife with him for unlawful purposes and threatened residents of that
area with dire consequences and deterred them from reporting to the police and
that he had engaged himself in the commission of offences against persons and
property with force and violence.
In his petition under Article 32 of the
Constitution challenging the vires of the externment proceedings as arbitrary
and unreasonable restrictions on his freedom of movement, the petitioner stated
that over the past 25 years with the indulgence of the local police he used to
park his mobile refrigerated water-carts on the road side in front of a cinema
theatre in Delhi and that in return for the indulgence shown to him by the
police and to keep them in good humour he yielded to their pressure and gave
false testimony in as many as 3000 cases. Even though Courts had dubbed him as
a stock witness and passed severe strictures and disbelieved his testimony, the
police did not give him up; that he had to continue to act as a tool in their
hands for the survival of his business and that lately when he declined to
oblige them because he felt that his wealthy station in life and the
character-building stage of his children warranted giving up the profession of
stock- witness, the police avenged themselves by threatening externment which
would inflict mortal economic injury to him if the threat was carried out.
The Assistant Commissioner of Police in reply
had stated that before the externment order was passed witnesses had been
examined in camera in support and in opposition of the allegations justifying
externment and that on a consideration of the materials placed before the
Deputy Commissioner of Police, including the education of his children and the
assurance given by the petitioner, final order had been passed directing him to
show good conduct for a period of 3 months.
Allowing the petition,
HELD: The Delhi Police Act permits externment
provided the action is bona fide. All power, including police power, must be
informed by fairness, if it is to survice judicial scrutiny. Mala fides is
fatal if it is made out. [1164 D-E] 1263 Sections 47 and 50 of the Act have to
be read strictly;
any police apprehension is not enough; some
ground or other 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. Like-wise there must
be sufficient reason to believe that the person proceeded against is so
dangerous that his mere presence in Delhi or any part thereof is hazardous to
the community and its safety. A stringent test must be applied by Courts in
order that this power is not abused to the detriment of the citizen Natural
justice must be fairly complied with and vague allegations such as those
levelled against the petitioner and secret hearings are gross violations of
Articles 14, 19 and 21.
[1267 G-H,
ORIGINAL JURISDICTION: Writ Petition No. 3050
of 1980.
(Under Article 32 of the Constitution) A. S.
Sohal and M. C. Dhingra for the Petitioner.
M. M. Abdul Khader, N. Nettar and M. N.
Shroff for the Respondents.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-Who will police the police ? Is freedom of movement
unreasonably fettered if policemen are given power of externment for public
peace? These twin problems of disturbing import, thrown up by this bizarre
case, deserve serious examination. The former is as important as the latter,
especially when we view it in the strange police setting painted by the
petitioner. The constitutional question, which we will state presently and
discuss briefly, has become largely otiose so far as the present petitioner is
concerned because counsel for the State has assured the court that they will
drop police surveillance or any action by way of externment as proposed
earlier. The police methodology, with sinister potential to human liberty
described by the petitioner, if true, deserves strong disapproval and
constitutional counter-action by this Court. But before committing ourselves to
any course, we must set out the factual matrix from which the present case
springs.
The statutory starting point of the criminal
saga of Shri Prem Chand Paniwala, the petitioner, now threatened with
externment proceedings, is the Delhi Police Act 1978.
Sections 47 and 50 of the said Act clothe the
Commissioner of Police with externment powers necessary for keeping the capital
city crime-free. One such power relates to the removal of persons about to
commit offences.
The procedural prescriptions and substantive
directions, in this behalf, are laid down in the above provisions. The Deputy
Commissioner of Police (the DCP for short) in exercise of the said power, 1264
initiated proceedings against the petitioner and directed him to show cause why
he should not be externed from the Union Territory of Delhi. Paniwala who, from
humble beginning as vendor of aerated water near a cinema theatre, had
spiralled up into a prosperous dealer in Vasant Vihar, when confronted by this
Police notice, decided upon a constitutional show-down and came to this Court
challenging the vires of the externment proceedings as arbitrary and
unreasonable restrictions of his freedom of movement and, therefore, contrary
to Arts. 14 and 19 and 21 of the Constitution.
The validity of the action, assuming the
vires of the Act, involves also a consideration of the mala fides imputed by
the petitioner to the DCP. The blow of deportation may fall heavy on his
fundamental rights admits of no doubt. A flourishing businessman, happy with
his wife and children, and settled in a comfortable locality in Delhi, if
transported traumatically outside the Union Territory would surely suffer not
merely financial mayhem, but also social, domestic and physical deprivation
virtually amounting to economic harakiri an psychic distress. Nevertheless, the
Act permits externment, provided the action is bona fide. All power, including
police power, must be informed by fairness if it is to survive judicial
scrutiny. Cases are legion which leave one ill no doubt that mala fides is
fatal, if it is made out. From this angle, Prem Chand Paniwala has turned the
focus on police malpractice vis-a-vis his own career;
and even if a fragment of what he has said be
true, the higher officers of the Delhi Police will need to look into the goings
on at the lower level. Here comes the relevance of autobiographical revelations
made by the petitioner in more than one affidavit.
Certain facts emerge as fairly probable from
the affidavits of both sides. Prem Chand made a living as a paniwala or vendor
of soft drinks near Delite Cinema even as a teenager, which shows that he had
very poor beginnings.
How did he fall into the thraldom of the
local police? He explains it in his affidavit:
"He had a few mobile carts which were
used for refrigerating water. These carts used to be parked by the petitioner
on the road side due to the indulgence of the police. He was in his teens when
he started his avocation and continued for a very long time. Thus, he acquired
an alias i.e. Prem Chand Paniwala.
Due to close association with Police and
their connivance and indulgence, the petitioner thrived. In this process, the
petitioner became a prey and pawn in the hands of the police. He was persuaded
to be their perpetual stooge and stock witness.
1265 The Petitioner in the year 1965, when he
was 25 years old was involved in a gambling case by the police and to mould him
a permanent stock witness and lest he should be militant to defy them. Despite
his hesitation and unwillingness he was forced to become a permanent pawn of
the police. This is how, the petitioner landed himself in the web of the
police; he had no alternative than to be like that as his livelihood was
dependent upon the mercy and indulgence of the police".
The version of the petitioner is that once he
yielded to the pressure of the Police to give false testimony disclosing a
rubberised conscience and unveracious readiness to forswear himself, there was
escalation of demands upon him and he became a regular pedlar of perjury
"on police service".
Indeed, counsel for the petitioner argued
that his client was a 'stock witness' because he had to keep the Police in good
humour and obliged them with tailored testimony in around 3,000 cases because
the alternative was police wrath.
We were flabbergasted at this bizarre
confession but to lend credence to his assertion counsel produced a Few hundred
summonses where the petitioner was cited as a witness. Were he not omnipresent
how could he testify in so many cases save by a versatile genius for loyal
unveracity? For sure, the consternation of the community at this flood of
perjury will shake its faith in the veracity of Police investigation and the
validity of the judicial verdict. We have no doubt that the petitioner, who has
given particulars of a large number of cases where he had been cited as
witness, is speaking the truth even assuming that 3,000 cases may be an
exaggeration. In Justice, Justices and Justicing and likewise in the Police and
Policing, the peril to the judicial process is best left to imagination if
professional perjurers like the self-confessed Paniwala are kept captive by the
Police, to P be pressed into service for proving "cases". Courts,
trusting the Police may act on apparently veracious testimony and sentence
people into prison. The community, satisfied with such convictions, may well
believe that all is well with law and order. We condemn, in the strongest terms,
the systematic pollution of the judicial process and the consequent threat to
human rights of innocent persons. We hope that the higher authorities in the
Department who, apparently, are not aware of the nefarious goings-on at the
lesser levels will immediately take measures to stamp out this unscrupulous
menace.
The reason why the petitioner has divulged
his role as professional perjurer for the Police is simple and credible, at
this price, the favours of the Police who allowed him to carry on his soft
drinks business on the public street near a cinema house, not otherwise 1266
permissible under the law. The Police blinked at the breach, the petitioner
made good profits and by this mutual benefit pact, the prosecution got
readymade evidence and Paniwala joined the nouveu riche. He became respectable
when he became rich and when he became respectable he became reluctant to play
'stock witness'. For "the more things a man is ashamed of the more
respectable he is" (Bernard Shaw). Whenever he resisted the demand for
giving false evidence the Police implicated him in some case or other and when
he yielded, the case was allowed to lapse. Indeed, it is surprising that the
petitioner himself admits that he was "dubbed as a stock-witness and often
disbelieved by the courts. Despite severe strictures passed by the courts, the
Police did not give him up." Various details are furnished by the
petitioner about his deposing on prosecutions for the survival of his business.
In the bargain, the petitioner acquired two houses in important localities and
built up a lucrative fruit juice business. There are more uncomplimentary
revelations made in the petition but we do not think it necessary to set them
out. However, the crisis came when he declined to oblige with perjury since he
felt his wealthy station in life and the character-building stage of his
children warranted giving up the profession of stock- witness. The Police
avenged themselves by initiating externment which would inflict mortal economic
injury, if carried out. This version of the petitioner has been, in a way,
denied. It is also true that the Assistant Commissioner, in his affidavit in
reply, has indicated that witnesses have been examined in support and in
opposition of the allegations justifying externment and a final order has been
made by the DCP directing the petitioner "to show good conduct for a
period of three months only". It is also stated that the witnesses were
examined in camera, that the DCP had consideration for the materials placed before
him "including education of his children etc. and the assurance given by
him". An intelligent reading of the affidavit of the Assistant
Commissioner, along with the vagueness in his denials regarding material
particulars in the petitioner's affidavits, leave us in grave doubt about the
validity of the Police proceedings.
It is significant to notice that among the
allegations against the petitioner are such vague statements as your activities
in the area of Police Station Connaught Place and other area adjoining to the
Police Station Connaught Place are causing and are calculated to cause harm,
alarm and danger to the residents of the said localities and areas.
While we do not delve into details, it is
useful to mention that the Police allegations are again vague in respect of the
remaining imputations namely:
1267 "That you keep knife with you for
unlawful purpose and threaten the persons residing in the area with dire
consequences and further deter them from making report to police.
That you have engaged yourself in commission
of offences against person and property attended with force and violence for
which the following cases were registered against you by the Police.. ".
The petitioner's reply affidavit makes
startling disclosures about the police methods of implicating innocent people.
However, the version of the petitioner can hardly be swallowed since he is a
self-confessed perjurer.
Nevertheless, it is not too much to ask
Government to take effective measures to prevent Police methods straying into
vice. We hopefully remind the State about what Justice Brandieis once observed
:
"Crime is contagious. If the government
becomes a law breaker, it breeds contempt for law." .. "TO declare
that in the administration of the criminal law the end justifies the means -to
declare that the government may commit crimes in order to secure the conviction
of a private criminal-would bring terrible retribution. Against that pernicious
doctrine this court must resolutely set its face." In the same American
decision we have just mentioned Justice Holmes observed; "We have to
choose, and for my part I think it a less evil that some criminals should
escape than that the Government should play an ignoble part." The
provisions of the statute ostensibly have a benign purpose and in the context
of escalation of crime, may be restrictions which, in normal times might appear
unreasonable, may have to be clamped down on individuals. We are conscious of
the difficulties of detection and proof and the strain on the police in
tracking down criminals. But fundamental rights are fundamental and personal
liberty cannot be put at the mercy of the Police. Therefore, Ss. 47 and 50 have
to be read strictly. Any police apprehension is not enough. Some ground or
other 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 Delhi or any part thereof is hazardous
to the community and its safety. We are clear that the easy possibility 1268 of
abuse of this power to the detriment of the fundamental freedoms of the citizen
persuades us to insist that a stringent test must be applied. We are further
clear that natural justice must be fairly complied with and vague allegations
and secret hearings are gross violations of Art.14, 19 and 21 of the
Constitution as expounded by this Court in Maneka Gandhi. We do not go deep
into this question for two reasons: there is another petition where the
constitutionality of these identical provisions is in issue.
Secondly, the counsel for the State has
fairly conceded that no action will now be taken even by way of surveillance
against the petitioner. In an age when electronic surveillance and mid-night
rappings at the door of ordinary citizens remind us of despotic omens, we have
to look at the problem as fraught with peril to constitutional values and not
with lexical Laxity or literal liberality.
Having made these observations, we leave the
question of vires open for final investigation, if necessary, in other cases
pending before this Court. We think counsel for the State was right in
representing that no further action would be taken against the petitioner. We
dispose of the petition as calling no longer for directions but emphasise the
need of the State to issue clear orders to the Police Department to free the
processes of investigation and prosecution from the contamination of concoction
through the expediency of stockpiling of stock-witnesses. To police persons who
get rich quick by methods not easily or licitly understandable, is perhaps a
social service. Among the list of wanted persons must be not only the poor
suspects but the dubious rich. To keep an eye on their activities without close
shadowing and surveillance may, perhaps, lead to criminal discoveries, if they
are not too influential for the police. By this judgment what we mean is not to
tell the Police to fold up their hands and remain inactive when anti- social
elements suddenly grow in wealth but to be activist and intelligent enough to
track down those who hold the nation's health, wealth, peace and security in
jeopardy. The only insistence is that the means must also be as good as the
ends.
P.B.R. Petition allowed.
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