|Case||Prem Chand v. Union of India & Others, 1981 SCR (1) 1262|
|Court||Before the Supreme Court of India|
|Bench||KRISHNAIYER, V.R. PATHAK, R.S. REDDY, O. CHINNAPPA (J)|
|Author of the judgement||Justice V.R. Krishna Iyer|
|Petitioner’s Counsel||A.S. Sohal, M.C. Dhingra|
|Respondent’s Counsel:||M.M. Abdul Khader, N, Nettar, M.N. Shroff|
|Date of Judgement||11 November 1980|
|Abstract||In the present case, an externment order was passed by the commissioner of police against a person who refused to continue as a stock witness of police. The important acts concerning the present judgement is Delhi Police Act. The provisions relevant are Section 47 and 50 of the said act. The court also took into consideration Fundamental Rights as envisaged in the Constitution of India.|
|Author of the brief||Abhay Tyagi, Student at Gujarat National Law University.|
|Keywords||Externment Order, Delhi Police Act, Fundamental Rights, Constitution of India.|
Brief Facts and Procedural History:
Shri Premchand Paniwala is threatened with externments proceedings against him under Delhi Police Act, 1978. Section 47 and 50 of the act gives power to the Commissioner of police to keep the city crime free. One such power relates to the removal of the person about to commit the offence.
Premchand had a very poor beginning. He made his living as a Pani Wala or a vendor of soft drinks near Delite Cinema in his Teenage. 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. Due to the close association with police and their connivance and indulgence, the petitioner thrived. In this process, the petitioner became prey and pawn of the police. He was persuaded to be their perpetual stooge and stock witness. The petitioner then was involved in the gambling case by the police. Despite his unwillingness, he was forced to become a permanent witness of the police.
With the passing of time, he became rich and thus less reluctant to play the role of ‘stock witness’ for the police. 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.
With the growth of his business, the petitioner acquired two houses and established a fruit juice business. As he had reached a wealthy stage in life and his children were at a character building stage, the petitioner decided to stop acting as a stock witness for the police.
The Assistant commissioner of police then initiated externment proceedings against the petitioner. The grounds on which the externment order was passed were:
- That he kept a knife with him for an unlawful purpose and threaten the persons residing in the area with dire consequences and further deter them from making a report to police.
- That he has engaged himself in the commission of offences against person and property attended with force and violence for which the following cases were registered against him by the police.
The petition in the instant case was filed under Article 32 of the Constitution of India, 1950. It was filed challenging the vires of the externment proceedings enacted under sections 47 and 50 of the Delhi Police Act, 1978, contending them to be arbitrary and mala fides and unreasonable restrictions on his freedom of movement and, therefore, contrary to Arts. 14 and 19 and 21 of the Constitution.
In reply to the petition, the DCP ordered only “show of good conduct for a period of three months” in consideration of “including education of his children etc. and the assurance given by him”.
Issues before the Court:
- Who will control the acts of police?
- Is freedom of movement unreasonably fettered if policemen are given the power of externment for public peace?
- It is the petitioner’s contention that if the petitioner, a businessman, is transported outside Delhi then it will affect his financial, social, domestic and physical conditions.
- It is argued that the petitioner had to keep the police in good humour and oblige them with tailored testimony because the alternative was police wrath. The counsel in support of this submission presented a few hundred summonses where the petitioner was cited as a witness.
- It is argued by the petitioner that the police methods of implicating innocent persons to be criminals.
- The Deputy Commissioner of Police initially initiated the deportation proceedings under sections 47 and 50 of the Delhi Police Act with the arguments that the petitioner kept a knife for unlawful purposes and threatened people residing in the area with dire consequences.
- It is true that Police officials face great difficulty in detection of proof for 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.
- 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.
- The police should be activist and intelligent enough to track down these who hold the nation’s wealth, health, peace and security in jeopardy.
- 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.
Held: The decision of the State’s counsel to take no further action against the petitioner was called correct and accordingly the petition was disposed of. However, the Court emphasised the need for strict interpretation, and any police apprehension cannot be considered adequate since it would violate the Fundamental Rights (specifically Articles 14, 19 and 21) of the victim.