Paramjit Singh vs Station House Officer, Tilaknagar and Others

S.K. Kapur, J.—This writ petition is directed against the order passed by the District Magistrate, Delhi, dated April 21, 1964, u/s 3 (1) of the Madras Restriction of Habitual Offenders Act, 1948, as in force in the Union Territory of Delhi On November 1, 1961, a show cause notice was issued to the petitioner by Shri Murari Singh, Magistrate 1st Class, Delhi, which is as under:

Whereas there is reason to believe that "you Shri Paramjit Singh son of Shri Harbans Singh, caste Sikh, residing in Quarter No 7, Block No. 4-A, village Tilak Nagar Mohalla, Delhi district, are a habitual offender within the meaning of section 2 (4) of the Madras Restriction of Habitual Offenders Act, 1948, as extended to the State of Delhi, as you have been sentenced to a substantive terra of imprisonment on not less than 3 occasions for one or another of the offences under the Indian Penal Code set forth in the schedule to the said Act. Now, therefore, I Murari Singh, Magistrate 1st Class, Delhi, in exercise of the powers conferred by section 3 (2) of the said Home Department Notification No. S. R. O. 2017 dated the 11th December. 1951 published at page 2150 Part II of the Gazette of India dated the 22nd December, 1951, require you to show cause within 20 days from the date of the receipt of this notice either in person or by pleader or by filing a written statement as to why a notification should not be issued u/s 3 (1) of the said Act declaring that you shall be subject to the provisions of the said Act to the extent and subject to the restrictions specified below:

To intimate residence and change of residence u/s 5 of the Act.

The petitioner filed a reply to the said show casus notice in which he inter alia contended that-

(a) He had not been sentenced to substantive term of imprisonment under any of the offences prescribed in the Schedule to the said Act even once.

(b) He was no doubt convicted of one or two minor offences but none of them are the offences included in the Schedule to the said Act. He owns a house in Tilak Nagar which provides an income of Rs. 125/- per mensem and besides he owns two cycle rickshaws and is engaged in plying the same.

Another notice was issued by the same Magistrate requiring the petitioner to appear before him on 29th June, 1962. In a written statement dated 16th July 1962, filed by the petitioner before Shri Murari Singh, Magistrate 1st Class Delhi, the petitioner inter alia pointed out that-

(a) On June 29. 1962, when the petitioner appeared before the Said Magistrate he was informed that the following three sentences of imprisonment only were covered by the said Act :

(i) Conviction u/s 467, Indian Penal Code, sentencing him to 4 months'' imprisonment.

(ii) Conviction dated 18th March 1957 u/s 457/380, Indian Penal Code, and consequent sentence to 6 months'' imprisonment.

(iii) Conviction dated 19th December 1960 under the same provisions sentencing him to the same term of imprisonment.

(b) The 4 months'' sentence mentioned herein above was not a substantive sentence within the meaning of the said Act, he had never suffer d 6 months'' sentence as mentioned at item No (ii above and regarding the third conviction the sentence of 6 months'' was set aside by the Additional Sessions Judge, Delhi, in Criminal Appeal No. 3 of 1961 and substituted by a fine of Rs. 50/ and an imprisonment for the period of 17 days already undergone.

The petitioner also forwarded a copy of the judgment of the Additional Sessions Judge along with his written statement. The circumstances in which the aforesaid statement dated the 16th July, 1962, was filed have been explained in the petitioner''s registered acknowledgment, due. letter dated 16/17th July, 1962, Annexure ''G'' to the petition addressed to the Magistrate. By the said letter the petitioner pointed out that when he appeared before the Magistrate on 29th June, 1962, the case was adjourned to 15th July, after recording his statement 15th July being Sunday, he went to the Court on 16h July 1962 but the Reader dealing with the cases under the said Act did not attend the Court for the whole day. He waited in Court till 3'' O clock and thereafter enquired from the Reader dealing with revenue cases but was informed that the Reader dealing with the cases under the said Act could only inform him about the next date of hearing. He further pointed out that it was in view of the above that he was sending his written statement dated 16th July, 1962, together with an attested copy of the judgment of the Additional Sessions Judge in Criminal Appeal No. 3 of 1961. The petitioner also requested that he may be informed either of the decision or of the next date of hearing. Nothing happened till April 21, 1964, when the impugned order was made by the District Magistrate, Delhi. The learned counsel for the petitioner submits that u/s 3 of the Act it is only the Chief Commissioner who can take proceedings or action under the said Act and by virtue of section 4 the powers of the Chief Commissioner can be delegated only to the District Magistrate and none else, The learned counsel further points out that that all the proceedings under the Act, including the issue of show cause notice and the proceedings on the 29th of June, 1962, were taken by a Magistrate 1st Class and, therefore, the impugned order stood vitiated and that the lack of application of mind by the District Magistrate was patent on the record. It is also contended that under sub-section (2) of section 3 the petitioner was entitled to a reasonable opportunity of being heard and consequently the District Magistrate alone should have heard him and passed the appropriate order. The learned counsel for the respondents, on the other hand, lays strong emphasis on paragraph 13 of the reply affidavit, which is as under:

It is admitted that a notification dated 21st April 1964 was made u/s 3 (1) (a) of Madras Restriction of Habitual Offenders Act, 1948, as in force in the Union Territory of Delhi by the answering deponent. The same is valid and legal. The notification was made after due verification of the conviction made against the petitioner, and after due consideration of the written reply submitted by the petitioner.

The learned counsel for the respondents submits that the mere fact that show cause notice is issued by the Magistrate and reply received by him does not vitiate the final order which has been passed by the District Magistrate after due verification of the petitioner''s convictions mentioned in the show cause notice and after due consideration of the written reply submitted by him. He submits that if all the materials are considered by the District Magistrate there is a proper compliance with sub-section (2) of section 3. I regret I am unable to agree with the learned counsel for the respondents. The functions assigned to the District Magistrate u/s 3 are in their very nature quasi judicial. He is required to determine certain facts after giving a reasonable opportunity to the person concerned for showing cause against the proposed action under sub-section (1) of section 3 and then decide the issue. The judicial proceedings commence with the issue of show cause notice and even if the statements made in paragraph 13 of the reply affidavit, quoted above, are accepted the answer to the question agitated at the bar will depend on the extent to which the functions can be delegated. It is established principle of law that when power has been confided to a person in such circumstances as are suggestive of a trust being reposed in his individual judgment, he and he alone must exercise that power unless expressly empower to delegate it. The notion that the principle "delegated powers cannot be further delegated" applies only to the legislative powers is utterly unfounded. So tar as ordinary Courts are concerned it is beyond doubt that in the entire process of adjudication a Judge must act personally except to the extent he is expressly absolved. The extent to which administrative tribunals, charged with the duty of acting judicially can delegate such functions depends on the facts and circumstances of each case, for it is well established that such bodies may be held even impliedly entitled to delegate the powers of investigation retaining to themselves the power of decision. In case it is held that no part of judicial functions could be delegated, impugned order would be bad on the short ground that the proceedings were initiated by the Magistrate and even the task of conducting the inquiry was assigned to him. The question, therefore, is does the context indicate that the entire adjudicatory process is to be performed by the District Magistrate ? To my mind there are indications in the statute that the legislature in its wisdom reposed a special confidence in the designated delegate only. My opinion is strengthened by the fact that a decision made under the Act may seriously affect the fundamental rights of subjects held sacred by Article 19 of the Constitution. It must have been for this reason that the legislature limited the power of delegation. In case it be held that the District Magistrate could delegate the function of investigation to a Magistrate it would logically follow that he could so delegate to someone else also. That would destroy the very purpose of limiting the power of delegation. In my opinion, therefore, the District Magistrate should have taken all the proceedings himself. Even if the extreme contention that the Magistrate could not even sign a show cause notice or receive a written representation for being forwarded to the District Magistrate be not accepted, the proceedings that took place on 29th June 1962 where at the Magistrate explained to the petitioner the case he had to meet was a part of performance of quasi-judicial functions as contemplated by section 3 (2) and ought to have been taken by the competent authority. That apart the order suffers from another very serious defect. The petitioner had in his reply denied that he had been convicted of three offences and sentenced as alleged. The District Magistral in his reply states that the notification was made "after due verification of the conviction made against the petitioner". Nothing has been disclosed as to how and from where this "due verification" was made. The petitioner is right in his submission that he ought to have been informed about the materials from which the due verification was sought to be made and if he had been informed about these he would have established to the satisfaction of the District Magistrate that there were no such convictions as alleged. Non disclosure of the said materials, in my view, amounts to a serious violation of rules of natural justice. It is incumbent on every quasi judical authority to inform the person concerned about the materials that are sought to be used against him and to give him an opportunity of explaining or rebutting the same. That has not been done in this case. I cannot but strongly emphasize that strict adherence to the rules of natural justice is absolutely essential by each and every authority exercising quasi-judicial functions if the rule of law is to be maintained in the country. I may also point out that in the said paragraph the District Magistrate has not very clearly stated whether the alleged due verification and due consideration of the reply was made by him personally. I may also point out that in the impugned order by the District Magistrate it is stated that "... declare the said person shall be subject to the provisions of the said Act to the extent mentioned in column 10 of the said Table and subject to the restrictions mentioned in column 11 thereof." As a matter of fact columns 10 and 11 read as under :

Date from which the restrictions should take place from the date it is published in Delhi Administration Gazette.

Remarks Nil.

That further shows that proper care has not been taken in drawing up the impugned order. In fact the provisions of the Act to which the petitioner has been subjected are set out in column 8 and the extent of restrictions in column 9. It is further submitted by the learned counsel for the respondents that a notification u/s 3 subjects the petitioner merely to the restrictions set out in section 5, namely, to intimate to the prescribed authority his place of residence and change therein etc. and there can be no substantial grievance by the petitioner entitling him to move this petition. I am afraid, I do not agree. The Constitution confers on a citizen a right of free movement and every restriction thereon can legitimately be made a subject-matter of a petition under Article 226 of the Constitution. The petitioner has not challenged before me the action of the respondents in placing him on the Surveillance Registers A and B.

In the circumstances, the petition is allowed and the order of the District Magistrate Delhi, dated April 21, 1964, is quashed. It would however, be open to the authorities to take fresh proceedings in accordance with law.