Historical background of police constitution: An organised form of policing was established by the British after the first war of freedom of 1857, with the adoption of the Indian Police Act of 1861 which was on the recommendation of the First Police Commission. This was only statue extended from province to province except in Presidencies of Bombay & Madras and the Presidency Towns. The Police Act, 1861 was further modified by Police Act, 1888. Delhi Police was administered under the provisions the Police Act, 1861 under which the work of police is supervised by two spheres of authority. In one of these, the Superintendent is subordinate to the District Magistrate: in the other to the Inspector –General of Police. Second Police Commission 1902, attributed the undue interference by Magistrates in Police working. Delhi Police remained a part of the Punjab Police until India gained independence in 1947. In 1948, Delhi police was restructured with the appointment of Inspector General, Deputy Inspector General and Superintendents It was re-organised in 1966 following which four Delhi Police divisions were created.

Delhi being the capital of the nation has various unique problems and Delhi Police has to deal with numerous processions, demonstrations and rallies, which sometimes become violent and police is forced by circumstances to use force. Active and responsible cooperation and understanding between magistracy and Police is the need of the hour. But there were many occasions when both could not maintain proper relationship and it was very difficult for police to handle certain law & order problems. To over-come these problems, it was felt expedient to provide Police commissionerate in Delhi. Therefore, the Delhi Police Act was enacted and came in force on 01.07.1978.

In the various States the Armed Police has been constituted under the provisions of the Local Special police Acts enacted by the State

Legislatures such as the Rajasthan Armed Constabulary Act, 1950 and the UP Provincial Armed Constabulary Act, 1948 etc. The constitution, service conditions and pay scales of police forces constituted under these local laws were different from the police force constituted under Police Act, 1861. But in Delhi Police, DAP has same conditions of service.

239. Administration of Union territories

(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify

Insertion of new articles 239 AA and 239 AB (Came into force on 1-2-1992 vide Gazette of India Extraordinary Part-II Sec.3 (ii) dated 31-1-1992)

Article 239A of the Constitution, the following articles shall be inserted namely :-

(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991 the Union Territory of Delhi shall be called the National Capital Territory) and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor.

5. DP Act

Proviso: The entire Delhi Police Force is divided in three separate service wings: -

1. Officers of IPS.2. Officers of DANIPS.

3. Officers recruited under the provisions of DP Act, 1978 [ Pay scales & service conditions of all three wings will be governed by the separate rules.Rank= relative standing, showing positionGrade= pay-scale not synonymous of rank or cadre.

6. DP Act

To rectify the admitted defect of two sphere authority and to remove the interference of the magistracy the DP Act was enacted and LG is given the power to appoint CP. The CP is administrative and Departmental head to direct and supervise Delhi Police force. Under the provision of Section 70 of DP Act the Central Govt. may authorise Commissioner of Police and certain other officers to exercise powers of District Magistrates and Executive Magistrate under the Code of Criminal Procedure, 1973.

7. DP Act

For the purpose: The number of Addl CP will depend upon the exigency developed or arose for the implementation of this act.

In such manner & to such extent: The manner, jurisdiction and ambit of such assignment is to be specified by the LG by his special or general order.

The orders of the LG will not be enforceable until they are published in the official gazette.

8. DP Act

Powers & duties of Commissioner, Deputy Commissioner, Addl DCP and ACP: Under the provision of section 7 DP Act, the CP shall exercise and perform such duties and perform such functions as are specified and Section 8 (2) said that the duties of DCP/ Addl DCP/ACP

shall under the orders of CP who exercise such of the powers (except the power to make regulations) and perform such of the duties of the CP and within such local limits as may be specified in such order.

Under the orders of the Commissioner of Police: The CP is empowered to order any such power or duty {which is to be performed by him} to be performed by DCP/ Addl DCP/ ACP within the area specified under such orders.

Without prejudice to the other provisions of this Act and subject to any general or special orders made by the Administrator in this behalf: The power of CP to delegate his power & duties are not absolute. Such delegation of power & duties is controlled by the LG. The delegation of power & duties is prescribed for the better and smooth working and to handle some peculiar situation and should be exercised for the bona-fide purpose. Any misuse of such powers can be checked and rectified by the LG. A petition can be filed to the LG requesting therein the rectification of such order of the CP.

9. DP Act

Appointment of Principals of Police training institutions:

Under provisions of clause (1)-(a) and 2-(a) the LG is empowered to appoint a Principal (not below the rank of DCP) of PTS.

The CP may assign power or duty upon the Principal of PTS/PTC by general or special order for the proper administration of such institution. CP’s power under this section are discretionary. The delegation of power or duties should be limited to the proper administration of such school or college and not for any other purposes.

10. DP Act: Constitution of police districts, sub-divisions and police stations

Police District: Before enactment of DP Act, the territory of Delhi was only one Revenue district headed by one Deputy Commissioner, while for police administration there was one General Police District, headed by IGP

The entire Delhi Police Force is headed by the CP, who is designated equivalent to DGP.

Districts are further divided in subdivisions and Police Stations.

Under the provisions of this section the CP under control of the LG, has been empowered to constitute

10. Constitution of police districts, sub-divisions and police stations.

Ranges are headed by Jt. CP and Districts and other units are headed by Addl. CsP/ DCsP. Police Districts are further divided in Sub-Divisions and Police Stations. Sub-Divisions are headed by ACP and Police Stations are headed by Inspectors.

Under the provisions of this section the CP, under control of the LG, has been empowered to constitute Police Districts, Sub-Divisions and Police Stations throughout the territory of Delhi. The DP Act 1978 is absolutely silent about the legal authority for the constitution of various other units and special wings. The words “Police District, sub-Division and Police Station” used in this section have not been defined in the act.

11. Officers-in-charge of police districts, police sub divisions and police stations.

Police Station: The DP Act is silent about the meaning and expression of ‘police station’. Under section 2 (s) of CrPC ‘"police

station" means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf;

The ‘police station’ has its special significance, when it is used to define and ascertain ‘officer in charge of police station’ in accordance to section 2(o) of CrPC, and in connection with the powers contained under chapter XII of CrPC, 1973 captioned “Information to the police and their powers to investigate.”

Officer-in-charge of Police Station: Under the provisions of this section the Inspector of Police shall be officer-in-charge of the police station, while under section 2(o) of CrPC, (o)"officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present. The definition given in the CrPC is for the legal powers and duties to be performed under the CrPC, while officer-in-charge as prescribed under section 11 of DP Act shall perform the administrative and other duties assigned under the DP Act, to be performed by or powers to be exercised by the officer-in-charge of the police station

12. Appointment of subordinate ranks.

Appointment: The selection or designation of a person, by the person, or persons having authority therefore, to fill an office or public function and discharge the duties of the same. The procedure for the appointment and recruitment of lower and upper

subordinate is given under the Delhi Police (Appointment & Recruitment) Rules, 1980.

Appointment upon the rank of Constable and Sub-Inspector is made by the direct recruitment through competitive tests and exams, and appointment for the rank of Head Constable, Assistant Sub-Inspector and Inspector is to be made through departmental promotions.

13. Certificate or appointment.

Officer to issue, and form for certificate of appointment:

Every enrolled officer i.e. Constable to Inspector shall, on enrolment, be given a certificate of appointment in Form ‘F’ as per rule 21 (1) of Delhi Police (Appointment & Recruitment) Rules, 1980.

Importance of certificate of appointment: As per rule 21 (2) Delhi Police (Appointment & Recruitment) Rules, 1980, it is prescribed that a certificate of appointment is a document designed to help the police officer to establish his identity during performance of his duty. It shall bear his photo/ signature and constabulary /range number. The certificate of appointment is different from the letter of appointment.

14. Effect of suspension of police officer:

Remain suspension: The dictionary meaning of suspension is ‘…an interruption or temporary revocation’ Under the provisions of this rule a person having, ... powers, functions and privileges,….being a police officer and vested with powers, functions and privileges by any law and the certificate of the appointment, his such powers etc should have to be remained discontinue during the period of such suspension.

Proviso: During the period of his suspension a police officer will have no powers, functions and privilege, but he will not cease to be a member of Delhi Police Force and shall be liable for the discipline and orders of the authorities to whom he was liable when he was not suspended.

Suspension: The circumstances under and reasons for which a police officer can be placed under suspension are described under Rules 27, 28 and 29 of the Delhi Police (Punishment & Appeal) Rules, 1980.

15. General powers of Commissioner of Police.

Under the provisions of this section the general powers of the CP in relation with the internal matters of DP Force has been described. CP is the head of the family comprised the whole DP Force irrespective of ranks and file. Cordial relations and mutual cooperation between the various units, ranks and wings of the department is must to serve the society. Beside the general matters like drill, exercises, distribution of duties etc. The CP also has to observe persons and event and mutual relations between the police personnel. Word ‘shall’ has been used, which made the powers under this section obligatory rather than discretionary.

16. Power of Commissioner of Police to investigate and regulate matters of police accounts.

All persons concerned: Under the provisions of this section powers of the commissioner in the matter of accounts connected with the Delhi Police Force are very wide and not restricted to the members of Delhi police only, but all concerned persons are bound to extend their assistance and provide facilities demanded by the

Commissioner in connection with any investigation or to regulate the matter pertaining to accounts.

17. Special police officers.

To be a special Police Officer : Under the provision of this section the Commissioner of Delhi Police is empowered to appoint Special Police Officers. ‘special’ means – designated for a particular purpose, as such the appointment of Special Police Officer under this section is subject to the conditions described below :-

(1) On any occasion,(2)When he has reason to apprehend the occurrence,(3)Of any riot or grave disturbance of the peace in any area,(4)Ordinary police force is not sufficient,(5)To protect person and property in such area,(6)Able-bodied male of more than 18 years of age,(7)Appointment shall be made by commissioner of Police and not

by any other Officer.(8)Procedure for appointment of special polce officer is given in

Rule 31 of the Delhi Police (Appointment and Recruitment) Rules, 1980.

2. The Commissioner of Police shall publish the names of special police officers appointed under this section in such manner as may be prescribed.

3. any person objecting to the appointment of any person as such special police officer may send his reasons for such objection to the Commissioner of Police within fifteen days of such appointment and the Commissioner may accept such objection and cancel the

appointment of such officer or, after giving to the objector an opportunity to be heard, reject the objection.

4. Every special police officer appointed under this section shall on appointment –

(a) receive a certificate of appointment in such form as may be specified by the Administrator in this behalf:

(b) have the same powers, privileges and immunities and perform the same duties and be subject to the same authorities as an ordinary police officer.

18. Additional Police Officers.

Corresponding law : The provisions of this section are analogous to section 13 of the Police Act, 1861 and section 22 of the Bombay Police Act, 1851.

21. Powers of Punishment.

Article 311 of the Constitution of India : The Constitution of India is the supreme law in the country. Under Article 311 following safeguards have been provided to the civil servants against any arbitrary dismissal from their post.

(1) No person holding civil post under the Union or State shall be dismissed or removed by authority subordinate to that by which he was appointed.

(2) No such person shall be ‘dismissed’, ‘removed’ in rank except after an inquiry in which he has been informed of the

charges against him and given a reasonable opportunity of being heard in respect of those charges.

Classification of punishment : Under Rule 5 of the Delhi Police (Punishment & Appeal) Rules, 1980 there are IX authorised punishments, which can be inflicted as per principles for inflicting punishments contained under Rule 8 by the various authorities as described under Rule 6 of the said Rules of 1980.

Major punishments : Punishment of

(1) Dismissal,(2)Removal from service,(3)Reduction in rank,(4)Forfeiture of approved service,(5)Reduction in pay,(6)Withholding of increment,(7)Fine not exceeding one month’s pay

Shall be deemed major punishment and cannot be inflicted by an officer of the rank of the appointing authority or any other senior officer only, after observing the formalities and complying the procedure formulated as per provisions of Article 311 of the Constitution of India, contained in Rules 14, 15 and 16 of the Delhi Police (Punishment & Appeal) Rules, 1980.

Minor Punishment : Punishments described at serial number (8) Censure and (9) punishment drill not exceeding 15 days or fatigue duty or any other punishment duty to constable only. Punishment of censure can be awarded, after serving a show cause notice giving reasonable time to the defaulter to rebut the allegations and prove his innocence, and after due consideration to the grounds forwarded

by the defaulter in his innocence. The order should always be speaking one and should be based on the proved facts and evidences on record. Punishment mentioned at serial (9) may be called “orderly room punishment” and shall be awarded after hearing the defaulter in person, in orderly room by the officer of the above the rank of Inspector.

Not amounting to punishment based on rule of CCS (CCA) Rules, 1965 : Punishment contained in rule 7 of the Delhi Police (Punishment & Appeal) Rules, 1980 may not be amounting to punishment.

Principles of punishment : The principles of punishment are contained in rule 8 of the Delhi Police (Punishment & Appeal) Rules, 1980. The punishing authority should keep in mind that punishment is seldom reformatory, but sometimes it causes frustration or hostility in the mind of a person, who has reasons to believe that he has been subjected to prejudice, injustice, favouritism or victimisation. To create proper impact of the punishment, the delinquent should be made understood clearly that his guilt is proved judiciously and he is, rightly, being penalised. Gravity of the punishment should be according to the gravity of the misconduct and the mental state of the delinquent in connection with the alleged misconduct, in a particular case.

22. Procedure for awarding punishment.

Procedure : Procedure to inflict punishment upon any police officer, under the provisions of this Act is contained under rule 16 of the Delhi Police (Punishment & Appeal) Rule, 1980.

23. Appeal from orders of punishment.

Appeal : Any police officer and man, who has been awarded punishment under the provisions of this Act or Rules made thereing have right to appeal as provided under Rule 23 of the Delhi Police (Punishment & Appeal) Rules, 1980.

24. Police officers to be deemed to be always on duty and to be liable to employment in any part of Delhi.

Always on duty : in Clack’s Law dictionary “police” means ….. ‘Branch of the Government which is charged with the preservation of public order and tranquillity, the promotion of the health, safety, and moral and the prevention, detection and punishment of crime. The stability and quality of governess of any government is dependent on the prevailing situation of law and order. How safe and peaceful atmosphere is available for the citizens is an acid test for the good governess. It is a historical fact that whenever the law and order situation became bad the government thrown out either by the outside enemies of by the public. Duties of police are not to be derived from the Acts or Rules enacted or framed by the Government but these are inherited from its name and the functions supposed to be performed by the agency of the society which is known by the name of “police”. No function or duty can be performed without powers that is why tremendous powers have

been vested in police under the provisions of the Indian Penal Code, Criminal Procedure Code and various special and local laws. The functions of police create this exigency that every police officer shall be deemed always on duty or in the service of the society.

Not on leave or under suspension : This section is analogous to section 22 of the Police Act, 1961. It is the demand of the nature of police duties that such liability is imposed. Under section 22 of the Police Act 1981 Every police officer for all purposed contained in the Act, be considered to be always on duty and may at any time be employed as police officer, but under section 24 of the Delhi Police Act the person on leave or under suspension is exempted from this inherent duty, which in itself is against the basic meaning of ‘police’.

25. Circumstances under which police officer of subordinate rank may resign.

This section contains the procedure and conditions under which police officers of various rank any tender their resignation. This section is analogous to section 9 of the Police Act, 1961 and section 30 of Bombay Police Act, 1951.

26. Certificate, arms etc. to be delivered by person ceasing to be a police officer.

Any person, who has been vested with powers of police officers, when ceased to be a police officer, has to deposit Certificate of Appointment issued to him under section 13 of this Act, any Arms, clothings or other accessories and any other item issued to him from

the department, with an officer empowered by the commissioner or Deputy commissioner or any other Officer of or above the rank od Deputy Commissioner of Police. In case police officer who ceased so fails to comply the orders any Metropolitan magistrate and for special reasons to be recorded in writing any police officer of r above the rank of Assistant Commissioner of Police may issue search warrant for the recovery of those items described above. Such search warrant may be executed by any police officer or any other person, directed by the magistrate or police officer to do so.

27. Occupation of and liability to vacate premises provided for police officers.

This section contains the powers and procedure to get the residential premises, provided to any police officer, vacated. There are two situations when a police officer may be ordered to vacate the premises (1) when such police officer ceased to be a police officer, or (2) whenever Commissioner of Police or an Officer, who has been authorised by the Administrator to enforce the provision of clause 1(b) considers it necessary and expedient under this clause, that premises should be vacated. The Commissioner or so authorised officer should have to record the reasons, in writing, for which they consider such officer to vacate the premises.

Sub-clause 2 further provided that if such officer, who is required or considered under sub-clause 1(b) to vacate the premises, fails to vacate the premises, the Administrator or other officer, who has been authorised to avail the powers under this clause, may order such person to vacate the premises. It is further provided that the

officer, who issued such orders, may direct any police officer to enter upon the premises and remove any person found in the said premises, with such assistance seems to be necessary to enter in the said premises, and take the possession of the premises and hand it over to any person who has been authorised to take possession by the authority in the directions.

Authorised in this behalf: This expression is used in both the clause of this section. The powers described in clause 1 are different from the clause 2. Under clause 1 the officer is to be authorised under this clause to consider that it is necessary and expedient to any police officer, occupying residential premises, which was allotted or provided to him by the commissioner, to vacate such premises. The authority should give reasons in writing for his arrival on such conclusion. Under clause 2 the officer is to be authorised under this clause to issue the orders to vacate such premises.

May order such person to vacate the premises: Powers to issue orders to vacate the premises are different than the powers to arrive on the conclusion (consider) under clause 1. Under clause 1 the authority has to convey the reasons, on which the authority is considered that it is necessary and expedient to such officer to vacate the premises. Any officer occupying such premises should vacate the premises on receipt of such communication from the authority. No order to vacate such premises can be passed under clause 1. When nay officer ceased or required to vacate the premises under clause 1, fails to vacate such premises, an order to vacate such premises may be passed under clause 2.

Nature law of justice : The principles of natural law of justice should be applied and proper hearing and opportunity to represent should be given to such officer.

28. Power to make regulations for regulating traffic and for preservation of order in public places.

Objects: wide powers to make regulations for the matter which are generally subject matter of Municipal, Traffic and Explosives Acts and Rules, are given to the Commissioner of Police under this section. The purposes and object behind empowering Police Commissioner with such wide powers is the preservation of order in public places and regulating traffic and to prevent obstruction, inconvenience, annoyance, risk, danger or damages to the residents or passengers. Provisions of this section imposed more responsibilities upon the police and provided more and effective tool to the Commissioner of Police to handle such situation from the law and order point of view and serve the society and citizens more effectively. Power to make Regulations in connection with the use of public places, lanes, street for driving or riding or carrying cattle’s etc. are number control of the Lt. Governor. For making regulations on other subjects the previous section of the Lt. Governor and compliance of certain formalities are necessary. These power are not unfettered and uncanalised, sufficient and detailed guidelines are given under clauses 2, 3 & 4 of the section.

Regulating : Word regulate is defined in the legal dictionary published by the Ministry of Law, Justice and Company Affairs, Government of India, as “to control govern or direct by rules or regulations” and word regulation means “Rules prescribed for the management of some matter”. No rule of regulation can be made to

prohibit meetings and processions under this section. Regulations can be made to manage the related matters, in the interest of the general public. Article 19(3) if the constitution of India.

Regulations for Licensing and Controlling Places of Public Amusement (Other than Cinemas) and Performance for Public Amusement, 1980 were made and published by notification No. 4935/Spel.Cellon

The nature of administration by the police in regard to the traffic control and regulations, the powers given to the Commissioner by section 28 (1) (b) can’t be held to be arbitrary and unguided power.—Baldev Band vs UOI 1983 Cr L.J.787.

When kalandra/complaint for offence under section 112 of Act is made in writing by a public servant, namely, a Police official acting or purporting to act in the discharge of his official duties, the Magistrate need not examine the complaint and the witnesses through such examination of witnesses is essential otherwise for taking cognizance of an offence.—SAS Pahwa vs State 2000(88) DLT 194

29. Power to give directions to the public.

Comments:- Under this section the Commissioner of Police and any other officer of or above the rank of Inspector of Police, are empowered to give oral or written orders to the public at certain occasion to maintain order. Person/s who are ordered under this section are bound to comply such orders. In case of contravention of such orders, a police officer can arrest such person under section 59 (2) (b) and he may be punished under section 113 (1) by the court, with fine which may extend to two hundred rupees.

From time to time as occasion may arise: This expression used in this section is the acid test for the officer to use the powers conferred upon him under this section. A police officers acting under this section has to consider the rights of the citizens guaranteed and the restrictions imposed upon them the constitution of India. Any order under this section should have a rational and proximate connection or nexus with the necessity for the preservation of public order.

Public order: In case of N.P. Nathani Vs Commissioner of Police (1978) 78 Bom. LR 1, it was ruled that the expression connote a definite legal concept, in legal parlance ‘public order’ is synonymous with public safety and tranquillity : it is the absence of public disorder, involving breaches of local significance in contradiction to nation upheavals, such as revolution civil strike, war, affecting the security of the state.

30. Power to prohibit certain acts for prevention of disorder:-

In this section the Commissioner of Police is empowered to prohibit certain acts in order to preserve public peace and safety, in the whole of Delhi or part of it, and for a particular time, whenever he considers it necessary.

(1)Carrying:I. Arms,

II. Cudgets,III. Swords,IV. Spears,V. Bludgeons.

VI. Guns,VII. Knives,

VIII. Sticks or lathies,

IX. Any other article to be used for violence,X. Any corrosive or explosive,

XI. Stones or other missilies.(2)Exhibits :

I. Persons, II. Corpses,

III. Picture,IV. Symbols,V. Placards,

VI. Any other which may offend.(3)Utter :- Cries, songs and music(4)Deliver : (i) Harangue (long speeches), (ii) Mimetic presentation

etc.Corrosive substance: Word ‘corrosive substrance’ means something which has quality of corrode or eat away gradually as an acid or drug. It shall not be treated to be equivalent to inflammable or comburstible substance and as such carrying torches (Masals) cannot be prohibited under the provisions of this section.

Against decency or morality: In Kartar Singh Vs. State of Punjab AIR 1976 SC 541 the Hon’ble supreme court has laid down that to determine whether a particular utterance may offend against decency or morality has to be seen with reference to the probable effect it may have upon the audience to which it is addressed.

31. Police to provide against disorder, etc. at places of amusement or public assembly or meeting.

Under this section an Assistant Sub-Inspector (ASI) or senior to him police officer present at such place, is empowered to have free access and to give reasonable directions for the mode of entry, peaceful and lawful conduct of the proceedings and the maintenance of the public safety at any place of public amusement or at any assembly or meeting where public is invited or which is open for public as he thinks necessary for the purposes of preventing serious disorder, or breach of the law or apprehension of imminent danger to the persons assembled at such place.

32. Power to prohibit, etc., continuance of music, sound or noise.

In this section the commissioner of Police is empowered to issue written orders to –

(1) Prevent, (2) prohibit, (3) control, or (4) regulate(a) Incidence – of any vocal or instrumental music,(b) Sound – playing, beating, clashing, blowing, or use in any

manner of any instrument, appliance or apparatus – capable of producing sound.

Use – loud speaker, or other instrument for amplifying sound.

Carrying – any trade, avocation or operation resulting in generation of noise in any premises.

To act under this section there should be an information or report from the SHO, to the satisfaction of the Commissioner in connection with the necessity to prevent :-

1) Annoyance, discomfort or injury to,2) Public or any person who resides or occupies property in the

vicinity.

33. Issue of Order for prevention of riot, etc.

In this section the commissioner of Police is empowered to close, temporarily, or to take possession of any building or other place, and may exclude all or any person from such building or place, and may allow access to such building or place, to a person being excluded, on such terms as he deems expedient.

Conditions to enforce provisions of this section : There must be two following conditions under which the provisions of this section can be enforced :-

(1) There must be riot or grave disturbance of peace,(2)Powers to be used in order to prevent or suppress such riot

or grave disturbance.

Reasonable compensation : Under clause 2 of this section a lawful occupant of such building or place, who suffer any loss or injury by reason of the action of commissioner of Police under the provisions of clause 1 of this section, shall be entitled to receive reasonable compensation for such loss or injury. Such person has to make an application to the competent authority within one month.

Situation to invoke powers : In S/s Satabdi finance and Securities Ltd. Vs. The Government of the National Capital Territory of Delhi through its Lt. Governor 1995 III Ad (Delhi) 793 DB, the Hon’ble Delhi High Court laid down that section 33 of the Delhi Police Act, 1978 could be invoked only in grave situation and was not ordinarily meant for situation arising out of local apprehended breaches of peace. This section gives drastic poser to the DCP not meant to

exercise routinely but sparingly in order to prevent or suppress any riot or grave disturbance of peace.

Important Cases

1. In Suruchi Sansthan & ors Vs. Govt. of National Territory of Delhi 1994 Cri. L.J. 1732 it was laid down that the power exercisable under this section of Delhi Police Act, 1978 is statutory power and it can be exercised in the manner postulated by statute and not otherwis. Sealing the premises of a trust, which was owned by an organisation declared by the Government as an unlawful association, and where the said trust was doing business in sale of books, on the grounds that the said premises of the trust were used by the unlawful association, is not legal. Under the provisions of section 33 of the Delhi Police Act, 1978 a premises may be sealed only in order to prevent or suppress any riot or grave disturbance of peace and not for any other reason.

2. In Surajkala 7 others Vs. Dy. Commissioner of Police & Others 60 (1995) DLT 82 (DB) there was a dispute over a shop No. 65-B Khan Market, New Delhi. Deputy Commissioner of Police taken over the possession of the shop under section 33 of the Delhi Police Act, 1978 on the grounds that there is danger to human life, safety and grave disturbance of public tranquillity. The Hon’ble Delhi High Court did not find anything on the record for the learned D.C.P. to came to the conclusion that it was necessary to take possession of the shop premises in order to prevent any grave disturbance of peace.

3. In Shatabdi finalease and Securities Ltd. Vs government of NCT, Delhi 1995(3) AD (Delhi) 793 (DB) it was held that section 33 gives drastic power to DCP and their use is meant for drastic situations. They can’t be applied in case of individual dispute unless such a dispute threatens to disturb public peace, Safety and Tranquillity – Not meant for situation arising out of ordinary and Local breaches of peace.

Other refereed cases

1. Govind Singh Vs. State. 1994 II AD (Delhi) 15202. Baljit Kapoor Vs. Commissioner of Police 1994 IV (Delhi) 774

34. Maintenance of order at religious or ceremonial display, etc.

Under this section the competent authority may give such orders, he deems necessary and reasonable under the circumstances, to the persons, who are intended for religious or ceremonial or corporate display or exhibition or to organise assemblage in any street or public place as to which it shall appear to the competent authority that a dispute or contention in regard o such celebration is exists, which is likely to lead grave disturbance of peace.

Competent authority : As per section 2 © of Delhi Police Act the “competent authority” when used with reference to the exercise of any power or discharge of nay duty under the provisions of this Act means the Commissioner of Police or any other police officer specially empowered in that behalf by the central Government.

Delegation of powers : Powers conferred under this section to competent authority, and the Commissioner of Police by virtue of section 2 © is the competent authority for this purpose. Commissioner of Police cannot delegate his powers under this

section to any other police officer, only central Government can authorise any other police officer to avail these powers.

35. Commissioner of Police may take special measures to prevent outbreak of epidemic disease at fairs, etc.

In this section the Commissioner of Police has been empowered to take, in consultation with the Corporation or Municipality authorities, such special measures and may, by public notice, prescribe such regulations to be observed by the residents of any place in Delhi, where large number of persons assembled or likely to be assembled on account of some pilgrimage, fair or any other occasion, and where outbreak of epidemic disease is apprehended.

36. Power to reserve street or other public place for public purpose and power to authorise erecting of barriers in streets.

Under this section the Commissioner of Police is empowered to reserve, temporarily, any public place or street, and prohibit persons from entering such reserved area for any public purposes, commissioner may also authorise any police officer to erect barriers on any street for temporarily stopping the flow of the traffic.

37. Power to make regulations prohibiting disposal of the dead except at places set apart.

This section deals with the matter related to last rites and empowered commissioner to make regulations for prohibiting the disposal of the dead bodies at other places than the prescribed cremation, burial or otherwise. Commissioner or any officer

authorised by the Commissioner may grant permission, on an application, to any person to dispose the dead body of diseased at any other place, if there is no likelihood of any disturbance or obstruction to traffic or is not objectionable for any other reason. Such regulations shall specify the separate place for last rites to different communities or section of the communities.

38. Employment of additional police to keep peace.

This section is analogous to section 13 of the Police Act, 1861. Any person can make an application to the Commissioner for the supply of the additional police, against payment, to keep peace, preserve order and for the enforcement of the provisions of this Act or any other law or to perform any other duties imposed upon police to perform under law. Such deputed police force shall be controlled by the police officers. Cost, number and period for the deployment of such requested force shall be decided by the Commissioner, Person who requested for the deployment of additional police can make written request for the withdrawal of such force. Under this section any person, who is desirous to request additional police force than the deployed force to perform routine duties, may request for the supply of additional force for a particular place occasion, like marriage, functions, fair, exhibition, show etc.

Personal or specific occasion: Any person who is willing to pay the cost can make an application for the supply of the additional police force for any personal or specific occasion to keep peace and preserve order at such place of occasion.

39. Employment of additional police in case in special danger to public peace.

When Lt. Governor arrives at the conclusion that nay area in Delhi is in a disturbed or dangerous condition and the conduct of the inhabitants or section or particular class of inhabitants make the situation so volatile that additional police for that particular area, for a particular period, is necessarily to be deployed. He may issue a notification specify that area ‘disturbed area’ in which the additional police force is to be employed for a specified period. On issuance of such notification the Commissioner of Police shall depute such additional police force, he consider necessary, in such disturbed area.

Punitive in nature : This section is analogous to section 15 of the Police Act, 1861. Deployment of additional police force in such a declared disturbed and dangerous area is punitive to penalise the inhabitants of such area and the cost of so deployed additional police force is to be recovered from the inhabitants of such area. Cost may be recovered in whole or impart from all persons, who are inhabitants of the disturbed area or specially from any particular section or class of the inhabitants, Lt. Governor may exempt any person from such cost for sufficient reasons by his order in writing. Cost so imposed is a punitive tax and not a fee. Affected persons have no right to be heard before it is levied upon them [B.K. Patel Vs. State of Gujrat (1976) 17 Guj. L.J. 608.]

40. Employment of additional police at large work and when apprehension regarding behaviour of employees exists.

This section empowers the Lt. Governor or the Commissioner of Police (Competent Authority) to depute additional police force, at (i) any large work, or (ii) any public amusement, or (iii) occasion where large number of people to be attracted, whenever it appears to them from the behaviour or a reasonable apprehension of behaviour of persons employed on (1) construction side of any Railway, Canal, or other public work, Factory or Commercial concern (2) manufacturing or commercial concern that additional police force is necessarily to be deployed. Cost of so deployed police force at such places is to be recovered from the management of such work. Administrator or the competent authority has to take the decision for employment of additional police under the provision of this section at their own in the interest to maintain peace and order in the area.

41. Compensation for injury caused by unlawful assembly how recoverable.

Compensation to victims of riots and other unlawful assemblies: When any person or persons suffered with (1) any loss or damages to property (2) grievous hurt or death of any person – by any act of the unlawful assembly, the Lt. Governor may issue a notification declaring such (i) area in which (ii) date on which and (iii) period during which … such assembly held as ‘disturbed area’. On the issue of notification by the Lt. Governor declaring any area disturbed under this section the District Collector of such area may decide the amount of compensation to be paid to the victim or victims of such unlawful assembly after conducting an inquiry. The amount for compensation to the victims so decided by the district collector shall be deemed to be fine upon the inhabitants of that area.

44. Collector to award compensation.

Procedure for compensation : Any person entitled for any compensation under section 41 of the Act, should file a claim with the District Collector within 45 days from the date of notification issued by the Lt. Governor Delhi. On receipt of such claim the District Collector will satisfy himself regarding the claimant that the claimant is the actual victim of any act of such unlawful assembly and is free from any blame or allegation connection with the occurrence which resulted in causing such loss or damage subject matter of the claim. Compensation payable under sub-section 2 cannot be assigned or attached or to pass in favour of any person other than the person entitled to it by operation of law. When compensation is granted for any loss or damage or grievous hurt under this section no civil suit shall be maintainable for such damages. There is no reference in such-clause 5 of this section regarding the initiation of civil action in connection with the deceased who died on account of such action of such unlawful assembly.

46. Dispersal of gangs and bodies of persons.

Under this section the commissioner of Police is empowered to order to the leader or chief men of any gang or body of persons, whenever it appears to him that the (i) movement, or (ii) encampment of any such gang or body of persons is causing danger to the person and property of the public or alarm or reasonable suspicion that such gang or body of persons or any member of them is involving in nay unlawful planning, in nay part of Delhi. Such order may be published by announcement or by beating the drums or in any other manner as the commissioner deemed fit.

Commissioner may direct such persons to :-

(i) Behave in manner which seems necessary to prevent violence and alarm in the area.

(ii) To disperse and to remove themselves out of the territory of Delhi,

(iii) Within prescribed time, and (iv) Not to enter in Delhi or any part of the Territory of Delhi.

47. Removal of persons about to commit offences.

Under this section the Commissioner of Police has been empowered with wide powers to remove, certain persons suspected to commit offences. For taking action under this section the Commissioner is to be satisfied upon two criteria before passing an order.

A. Whenever it appears to Commissioner of Police that :-a. The act or movement of any person is causing alarm, or

likely to cause alarm, danger or harm to the person or property of the public,

b. There are reasonable grounds to believe that any person is engaged or is about to be engaged in the commission of an offence punishable under IPC :-

i. Chapter XII – Offences related to coin and Government Stamps Section 230 to 263-A,

ii. Chapter XVI – Offences affecting the human body Section 299 to 377,

iii. Chapter XVII – Offences against property Sections 378 to 462,

iv. Chapter XXII – Criminal intimidation, insult or annoyance sections 503 to 510.

v. Or under section 290, 498A to 489 E (both inclusive) IPC or abetment of any such offence,

c. Or that such person is :- i. So desperate and danger : that he will be hazardous

to the community if left at large in Delhi or any part of Delhi,

ii. Habitual of : (1) intimidating other persons by act of violence or showing force,(2) committing affray, or breach of peace, or riot,(3) Making foreseeable collection of subscription or threatens people for illegal gains for himself or others,(4) passing indecent remarks on women or teasing them.

B. The Commissioner is of the opinion –

Witnesses are not willing to come forward : Public is so afraid from such person that they do not come forward to give evidence for the reasons of safety of their person or property.

Order : (1) formalities under section 50 of this Act must be complied. (2) Ordr should be in writing. (3) It must be served upon such person. (3) It should be published in that area by beat of the drums or any other manner Commissioner thinks fit. (4) It should have directions to such person regarding ordered conduct or his removal from Delhi or any part of Delhi. (5) It may decide the route and time, it cannot be more than 2 years section 49 for such removal. (6) order that such person shall not enter in Delhi or any part of Delhi.

Guidelines for officer passing order under this section :-

1. Constitutional safeguards : The constitution guarantees to its citizens a right to go wherever they like in the territory of India. The right is however subject to reasonable restrictions, in the interest of general public. The restriction on the rights under Constitution, can only be imposed by law and not executive or departmental instructions. The police officer acting under the provisions of this chapter should move under the ambit of law and should make the law and its application obvious and conspicuous in the notice and order. AIR 1962 SC 177: AIR 1961 SC 211.

2. Connot act mechanically : The authority cannot act mechanically nor can it exercise the discretion in him according to whim, copria, or ritual. Discretion allowed to an authority is intended to be exercised “according to rules of reason and justice, not according to private opinion …. According to law and not humour.

3. Witness can be recorded in camera. When person proceeded against is so desperate and dangerous that people not likely to come forward and depose against the person proceeded against witness can be examined and statement be recorded in camera.

4. Name need not to be disclosed : It is not necessary to the authority proceeding under these sections to disclose the name of the witnesses to be examined in process to ascertain whether there is sufficient material and grounds to order under this section.

5. No. opportunity to cross-examine : The person proceeded against, under the light of the facts described above, has no right, to be afforded an opportunity to cross-examine such

witnesses. Such an evidence can be read against accused and can form basis of externment order.

48. Removal of persons convicted of certain offences.

There are two conditions to be satisfied for proceeding against any person under this section :

(i) Such person has been convicted for any offence referred in this section,

(ii) There are reasons to believe that such person is likely again to engage himself in commission of any such offences.

Reason to believe: Section 26 of the Indian Panel Code defines ‘reason to believe’ “A person is said to have ‘reason to believe’ a thing, if he has sufficient cause to believe that thing but not otherwise.

Convection should be proximate in time: For externment under this section the conviction of a person for any offence described in this section is a condition precedent before he can be ordered to extern. A person who inspite of his previous conviction or convictions has not reformed himself and continues to be danger to the society may have to be externed to save the society. However, the conviction or convictions should be proximate in time. A person who did not commit any offence during the period of 18 years, the previous conviction could not have any relevancy and could not be taken into consideration for passing an order of externment under this section (AIR 1961 SC). The provision of this section are not in any manner contravene Article 20 (1) of the Constitution of India because externment order is not a penalty for the crime. When a person did

not reform himself inspite of the previous convictions and is likely to commit the offences, or continues to be danger to the inhabitants of the locality or to the general public, it is in the interest of the society to remove such person from the area of a specified period to prevent him from committing offences, by sending him away from his circle and crime associates.

49. Period of operation of orders under section 46, 47 or 48.- Any direction made under section 46, section 47 or section 48 not to enter Delhi or any part thereof, shall be for such period as may be specified therein, and shall in no case exceed a period of two years from the date on which it was made.

50. Hearing to be given before order under section 46, 47 or 48 is passed –

Powers contained in sections 46, 47 and 48 appear to be inconsistent with certain rights of the individuals, which are guaranteed by the Constitution of India. Part-III of the Constitution of India contains a long list of rights and liberties, which are regarded as the ‘fundamental rights’, because they are most essential for the attainment by the individual. Absolute and unrestricted right do not and cannot exist in any modern State. If people were given complete and absolute liberty without any social control the result would be ruin (Wills Constitutional Law and the US). The object behind the inclusion of the chapter of Fundamental Rights in Indian Constitution is to establish a government of law and not of a man’. Powers under sections 46, 47 and 48 of the Act are restrictions imposed upon the rights of an individual, by the law in the interest of the society and therefore should be exercised under the ambit of law and in the interest of the society, and in accordance to the natural law of justice. In Menaka Gandhi Vs. State AIR 1978 SC 597 it was held by

the Hon’ble Supreme Court that the ‘procedure depriving a person of his life or personal liberty must be just, fair and reasonable’. It must satisfy the requirement of natural law of justice. Under the principles of the natural law of justice a person should be known the allegation or charges to be proceeded against him and reasonable opportunity to defend be provided. Under this section the procedure for the compliance of the natural law of justice is prescribed and every officer acting under the provision of sections 46, 47 and 48 must and carefully comply the requirement of this section.

51. Appeal against orders under section 46, 47 or 48:-

Any person aggrieved by an order made under section 46, 47 or 48 can file an appeal under this section. Appeal is to be filed, in duplicate, within 30 days before the Lt. Governor of Delhi. Appeal should contain :-

(1) Certified copy of impugned order against which appeal is being filed,

(2)It should be in the form of memorandum,(3)Ground and objections to rebut the allegations levelled in

the show cause notice must be given concisely,

On receipt of appeal under this section the Lt. Governor will have to provide an opportunity to the appellant, to file his averment either personally or through an Advocate. The Lt. governor after conducting an inquiry, he deemed fit under the facts and circumstances of the case, may (i) confirm (ii) vary or (iii) set aside the order against which appeal is filed. The Lt. Governor is supposed to dispose of the appeal within three months from the date of receipt of such appeal under this section, but the order, against which appeal is filed, will remain

in force during the period of pendency of appeal unless the Lt. Governor passed an order to stay such order.

52. Finality of order in certain cases.

This section deals with the circumstances and grounds for which the order passed by the authority under section 46, 47 or 48 or an appeal against such order is decided by the Lt. Governor under section 51 of the Act may be challenged in any court. Any person, being aggrieved by an order (i) passed by an authority under section 46, 47 or 48 and (ii) by Lt. Governor, deciding his appeal, under section 51 of the Act may appear before any court for redressal on the following grounds or circumstances :

(i) When the procedure laid sown in sub-section (1), (2) or (4) of section 50 is not complied with by the Commissioner or other authorised officer of the Police and procedure laid sown in section 51 is not complied with by the Lt. Governor,

(ii) There was no material, against the person proceeded against, before the authority, to proceed and arrived at the conclusion to pass the impugned order,

(iii) Authority, commissioner of Police or the Lt. Governor, was not of the opinion that witnesses were not willing to come forward to give evidence in public against the person proceeded against.