Mahendra @ Pappu vs State Of U.P. And 3 Ors.
2017 Latest Caselaw 2685 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21							A.F.R.
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 14013 of 2017
 

 
Petitioner :- Mahendra @ Pappu
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Arvind Srivastava,Raj Kumar Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Krishna Murari,J.

Hon'ble Akhilesh Chandra Sharma,J.

(Delivered by : Hon'ble Akhilesh Chandra Sharma,J.)

By means of this writ petition, the petitioner has challenged the impugned show cause notice dated 02.02.2017 as well as order dated 16.5.2017 passed by Respondent no. 2/Additional District Magistrate (Finance and Revenue), Amroha under Section 3 of the U.P. Control of Goodas Act, 1970 (for short the 'Act').

Heard learned counsel for the petitioner and learned A.G.A.

Learned counsel for the petitioner submits that the impugned show-cause notice has been issued against the petitioner only on the ground of his involvement in a solitary case. He further submits that petitioner is neither a Gang Leader nor any Gang Member of any Gang and he has been falsely implicated in the Case Crime No. 108 of 2014 under Section 307, 147, 323, 324 I.P.C., P.S. Rajabpur, district Amroha. Relying upon on a decision of the Hon'ble Apex Court in the case of Vijay Narayan Singh vs. State of Bihar & others, 1984(3) SCC 14, learned counsel for the petitioner contends that since there is only one offence against the petitioner and that too, arises from a family dispute, the impugned show cause notice as well as consequent order passed by the respondent no. 2 is not sustainable.

It has been next submitted by learned counsel for the petitioner that the impugned show-cause notice has been issued against the petitioner only on the ground of his involvement in a solitary case. He further submitted that Hon'ble Apex Court in the case of Imran alias Abdul Qudus Khan Versus State of U.P. and others reported in 2000 (Suppl.) ACC 171 (HC) has taken the view that for a person to be a "Goonda" under sub-clause (i) (b) is to be a person who has to his credit repeated / persistent overt acts not isolated and individual act and in view of the above, the impugned show-cause notice as well as consequent order passed by the respondent no.2 is liable to be quashed.

Per contra, learned A.G.A. submitted that against the impugned order, the petitioner has an alternative remedy of filing an appeal under Section 6 of the Act before the Commissioner of the Division. Learned A.G.A. further submits that the petitioner has failed to make out any case for quashing the impugned show-cause notice and order at this stage as he can raise all the grounds taken by him in this writ petition in his appeal before the Commissioner of the Division, therefore this petition is premature and does not lie at this stage.

We have considered the argument advanced by learned counsel for the parties and perused the record.

Section 2(b) of the Act defines 'Goonda' which reads as under :

(b) 'Goonda' means a person who -

(i) either by himself or as a member or leader of a gang, habitually commits or attempts to commit, or abets the commission of an offence punishable under Section 153 or Section 153-B or Section 294 of the Indian Penal Code or Chapter XV, Chapter XVI, Chapter XVII or Chapter XXII of the said Code; or

(ii) has been convicted not less than thrice for an offence punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956; or

(iii) has been convicted not less than thrice for an offence punishable under the U.P. Excise Act, 1910 or the Public Gambling Act, 1867 or Section 25, Section 27 or Section 29 of the Arms Act, 1959; or

(iv) is generally reputed to be a person who is desperate and dangerous to the community; or

(v) has been habitually passing indecent remarks or teasing women or girls; or

(vi) is a tout;

Explanation - 'Tout' means a person who-

(a) accepts or obtains, or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means any public servant or member of Government, Parliament or of State Legislature, to do or forbear to do anything or to show favour or disfavour to any person or to render or attempt to render any service or disservice to any person, with the Central or State Government, Parliament or State Legislature, any local authority, Corporation, Government Company or public servant; or

(b) procures, in consideration of any remuneration moving from any legal practitioner interested in any legal business, or purposes to any legal practitioner or to any person interested in legal business to procure, in consideration of any remuneration moving from either of them, the employment of legal practitioner in such business; or

(c) for the pruposes mentioned in explanation (a) or (b), frequents the precincts of civil, criminal or revenue Courts, revenue or other offices, residential colonies or residences or vicinity of the aforesaid or railway or bus stations, landing stages, lodging places or other places of public resort; or

Explanation- 'House-grabber' means a person wo takes or attempts to take or aids or abets in taking unauthorised possession or having lawfully entered unlawfully remains in possession, of a building including land, garden, garages or out-houses appurtenant to a building.

A Division Bench of this Court in the case of Imran alias Abdul Qudus Khan (supra) while examining the question whether a person can be labelled as 'Goonda' and notice under Section 3(3) of the U.P. Control of Goondas Act can be clamped upon him only on the basis of a solitary incident has in paragraph nos. 11, 12, 13 and 14 of its aforesaid judgment observed as hereunder:-

"11. Ex facie, a person is termed as a 'goonda' if he is a habitual criminal. The provisions of section 2 (b) of the Act are almost akin to the expression 'anti social element' occurring in section 2 (d) of Bihar Prevention of Crimes Act, 1981. In the context of the expression 'anti social element' the connotation 'habitually commits' came to be interpreted by the apex court in the case of Vijay Narain Singh V. State of Bihar and others (1984) 3 SCC-14. The meaning put to the aforesaid expression by the apex court would squarely apply to the expression used in the Act, in question. The majority view was that the word 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. Even the minority view which was taken in Vijay Narain's case (supra) was that the word 'habitually' means 'by force of habit'. It is the force of habit inherent or latent in an individual with a criminal instinct with a criminal disposition of mind, that makes a person accustomed to lead a life of crime posing danger to the society in general. If a person with criminal tendencies consistently or persistently or repeatedly commits or attempts to commit or abets the commission of offences punishable under the specified chapters of the Code, he should be considered to be an 'anti social element'. There are thus two views with regard to the expression 'habitually' flowing from the decision of Vijay Narain's case (supra). The majority was inclined to give a restricted meaning to the word 'habitually' as denoting 'repetitive' and that on the basis of a single act cannot be said to be forming the habit of the person. That is to say, the act complained of must be repeated more than once and be inherent in his nature. The minority view is that a person in habitual criminal who by force of habit or inward disposition inherent or latent in him has grown accustomed to lead a life of crime. In simple language, the minority view was expressed that the word 'habitually; means 'by force of habit'. The minority view is based on the meaning given in stroud's Judicial Dictionary, Fourth Ed. Vol. II? 1204-habitually requires a continuance and permanence of some tendency, something that has developed into a propensity, that is, present from day to day. Thus, the word- 'habitual' connotes some degree of frequency and continuity.

12. The word 'habit' has a clear well understood meaning being nearly the same as 'accustomed' and cannot be applied to single act. When we speak of habit of a person, we prefer to his customary conduct to pursue, which he has acquired a tendency from frequent repetitions. In B.N. Singh V. State of U.P.AI.R. 1960-Allahabad ?754 it was observed that it would be incorrect to say that a person has a habit of anything from a single act. In the Law Lexicon ? Encyclopedic Law Dictionary, 1997 Ed. by P. Ramanatha Aiyer, the expression 'habitual' has been defined to mean as constant, customary and addicted to a specified habit; formed or acquired by or resulting from habit; frequent use or custom formed by repeated impressions. The term 'habitual criminal', it is stated may be applied to any one, who has been previously more than twice convicted of crime, sentenced and committed to prison. The word 'habit' means persistence in doing an act, a fact, which is capable of proof by adducing evidence of the commission of a number of similar acts. 'Habitually' must be taken to mean repeatedly or persistently. It does not refer to frequency INDIAN LAW REPORTS 6 ALLAHABAD SERIES [2000 of the occasions but rather to the invariability of the practice.

13. The expression 'habitual criminal' is the same thing as the 'habitual offender' within the meaning of section 110 of the Code of Criminal Procedure, 1973. This preventive Section deals for requiring security for good behavior from 'habitual offenders'. The expression 'habitually' in the aforesaid section has been used in the sense of depravity of character as evidenced by frequent repetition or commission of offence. It means repetition or persistency in doing an act and not an inclination by nature, that is, commission of same acts in the past and readiness to commit them again where there is an opportunity.

14. Expressions like 'by habit' 'habitual' 'desperate' 'dangerous' and 'hazardous' cannot be flung in the face of a man with laxity or semantics. The court must insist on specificity of facts and a consistent course of conduct convincingly enough to draw the rigorous inference that by confirmed habit, the petitioner is sure to commit the offence if not externed or say directed to take himself out of the district. It is not a case where the petitioner has ever involved himself in committing the crime or has adopted crime as his profession. There is not even faint or feeble material against the petitioner that he is a person of a criminal propensity. The case of the petitioner does not come in either of the clauses of Section 2 (b) of the Act, which defines the expression 'Goonda'. Therefore, to outright label bona fide student as 'goonda' was not only arbitrary capricious and unjustified but also counter productive. A bona fide student who is pursing his studies in the Post Graduate course and has never seen the world of the criminals is now being forced to enter the arena. The intention of the Act is to afford protection to the public against hardened or habitual criminals or bullies or dangerous or desperate class who menace the security of a person or of property. The order of externment under the Act is required to be passed against persons who cannot readily be brought under the ordinary penal law and who for personal reasons cannot be convicted for the offences said to have been committed by them. The legislation is preventive and not punitive. Its sole purpose is to protect the citizens from the habitual criminals and to secure future good behavior and not to punish the innocent students. The Act is a powerful tool for the control and suppression of the 'Goondas'; it should be used very sparingly in very clear cases of 'public disorder' or for the maintenance of 'public order'. If the provisions of the Act are recklessly used without adopting caution and desecretion, it may easily become an engine of operession. Its provisions are not intended to secure indirectly a conviction in case where a prosecution for a substantial offence is likely to fail. Similarly the Act should not obviously be used against mere innocent people or to march over the opponents who are taking recourse to democratic process to get their certain demands fulfilled or to wreck the private vengeance.".

A bare perusal of the aforesaid provision makes it abundantly clear that for taking action under Section 3 of the Act against a person as defined under clause (i) of Section 2(b) of the Act there must be more than one offence against the alleged person.

In the case in hand, we find that the impugned show cause notice dated 2.2.2017 (annexure-4 to the writ petition) has been issued by the respondent no. 2 against the petitioner on the basis of his involvement in only one case, namely, Case Crime No. 108 of 2014 under Sections 307, 147, 323, 324 I.P.C., P.S. Rajabpur, district Amroha. Since there is only one reference of the offence in the impugned notice, the petitioner cannot be deemed to be a habitual offender.

Apart from above, since the impugned show-cause notice and the consequent order is directly in the teeth of the provisions of Section 2(b)(i) of the Act, hence, we are not inclined to relegate the petitioner to alternative remedy of appeal as no useful purpose would be served.

In view of above, the impugned show cause notice dated 02.02.2017 as well as order dated 16.5.2017 passed by Respondent no. 2/Additional District Magistrate (Finance and Revenue), Amroha under Section 3 of the U.P. Control of Goodas Act, 1970 is hereby quashed.

Writ petition stands allowed.

However, there shall be no order as to costs.

Order Date :- 26.7.2017

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