Allahabad High Court
Vijay vs State Of U.P. And 3 Others on 2 August, 2021
Bench: Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 86
Case :- CRIMINAL MISC. WRIT PETITION No. - 15340 of 2020
Petitioner :- Vijay
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Anoop Kumar
Counsel for Respondent :- G.A.
Hon'ble Umesh Kumar,J.
Heard learned counsel for the petitioner, learned A.G.A. for the respondents and gone through the record.
By means of present petition, the petitioner has challenged order dated 23.9.2019 passed by Additional District Magistrate, Basti, in Case No. 00626 of 2018, Computer Case No. D201817140000626 (State Vs. Vijay.) and order dated 16.7.2020 passed by Commissioner, Basti Division, Basti, in Case No. 00141 of 2010, dismissing the appeal filed by the petitioner-appellant as infructuous. By order dated 23.9.2019 the learned Additional District Magistrate, Basti, treating the petitioner as Goonda, under Section 3(3) of the U.P. Control of Goondas Act (hereinafter referred to as the Act) has ordered externment of the petitioner for a period of six months. Being aggrieved the present petition has been filed with the prayer to quash the impugned order dated 23.9.2019.
The main contention of learned counsel for the petitioner is that only on the basis of sole case i.e. 283 of 2017, under Section 147, 148, 323, 452, 504, 506, 325 I.P.C. the petitioner has been treated to be Goonda without considering the provision of Section 2(b) of the U.P. Control of Goondas Act whereas in that case he has falsely been implicated by neighbour of his maternal uncle. It is next contended that the petitioner has pursued engineering with good marks, his character certificate issued from the College shows good character and if the impugned order is not quashed the future of the petitioner will be ruined. It is lastly contended that the impugned order was passed without considering the objection filed by the petitioner, therefore, the impugned order dated 23.9.2019 is bad, illegal, arbitrary and is liable to be quashed. In support of his submission learned counsel for the petitioner has placed reliance upon the judgment passed by Hon'ble Supreme Court in Vijay Narain Singh Vs. State of Bihar, 1984 (SC) 105, and judgment passed by this Court in Mahendra @ Pappu Vs. State of U.P. and 3 ORS, 2017 (All) 1344.
The submission of learned counsel for the petitioner has got force. Whether the accused can be treated as 'goonda' or not, it will be necessary to consider the meaning/definition of word goonda as provided in the Act.
Section 2(b) of the Act defines the word 'goonda' as follows:
(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 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 proposes 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 purposes 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
(vii) is a house-grabber.
Explanation. - 'House-grabber' means a person who 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.
From a perusal of the impugned notice issued by Additional District Magistrate, Basti, it appears that only one criminal case is mentioned therein, i.e. case crime no. 283 0f 2017, under Section 147, 148, 323, 452, 504, 506, 325 I.P.C., P.S. -Walterganj, District- Basti.
In the case of Shankar Ji Shukla Vs. Ayukt, Allahabad,Mandal Allahabad and Ors. (Supra) it has been held that a person cannot be held to be goonda only on the basis of one or two acts, a person can be held to be goonda only when he is in habit of committing repeated offences.
In this case, only one criminal case has been shown against the accused-petitioner, that too has been lodged at the instance of neighbour of maternal uncle of the petitioner. Therefore, the petitioner on the basis of that case cannot be said to be habitually involved in commission of offences as defined Section 2(1)(b) of the Act. He, therefore, cannot be held to be goonda.
From perusal of the impugned judgment passed by the learned Additional District Magistrate, it appears that it has failed to consider the requirement of Section 2(1) (b) of the Act for declaring the Petitioner as goonda. Therefore, the impgned orders passed by the learned Additional District Magistrate, Basti and Divisional Commissioner, Basti, are bad in the eye of law and liable to be quashed and the writ petition deserves to succeed.
The writ petition is, therefore, allowed and the impugned order dated 23.9.2019 passed by Additional District Magistrate, Basti, treating the petitioner to be goonda as well as order dated 16.7.2020 passed by Commissioner Divison Basti, dismissing the appeal of the petitioner as infructuous are hereby quashed. Since the period of externment has already been expired, therefore, no order requires in that respect.
Order Date :- 2.8.2021
S.Verma
