Rahul Yadav vs State Of U.P. And 2 Others
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 51
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 347 of 2021
 

 
Petitioner :- Rahul Yadav
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Narendra Kumar Singh Yadav
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Rajendra Kumar-IV,J.

Supplementary affidavit filed today is taken on record.

Heard Sri N.K.S. Yadav, counsel for the petitioner and Sri S.A. Murtaza, learned A.G.A. for the State respondents.

The instant petition has been filed challenging the notice dated 3.12.2020 issued under Section 3 (1) of the U.P. Control of Gundas Act, 1970, Case No.389 of 2020 State Vs. Rahul Yadav and for a further direction to the State respondents not to harass the petitioner on basis of the said notice.

The main submission of learned counsel for the petitioner in challenging the impugned show cause notice is that it is wholly illegal and has been issued without proper application of mind. The provisions of the U.P. Control of Gundas Act, 1970 have been invoked against the petitioner on basis of a solitary case registered against him. It is submitted that the allegations made against the petitioner in the said case are wholly baseless and there is all possibility of the petitioner being acquitted in the said case. It is also urged that the notice does not contain material particulars and thus fails to comply with the essential ingredients of Section 3 (1) of the Act. In support of his contention, he has placed reliance on Full Bench judgment of this Court in Bhim Sain Tyagi Vs. State of U.P., 1999 (39) ACC 321 and Division Bench judgement in the case of Imran Alias Abdul Quddus Khan Vs. State of U.P. reported in 2000 (1) ACC 171.

Before we proceed to deal with the contention of learned counsel for the petitioner, it is worthwhile to reproduce paragraphs 11, 12, 13 and 14 of the judgement in the case of Imran (supra):-

"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 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."

Again, a Division Bench of this Court in Suresh Tewari Vs. State of U.P. and others decided on 23.5.2018, after considering the Apex Court judgement in Vijay Narain Singh Vs. State of Bihar, 1984 (3) SCC 14 and Full Bench judgement of this Court in Bhim Sain Tyagi (supra), while considering the issue relating to slapping of the penal provisions of the Act against an individual on basis of a solitary case, has observed as follows:-

"The Hon'ble Apex Court in the case of Vijay Narain Singh versus State of Bihar and others (1984) 3 SCC 14 has been pleased to hold that it is essential to refer to at least two incidents of commission of crime for applicability of Clause (i) of section 2(b) of the Act. Since there is reference of one incident only in the notice, it falls short of the legal requirement as provided in Clause (i) of section 2(b) and in this way the notice being illegal could be challenged before this Court as laid down by the Full Bench of this Court in the case of Bhim Sain Tyagi v. State of U.P. And others 1999 (39) ACC 321. If there had been reference of two or more incidents in the impugned notice, then the minimum legal requirement of section, 2(b) Clause (i) would have been satisfied, and then in that case sufficiency of the material on merits could not be challenged before this Court, but before the authority concerned as laid down in the Division Bench ruling in the case of Jaindendra @ Chhotu Singh Versus State of U.P. (supra). But since the impugned notice in the present case is short of the legal requirement, it could be challenged in this Court. The observations in para 12 of the ruling in the case of Jaindendra (supra) which have been quoted above, also support this conclusion."

Learned A.G.A. is also not in a position to dispute the legal position that for bringing a person under the clutches of the Act, he should be a habitual criminal/offender and a single or sporadic incident would not bring him within the purview of the Act.

The impugned notice refers to Crime Case No.230 of 2020 u/s 376 IPC, 3/4 POCSO Act and 3 (2) (v) SC/ST Act. A copy of the said first information report has been brought on record alongwith supplementary affidavit. The said first information report was lodged by the first informant with the allegation that her grand daughter was having a love affair for last four years with the petitioner. He succeeded in establishing physical relationship with her by assuring her that they would marry each other. Later, he resiled from his promise.

The case of the petitioner is that the relationship of the petitioner with the grand daughter of the first informant was consensual, they being in love with each other. Because of certain reasons, the relationship could not mature into a matrimonial alliance. The petitioner had married another girl and annoyed by the said fact, the first information report in question was lodged.

Be that as it may, having regard to the controversy involved herein, we need not comment upon the merit of the case of either party, but it is clear that the allegations made therein, if found to be correct, would definitely be a crime of serious nature. Apart from it, there is reference to a beat report dated 20.10.2020, but concededly, there is no other criminal case registered against the petitioner. In nut-shell the action proposed is thus primarily based on the criminal case registered against the petitioner in which there is allegation of having committed offence under Section 376 IPC, 3/4 POCSO Act and 3 (2) (v) SC/ST Act. The consistent view is that the provisions of the Act could not be pressed into service against a person unless he is a habitual offender. The impugned notice thus fails to disclose material particulars and contains allegations of general nature only. It fails to comply with the legal requirements of Section 3 and thus unsustainable in law.

Learned A.G.A. submitted that it be left open to the District Magistrate to pass a fresh order.

There is no difficulty in accepting the said submission inasmuch as the impugned notice is found to be defective on technical grounds.

Accordingly, while on one hand, we quash the impugned notice dated 3.12.2020, but at the same time, leave it open to the District Magistrate to pass a fresh order, if sufficient material is available to proceed against the petitioner.

The petition stands disposed of accordingly.

(Rajendra Kumar IV, J.) (Manoj Kumar Gupta, J.)

Order Date :- 3.2.2021

SL