Mohammad Adil Kaleem Ansari vs State Of Uttar Pradesh Thru ...
2021 Latest Caselaw 3639 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 16
 
Case :- MISC. SINGLE No. - 680 of 2021
 
Petitioner :- Mohammad Adil Kaleem Ansari
 
Respondent :- State Of Uttar Pradesh Thru Principal Secretary Home,Lko.
 
Counsel for Petitioner :- Amarjeet Singh Rakhra,Shikhar Mishra,Syed Ally Nasir Naqvi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Dinesh Kumar Singh,J.

1. The present petition has been filed, impugning the order dated 15.10.2020 passed by the Police Commissioner, Commissionerate Lucknow in Case No.123 of 2020, under Section 3/4 of the U.P. Control of Goondas Act, 1970 (hereinafter referred to as 'the Act, 1970') as well as the order dated 25.11.2020 passed by the Commissioner, Lucknow Division, Lucknow in Appeal No. 01498 of 2020, under Section 6 of the Act, 1970 whereby the order for externment of the petitioner for six months from the boundaries of the Lucknow Commissionerate has been affirmed in the appeal.

2. The petitioner is a resident of Aminabad Park, Latouche Road, Lucknow. He resides with his mother, father and younger brother; he is around 26 years old and, he joined business of his father-in-law of building material and construction work; he got married in the year 2019; his wife is also well-educated and, is engaged in her own business in the name and style as 'Zeb Creations'; his whole family is educated one; his father-in-law had died inter-estate in the year 2017, leaving behind a lot of properties.

3. It is said that the siblings of father-in-law of the petitioner, who had no son, started misappropriating his properties. The petitioner, at the behest of his wife, tried to prevent siblings of his father-in-law from illegally misappropriating his properties. The petitioner, at the behest of his wife, tried to prevent the siblings of his father-in-law from illegally misappropriating the properties left by him. It is alleged that FIR as Crime No. 515 of 2019, under Sections 307, 427 and 506 IPC, Police Station Hazratganj, District Lucknow came to be registered by one Mr. Prafulla Pandey, a longtime associate and acquaintance of Smt. Nighat Musheer, sister of Late Ateeq-Uz-Zama, father-in-law of the petitioner.

4. The petitioner was granted bail in the aforesaid case from the Sessions Court itself. However, the charge-sheet has been filed in the aforesaid case, after investigating the offence by the police. Another case was registered by Smt. Nighat Musheer under Sections 504, 506 and 507 IPC, alleging therein that the petitioner has threatened her and her husband and, told her not to interfere in the property located at Kursi Road, Behata Village Para, District Lucknow.

5. In the aforesaid case, the police had filed charge-sheet only under Sections 504 and 506 IPC.

6. Beat Report No. 24 was registered on 13.05.2020 at 9.38 p.m. at Police Station Gomti Nagar, Lucknow by Sub-Inspector, Mr. Prashant Kumar, alleging that the petitioner was a person of criminal background; he along with his associates often threatens people of the area and on objection, these people abuse and extend threatens. No one dares to lodge FIR against the petitioner due to his fear and terror. His roaming free is neither in public interest nor public order and, it is required that a stoppage should be put to his criminal activities.

7. It is further stated in the said report that the petitioner has indulged in assaulting and abusing the people with an intention to kill and, he has indulged in ransacking the property and, therefore, action should be taken against him under Section 3/4 of the Act, 1970 in public interest.

8. On the basis of the aforesaid report, a notice was issued under Section 3(I) of the Act, 1970 on 21.08.2020 to the petitioner and, he was required to give reply to the said notice by 28.08.2020 and appear before the Police Commissioner.

9. The petitioner filed his reply to the said notice and appeared before the Police Commissioner. He submitted that in offence registered at Case Crime No. 515 of 2019, under Section 307, 427 and 506 IPC, Police Station Hazratganj, District Lucknow, he was on bail and the case was pending for trial. The other case was registered by Smt. Nighat Musheer in relation to property dispute and, the charge-sheet has been submitted only under Sections 504 and 506 IPC, but he did not receive any summon. It is said that the petitioner belongs to a good family. He has belief in justice delivery system and, he has been falsely implicated in cases with the purpose of misappropriating the properties left by his late father-in-law. He prayed for dropping the proceedings under Section 3 of the Act, 1970. The learned Commissioner, however, vide order dated 15.10.2020 has held that the petitioner was accused for offences of attempt to murder, ransacking the property and, abusing the people. He is dare-devil, fearless, dictatorial and land mafia. Neither the people come forward to depose against him, nor usually anybody come forward to lodged an FIR nor give information at the police station. It would not be in the interest of justice to allow him to remain at large. The activities of the petitioner come within the purview of Section 2(b)(i) and (iv) of the Act, 1970 and, therefore, it is reasonable and in the interest of justice to pass order under Section 3(3) of the Act, 1970.

10. The Police Commissioner, thus, has passed the order for externment of the petitioner from the boundaries of Lucknow Commissionerate for a period of six months.

11. The aforesaid order has been affirmed by the Divisional Commissioner vide order dated 25.11.2020 passed in appeal filed under Section 6 of the Act, 1970.

12. Heard Mr. Amarjeet Singh Rakhra, learned counsel for the petitioner, as well as Mr. Rao Narendra Singh, learned Additional Government Advocate and perused the entire record.

13. On behalf of the petitioner, it has been submitted that it is settled law that the order for externment under the Act, 1970 is required to be passed against a person, who cannot readily be brought under the ordinary penal law, but for personal reasons cannot be convicted for offence said to have been committed by him. The provisions of the Act, 1970 are preventive and not punitive in nature. The purpose of the Act, 1970 is to protect the citizens from habitual criminals and to secure their good behaviour in future. Section 2(b) of the Act, 1970 defines 'Goonda' as under:-

2(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 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."

14. Thus, from perusal of the aforesaid definition of the 'Goonda', the provisions of the Act, 1970 are applicable to a person, who is desperate and dangerous to the community and, his, being free, would be prejudicial to maintain public order.

15. In the recent judgment in the case of Parvindra Vs. State of Uttar Pradesh, 2020 SCC Online ALL 51, this Court has observed that "While this Act is a powerful tool for the control and suppression of the Goonda's, it should be used in very clear cases of public disorder or for maintenance of public order. If the provisions of the Act are recklessly used without adopting caution and discretion, it may easily become an engine of oppression. Its provisions are not intended to secure indirectly a conviction in a case where prosecution for substantial offence is likely to fail."

16. On the basis of cases, mentioned above, can it be said that the petitioner is a person, who is desperate and dangerous to the community and, his, being free, would be prejudicial to maintain public order. In the case of Imran alias Abdul Quddus Khan Vs. State of U.P. and others, 2000 AIHC 1467, it has been held that a person to be 'Goonda' under the Act, 1970, the said person should commit and repeat persistent offences and not isolated individual act. Similar view has been taken in another case i.e. in the case of Shankar Ji Shukla Vs. Ayukt Allahabad Mandal, 2005 (52) ACC 633.

17. The Supreme Court, while dealing with somewhat parameteria provisions of Bihar Control of Crimes Act, 1981, which defines anti-social element in similar manner as 'Goonda' as defined under the Act, 1970. In para-31 of the said judgment, it has been said that a single act or omission cannot be categorized as a habitual act or omission referred to under Section 2(b)(1) of the Act, 1970. The idea of ''habit' involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind. The acts or omissions, in question, are not of the same kind or, even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones. Thus, habitual offender would be one, who has repeatedly or persistently committed crimes.

18. In the present case, the provisions of the Act have been invoked against the petitioner on the basis of the two cases, mentioned above, which are not of similar or identical nature. The two isolated incidents would not be suffice to say that the petitioner is habitually indulging in criminal acts. Neither of these two cases would show that the petitioner has a tendency to repeat the crimes. He has not been convicted in any of the two cases. The provisions of the Act, 1970 are to be used against a habitual offender and anti-social element and whose activities would be injurious to the public order. It is true that if a person, involved in anti-social activities, is seeking to create public disorder, he is to be dealt with effectively, but at the same time, it is also to be seen that the law should not be used arbitrarily to deprive the citizen of his right to life and liberty. If the powers vested in the executive are being used in a arbitrary manner, without there being sufficient ground for such use, the Court, particularly, the Constitutional Court has to exercise its power to protect the life and liberty of a citizen. If the challenge is being made to an order passed by the executive authority, impinging upon the life and liberty of a citizen, the Court is justified in examining such an order to find out whether the limits but by Constitution or Legislature have been transgressed.

19. As mentioned above, the provisions of the Act, 1970 are preventive in nature, it is to be used against a habitual offender, whose activities are injurious in maintaining public order. Except for the two cases, which have been mentioned above, there was nothing before the Police Commissioner and the Divisional Commissioner to pass the impugned orders.

20. In view thereof, existence of the two orders, impugned herein, is unsustainable and, therefore, the same are quashed. The writ petition, thus, stands allowed, but without costs.

[D.K. Singh, J.]

Order Date :- 16.3.2021

MVS/-