Jay Nandan Pandey vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 14296 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 11
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6519 of 2022
 
Petitioner :- Jay Nandan Pandey
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others
 
Counsel for Petitioner :- Rang Nath Misra,Anil Kumar Mishra
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard learned counsel for the petitioner as well as learned A.G.A. for the State and perused the record.

On the last date when the arguments of the petitioner's counsel and learned counsel for the State were heard, counter affidavit on behalf of the State was also filed but the same has not been mentioned in the order dated 11.10.2022, however, the same has already been taken on record.

The instant petition has been filed by the petitioner- Jay Nandan Pandey with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 17.08.2022 and 14.06.2022 passed by the opposite party no.2 and 3.

Learned counsel for the petitioner while referring to the order dated 14.06.2022 passed by the District Magistrate, Gonda whereby the externment order for 06 months was passed and the order dated 17.08.2022 passed by the Commissioner Devipatan, Gonda Division, whereby the appeal filed by the instant petitioner was dismissed, it is vehemently submitted by learned counsel for the petitioner that neither the District Magistrate, Gonda nor the Commissioner Devipatan, Gonda Division has considered the case of the petitioner in right perspective and has passed both the orders in utter disregard to the law settled in this respect.

It is further submitted that the District Magistrate, Gonda has passed the impugned order dated 14.06.2022 on the basis of two criminal cases pertaining to Sections 419, 420, 323, 504, 506 I.P.C. and Section 3(1)(da)(dha) of SC/ST Act as well as another case pertaining to Sections 419, 420, 467, 468, 471 I.P.C. and Section 3(1)(da)(dha) of SC/ST Act, both pertaining to Police Station Motiganj, District Gonda, whereby the petitioner was charge-sheeted and on the basis of two beat informations of date 28.02.2021 given by constables Shishupal Singh, Sadanand Yadav and Ashutosh Sharma. It is submitted that the dispute pertaining to which the above-mentioned two criminal cases were lodged wherein the petitioner was also charge-sheeted was a private dispute and the same could not be the basis of inferring the petitioner as a 'Goonda', as provided under Section 2(b) of the U.P. Control of Goondas Act, 1970. Thus, both the courts below have passed the orders without considering this aspect of the matter.

It is also submitted that two beat informations allegedly given by the constables Shishupal Singh, Sadanand Yadav and Ashutosh Sharma have been lodged on the same day and same time and by the same constables and the same has only been lodged to carve out material with an intention to falsely implicate the petitioner. Thus, the externment order passed by the District Magistrate is without any basis and the same is required to be set-aside as well as the order dated 17.08.2022 passed by the Commissioner Devipatan, Gonda Division.

It is further submitted by learned counsel for the petitioner that the instant petitioner and one Rambaran is having a dispute pertaining to the property and with regard to the same a civil suit was also filed before the Civil Judge, Junior Division, Gonda and the same is pending for disposal and a genuine dispute pertaining to an immovable property may not canvass a person as a 'Goonda'.

It is also submitted that the petitioner has been granted bail in the cases referred to by the District Magistrate, Gonda. The petitioner has also relied on law reports namely 'Pavan @ Pavan Singhal vs. State of U.P and others, [2021 (115) ACC 823], Parvindra vs. State of U.P. and two others, judgement dated 23.01.2020 passed in Criminal Misc. Writ Petition No. 25689 of 2019 and the law laid down by the Hon'ble Supreme Court in Vijay Narain Singh vs. State of Bihar and Others, (1984) 3 SCC 14.

Learned A.G.A. on the other hand submits that no illegality or to say any irregularity has been committed by both the courts below as the petitioner was proved to be a 'Goonda' as two criminal cases of similar nature were lodged against him wherein he was also charge-sheeted and there were two beat informations pertaining to the fact that the petitioner is an outlaw and in a habit of harassing and assaulting the person of a particular community namely SC and ST, whereby the common persons of the locality are living in fear and nobody comes out to lodge a report against him or to give any evidence.

Having heard learned counsel for the parties and having perused the record, it is transpired from the impugned judgment of date 14.06.2022 passed by the District Magistrate that on the basis of Case Crime No. 88 of 2019 as well as the two beat informations given by the same set of police constables on 28.02.2021 registered as Beat Information No. 39 and 49 of the same time, the District Magistrate has passed the order of externment of the petitioner for a period of 06 months. The order of the District Magistrate has been affirmed by the Commissioner Devipatan, Gonda Division on an appeal preferred by the petitioner.

Having regard to the scheme provided under U.P. Control of Goondas Act, 1970, so far as the order of externment is concerned, the same proceeds on the establishment of the fact that the person who has been externed as a 'Goonda. The term 'Goonda' has been defined under the 'Act' of 1970 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.

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.]"

As said earlier, the District Magistrate, Gonda on the basis of two criminal cases and two beat informations of the same date and time had considered the instant petitioner as 'Goonda' and a person dangerous to the community against whom nobody is coming forward to lodge the report or tender any evidence.

In the considered opinion of this Court, having regard to the definition of 'Goonda', as provided herein-before, the material which has been referred to in the two impugned orders in order to canvass the petitioner as a 'Goonda' is not sufficient for the same. The two authorities mentioned above have proceeded to conclude the petitioner as a 'Goonda' on the basis of two first information reports wherein the charge sheet has also been filed and the two beat reports. In all probablity the two first information reports wherein the petitioner has been shown as an accused person and have been made the basis of passing the externment order are private disputes with regard to the some property and the penal offences pertaining to the forgery and using the forged documents as genuine and committing mischief have been levelled. There is no element in these penal provisions which may be termed the instant petitioner as a 'Goonda' , which may be dangerous to the society or public at large.

A Division Bench of this Court in 'Imran @ Abdul Quddus Khan vs. State of U.P. and others' reported in 2000 CrLJ. 1328 had opined as under:-

"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 al-most akin to the expression ''anti social ele-ment' occurring in Section 2(d) of Bihar Pre-vention 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, (1984) 3 SCC 14 : (AIR 1984 SC 1334). The meaning put to the aforesaid expression by the apex Court would squarely apply to the ex-pression 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 insteinct 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 a ''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 or 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. 11-1204--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.

14. Expressions like ''by habit' ''habitual' ''desperate' dangerous' and hazardous' cannot be flung in the face of a man with laxity or semanitics. The Court must insist on specificity of facts and a consistent course of conduct convincingly enough to draw the rigourous 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 a bona fide student as ''goonda' was not only arbitrary capricious and unjustified but also counter productive. A bona fide student who is pursuing 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 behaviour and not to punish the innocent stduents. 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 discretion, it may easily become an engine of oppression. 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.

The Judgment of the Division Bench placed herein-above, would clearly demonstrate that powers under the Act of 1970 are not required to be exercised because some first information report have been lodged against the person in the police station with regard to the commission of the crime and the same can only be exercised when a person is coming within the ambit of the definition of Goonda, as provided under Section 2(b) of the U.P. Control of Goondas Act, 1970.

Thus, in the considered opinion of this Court, the two first information reports pertaining to the private dispute and the two beat informations of the same date and time could not be termed as sufficient basis for designating a person as 'Goonda' or a person in a habit of committing offences, moreso when he has been granted bail therein by competent criminal courts and a civil suit is also pending pertaining to one of the first information report, which has been made the basis of declaring the petitioner as 'Goonda'.

It is to be recalled that though the impact of the externment order passed under the relevant provisions of the 'Goonda Act' shall remain alive for 06 months but the same will ruin the reputation of a person for a long time and perhaps the same could never be regained.

Having regard to all the facts and circumstances of the case, A reading of both the orders passed by the authorities concerned, in the background of the reasons given herein-before, would reveal that both orders do not satisfy the requirements of Section 2 and 3 of the U.P. Control of Goondas Act, 1970 and appears to have been passed in a mechanical manner which could not be endorsed by this Court. It was the utmost duty of the authority concerned to have come to the conclusions on the basis of cogent reasons that the petitioner is qualifying as a 'Goonda', as defined under the 'Act' of 1970 by stating acceptable and relevant material against him, which the authorities have failed to do. In the considered opinion of this Court, the material which has been made the basis of terming the petitioner as 'Goonda ' was not sufficient enough and, thus, both the impugned orders passed by the District Magistrate, Gonda of date 14.06.2022 and by the Commissioner Devipatan, Gonda Division dated 17.08.2022 suffer from inherent infirmity and illegality and could not be approved by this Court.

Resultanlty, the petition succeeds and is allowed. The impugned orders passed by the District Magistrate, Gonda of date 14.06.2022 and by the Commissioner Devipatan, Gonda Division dated 17.08.2022 is, hereby, quashed.

Order Date:- 19.10.2022/Praveen