Allahabad High Court
Shanker Prasad Jaiswal vs State Of U.P. And 3 Others on 14 December, 2023
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:237319
Court No. - 80
Case :- CRIMINAL MISC. WRIT PETITION No. - 16553 of 2014
Petitioner :- Shanker Prasad Jaiswal
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ashish Kumar Nagvanshi,Amar Bahadur Maurya,Sudarshan Singh
Counsel for Respondent :- Govt.Advocate
Hon'ble Subhash Chandra Sharma,J.
1. Heard learned counsel for the petitioner as well as learned A.G.A. for the State and perused the record.
2. The present writ petition (under Article 226 of the Constitution of India) has been moved with prayer to quash the impugned order dated 22.08.2012 passed by District Magistrate Chandauli and order dated 11.09.2014 passed by Commissioner, Varanasi Division, Varanasi and also pray to issue a writ, order or direction in the nature of mandamus directing the District Magistrate Chandauli not implement the order dated 22.08.2012 passed by him and order dated 11.09.2014 passed by Commissioner Varanasi Division, Varanasi.
3. It is submitted by learned counsel for the petitioner that in this case an order for externment under Section 3(1) of U.P. Control of Goonda Act, 1970 were initiated on the basis of four cases as Case Crime No. 142 of 2005 under Sections 332, 353, 343, 504 I.P.C., Case Crime No. 309 of 2009 under Sections 143 and 283 I.P.C., Case Crime No. 115 of 2010 under Sections 406, 417 and 506 I.P.C. and 3 (1) SC/ST Act. It is further submitted that now no proceedings in the aforesaid crime numbers is pending against the petitioner. In Case Crime No. 142 of 2005 after full trial acquittal has been made and Case Crime No. 309 of 2009 has been directed to be withdrawn by the State Government by letter dated 12.02.2014 and in Case Crime No. 115 of 2010 and Case Crime No. 136 of 2011 investigation is concluded in final report. In this way no any offence was found to be established against the petitioner either during trial or investigation. All these facts were not taken into consideration by the learned District Magistrate at the time of passing the order dated 22.08.2012 against which appeal was filed but it was also dismissed by the learned Commissioner without applying its judicial mind and considering the aforesaid facts, therefore requested to allow the petition and set aside the orders passed by learned District Magistrate dated 22.08.2012 and by learned Commissioner dated 11.09.2014.
4. Learned A.G.A. opposed the prayer as aforesaid but could not dispute the fact that the cases as aforesaid have come to an end in the like manner as mentioned above.
5. It is to note that for the act of the accused to come under the definition of Goonda there must be material to show that the accused was a habitual offender and committed the offence as aforesaid repeatedly and his general reputation is desperate and dangerous to the community or he habitually passes indecent remarks on women or girls. It is also to note that there must be reasonable nexus between the act of the accused and its impact on the society. There must not be time gap between the proceedings under this Act and the acts said to be committed by the accused must show relation between the two. The material on record must also show that the accused-person was a habitual offender and he committed the offences under Chapter 16, 17 and 22 of the Indian Penal Code.
6. In the case of Shankar Ji Shukla vs Ayukt, Allahabad Mandal, Allahabad 2005 (52) ACC 638 this Court observed that:
The emphasis is on the word habitual and a single or two acts after a long gap does not amount to the term 'Habitually'. The expression '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. Because, the idea of 'habit' involves an element of persistence and a tendency to, repeat the acts or omissions of the same class or kind, if 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. Learned counsel for the petitioner further; relied on the case of Imran@Abdul Qaddus Khan v. State of U.P. and Ors. 2001(1) JIC 431 (All). In Imran's case (Supra), the Court relied on the judgment of Hon'ble Supreme Court in the case of Vijay Narain Singh v. State of Bihar and Ors. (1984) 3 SCC 14 for defining the term 'Goonda'. It was further held in Imran's case (supra) that even the minority view which was taken in Vijay Narain's case (Supra) was that the word 'habitually' means 'by force of habit'. From the facts found above I find that the petitioner is not a habitual offender and he cannot be brought under the term 'Goonda' as defined under the Act.
7. Considering the submissions made by learned counsel for the petitioner as well as learned A.G.A. for the State, the material on record, the orders passed by the learned District Magistrate as well as learned appellate court and the fact that the proceedings were initiated on the basis of four cases registered against the petitioner out of which in one case after trial he was acquitted and in another direction for withdrawal of prosecution was made by the State Government and in other two cases after investigation no prima facie was found to be established, as a result final report was submitted by the police. In this way, the activities of the petitioner cannot be said to be covered with the definition as given under Section 3(1) of U.P. Control of Goondas Act, 1970, therefore the orders passed by both the authorities cannot sustain in the eyes of law, as a result this petition has force and is allowed. In view of the above, the orders passed by learned District Magistrate, Chandauli dated 22.08.212 and by learned Commissioner, Varanasi Division, Varanasi dated 11.09.2014 are hereby set aside.
Order Date :- 14.12.2023
Suraj Srivastav
