Abdhesh Yadav @ Abdhesh Kumar vs State Of U.P. And 3 Others
2023 Latest Caselaw 35213 ALL

Allahabad High Court

Abdhesh Yadav @ Abdhesh Kumar vs State Of U.P. And 3 Others on 15 December, 2023

Author: Subhash Chandra Sharma

Bench: Subhash Chandra Sharma

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:237910
 
Court No. - 80
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6352 of 2023
 

 
Petitioner :- Abdhesh Yadav @ Abdhesh Kumar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Artee Gupta,Ravindra Kumar Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Subhash Chandra Sharma,J.
 

1. Rejoinder affidavit filed by learned counsel for the petitioner is taken on record.

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

3. The present writ petition under Article 226 of the Constitution of India has been moved with following prayers :-

I- To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 13.01.2023 passed by the respondent no. 4/ Additional District Magistrate (Finance and Revenue), District Aligarh in Case No. 6881/2022, Computerized Case No. D202218020006881 (State Vs. Abdhesh Yadav), Under Section 3/4 U.P. Gunda Control Act, 1970, Police Station Dadon, District Aligarh as well as the impugned order dated 10.04.2023 passed by respondent no. 2/ Commissioner, Aligarh Division, Aligarh in Case No. 185/2023, Computerized Case No. C202318000000185 (Abdhesh Yadav Vs. State of U.P.), under Section 6 of U.P. Gunda Control Act, 1970, Police Station Dadon, District Aligarh.

II-Issue a writ, order or direction in the nature of mandamus directing the respondent no. 3/ District Magistrate, District Aligarh not to compel the petitioner to leave his place, not to interfere in peaceful life of the petitioner.

III- Issue any other suitable writ order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

4. It is submitted by learned counsel for the petitioner that in this case the proceedings under the provision of U.P. Control of Goondas Act-1970 was initiated by the Additional District Magistrate (Finance and Revenue), Aligarh on the basis of two cases comprising of Case Crime No. 37 of 2022 under Sections 147, 188, 353, 504 I.P.C. and 7 Criminal Act and Case Crime No. 48 of 2022 under Sections 452, 504, 506, 354(Ka) on the basis of police report dated 17.09.2022 through S.S.P. the proceedings were initiated under Section 3/4 of U.P. Control of Goondas Act-1970. There is no any other case either registered or pending against the petitioner. It is further submitted that on the basis of two cases proceedings under U.P. Control of Goondas Act-1970 cannot be initiated. The alleged cases against the petitioner are said to have been committed in the year 2022 but no any proceedings under the aforesaid acts were initiated in that year but after lapse of one year, the proceedings were started though there was no any such case against the petitioner. No any explanation was mentioned in the order either by the Additional District Magistrate (Finance and Revenue), Aligarh or by the Commissioner while passing the order regarding time gap. No any such activity was reported against him that can be said likely to be desperate and dangerous to the community and no any other repeated offence was committed by him to show that he was habitual offender but this fact was not considered by both the authorities while passing the orders in question. In this way, the order passed by the both the authorities cannot be said to be in conformity with law as provided under the Act.

5. Learned A.G.A. opposed the prayer as aforesaid and urged that order passed by the learned courts below are based on the material on record and also in conformity with provisions of law. After considering the facts of the case and material on record, the orders in question were passed by the Additional District Magistrate (Finance and Revenue), Aligarh as well as by the Commissioner, Aligarh Division, Aligarh, therefore, the petition being devoid of merit is liable to be dismissed.

Section 2 (b) of Uttar Pradesh Control of Goondas Act, 1970 defines the word 'Goonda' which is as under: Section 2(b) of the Act-

'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 153B or Section 294 of the Indian Penal Code or Chapter XV, or Chapter XVI, Chapter XVII or Chapter XXII of the said Code;

(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; or

(vii) is a house grabber.

6. 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.

7. 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.

8. Considering the submissions made by learned counsel for the petitioner as well as learned A.G.A. for the State and from the perusal of record, it appears that the cases against the petitioner were registered in the year 2022 and prior to that there was no any case against him. No repetition of similar act has been alleged against the petitioner by the police and no any such evidence was led before the Additional District Magistrate (Finance and Revenue), Aligarh. Even he has not been convicted in any of the case till now as per submission made by learned counsel for the petitioner. There is nothing on record to show that the activities of the petitioner are in the nature of threatening to the people or his reputation is such as can be said to be dangerous to the community. There appears no any co-relation between the said acts of the petitioner, the time gap and the proceedings initiated against him by the Additional District Magistrate (Finance and Revenue), Aligarh. All these facts have not been taken into consideration either by the Additional District Magistrate (Finance and Revenue), Aligarh while passing the order of externment dated 13.01.2023 and by the Commissioner, Aligarh Division, Aligarh in the order dated 10.04.2023.

9. In my considered opinion, the orders passed by Additional District Magistrate (Finance and Revenue), Aligarh as well as Commissioner, Aligarh Division, Aligarh are not based on the sufficient material to bring the aforesaid offences under the purview of definition under Section 3/4 of the U.P. Control of Goondas Act, 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 and the orders passed by Additional District Magistrate (Finance and Revenue), Aligarh as well as Commissioner, Aligarh Division, Aligarh dated 13.01.2023 and 10.04.2023 are hereby set aside.

Order Date :- 15.12.2023

Suraj Srivastav