Amit Tiwari vs State Of U.P. Thru. Secy. Deptt. Of ...
2023 Latest Caselaw 6968 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 1791 of 2023
 

 
Petitioner :- Amit Tiwari
 
Respondent :- State Of U.P. Thru. Secy. Deptt. Of Home, Lko. And 4 Others
 
Counsel for Petitioner :- Pankaj Kumar Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard Sri Pankaj Kumar Shukla, learned counsel for the petitioner, Sri Manoj Singh, learned Additional Government Advocate for the State and perused the record.

This writ petition under Article 226 of the Constitution of India has been filed with a prayer to quash the order dated 08.02.2023 passed by the opposite party No. 2-Commissioner, Devi Patan Mandal, District Gonda in Case No. 1786 of 2022, Amit Tiwari Vs. State of U.P., rejecting the appeal filed on behalf of petitioner and confirming the externment order dated 14.12.2022 passed by opposite party No. 3-District Magistrate, Gonda, by which the petitioner was directed to expel out for six months from District Gonda. Both the orders dated 08.02.2023 and 14.12.2022 have been challenged in this writ petition.

Learned counsel for the petitioner submits that in reference to only two cases bearing Case Crime No. 878 of 2018, under Sections 323/427/506 IPC and Case Crime No. 236 of 2017, under Sections 452, 323, 504, 506, 427, 386 IPC at Police Station Kotwali Nagar, District Gonda, a notice dated 04.09.2021 under Section 3 of U.P. Control of Goondas Act, 1970 (hereinafter referred to as the 'Act') was issued to the petitioner for submitting his representation/ reply.

Learned counsel for the petitioner further submits that on the basis of wrong and false first information report, the impugned order dated 14.12.2022, under Section 3 of the Act has been passed whereby the petitioner was directed to remain outside the District for a period of six months. Being aggrieved the petitioner preferred an appeal bearing Case No. Case No. 1786 of 2022 under Section 6 of the Act before the opposite party No. 2, who vide impugned order dated 08.02.2023 rejected the appeal of the petitioner and confirmed the externment order dated 14.12.2022 passed by opposite party No. 3.

Learned counsel for the petitioner further submits that without considering the material evidence on record, the opposite party No. 2 without application of mind in a mechanical manner has passed the impugned order dated 08.02.2023 and rejected the appeal of the petitioner. Even though learned appellate court has not considered the mandate of Hon'ble Supreme Court wherein in catena of judgments the Hon'ble Apex Court on the basis of no material and false case the proceedings of the case were quashed.

Learned counsel for the petitioner further submits that both the impugned orders have been passed without following due procedure of law. The notice dated 04.09.2021 issued under Section 3 of the Act is also defective as no description has been given therein about the allegations mentioned about the offences alleged to be committed as per the Act. Further in absence of information about general material allegations the petitioner was unable to produce evidence in support of his explanation. Thus, the notice issued to the petitioner is defective one and the impugned orders passed in pursuance of the said notice is illegal and have been passed in cursory manner without considering the evidence on record.

It will be beneficial to extract definition of "Goonda" in Section 2(b) and Section 3 of the 1970 Act. Section 2 (b) 1970 Act are reproduced 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, Chapter XVI, Chapter XVII or Chapter XXII of the said code: or

(ii) has been convicted not less than thrice for an offence punishable under the Supression 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

(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.]

3. Externment, etc. of Goondas. -Where it appears to the District Magistrate.-

(a) that any person is a Goonda; and

(b) (i) that his movements or acts in the district or any part hereof are causing, or are calculated to cause alarm, danger or harm to persons or property;or

(ii) that there are reasonable grounds for believing that he is engaged or about to engage, in the district or any part thereof, in the commission of an offence referred to in subclauses (i) to (iii) of clause (b) of Section 2, or in the abetment of any such offence; and]

(c) that witnesses are not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or property-

the District Magistrate shall by notice in writing inform him of the general nature of the material allegations against him in respect of clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them.

(2) The person against whom an order under this section is proposed to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires, and also of examining any other witnesses that he may wish to produce in support of his explanation, unless for reasons to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay.

(3) Thereupon the District Magistrate on being satisfied that the conditions specified in clauses (a), (b) and (c) of sub-section (1) exist may by order in writing-

[(a) direct him to remove himself outside the area within the limits of his local jurisdiction or such area and any district or districts or any part thereof, contiguous thereto, by such route, if any, and within such time as may be specified in the order and to desist from entering the said area or the area and such contiguous district or districts or part thereof, as the case may be from which he was directed to remove himself until the expiry of such period not exceeding six months as may be specified in the said order;]

(b)(i) require such person to notify his movements or to report himself, or to do both, in such manner, at such time and to such authority or person as may be specified in the order;

(ii) prohibit or restrict possession or use by him of any such article as may be specified in the order;

(iii) direct him otherwise to conduct himself in such manner as may be specified in the order, until the expiry of such period, not exceeding six months as may be specified in the order."

In support of his case the learned counsel for the petitioner has placed reliance upon the judgment in the case of Vijay Narain Singh Vs. State of Bihar and others : (1984) 3 SCC 14 as well as the order dated 07.07.2021 passed by a coordinate Bench of this Court in Misc. Single No. 5160 of 2021, Sakeel @ Mohd. Shakeel Khan Vs. Commissioner, Devipatan Mandal, Gonda and others.

Learned counsel for the petitioner submits that in Vijay Narain Singh (supra), the Hon'ble Supreme Court has held that it is essential to refer at least two incidents of commission of crime for applicability of Clause (i) of Section 2(b) of the Act and 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) of the Act. It has been argued that as per the definition and the law settled by this Court as well by the Hon'ble Apex Court, one cannot be treated to be a habitual offender unless and until there is recurrence of offences and as there is a reference one incident only in the notice, the petitioner could not be deemed to be a habitual offender on the basis of that single incident only and so the notice fails to satisfy the legal requirement.

Learned AGA submits that the impugned orders have rightly been passed by the authorities concerned, however, he has not disputed the judgment referred by the learned counsel for the petitioner.

In view of above submissions and considering the arguments advanced by the learned counsel for the parties and considering the mandate of judgments of Hon'ble Apex Court as well as of this Court, referred above, the matter requires consideration on facts and law, both.

Learned AGA has accepted notice on behalf of all the opposite parties. He prays for and is allowed three weeks' time to file counter affidavit. Rejoinder affidavit may be filed by the learned counsel for the petitioner within two weeks, thereafter.

List this case on 31.05.2023 before appropriate Court.

Till the next date of listing, effect and operation of the impugned order dated 14.12.2022 passed by opposite party No. 3-District Magistrate, Gonda and order dated 08.02.2023 passed by the opposite party No. 2-Commissioner, Devi Patan Mandal, District Gonda in Case No. 1786 of 2022, Amit Tiwari Vs. State of U.P., shall remain stayed.

Order Date :- 3.3.2023

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