Lalman Yadav v. State of U.P. and 2 Others

Court No. - 80 Case :- CRIMINAL MISC. WRIT PETITION No. - 17333 of 2023 Petitioner :- Lalman Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pavan Kishore,Manish Kumar Singh Counsel for Respondent :- G.A. Hon'ble Subhash Chandra Sharma,J.

¶1Heard learned counsel for the petitioner as well as learned A.G.A. for the State and perused the record.

¶2The present writ petition has been moved with prayer to quash the impugned order dated 08.08.2023 passed by Additional District Magistrate ( Administration) Banda in Case No. 813 of 2022, under section 3(1) Uttar Pradesh Control of Goondas Act, 1970, Police Station Girawan, District Banda and order dated

04.10.2023 passed by Commissioner, Chitrakoot Dham Division Banda in appeal No. 1185 of 2023, Computer Appeal No. C202307000001185 under section 6 of Uttar Pradesh Control of Goondas Act, 1970.

¶3It is submitted by learned counsel for the petitioner that in this case the proceedings under section 3(1) of Uttar Pradesh Control of Goondas Act-1970 was initiated by the Additional District Magistrate ( Administration) Banda on the basis of three Cases as Case Crime No. 95 of 2020, under Sections 147, 148, 149, 386, 387, 342 I.P.C, Case Crime No. 96 of 2020, under section 3/25 Arms Act, Case Crime No. 142 of 2020 under Sections 2/3 Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, beat information Report No. 27 dated

28.09.2022 and notice was issued on 31.10.2022. These proceedings were concluded on 08.08.2023 by the Additional District Magistrate, Banda while making the order for externment for a period of six months from limit of District but this order was challenged before the learned Appellate Court but the appeal was also dismissed on the ground that the period for externment was expired but no merit of the order was considered by the appellate court. The appellate court has also dismissed the appeal on the basis of beat information Report No. 27 dated

28.09.2022 proceedings under present Act were initiated. There is no any other case either registered or pending against the petitioner. It is further submitted that on the basis of three cases proceedings under U.P. Control of Goondas Act-1970 cannot be initiated. The alleged case against the petitioner is said to have been committed in the year 2020 but no any proceeding under the aforesaid Act was initiated in that year but after lapse of more than two years, 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 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. It is also submitted that there is no any criminal antecedent against the petitioner. 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.

¶4Learned A.G.A. opposed the prayer as aforesaid and urged that in the period elapsed between the year 2020-2022 there was no any other case registered against him but it was on account of bad reputation of the petitioner as a result no one could dare to inform the police about the activities of the petitioner. After considering the facts of the case and material on record, the orders in question were passed by the Additional District Magistrate, Hapur as well as by the Commissioner, Meerut, therefore, the petition being devoid of merit is liable to be dismissed.

¶5Section 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.

¶6It 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.

¶7In 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.

¶8The decision of the Division Bench in Imran shows that powers under the Act of 1970 are not required to be exercised, because someone has been reported to the Police in connection with a serious crime. It is also not to be exercised because that man has been admitted to bail. It has to be exercised against a person who, on the basis of tangible material on record before the Authorities under the Act of 1970, can be classified as a goonda, under one or the other clauses of Section 2(b) of that Act. It must also be borne in mind that the Act of 1970, being one that seriously abridges liberty, no clause of the Statute can be liberally construed. It has to be strictly construed in favour of the citizen.

¶9On considered the facts and circumstances of the case submissions made by learned counsel for the petitioner as well as learned A.G.A. for the State and from the perusal of record, the orders passed by courts below, it transpires that the proceedings under the act were initiated on the basis of three cases. There is no any other material on record to show that the petitioner was habitual offender and his reputation is dangerous to the community. In the absence of material as required for proceeding under Section 3(1) of U.P. Control of Goondas Act, no externment order can be passed lawfully. The order passed by the learned appellate court also shows that no merit was considered by the learned court but appeal was dismissed only on the ground that period of six months of externment was expired. This can also not be said to be lawful and inconformity wtih provisions of law. In this way, the orders passed by the learned trial court as well as learned appellate court cannot be said to be lawful and appropriate and passed on material on record. As a result it warrant interference by this Court and this petition, having merit, is liable to allowed.

¶10This petition is allowed and the orders passed by the Additional District Magistrate, (Administration) Banda as well as appellate court, Commissioner Chitrakoot Dham Division, Banda are hereby set aside. Order Date :- 6.11.2023 Suraj Srivastav High Court of Judicature at Allahabad