Harun v. State of U.P. and 3 Others

Court No. - 80 Case :- CRIMINAL MISC. WRIT PETITION No. - 9368 of 2023 Petitioner :- Harun Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sharad Srivastava 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 (under Article 226 of the Constitution of India) has been moved with prayer to quash the impugned order dated 12.05.2023 passed by Commissioner, Meerut Division, Meerut in criminal appeal No. 394 of 2023 (Harun V.s State of U.P.) as well as externment order dated 08.02.2023 passed by Additional Police Commissioner Commissionerate, Ghaziabad in Case No. 40 of 2023 (State vs. Harun) under Section 2/3 U.P. Control of Goondas Act-1970, Police Station Kotwali, District Ghaziabad.

¶3It is submitted by learned counsel for the petitioner that in this case the proceeding under the provision of U.P. Control of Goondas Act-1970 was initiated by the Additional Police Commissioner Commissionerate, Ghaziabad on the basis of three cases, Case Crime No. 235 of 2018, under Sections 270, 429 I.P.C. and 3/11 Animal Cruelty Act, Case Crime No. 236 of 2018 under Section 4/25 Arms Act, Case Crime No. 279 of 2018 under Section 4/25 Arms Act in pursuance to beat information report Nos. 07 and 05 given by Inspector on 21.09.2020 and notice was issued on 27.09.2020. Out of which Case Crime No. 279 of 2018 under Section 4/25 was not registered against the petitioner and no any such charge sheet was filed against him regarding which questionnaire has been filed with rejoinder affidavit. The alleged cases against the petitioner is said to have been committed in the year 2018 and there is only single incident regarding which two cases got registered as Case Crime No. 235 of 2018, under Sections 270, 429 I.P.C. and 3/11 Animal Cruelty Act, Case Crime No. 236 of 2018 under Section 4/25 Arms Act. In this way, both cases are related to single incident on the basis of which proceedings under U.P. Control of Gundas Act-1970 cannot be initiated against the petitioner but after lapse of two years i.e. in the year 2020 and then externment order was passed in 2023 after lapse of three years and the proceedings were started though there was no any such case against the petitioner. No any such activity was reported against him that can be said to be likely to be 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 2018-2023 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 Police Commissioner Commissionerate, Ghaziabad as well as by the Commissioner, Meerut Division, 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.

¶8Considering 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 was registered in the year 2018 and prior to that there was no any case against the accused. No repetition of similar act has been alleged against the accused by the police and no any such evidence was led before the Additional Police Commissioner Commissionerate, Ghaziabad. 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 Police Commissioner Commissionerate, Ghaziabad. All these facts have not been taken into consideration either by the Additional Police Commissioner Commissionerate, Ghaziabad while passing the order of externment dated 08.02.2023 and by Commissioner, Meerut Division, Meerut in the order dated 12.05.2023.

¶9In my considered opinion, the orders passed by Additional Police Commissioner Commissionerate, Ghaziabad as well as Commissioner, Meerut Division, Meerut are not based on the sufficient material to bring the aforesaid offences under the purview of 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 Police Commissioner Commissionerate, Ghaziabad as well as Commissioner, Meerut Division, Meerut dated 08.02.2023 and 12.05.2023 are hereby set aside. Order Date :- 6.11.2023/ Suraj Srivastav High Court of Judicature at Allahabad