Salman @ Sher v. State of U.P. and 3 Others

Court No. - 80 Case :- CRIMINAL MISC. WRIT PETITION No. - 2881 of 2023 Petitioner :- Salman @ Sher Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shailendra Pratap Singh Counsel for Respondent :- G.A. Hon'ble Subhash Chandra Sharma,J.

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

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

¶3The present writ petition (under Article 226 of the Constitution of India) has been moved with prayer to quash the impugned order dated 09.12.2022 passed by respondent No.2 Commissioner, Meerut Division, Meerut under Section 6 of U.P. Control of Gundas Act-1970 as well as externment order dated 23.06.2022 passed by respondent No.3, Additional District Magistrate (Nagar) Meerut under Section 3/4 U.P. Control of Goondas Act-1970.

¶4It 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 District Magistrate on the basis of two cases comprising of Case Crime No. 456 of 2017, under Section 414 I.P.C. and Case Crime No. 88 of 2019 under Sections 147, 225, 332, 342, 353, 504 I.P.C. and 7 C.L.A. Act in pursuance to beat information report No. 47 dated 30.07.2021, beat information report No. 26 dated 31.07.2021 and beat information report No. 27 dated 31.07.2021 and charge sheet was filed on 16.11.2017. It is further submitted that on the basis of two cases proceedings under U.P. Control of Gundas Act-1970 cannot be initiated. The alleged cases against the petitioner are said to have been committed in the year 2017 and in 2019 but no any proceedings under the aforesaid Acts were initiated in that year but after lapse of more than two and four years respectively i.e. in the year 2021, 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 criminal history as shown by learned A.G.A. is not against the petitioner he moved surrender application before the court concerned in which reports from the police station concerned was given that he was not wanted in those cases, therefore, there is no any criminal history 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.

¶5Learned A.G.A. opposed the prayer as aforesaid and urged that in the period elapsed between the year 2017 to 2019 and 2019 to 2021 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, (Nagar) Meerut as well as by the Commissioner, Meerut, therefore, the petition being devoid of merit is liable to be dismissed.

¶6Section 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.

¶7It 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.

¶8In 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.

¶9Considering 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 2017 and 2019 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 District Magistrate, (Nagar) Meerut. 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, (Nagar) Meerut. All these facts have not been taken into consideration either by the Additional District Magistrate, (Nagar) Meerut while passing the order of externment dated

23.06.2022 and by Commissioner, Meerut in the order dated 09.12.2022.

¶10In my considered opinion, the orders passed by Additional District Magistrate, (Nagar) Meerut as well as Commissioner, Meerut are not based on the sufficient material to bring the aforesaid offences under the purview of Section 3(3) 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, (Nagar) Meerut as well as Commissioner, Meerut dated 23.06.2022 and 09.12.2022 are hereby set aside. Order Date :- 20.11.2023/Suraj Srivastav High Court of Judicature at Allahabad