Mohd. Yakub Nizami v. State of U.P. and 3 Others

Court No. - 80 Case :- CRIMINAL MISC. WRIT PETITION No. - 3776 of 2020 Petitioner :- Mohd. Yakub Nizami Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Jagdish Prasad Mishra Counsel for Respondent :- G.A.,Hridaya Narain Singh Hon'ble Subhash Chandra Sharma,J.

¶1List revised. None appeared for the opposite party even in revised call.

¶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 13.02.2020 passed by respondent no.2, Commissioner Saharanpur, region-Saharanpur, under Section 6 of the U.P. Control of Gunda Act in Case No. 00215 of 2020 (Computer Case No. C202009000000215), Mohd. Yakub Nizami versus State of U.P. and another, and also order dated 23.12.2019 passed by respondent no. 3, Additional District Magistrate (Administration), Saharanpur in Case No. 1976 of 2018 under Section 3(1) of Gunda Control Act, State verus Yakub, Police Station-Nakud, District-Saharanpur.

¶4It is submitted by learned counsel for the petitioner that on the basis of two cases, the proceedings under Section 3(1) U.P. Control of Gunda Act, 1970 were initiated by the Additional District Magistrate, Saharanpur based on police report dated 07.07.2018, against the order passed by learned ADM, an appeal was filed before the learned Commissioner which was also dismissed without considering the facts of the case. It is further submitted that the Case Crime No. 211/2016 under Sections 325, 323, 504, 506 IPC was related to property between the family members. On the basis of which, it cannot be said that the petitioner was a habitual offender or this comes within the purview of definition as given under the Act. It is also submitted that Case Crime No. 200/2018 under Sections 307, 427, 504, 506 IPC was also related to family dispute and the proceeding of the case was stayed by this Court. There is a beat report dated 20.06.2018 which was given by police personnel without any material. In this way, there was nothing on record to show that the activities of the petitioner were covered within the definition of Gunda as defined under Section 3(1) of the Act, therefore, request to quash the orders passed by the learned courts below.

¶5Learned A.G.A. opposed the prayer as aforesaid and urged that in the period elapsed 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 (Administration), Saharanpur as well as by the Commissioner Saharanpur, region-Saharanpur, 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 Ist case against the petitioner was registered in the year 2016 and prior to that there was no any case against the petitioner, and the IInd in the year 2018 and both the cases are related to family dispute. The proceedings in IInd case are stayed by this Court. 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 (Administration), Saharanpur. 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 (Administration), Saharanpur. All these facts have not been taken into consideration either by the Additional District Magistrate (Administration), Saharanpur while passing the order of externment dated

23.12.2019 or by Commissioner Saharanpur in the order dated

13.02.2020.

¶10In my considered opinion, the orders passed by Additional District Magistrate (Administration), Saharanpur as well as Commissioner, Saharanpur are not based on 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 (Administration), Saharanpur as well as Commissioner Saharanpur, dated 23.12.2019 and

13.02.2020, respectively are hereby set aside and this petition is allowed. Order Date :- 12.10.2023 Anjali High Court of Judicature at Allahabad