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Ashok Kumar vs State Of … on 24 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

Court No. – 1

Case :- MISC. BENCH No. – 2074 of 2019

Petitioner :- Ashok Kumar

Respondent :- State Of U.P.Thru.Prin.Secy.Home Ors.

Counsel for Petitioner :- Nripendra Mishra

Counsel for Respondent :- G.A.

Hon’ble Pankaj Kumar Jaiswal, J.

Hon’ble Karunesh Singh Pawar, J.

(Delivered by Justice Karunesh Singh Pawar, J.)

(1) Short counter affidavit filed today on behalf of the respondents State is taken on record.

(2) Heard Sri Nripendra Mishra, learned counsel for the petitioner and learned AGA for the respondents State.

(3) By this writ petition under Article 226 of the Constitution of India, the petitioner is praying for quashment of notice dated 13.1.2017 issued by Additional District Magistrate, Bahraich under Section 3 (1) of the U.P. Control of Goondas Act, 1970 (hereinafter referred to as “1970 Act”), Police Station Rupaidiha, District Bahraich..

(4) Learned counsel for the petitioner has submitted that the impugned notice has been issued against the petitioner only on the ground of his involvement in a solitary case i.e. Case Crime No. 1540 of 2014, under Sections 354, 452, 506 I.P.C., Police Station Rupaidiha, Bahraich, in which, the petitioner was acquitted by the learned Court below vide judgment and order dated 30.05.2015 i.e. much prior to issuance of the impugned show cause notice. He also submitted that the petitioner is neither a Gang leader nor any Gang member of any gang. Therefore, issuance of impugned notice to the petitioner amounts to violation of his right to life and personal liberty guaranteed under Article 21 of the Constitution of India. For the above said reasons, he prayed that a suitable direction may be issued to the respondents to quash the impugned notice.

(5) Per contra, based on the short counter affidavit, learned Additional Government Advocate has submitted that the learned Court below had acquitted the petitioner in Case Crime No. 1540 of 2014 on the basis of doubt and the prosecutrix had supported the prosecution case at the initial stage but in subsequent stage, she had changed her stand. The Challani report, which was sent to the Additional District Magistrate through Superintendent of Police, Bahraich make it crystal clear that the petitioner is having notorious reputation and due to this, no one is coming forward to give evidence against him. He further submits that when the notice was served upon the petitioner on 12.12.2018, he has not appeared before the learned Court below on 24.1.2019 and the next date is fixed for 25.2.2019. He, therefore, submitted that there is no manifest illegality in issuing the impugned notice to the petitioner.

(6) Section 2 (b) of the 1970 Act defines ‘Goonda’, which reads as under :

(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 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 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;

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 purposes 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 pruposes 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

Explanation- ‘House-grabber’ means a person wo 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.”

(7) A Division Bench of this Court in the case of Imran alias Abdul Qudus Khan Vs. State of U.P. and others : 2000 (1) ACC 171 (HC), while examining the question whether a person can be labelled as ‘Goonda’ and notice under Section 3(3) of the U.P. Control of Goondas Act can be clamped upon him only on the basis of a solitary incident has in paragraph nos. 11, 12, 13 and 14 of its aforesaid judgment observed as hereunder:-

“11. Ex facie, a person is termed as a ‘goonda’ if he is a habitual criminal. The provisions of section 2 (b) of the Act are almost akin to the expression ‘anti social element’ occurring in section 2 (d) of Bihar Prevention of Crimes Act, 1981. In the context of the expression ‘anti social element’ the connotation ‘habitually commits’ came to be interpreted by the apex court in the case of Vijay Narain Singh V. State of Bihar and others (1984) 3 SCC-14. The meaning put to the aforesaid expression by the apex court would squarely apply to the expression used in the Act, in question. The majority view was that the word ‘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 referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. Even the minority view which was taken in Vijay Narain’s case (supra) was that the word ‘habitually’ means ‘by force of habit’. It is the force of habit inherent or latent in an individual with a criminal instinct with a criminal disposition of mind, that makes a person accustomed to lead a life of crime posing danger to the society in general. If a person with criminal tendencies consistently or persistently or repeatedly commits or attempts to commit or abets the commission of offences punishable under the specified chapters of the Code, he should be considered to be an ‘anti social element’. There are thus two views with regard to the expression ‘habitually’ flowing from the decision of Vijay Narain’s case (supra). The majority was inclined to give a restricted meaning to the word ‘habitually’ as denoting ‘repetitive’ and that on the basis of a single act cannot be said to be forming the habit of the person. That is to say, the act complained of must be repeated more than once and be inherent in his nature. The minority view is that a person in habitual criminal who by force of habit or inward disposition inherent or latent in him has grown accustomed to lead a life of crime. In simple language, the minority view was expressed that the word ‘habitually; means ‘by force of habit’. The minority view is based on the meaning given in stroud’s Judicial Dictionary, Fourth Ed. Vol. II? 1204-habitually requires a continuance and permanence of some tendency, something that has developed into a propensity, that is, present from day to day. Thus, the word- ‘habitual’ connotes some degree of frequency and continuity.

12. The word ‘habit’ has a clear well understood meaning being nearly the same as ‘accustomed’ and cannot be applied to single act. When we speak of habit of a person, we prefer to his customary conduct to pursue, which he has acquired a tendency from frequent repetitions. In B.N. Singh V. State of U.P.AI.R. 1960-Allahabad ?754 it was observed that it would be incorrect to say that a person has a habit of anything from a single act. In the Law Lexicon ?Encyclopedic Law Dictionary, 1997 Ed. by P. Ramanatha Aiyer, the expression ‘habitual’ has been defined to mean as constant, customary and addicted to a specified habit; formed or acquired by or resulting from habit; frequent use or custom formed by repeated impressions. The term ‘habitual criminal’, it is stated may be applied to any one, who has been previously more than twice convicted of crime, sentenced and committed to prison. The word ‘habit’ means persistence in doing an act, a fact, which is capable of proof by adducing evidence of the commission of a number of similar acts. ‘Habitually’ must be taken to mean repeatedly or persistently. It does not refer to frequency of the occasions but rather to the invariability of the practice.

13. The expression ‘habitual criminal’ is the same thing as the ‘habitual offender’ within the meaning of section 110 of the Code of Criminal Procedure, 1973. This preventive Section deals for requiring security for good behavior from ‘habitual offenders’. The expression ‘habitually’ in the aforesaid section has been used in the sense of depravity of character as evidenced by frequent repetition or commission of offence. It means repetition or persistency in doing an act and not an inclination by nature, that is, commission of same acts in the past and readiness to commit them again where there is an opportunity.

14. Expressions like ‘by habit’ ‘habitual’ ‘desperate’ ‘dangerous’ and ‘hazardous’ cannot be flung in the face of a man with laxity or semantics. The court must insist on specificity of facts and a consistent course of conduct convincingly enough to draw the rigorous inference that by confirmed habit, the petitioner is sure to commit the offence if not externed or say directed to take himself out of the district. It is not a case where the petitioner has ever involved himself in committing the crime or has adopted crime as his profession. There is not even faint or feeble material against the petitioner that he is a person of a criminal propensity. The case of the petitioner does not come in either of the clauses of Section 2 (b) of the Act, which defines the expression ‘Goonda’. Therefore, to outright label bona fide student as ‘goonda’ was not only arbitrary capricious and unjustified but also counter productive. A bona fide student who is pursing his studies in the Post Graduate course and has never seen the world of the criminals is now being forced to enter the arena. The intention of the Act is to afford protection to the public against hardened or habitual criminals or bullies or dangerous or desperate class who menace the security of a person or of property. The order of externment under the Act is required to be passed against persons who cannot readily be brought under the ordinary penal law and who for personal reasons cannot be convicted for the offences said to have been committed by them. The legislation is preventive and not punitive. Its sole purpose is to protect the citizens from the habitual criminals and to secure future good behavior and not to punish the innocent students. The Act is a powerful tool for the control and suppression of the ‘Goondas’; it should be used very sparingly in very clear cases of ‘public disorder’ or for the maintenance of ‘public order’. If the provisions of the Act are recklessly used without adopting caution and desecretion, it may easily become an engine of operession. Its provisions are not intended to secure indirectly a conviction in case where a prosecution for a substantial offence is likely to fail. Similarly the Act should not obviously be used against mere innocent people or to march over the opponents who are taking recourse to democratic process to get their certain demands fulfilled or to wreck the private vengeance.”.

(8) A bare perusal of the aforesaid preposition makes it abundantly clear that for taking action under Section 3 of the 1970 Act against a person as defined under clause (i) of Section 2(b) of the Act there must be more than one offence against the alleged person.

(9) In the case in hand, we find that the impugned show cause notice dated 13.1.2017 (Annexure-1 to the writ petition) has been issued by the respondent no. 2 against the petitioner on the basis of his involvement in only one case, namely, Case Crime No. 1540 of 2014, under Sections 354, 452, 506 I.P.C., Police Station Rupaidih, district Bahraich, in which the petitioner was acquitted by the learned Court below vide judgment and order dated 30.5.2015 i.e. much prior for issuance of the impugned notice. Since there is only one reference of the offence in the impugned notice and the petitioner was acquitted in the said offence prior for issuance in the impugned notice, the petitioner cannot be deemed to be a habitual offender.

(10) In view of aforesaid, the impugned show cause notice dated 13.01..2017 passed by Respondent no. 2/Additional District Magistrate, Bahraich under Section 3 of the U.P. Control of Goodas Act, 1970 is hereby quashed.

(11) The writ petition is, accordingly, allowed but without any order as to costs.

.

(Karunesh Singh Pawar, J.) (Pankaj Kumar Jaiswal, J.)

Order Date :- 24.2.2020

Ajit/-

 

 

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