Court No. - 40
Case :- CRIMINAL MISC. WRIT PETITION No. - 34068 of 2018
Petitioner :- Jagtarsingh
Respondent :- State Of U.P. And Another Counsel for Petitioner :- Anuj Bajpai Counsel for Respondent :- G.A.
Hon'ble Bala Krishna Narayana,J. Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
This writ petition has been filed by the petitioner with a prayer to issue a writ, order or direction in the nature of certiorari quashing the show cause notice dated 02.08.2018 issued by the respondent no.2/Additional District Magistrate (Administrative), District- Shahjahanpur, u/s 3 (1) of U.P. Control of Goondas Act, 1970, P.S.- Tilhar, District- Shahjahanpur.
It has been submitted by the learned counsel for the petitioner that the impugned show-cause notice has been issued against the petitioner only on the ground of his involvement in a solitary case. He further submitted that petitioner is neither a Gang Leader nor any Gang Member of any Gang and has falsely been implicated in Case Crime No. 29 of 2018 under Section 3 of Prevention of Damage to Public Property Act. He further submitted that Hon'ble Apex Court in the case of Imran alias Abdul Qudus Khan Versus State of U.P. and others reported in 2000 (Suppl.) ACC 171 (HC) has taken the view that for a person to be a "Goonda" under sub-clause (i) (b) is to be a person who has to his credit repeated/ persistent overt acts not isolated and individual act and in view of the above, the impugned show-cause notice is liable to be quashed.
Per contra learned A.G.A. submitted that the petitioner has failed to make out any case for quashing the impugned show-cause notice at this stage as he can raise all the grounds taken by him in this writ petition in his reply which he may file before the respondent no. 2, Additional District Magistrate (Administrative), District- Shahjahanpur in response to the show-cause notice, therefore this petition is premature and does lie at this stage.
We have heard the learned counsel for the petitioner and learned A.G.A. and perused the impugned show-cause notice and other material brought on record and the law report cited by the learned counsel for the petitioner and learned A.G.A. in support of their submissions.
A Division Bench of this Court in the case of Imran alias Abdul Qudus Khan (supra) 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 judgement 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 INDIAN LAW REPORTS 6 ALLAHABAD SERIES [2000 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.".
Thus, what follows from the above is that a person can be termed as "Goonda" and clamped with a show-cause notice under Section 3(3) of the Act and there must be material indicating that he either by himself or as a member or leader or a gang, habitually attempts to commit, or abets the commission of offences punishable under Sections 153, 153B or Section 294 I.P.C. or Chapter XV, or Chapter XVI, Chapter XVII or Chapter XXII of the I.P.C. and has been convicted for an offence punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 or 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 is generally reputed to be a person who is desperate and dangerous to the community and has been habitually passing indecent remarks or teasing women or girls as tout.
Coming back to the facts of the present case, we find that the impugned show-cause notice (Annexure-4) 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. 29 of 2018 under Section 3 of Prevention of Damage to Public Property Act, P.S.- Tilhar, District- Shahjahanpur.
Learned A.G.A. submitted before us that the petitioner could take all these pleas before the concerned District Magistrate as he has been given an opportunity to put up his case before that authority and so this writ petition filed before this Court was not maintainable. In support of this contention, he cited before us a Division Bench ruling of this Court in the case of Jaindendra @ Chhotu Singh Vs. State of U.P, 2007 (57) A.C.C 791 and referred to para 15 of the ruling in which it has been observed:
"It is well settled by now that when there is no material, but when there is some material the Court will not interfere."
His contention was that the present case is not a case of 'no material'
because there is reference of one incident in the notice, and so this aspect of the case whether the material is sufficient or not is to be considered by the authority which issued the notice and so this Court has got no jurisdiction as laid down in the above ruling.
We do not agree with the above contention. In view of the ruling of the Hon'ble Apex Court in the case of Vijay Narain, Singh v. State of Bihar and others (1984) 3 SCC - 14, it is essential to refer to at least two incidents of commission of crime for applicability of Clause (i) of section 2(b) of the Act. Since there was reference of one incident only in the notice, it fell short of the legal requirement as provided in Clause (i) of section 2(b) and in this way the notice being illegal could be challenged before this Court as laid down by the Full Bench of this Court in the case of Bhim Sain Tyagi v. State of U.P. And others 1999 (39) ACC 321. If there had been reference of two or more incidents in the impugned notice, then the minimum legal requirement of section, 2(b) Clause (i) would have been satisfied, and then in that case sufficiency of the material on merits could not be challenged before this Court, but before the authority concerned as laid down in the Division Bench ruling in the case of Jaindendra @ Chhotu Singh v. State of U.P. (supra) but since the impugned notice in the present case is short of the legal requirement, it could be challenged in this Court. The following observations in para 12 of the ruling in the case of Jaindendra (supra) which are quoted below, also support this conclusion:
"We can not have any doubt nor we can raise any dispute with regard to aforesaid two Full Bench judgments of this High Court consisting of three Judges in Ramji Pandey (supra), which was also held good by another five Judge Bench in Bhim Sain Tyagi (supra). It is to be remembered that if there is no material, the individual petitioner has every right to challenge the notice in the writ jurisdiction of the Court and there is no bar to that extent. But if there is some material, then the notice can not be held to be defective but will be tested on the basis of the factual analysis by the appropriate Magistrate."
Hence, in view of the discussions made above, the impugned notice cannot be sustained and the same is hereby quashed.
The writ petition is, accordingly, allowed.
However, the respondents will be at liberty to issue a fresh notice, if they have got sufficient material against the petitioner and in that case the proceedings may be started again in accordance with law in the light of the observations made in the body of the judgement after referring to that material in the fresh notice.
There shall however be no order as to costs.
Order Date :- 27.11.2018 KS