Court No. - 82
Case :- CRIMINAL MISC. WRIT PETITION No. - 10498 of 2021 Petitioner :- Kamal Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ajay Kumar Mishra Counsel for Respondent :- G.A
Hon'ble Ajai Kumar Srivastava-I, J.
1. Heard learned counsel for the petitioner, the learned AGA appearing for the State-respondents and perused the entire record.
2. The present writ petition has been filed by the petitioner with the following prayers:-
“(1) Issue a writ order or direction in the nature of certiorari quashed the order dated 08.10.2021 passed by respondent No.2 in Case No.923 of 2021 arising out of Computer Case No.C202113000000923 under Section 6 U.P. Goonda Control Act, 1970 and order dated 15.07.2021 passed by Respondent No.3 in Case No.00286/2021, Computer Case No.D202113380000286 under Section 3/4 Goonda Control Act 1970, Police Station Naugawan Sadat, District-J.P. Nagar (Amroha) (Annexure No.5 and 3 to this writ petition).
(2) Issue a writ order or direction in the nature of mandamus directing to the respondents to stay the Order dated 08.10.2021 passed by Respondent No.2 in Case No.923 of 2021 arising out of Computer Case No.C202113000000923 under Section 6 U.P. Goonda Control Act, 1970 and order dated 15.07.2021 passed by Respondent No.3 in Case No.00286/2021, Computer Case No.D202113380000286 under Section 3/4 Goonda Control Act 1970, Police Station-Naugawan Sadat, District-J.P. Nagar (Amroha) (Annexure No.5 and 3 to the instant writ petition).”
3. It was submitted by the learned counsel for the petitioner that show-cause notice issued against the petitioner suffers from the vice of non-application of mind. He has further submitted that in the said show-cause notice, two cases have been shown and in all the said two cases, the petitioner has been enlarged on bail and except these cases, the beat information i.e. Report No.43 dated 29.01.2021 is also mentioned in the said notice and call the explanation of the petitioner on cyclostyle proforma. The petitioner filed his objections to the said show cause notice but the respondent no.3 rejected the same and passed the impugned order without affording reasonable opportunity of hearing to the petitioner. Aggrieved with the said order, the petitioner filed appeal before the Commissioner, Moradabad Division, Moradabad (respondent no.2), which was also dismissed and affirming the order passed by the respondent no.3.
4. Learned counsel for the petitioner further submitted that a Division Bench of this 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) of U.P. Control of Goonda Act, 1970 (hereinafter referred to as ' Goonda Act) 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 orders are liable to be quashed. In support of his submissions, learned counsel for the petitioner has also placed reliance on the decision of this Court in Rajan Mittal vs. State of U.P. And others, 2008 (62) ACC 622.
5. Per contra learned AGA contends that two criminal cases have been shown against the petitioner but concedes that in all the said two criminal cases, the petitioner has been enlarged on bail. Learned AGA vehemently argued that writ petition against the show cause notice is not maintainable.
6. Before taking up the legal question it would be advantageous to advert to the definition of 'Goonda' as contained in Section 2(b) of the Act, which is as follows :-
2. Definitions :… (a)…
(b) "Gonda" means a person who
(i) either by himself or as a member or leader or a gang, habitually commits of 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; or
(ii) has been convicted for an offence punishable under the Supression 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 know 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 proposes 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 purposes 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
(vii) is house-grabber.
Explanation.- 'House-grabber' means a person who takes or attempts to take or aids or abets in taking unauthorized possession or having lawfully entered unlawfully remains in possession, of a building including land, garden, garages or out- houses appurtenant to a building.
7. In the case, Imran alias Abdul Quddus Khan (supra) the Division Bench of this Court extracted that:-
"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, (1984) 3 SCC 14 : AIR 1984 SC 1334. 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 a '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.
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 behaviour 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."
8. 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 when there is material indicating that he either by himself or as a member or leader or a gang, habitually commits or 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. or 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 or has been habitually passing indecent remarks or teasing women or girls as tout.
9. In the present matter, this Court finds that the show-cause notice was issued by the respondent no.3 against the petitioner on the basis of his involvement in two cases, namely Case Crime No.242/2018, under Sections-147, 148, 149, 323, 324, 308, 506 registered at P.S. Naugawan Sadat, District-Amroha (J.P. Nagar), Case Crime No.218/2020, under Section 3/25 Arms Act registered at Naugawan Sadat, District- J.P. Nagar (Amroha). The show-cause notice also refers to beat information i.e. Report No.43 dated 29.01.2021 recorded without any detail with regard to the subject matter of the beat information. It is also born out from the record that reasonable opportunity of hearing has not been afforded to the petitioner by the respondent no.3.
10. Keeping in view the aforesaid facts and discussions, it appears that the respondent no.3 without applying his judicial mind and observing the provisions of law has issued the show-cause notice under the Act in a routine, casual and mechanical manner and passed the impugned order dated 20.02.2021. The appellate authority, i.e. Commissioner, Moradabad Division, Moradabad (respondent no.2) also did not consider these facts and dismissed the appeal filed by the petitioner and affirmed the order passed by the respondent no.3.
11. There is nothing in the show-cause notice which may indicate that the petitioner fall within the ambit of 'Goonda' as defined under Section 2(b) of the Act. Thus, the impugned orders dated 20.02.2021 and 08.10.2021 passed by the courts below/authorities concerned suffer from inherent infirmity and illegality and cannot be sustained.
12. The writ petition succeeds and is allowed. The impugned orders dated 20.02.2021 and 08.10.2021 are hereby quashed.
13. Before parting, this Court observes that the quashing of the said impugned orders do not preclude the authorities from taking action afresh against the petitioner in accordance with law.
Order Date :- 16.12.2021 cks/-