Court No. - 40
Case :- CRIMINAL MISC. WRIT PETITION No. - 34224 of 2018
Petitioner :- Rakesh Kumar Pandey @ Pappu Pandey
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Dharmendra Kumar Singh
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.
The petitioner by means of this writ petition has challenged the show- cause notice dated 2.6.2017 issued against him by District Magistrate, Jaunpur, respondent no2 under Section 3(1) of U. P. Control of Goondas Act, 1970 (annexure-2) to the writ petition.
Learned counsel for the petitioner submitted that the impugned show- cause notice suffers from the vice of total non-application of mind.
It has been next submitted by 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 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) 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, District Magistrate, Jaunpur in response to the show-cause notice.
We have heard the learned counsel for the parties and perused the impugned show-cause notice (annexure-2), the other material brought on record and the law report cited by learned counsel for the petitioner in support of his 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 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 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 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.
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 bonafide 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 behaviour 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 desecration, it may easily become an engine of oppression. 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 there must be material indicating that he either by himself or as a member or leader or a gang, habitually commits of 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 Supression 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 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-2) 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. 945 of 2017, under Section 3(1) Control of Gunda Act, registered at P.S. Jafarabad, district-Jaunpur. The impugned show-cause notice also referrers to a beat information dated 12.5.2017 recorded at police station-Zafrabad, district-Jaunpur without any details with regard to the subject matter of the beat information.
It appears that the respondent no. 2 has without applying his mind and observing the provisions of law has issued the impugned show-cause notice under the Act in a routine, casual and mechanical manner.
There is nothing in the impugned show-cause notice which may indicate that the petitioner falls within the ambit of 'Goonda' as define under Section 2(b) of the Act. Thus, the impugned show-cause notice dated 2.6.2017 which is without jurisdiction cannot be sustained.
The writ petition succeeds and is allowed. The impugned show-cause notice dated 2.6.2017 (annexure-2) is hereby quashed.
There shall be however not order as to costs.
Order Date :- 28.11.2018 Shalini