Allahabad High Court
Sobran Singh vs State Of Up And 2 Others on 5 April, 2024
Author: Renu Agarwal
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2024:AHC:59895 Court No. - 83 Case :- CRIMINAL MISC. WRIT PETITION No. - 5256 of 2024 Petitioner :- Sobran Singh Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Devesh Kumar Sharma Counsel for Respondent :- G.A. Hon'ble Mrs. Renu Agarwal,J.
1. Heard learned counsel for the petitioner, learned AGA for the State and perused the material placed on record.
2. Instant writ petition has been filed praying, inter alia, for the following reliefs:-
"Issue a writ order or direction in the nature of certiorari to quash the impugned order dated 14.03.2024 passed by Commissioner Agra Division Agra in case No. 1933 of 2023 and Computerized Case No. C202301000001933 (Sobran Singh Vs. State of U.P.), U/s 6 of U.P. Gundas Control Act, 1970 alongwith impugned order dated 29.11.2023 passed by Additional District Magistrate, Finance and Revenue, Mathura in Case No.180 of 2022 and Computerized Case No. D202201500000180 U/s 3(1) of U.P. Gundas Control Act, 1970 (State Vs. Sobran Singh) at P.S. Raya, District-Mathura."
3. Notice under Section 3 of the U.P. Control of Goondas Act, 1970 was sent to the petitioner by Additional District Magistrate, Finance and Revenue, Mathura vide order dated 27.01.2022 seeking explanation. The petitioner filed his reply to the said notice on 30.08.2023. Learned Additional District Magistrate, Finance and Revenue, Mathura passed an externment order for six months against the petitioner from District-Mathura. Feeling aggrieved by the impugned order passed by learned Additional District Magistrate, Mathura, the petitioner preferred criminal appeal under Section 3(1) of U.P. Control of Goondas Act before Commissioner Agra, Division Agra. Learned Commissioner examined the legality and correctness of impugned order passed by learned ADM, denied to interfere in impugned order and found the appeal without any force and dismissed the appeal.
4. Learned counsel for the petitioner submitted that the proceeding under Section 3 of the U.P. Control of Goondas Act was instituted against the petitioner after issuance of notice under Section 3(1) of the U.P. Control of Goondas Act, wherein, it was stated that Senior Superintendent of Police, Mathura informed him that petitioner is a Goonda who either himself or as a member or leader of a gang habitually commits or attempt to commit or abets the commission of offence punishable under Chapter XVI, Chapter XVII of the Indian Penal Code. He is generally reputed to be a person who is desperate and danger to the community. His activities are dangerous to the person and property of the people of the locality. A case is registered vide Crime No. 120 of 2021 under Section 323/307 I.P.C. and another Beet information vide G.D. No. 38 dated 03.01.2022. The Additional District Magistrate observed in impugned order that even after repeated calls, the opposite party failed to appear before him either personally or through counsel and after perusing the report of Senior Superintendent of Police, he was satisfied that the opposite party is a person, who is desperate to the community and his act comes within the purview of U.P. Control of Goondas Act and on this finding, petitioner in the present case was directed to be externed from the limits of District-Mathura for a period of six months. It is next submitted that the order passed by the learned Additional District Magistrate is an ex-parte order. It is further submitted by learned counsel for the petitioner that aggrieved by order of learned Additional District Magistrate, petitioner preferred appeal before the learned Commissioner Agra Division Agra on 04.12.2023 along with stay application and learned Commissioner, Agra Division, Agra without considering the evidence given by the petitioner has illegally rejected the appeal of the petitioner vide his order dated 14.03.2024. It is further submitted that notice was issued to the petitioner bases solely on a case which is, in fact, a family dispute between the petitioner and his nephew and a beet information. The period of externment granted to impugned order is going to expire soon, however, the penal consequences of the same continues to haunt the petitioner, as the social stigma is attached with him that he has been proceeded under Section 3 of the U.P. Control of Goondas Act and directed to be externed from District Bhadohi. As a consequence of impugned order dated 29.11.2023, the petitioner and his family members are still being subjected to the rigorous harrasment. The petitioner is no criminal antecedents apart from the cases mentioned in the writ petition. Learned counsel for the petitioner argued that on the basis of a solitary case, he cannot be classified as such. Further there was no tangible material to show that his movements or acts have been calculated to cause alarm or harm to any person or property. The appellate court ignored the fact that the allegation against him are false and that from no angle, he can be branded as a habitual offender. His activities were such that the action against him under section 3 of the Act of 1970 ought not to have been taken. It is lastly submitted that a writ, order or direction in the nature of certiorari is prayed for setting aside the order dated 14.03.2024 passed by Commissioner Agra Division Agra as well as externment order passed by learned ADM dated 29.11.2023.
5. Per contra, learned AGA for the State submitted that there is no illegality, irregularity or perversity in the impugned orders passed by the respondent Nos. 2 and 3, hence, instant petition lacks merits and deserves to be dismissed.
6. I have heard the rival submissions advanced on behalf of the parties and perused the entire material brought on record. It transpires that notice was issued to the petitioner on the basis of two cases i.e. Crime No. 120 of 2021 under Section 323/307 I.P.C. and Beet information vide G.D. No. 38 dated 03.01.2022. So far as the allegation against the petitioner being goonda element is concerned, the word 'goonda' is described in Section 2(b) of the Goonda Act as under:-
"2(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 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;"
Regarding externment of goondas, Section 3 of the Goonda Act is being reproduced as under:-
"3. Externment, etc. of Goondas. - Where it appears to the District Magistrate.-
(a) that any person is a Goonda; and
(b)(i) that his movements or acts in the district or any part hereof are causing, or are calculated to cause alarm, danger or harm to persons or property;or [(ii) that there are reasonable grounds for believing that he is engaged or about to engage, in the district or any part thereof, in the commission of an offence referred to in subclauses (i) to (iii) of clause (b) of Section 2, or in the abetment of any such offence; and]
(c) that witnesses are not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or property-
the District Magistrate shall by notice in writing inform him of the general nature of the material allegations against him in respect of clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them.
(2) The person against whom an order under this section is proposed to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires, and also of examining any other witnesses that he may wish to produce in support of his explanation, unless for reasons to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay.
(3) Thereupon the District Magistrate on being satisfied that the conditions specified in clauses (a), (b) and (c) of sub-section (1) exist may by order in writing-
[(a) direct him to remove himself outside the area within the limits of his local jurisdiction or such area and any district or districts or any part thereof, contiguous thereto, by such route, if any, and within such time as may be specified in the order and to desist from entering the said area or the area and such contiguous district or districts or part thereof, as the case may be from which he was directed to remove himself until the expiry of such period not exceeding six months as may be specified in the said order;]
(b)(i) require such person to notify his movements or to report himself, or to do both, in such manner, at such time and to such authority or person as may be specified in the order;
(ii) prohibit or restrict possession or use by him of any such article as may be specified in the order;
(iii) direct him otherwise to conduct himself in such manner as may be specified in the order, until the expiry of such period, not exceeding six months as may be specified in the order."
7. The Apex Court in the case of Vijay Narain Singh Vs. State of Bihar, 1984(3) SCC 14 observed that 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 1970 Act.
8. Since there is reference of one incident only in the notice in hand, it falls short of the legal requirement as provided in Clause (i) of Section 2(b) of the 1970 Act.
9. A Division Bench of this Court in Suresh Tewari Vs. State of U.P. and Ors. decided on 23.05.2018, after considering the Apex Court judgement in Vijay Narain Singh Vs. State of Bihar, 1984(3) SCC 14 and Full Bench judgement of this Court in Bhim Sain Tyagi Vs. State of U.P. reported on 1999 (39) ACC 321, while considering the issue relating to slapping of the penal provisions of the Act against an individual on the basis of a solitary case has observed as follows:-
"The Hon'ble Apex Court in the case of Vijay Narain Singh versus State of Bihar and others (1984) 3 SCC 14 has been pleased to hold that 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 is reference of one incident only in the notice, it falls 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 Versus 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 observations in para 12 of the ruling in the case of Jaindendra (supra) which have been quoted above, also support this conclusion."
10. As per definition and the law settled by this Court as well by the Apex Court, one cannot be treated to be a habitual offender unless and until there is recurrence of the offence and at the most the general reputation of the person is that he is desperate and dangerous to the community. Since in this case against the petitioner there is reference of two cases i.e. case crime No. 120 of 2021 under Section 323, 307 I.P.C., Police Station-Raya, District-Mathura in which he has been enlarged on bail and one beat information, however, no case is registered except the information in GD. Apart from these two cases, no other case is mentioned in the order of the Additional District Magistrate, the petitioner could not be deemed to be a habitual offender on the basis of that said incident only, so the notice falls short of legal requirement as provided in Clause (1) of Section 2(b) of the 1970 Act.
11. In view of above, the impugned order dated 29.11.2023 lacks merit and consequently, the order of appellate court dated 14.03.2024 also cannot be sustained, hence, both the orders are liable to be quashed.
12. The writ petition is allowed. The impugned order dated 29.11.2023 passed by Additional District Magistrate, Finance and Revenue, Mathura and the appellate court dated 14.03.2024 passed by Commissioner Agra Division Agra, are hereby quashed.
13. Let a copy of this order be forwarded to District Magistrate, Mathura for necessary action.
(Renu Agarwal,J.) Order Date :- 5.4.2024 Karan