Allahabad High Court
Sudhir vs State Of U.P. & 2 Others on 1 September, 2016
Author: Vijay Lakshmi
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 54 Case :- CRIMINAL MISC. WRIT PETITION No. - 14003 of 2016 Petitioner :- Sudhir Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Ram Raj Pandey Counsel for Respondent :- G.A. Hon'ble Mrs. Vijay Lakshmi,J.
The petitioner has filed this writ petition with the prayer to issue a writ of certiorari quashing the impugned order dated 19.5.2016 passed by the Commissioner, Meerut Region, Meerut, in Appeal No. 36 of 2015-16 whereby confirming the order dated 7.12.2015 passed by the District Magistrate, Baghpat, in Computer Case No. D2015110800401, State Vs. Sudhir, arising out of the report under section 3/4 of the U.P. Control of Gundas Act, (herein after referred to as the 'Act') P.S. Chhaprauli, District Baghpat.
Heard Sri Ram Raj Pandey, learned counsel for the petitioner and learned AGA for the State, which is the only opposite party. Perused the record.
Learned AGA has submitted that since only a legal question is involved in the present writ petition, there is no need to file counter affidavit on the part of State and the matter be decided in the wake of the settled legal position.
The contention of learned counsel for the petitioner is that the petitioner is innocent, he is not a habitual offender and he has no criminal history. However, due to dirty village politics a false and frivolous story was cooked up and he was involved in Case Crime No. 139 of 2015, under sections 323, 352, 427, 504, 506 I.P.C., P.S. Chhprauli, District Baghpat. It is further contended that in the aforesaid case the petitioner has already been acquitted by judgment and order dated 31.5.2016 passed by the A.C.J.M./ F.T.C., Baghpat, copy whereof has been filed as Annexure no. 4 to the writ petition. It is next submitted that apart from the aforesaid case, no other case has ever been registered against the petitioner. Learned counsel has contended that the provisions of U.P. Control of Gundas Act, 1970 are not attracted, if there is only a solitary case against the accused. The learned counsel has placed reliance on the law laid down by the Hon'ble Apex Court in the case of Vijay Narain Singh v. State of Bihar and others, 1984 (3) SCC 40 and the judgment of coordinate Bench of this court, rendered in Criminal Misc. Writ Petition No. 6198 of 2015, Binni @ Vijan Vs. State of U.P. and others, decided on 7.4.2015 in which this court has relied upon its earlier judgment rendered in the case of Imran @ Abdul Qudus Khan v. State of U.P. And others, 2000 Cr. L.J. 1328.
Considered the submissions.
The definition of the word "goonda" as defined under Section 2(b) of the Act, is reproduced as under:-
Section 2(b) defines a "goonda" as 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; or
(vii) is a house-grabber.
The Apex Court in the case of Vijay Narain Singh (supra) while dealing with the provisions of the Bihar Control of Crimes Act, 1981, a law relating to preventive detention, wherein the word "anti-social elements" as defined in Section 2(d) of the Act, was para materia with the definition of the word "goonda" as defined under this Act, held in paragraph-31 as under:-
The expression '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. If 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. This appears to be clear from the use of the word 'habitually' separately in sub-clause (i), sub-clause (ii) and sub-clause (iv) of section 2 (b) and not in sub-clauses (iii) and(v) of section 2 (d). If the State Legislature had intended that a commission of two or more acts or omissions referred to in any of the subclauses (i) to (v) of section 2 (d) was sufficient to make a person an 'anti-social element', the definition would have run as 'Anti-Social Element' means 'a person who habitually is .....' As section 2 (d) of the Act now stands, whereas under sub-clause (iii) or sub-clause (v) of section 2 (d) a single act or omission referred to in them may be enough to treat the person concerned as an 'anti-social element', in the case of sub-clause (i), sub-clause (ii) or sub-clause (iv), there should be a repetition of acts or omissions of the same kind referred to in sub-clause (i), sub-clause (ii) or in sub-clause (iv) by the person concerned to treat him as an 'anti-social element'. Commission of an act or omission referred to in one of the sub-clauses (i). (ii) and (iv) and of another act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an 'anti-social element'. A single act or omission falling under sub-clause (i) and a single act or omission falling under sub-clause (iv) of section 2 (d) cannot, therefore, be characterised is a habitual act or omission referred to in either of them. Because the idea of 'habit' involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omission in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between the they cannot be treated as habitual ones.
The Apex Court in the case of State of Maharashtra and others v. Mehmud, 2007(12) SCC 358, once again had an occasion to deal with the provisions of Section 2(b)(i) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, wherein the term "dangerous person" was defined, which is para materia with the word "goonda" under the Act and in that context, approved the view taken in Vijay Narain Singh (supra).
Thus what flows from the aforesaid discussion is that for a person to be a "goonda" under sub-clause (i) (b) of Section 2 of the Act, he is to be a person who has to his credit repeated/ persistent overt acts and not only an isolated/ individual act.
It is not disputed that there was only one case against the petitioner being Case Crime No. 139 of 2015, under sections 323, 352, 427, 504, 506 I.P.C., P.S. Chhprauli, District Baghpat, which has already been decided vide judgment and order dated 31.5.2016 passed by the A.C.J.M./ F.T.C., Baghpat, resulting in the acquittal of the petitioner.
The impugned order dated 7.12.2015 passed by the Additional District Magistrate shows that the learned Magistrate has passed the order of externment of the petitioner on the basis of police report and also that the petitioner failed to adduce any evidence in his defence.
Considering the facts and circumstances of the case in the wake of the law laid down by Hon'ble Apex Court in Vijay Narain Singh (supra), this writ petition deserves to be allowed and the impugned orders dated 19.5.2016 and 7.12.2015 are liable to be quashed.
Accordingly, the writ petition is allowed and the impugned order dated 19.5.2016 passed by the commissioner, Meerut Region, Meerut, in Appeal No. 36 of 2015-16 and order dated 7.12.2015 passed by the District Magistrate, Baghpat, in Computer Case No. D2015110800401, State Vs. Sudhir, arising out of the report under section 3/4 of the U.P. Control of Gundas Act, P.S. Chhaprauli, District Baghpat, are hereby quashed.
Order Date :- 1.9.2016 Pcl