Allahabad High Court
Harishchand Yadav vs State Of U.P. And 4 Others on 21 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 91 Case :- CRIMINAL MISC. WRIT PETITION No. - 2268 of 2023 Petitioner :- Harishchand Yadav Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pawan Kumar Rao Counsel for Respondent :- G.A.,Ashish Kumar Gupta Hon'ble Mohd. Azhar Husain Idrisi,J.
1. Case called out.
2. Sri Ashish Kumar Gupta, Advocate has already filed caveat on behalf of Akhilesh Kumar Pathak, the complainant.
3. At the outset,Mr. Pawan Kumar Rao, learned counsel for the petitioner, submits that Akhilesh Kumar Pathak has no locus to oppose this writ petition.
4. Sri Ashish Kumar Gupta, Advocate submits that he may be permitted to withdraw his caveat application.
5. Prayer is allowed. Now, the writ petition is proposed to be heard on merit.
6. Heard Mr. Pawan Kumar Rao, learned counsel for the petitioner and the learned A.G.A. for the State.
7. The instant petition has been filed for the following relief:
"To stay the effect and operation of impugned order dated 19.1.2023 passed by the respondent no.2/ Commissioner, Basti Division, Basti in Appeal bearing Case No. 656/22 (Harishchand Vs. State of U.P.), under Section 6 of U.P. Control of Goondas Act, 1970, Police Station-Ghanghata, District-Sant Kabir Nagar and order dated 11.11.2022 passed by the respondent no. 3/District Magistrate, Sant Kabir Nagar in Case No. 480 of 2022, under Section 3/4 of U.P. Control of Goondas Act, 1970, Police Station-Ghanghata,, District Sant Kabir Nagar during the pendency of present writ petition before this Hon'ble Court, otherwise the petitioner shall suffer irreparable loss and injury."
8. Learned counsel for the petitioner submitted that petitioner is renowned person of the society and also he was the then Gram Pradhan of village Dhanghata. The reputation of the petitioner is good and clear in the society and also his wife is the present Gram Pradhan. It is further submitted that prior to 16.5.2022 no complaint or First Information Report was registered against the petitioner. It is next submitted that the land grabbers (Bhumafiya), namely, Shri Bhal Chand Pathak, Shivbrat Pathak, Akhilesh Pathak, Rakesh Pathak, Sintu @ Piyush Pathak and Subhas Pathak, who are the resident of village Dhanghata, Police Station Dhanghata, District Sant Kabir Nagar, have made encroachment on public utility land Gata No. 177 & 178 belongs to the Khalihan and Khadgaddha of the Revenue, Village Mithana, Sithana, Police Station Dhanghata, District Sant Kabir Nagar, which is adjoining village of Dhanghata and by playing fraud they have got entry on the aforesaid public utility land as Sankramaniya Bhumidhar, which is not permissible under the U.P. Revenue Code, 2006. In this regard the petitioner made several complaints before the concerned authorities as well as Chief Minister Portal against the land grabbers (Bhumafiya), namely, Shri Bhal Chand Pathak, Shivbrat Pathak, Akhilesh Pathak, Rakesh Pathak, Sintu @ Piyush Pathak and Subhas Pathak, who are the resident of village Dhanghata, Police Station Dhanghata, District Sant Kabir Nagar praying therein to evict the aforesaid persons from Gata No. 177 area 0.251 hectare and 178 area 0.051 hectare situated in Revenue, Village Mithana, Sithana, Police Station Dhanghata, District Sant Kabir Nagar, which is adjoining village of Dhanghata and restore the aforesaid public utility land of the said Gaon Sabha as was earlier recorded in the revenue record.
9. Learned counsel has further submitted that in compliance of the aforesaid complaint made by the petitioner, the respondent authorities have initiated enquiry against the alleged land grabbers in the aforesaid matter and in pursuance of that the revenue official has submitted report on 9.6.2022, 30.6.2022, 12.7.2022 and 19.7.2022, on the basis of Akarpartar 45 and stating therein that the aforesaid land belongs to the public utility land, therefore, made recommendation to delete the name of the said Degree College and recorded as Khalihan and Khadgaddha. Subsequently, the said land grabbers have annoyed with the petitioner and being aggrieved with the said enquiry the land grabbers only to harass the petitioner has lodged the First Information Reports against him including his son and other friends on the false and concocted story. The following two cases have been registered against the petitioner which are given below:
(i) Case Crime No. 193 of 2022, under Sections 147,323,352,506 IPC, Police Station Dhanghata, District Sant Kabir Nagar, in which the petitioner has been granted bail by the court concerned;
(ii) Case Crime No. 200 of 2022, under Sections 147, 341, 504, 506 IPC, Police Station Dhanghata, District Sant Kabir Nagar, in which the petitioner has also been released on bail by the court concerned.
10. Learned counsel for petitioner further submitted that District Magistrate, Sant Kabir Nagar while passing the order of externment has not considered the objection of the petitioner that he is not habitual to commit crime and he does not come under the meaning of 'Goondas'. The District Magistrate in a routine manner has passed the order of externment. It is next submitted that Commissioner, Basti Division,Basti also had not applied its judicial mind and has dismissed the appeal preferred by petitioner. Both the authorities have failed to consider that petitioner is not habitual in committing crime and he does not come under the meaning of 'Goondas'. It is further submitted that District Magistrate has failed to consider that there was only two cases registered against the petitioner which were lodged by the land grabbers only to harass the petitioner on account of said complaint made by the petitioner. The petitioner on the basis of only two cases cannot be held to be a Goonda within the meaning of Section 3 of the Act. The findings recorded by both the authorities i.e. District Magistrate as well as Commissioner to the effect that petitioner is a Goonda, is illegal and are liable to be quashed.
11. Learned A.G.A. submitted that petitioner is a Goonda and a habitual offender. Nobody dares to come forward to depose in the cases related to the petitioner and there is terror in the area of petitioner. Hence the petition is liable to be dismissed.
12. The externment order has been passed by the District Magistrate under Section 3 of the Act. The Section 3 of the Act is reproduced as under:-
"3. Externment, etc. of Goondas. - (1) 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 thereof 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 sub clauses (i) to (iii) of clause (b) of Section 2, or in the abetment of any such offence; and]
(c) that witnesses 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 materials 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 witness 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 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 or 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 expiration of such period, not exceeding six months as may be specified in the order."
13. Section 3 of the Act empowered the District Magistrate to pass the order of externment if he is satisfied that any person is engaged or about to engage in the district or any part thereof in the commission of offence referred to in sub clause (i) to (iii) of clause b of Section 2.
14. The word 'Goonda' is defined in sub clause b of Section 2 of the Act which is reproduced 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, or 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;"
15. A perusal of Section 2(b) of the Act reveals that Goonda means a person who is either by himself or is 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 IPC or Chapter XV, or Chapter XVI, Chapter XVII or Chapter XXII of the Indian Panel Code.
16. From perusal of impugned orders it is apparent that externment order has been passed only on the basis of two cases whereas the word habitual is used in the definition of word 'Goonda'. There was no evidence or material before the District Magistrate that the petitioner was habitual to commit crimes or was member or leader of any gang which involved in criminal activities. The word habitual means that by habit he was involved in commission of such offences. On the basis of one or two offences the petitioner cannot be treated as Goonda. The word 'Goonda' has been considered by the Division Bench of this Court in the case of Imran alias Abdul Quddus Khan Vs. State of U.P. and others, Criminal Misc. Writ Petition No.7111 of 1999. The words 'Goonda' and 'habitual' have been considered. The relevant paragraphs 13, 14, 15 of the said judgment are quoted hereunder:-
"13. 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 : 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 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.
14. 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., AIR 1960 All 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 of the occasions but rather to the invariability of the practice.
15. 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."
17. The sole purpose of the Act, 1970 is to protect the citizens from the habitual criminals and to secure future of the citizens but it should be used very sparingly and in very clear cases of public disorder or for maintenance of public order and so this Act should not be used against innocent people.
18. It is well settled law that before passing the order of externment the District Magistrate should be satisfied that the person against whom the externment order has been passed, is habitual to commit crimes and there are several materials before him to the effect that there was terror in the public and no one has come forward to give evidence against that person.
19. From perusal of impugned order passed by District Magistrate it is apparent that only on the basis of two criminal cases, the externment order for six months has been passed by the District Magistrate. The Commissioner has also failed to consider the grounds taken by the petitioner in his appeal and in a routine manner has dismissed the appeal preferred by the petitioner.
20. On an overall conspectus of the aforesaid, this Court finds that since there was no sufficient material before the District Magistrate in holding that the petitioner is Goondas and is habitual to commit crimes, the impugned orders dated 19.1.2023 passed by the respondent no.2/ Commissioner, Basti Division, Basti and dated 11.11.2022 passed by the respondent no. 3/District Magistrate, Sant Kabir Nagar are bad in law and deserve to be quashed and the writ petition is liable to be allowed.
21. Accordingly, the writ petition is allowed.
22. The impugned orders dated 19.1.2023 passed by the respondent no.2/ Commissioner, Basti Division, Basti and dated 11.11.2022 passed by the respondent no. 3/District Magistrate, District-Sant Kabir Nagar are quashed.
Order Date :- 21.2.2023 M. Tarik