Allahabad High Court
Guddu Chauhan vs State Of U.P. And 2 Others on 27 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:150833 A.F.R. Reserved On: 15.5.2023 Delivered On: 27.7.2023 Court No. - 50 Case :- CRIMINAL MISC. WRIT PETITION No. - 7436 of 2023 Petitioner :- Guddu Chauhan Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Zeeshan Mazhar,Abhishek Chandra Counsel for Respondent :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.
1. Instant writ petition has been filed praying for the following reliefs:
"(i) Issue a writ, order or direction in the nature of certiorari setting aside the order dated 31.3.2022 passed by the Commissioner Vindhyachal Division at Mirzapur in Case No.249 of 2022 (Guddu Chauhan vs. Additional District Magistrate and Another) under Section 6 of U.P. Control of Goondas Act, alongwith order dated 3.1.2022 passed by Additional District Magistrate (Finance and Revenue), Bhadohi in Case No.0321 of 2020 (State vs. Guddu Chauhan), under Section 3(1) of U.P. Control of Goodnas Act and notice dated 22.6.2020, passed by Additional District Magistrate, Bhadohi, under Section 3 of U.P. Control of Goodnas Act."
2. By means of order dated 3.1.2022, Additional District Magistrate, Bhadohi, made the notice issued to petitioner under Section 3 of U.P. Control of Goodnas Act, 1970 absolute and passed an externment order for six months against the petitioners from District Bhadohi. Feeling aggrieved by the impugned order passed by learned Additional District Magistrate, Bhadohi, the petitioner filed a criminal appeal under Section 3(1) of U.P. Control of Goondas Act before Commissioner Vindhyachal Division at Mirzapur. 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. Impugned order was affirmed in appeal.
3. Heard learned counsel for the petitioner, learned AGA for the State and perused the material placed on record.
4. Learned counsel for the petitioner submitted that the proceeding under Section 3 of U.P. Control of Goondas Act was instituted against the petitioner after issuance of notice under Section Section 3 (1) of U.P. Control of Goondas Act, wherein, it was stated that S.H.O. Gopiganj/S.P. Bhadohi informed him that Guddu Chauhan, son of Lallu Chauhan, resident of Village Mahuari, Police Station Gopiganj, District Bhadohi, 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 XXII of 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. The witnesses are not willing to come forward to give evidence against him for the reason of apprehension on their part as regards the safety of their person and property. A case is registered vide Crime No.194 of 2019, under Section 3/5A/8 of Cow Slaughter Act and Section 11 of Animal Cruelty Act on 24.8.2019, when a Sub-Inspector recovered four number of progeny of cow from him, which were loaded on a vehicle bearing registration No.UP-66-T-88-72 in inhumane and cruel manner. The petitioner was directed to appear on 2.7.2020, at 10:00 A.M. before Additional District Magistrate pursuant to said notice and submit his explanation. He was also given opportunity to examine himself or any other witness in support of his stand. The Additional District Magistrate observed in impugned order that even after sufficient service of notice, the opposite party failed to appear before him either personally or through counsel and after perusing the report of 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, he was directed to be externed from limits of District Bhadohi for a period of six months. He next submitted that the petitioner assailed the externment order passed by the ADM before learned Commissioner Vindhyachal Divison at Mirzapur, who after hearing submissions of petitioner and State counsel dismissed the appeal and affirmed the impugned order passed by learned ADM. He further submitted that the accused appellant already enlarged on bail in said case under Section 3/5A/8 of Cow Slaughter Act by order dated 13.9.2019, passed b learned Incharge Session Judge, Bhadohi at Gyanpur. The externment order passed by ADM was ex-parte and without giving opportunity of hearing to the petitioner, as he was unaware of the aforesaid fact, he did not leave the district due to which he was arrested by the police and an FIR was lodged on 16.1.2022, bearing Case Crime No.19 of 2022, under Section 10 of U.P. Control of Goondas Act, in which the petitioner applied for bail and he was enlarged on bail by orders of CJM vide order dated 20.1.2022, a certified copy of said bail order has been annexed as Annexure No.6 to the writ petition. The notice under Section 3(1) of U.P. Control of Goondas Act was issued to the petitioner with malafide intention, solely with a purpose to harass the petitioner and to got him expelled from the district where he is residing since birth. The petitioner was never served the copy of impugned notice issued by learned ADM. Even the Divisional Commissioner i.e. respondent No.2 failed to appreciate the true facts of the case and dismissed the appeal without application of judicial mind. The single case under Section 3/5A/8 of Cow Slaughter Act was falsely registered against the petitioner merely on the basis of presumption. The period of externment granted in impugned order has already expired yet 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 3.1.2022, the petitioner and his family members are still being subjected to the rigorous harassment at the hands of the police personnel, who used to raid his house for one and other reason. The petitioner is not having any prior criminal history except the case mentioned in writ petition.
5. Learned counsel for the petitioner lastly submitted that a writ, order or direction in the nature of certiorari is prayed for setting aside the order dated 31.3.2022 passed by learned Commissioner Vindhyachal, Division at Mirzapur as well as externment order passed by learned ADM dated 22.6.2020. No beet information is mentioned in impugned order with regard to the petitioner.
6. Per contra, learned AGA countenanced the impugned orders in his submissions and stated that there is no illegality or irregularity in impugned orders passed by respondent Nos.2 and 3. The impugned orders are based on proper material even the petitioner failed to obey the externment order and he was arrested by police and a case under Section 10 of the Act was registered against him, in which he was subsequently bailed out.
7. The notice was issued to the petitioner on the basis of single case registered under Section 3/5A/8 of U.P. Prevention of Cow Slaughter Act, in the year 2019 and accused was allegedly arrested by the police while transporting four number of progeny of cow in a Tata Magic Vehicle, which was heading towards Gopiganj from Seekhapur. Thus, the arrest and seizure was effected within state limit. The petitioner has denied service of notice under Section 3(1) of the Act personally on him. Mode and manner of service of notice upon the petitioner is not mentioned in order passed by ADM. The petitioner has feigned ignorance of the proceeding before learned ADM and stated that he could not appear before him due to non service of notice.
8. So far as the allegations against the petitioner being goonda element is concenred, 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, Chapter XVI, Chapter XVII or Chapter XXII of the said code: or
(ii) has been convicted not less than thrice 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
(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."
9. The Apex Court in the case Vijay Narain Singh versus State of Bihar and others, (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.
10. 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.
11. Again, a Division Bench of this Court in Suresh Tewari Vs. State of U.P. and others decided on 23.5.2018, 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 Tyagi Vs. State of U.P. 1999 (39) ACC 321, while considering the issue relating to slapping of the penal provisions of the Act against an individual on 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."
12. 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 one extreme instance only the petitioner could not be deemed to be a habitual offender on the basis of that single incident only, so the notice falls short of legal requirement as provided in Clause (1) of Section 2 (b) of the 1970 Act.
13. In view of above, the impugned order dated 22.6.2020 lacks merit and consequently, the order of appellate court dated 31.3.2022 also cannot be sustained, hence, both the orders are liable to be quashed.
14. The writ petition is allowed. The impugned order dated 22.6.2020 passed by the respondent no. 3 - Additional District Magistrate (Finance & Revenue) Bhadohi and the appellate court order dated 31.3.2022 passed by the respondent no. 2 - Commissioner, Vindhyachal Division at Mirzapur, are hereby quashed.
15. Let a copy of this order be forwarded to District Magistrate, Bhadohi for necessary actions.
Order Date :- 27.7.2023 Kamarjahan