Allahabad High Court
Tara Singh Bisht vs State Of U.P.Thru Addl.Chief Secy. Home ... on 22 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 562
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 16.03.2021 Delivered on 22.03.2021 Court No. - 16 Case :- MISC. SINGLE No. - 21965 of 2020 Petitioner :- Tara Singh Bisht Respondent :- State Of U.P.Thru Addl.Chief Secy. Home Lucknow & Ors. Counsel for Petitioner :- Varun Chandra,Meenakshi Singh Parihar Counsel for Respondent :- Govt.Advocate Hon'ble Dinesh Kumar Singh,J.
1. Present writ petition under Article 226/227 of the Constitution of India has been filed impugning orders dated 15.10.2020 (Annexure-19) passed by the Police Commissioner, Lucknow and order dated 21.10.2020 (Annexure-21) passed by Divisional Commissioner, Lucknow Division, Lucknow.
2. The petitioner has long criminal history of following 24 cases from the year 2003 till 9 March 2021:-
"1. Case Crime No.183 of 2003 under Sections 467, 468, 420, 471, 504, 506 IPC, Police Station Gomti Nagar, Lucknow
2. Case Crime No.144/2003 under Sections 467/468/471 IPC, Police Station Chinhat, Lucknow.
3. Case Crime No.55 of 2004 under Sections 420 IPC & SC/ST Act, Police Station Gomti Nagar, Lucknow
4. Case Crime No.390 of 2004 under Sections 420/427/506 IPC, Police Station Gomti Nagar, Lucknow
5. Case Crime No.56 of 2005, under Sections 467/468/420/ 471 IPC, Police Station Chinhat, Lucknow
6. Case Crime No.C-8/3, under Sections 409/418/419/ 420/467/468/ 471/504/ 506 IPC Police Station Gomti Nagar, Lucknow
7. Case Crime No.155/2004 under Section 420 IPC, Police Station Gomti Nagar, Lucknow
8. Case Crime No.301/2005, under Section 420 IPC, Police Station Gomti Nagar, Lucknow.
9. Case Crime No.525/2005, under Sections 342/352/504/ 506/420 IPC & 2/3 Gangster Act, Police Station Gomti Nagar, Lucknow.
10. Case Crime No.518/2006, under Sections 147, 504, 506 IPC, Police Station Gomti Nagar, Lucknow
11. Case Crime No.135/2007, under Section ¾ Goonda Act, Police Station Gomti Nagar, Lucknow
12. Case Crime No.361 of 2009, under Sections148/147/323/452/506/427 IPC, Police Station Gazipur, Lucknow
13. Case Crime No.281 of 2007 under Sections 147/148/504/ 506 IPC10 of Goondas Act, Police Station Goondas Act
14. Case Crime No.616/2007 under Section 10 of the Goondas Act, Police Station Gomti Nagar, Lucknow.
15. Case Crime No.546/2004, under Section 110G Cr.P.C., Police Station Gomti Nagar, Lucknow.
16. Case Crime No.537/2012, under Section 147/427 IPC, Police Station Gomti Nagar, Lucknow.
17. Case Crime No.465/2013, under Sections 420/467/468/471/447 IPC, Police Station Gomti Nagar, Lucknow
18. Case Crime No.604/2016, under Sections 420/467/468/ 471/506 IPC, Police Station Chinhat, Lucknow.
19. Case Crime No.348 of 2016, under Sections 406/420 IPC, Police Station Gomti Nagar, Lucknow
20. Case Crime No.477 of 2013, under Sections 323/420/467/ 468/471/506 IPC, Police Station Wazirganj, Lucknow.
21. Case Crime No.38 of 2018, under Section 138 Indian Electricity Act, Police Station Gomti Nagar, Lucknow.
22. Case Crime No.87 of 2020 under Sections 186/447 IPC & 2/3 of the U.P. Gangsters and Anti-Social Activities Act, Police Station Gomti Nagar, Lucknow.
23. Case Crime No.150/2020, under Sections 420/467/468/471/386/506 IPC, Police Station Gomti Nagar Ext., Lucknow.
24. Case Crime No./FIR No.0041 of 2021, under Section 506 IPC, Police Station Husainganj, Lucknow Commissionerate"
3. In 18 cases charge-sheets have been filed, however, in three cases in absence of sufficient evidence, final reports have been filed. In one case i.e. Case Crime No.135 of 2007 registered under Section 3/4 of the U.P. Control of Goondas Act (for short ''the Act'), he was externed from the district for a period of six months. In two cases, the investigation is still on.
4. The petitioner is a land shark and is accused of taking over the lands of other persons, particularly belonging to weaker section of the society as well as Government lands by committing forgery and fraud and taking forcible possession thereon. It is also alleged that in as many as 11 cases, the petitioner has been acquitted. However, it is important to mention here that he could secure his acquittal as the witnesses turned hostile though the witnesses in their statements recorded under Section 161 CrPC had supported the prosecution case. Details of the aforesaid eleven cases are given here under:-
"1. Case Crime No.183 of 2003 under Sections 467, 468, 420, 471, 504, 506 IPC, Police Station Gomti Nagar, Lucknow.
2. Case Crime No.144/2003 under Sections 467/468/471 IPC, Police Station Chinhat, Lucknow.
3. Case Crime No.55 of 2004 under Sections 420 IPC & SC/ST Act, Police Station Gomti Nagar, Lucknow
4. Case Crime No.390 of 2004 under Sections 420/427/506 IPC, Police Station Gomti Nagar, Lucknow.
5. Case Crime No.56 of 2005, under Sections 467/468/420/ 471 IPC, Police Station Chinhat, Lucknow.
6. Case Crime No.301/2005, under Section 420 IPC, Police Station Gomti Nagar, Lucknow.
7. Case Crime No.525/2005, under Sections 342/352/504/ 506/420 IPC & 2/3 Gangster Act, Police Station Gomti Nagar, Lucknow.
8. Case Crime No.518/2006, under Sections 147, 504, 506 IPC, Police Station Gomti Nagar, Lucknow
9. Case Crime No.281 of 2007 under Sections 147/148/504/ 506 IPC10 of Goondas Act, Police Station Goondas Act
10. Case Crime No.616/2007 under Section 10 of the Goondas Act, Police Station Gomti Nagar, Lucknow.
11. Case Crime No.546/2004, under Section 110G Cr.P.C., Police Station Gomti Nagar, Lucknow."
5. In following six cases, trial of the accused is underway:-
1. Case Crime No.361 of 2009, under Sections148/147/323/452/506/427 IPC, Police Station Gazipur, Lucknow
2. Case Crime No.465/2013, under Sections 420/467/468/471/447 IPC, Police Station Gomti Nagar, Lucknow
3. Case Crime No.604/2016, under Sections 420/467/468/ 471/506 IPC, Police Station Chinhat, Lucknow.
4. Case Crime No.348 of 2016, under Sections 406/420 IPC, Police Station Gomti Nagar, Lucknow
5. Case Crime No.477 of 2013, under Sections 323/420/467/ 468/471/506 IPC, Police Station Wazirganj, Lucknow.
6. Case Crime No.87 of 2020 under Sections 186/447 IPC & 2/3 of the U.P. Gangsters and Anti-Social Activities Act, Police Station Gomti Nagar, Lucknow.
6. In two cases investigation is yet to be concluded.
7. Beet Report No.85 dated 13th August, 2021 was registered at Police Station Gomti Nagar with allegations that the petitioner is a dreaded criminal. Several cases were pending against him. Out of his fear and terror, witnesses do not come forward to depose against him. He has captured and occupied the lands of the villagers and weaker sections of the society as well as Government land and, therefore, action should be taken against him under the provisions of the Act.
8. On the basis of the report of Police Station Gomti Nagar, Lucknow dated 25 August, 2020, a case was registered under the provisions of the Act on 3rd October, 2020 before the Police Commissioner, Lucknow Commissionerate and the petitioner was served a notice under Section 3(1) of the Act. Inspector of the Police Station Gomti Nagar in his report had stated that the petitioner is a Goonda and history-sheeter No.01B of the police station. He is a habitual offender of taking illegal and forcible possession of others' lands, terrorizing the people, committing forgery and fraud in order to take illegal and unauthorized lands of others. In the Beet Report No.85 dated 13rd August, 2020, it is said that the petitioner is a criminal and the people live in fear and terror of him. No one from general public comes forward to give complaint at the police station against him and no one gives the evidence against him. He is roaming free and it is not in the public interest and in public order and peace. The provisions of the Act should be invoked against him.
9. In pursuance of the notice issued under Section 3(1) of the Act on 3rd October, 2020, the petitioner has filed his reply stating therein that he is spokesperson of Bharatiya Kisan Union Avadh (Raju faction). Since he raises the issue of welfare of the farmers, people have turned against him. He remains in his office from 8 A.M. to 10 P.M. everyday and, therefore, no one should fear him. He also said that in most of the cases, he has been acquitted. Most of the cases have been registered against him are for political reasons.
10. After considering the reply and the report of the police, the Police Commissioner vide order dated 15th October, 2020 has been of the view that the petitioner is a land shark who takes illegal possession of the lands of poor and weaker section of the society and Government land and does illegal plotting over said land and earn illegal profit. In several cases, he has been acquitted as a result of witnesses having turned hostile out of his terror and fear. Several cases are still pending against him. Information in the Beet report No.85 registered on 23:44 Hours on 13th August, 2020 has been found to be correct as people fear to give evidence against him and it would not be in the public interest and public order to allow him to roam freely.
11. In view of the aforesaid, the Police Commissioner has passed order for his externment for a period of six months from the boundaries of Lucknow Commissionerate from the date of the order.
12. An appeal filed by him before the Divisional Commissioner against the order dated 15th October, 2020 under Section 6 of the Act has been dismissed by the Divisional Commissioner and order passed by the Commissioner Lucknow, Commissionererate has been affirmed.
13. Heard Mr. H.G.S. Parihar, learned Senior Advocate assisted by Mr.Varun Chandra, learned counsel for the petitioner and, Mr. Rao Narendra Singh, learned A.G.A. for the State.
14. Mr H.G.S. Parihar, learned Senior Advocate has submitted that notice issued under Section 3(1) of the Act was vitiated as it did not contain general nature of material allegations in respect of matters on the basis of which authorities sought to take action under the provisions of the Act against him. He has further submitted that in most of the cases the petitioner has been acquitted and, therefore, Beet information report No.85 dated 13th August, 2020 was incorrect. He has also submitted that most of the cases registered against him are result of personal and political rivalries. He is not a criminal as alleged and he has not threatened any witness. He has, therefore, submitted that impugned orders are illegal and liable to be quashed.
15. On the other hand, Mr Rao Narendra Singh learned A.G.A. has submitted that accused is a history-sheeter of Gomti Nagar Police Station. Several cases are registered against him. In eleven cases, he could secure acquittal on the basis of witnesses turning hostile and not supporting the prosecution case. Though the witnesses in their statements recorded under Section 161 CrPC had fully supported the prosecution case. The witnesses had turned hostile out of fear and terror of the petitioner who is a land shark. It has been further submitted that he takes forcible possession of the land of the poor and weaker section of the society by forging the documents and terrorized them and, therefore, many people do not dare to go police station to depose against him. After registration of complaints against him, witnesses turn hostile out of his fear and terror and he secures acquittal from the court. He has further submitted that during the pendency of this writ petition before this court, the petitioner has committed another offence for which an FIR at FIR No.0041 of 2021 has been registered against him under Section 506 IPC.
16. It is further submitted that the case of the accused is fully covered under the provisions of the Act and orders passed by the Commissioner and Divisional Commissioner are correct and valid and are not liable to be interfered with by this Court in exercise of writ jurisdiction. He has further submitted that in the year 2007 also an order of externment was passed against the petitioner for six months. He, therefore, has submitted that if such a person is allowed to roam free, it would not be in the public interest or public order and peace in the society. Therefore, the authorities have rightly invoked provisions of the Act and passed just, legal and correct orders which are not liable to be interfered with by this Court.
17. Section 2(b) of the Act defines goonda which reads 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; or
(vii) is house-grabber;
18. A person who is a habitual offender for committing offences as defined under Chapters XV, XVI, XVII, XXII of the IPC is a goonda and also he is a goonda, if he has been convicted for an offence punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 or has been convicted not less than thrice for offence punishable under U.P. Excise Act, Public Gambling Act and Arms Act or who is a person having reputation as dangerous to the community or has been habitually passing indecent remarks or teasing women or girls or he is a tout.
19. If the material placed before the competent authority i.e. District Magistrate/Commissioner of Police is such on the basis of which, the authority can draw inference that a person against whom provisions of the Act are invoked, is a goonda and his movements or acts are causing or dangerous to a person or property or there are reasonable grounds to believe that he is engaged or about to engage in the district or any part thereof in commission of the offence as referred to in the definition of Goonda as defined under Section 2(b) of the Act or the witnesses are not willing to come forward to give evidence against him apprehending their safety and security or of their property, then after giving notice by the District Magistrate/Commissioner of Police and reasonable opportunity for his appearace in response to such notice, the authority would be entitled to pass such an order.
20. In the present case from the long criminal history of the petitioner, it would be evident that he is a habitual offender of committing offence under Chapter XVII and XXII of the IPC and the witnesses are not coming forward to depose against him apprehending their safety and security and of their properties.
21. A person is habitual offender who commits the offence(s) repeatedly and persistently. Frequent commission of acts or omissions as referred to Section 2(b) of the Act would be justified declaring such a person as goonda. In the present case, from the criminal history of the petitioner, it is evident that he has been committing similar offences from the year 2003 to 2021. In several cases the petitioner could secure his acquittal as the witnesses could not dare to depose against him in the Court and that itself is a justified reason or ground to pass an order under Section 3 of the Act for his externment.
22. This Court in the case of Imran @ Abdul Quddus Khan vs State of U.P. and Ors : ACC (2000) Supp 711 has held that provisions of Section 2(b) of the Act are almost taken to the expression ''Anti Social element' occurring under Section 2(d) of Bihar Prevention of Crime Act, 1981 and, therefore, if a person repeatedly or persistently commits offence, he would be a habitual offender.
Paras 16 to 18 of the aforesaid report are extracted hereunder:-
"16. 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 al-most akin to the expression ''anti social ele-ment' occurring in Section 2(d) of Bihar Pre-vention 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, (1984) 3 SCC 14 : (AIR 1984 SC 1334). The meaning put to the aforesaid expression by the apex Court would squarely apply to the ex-pression 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 ef habit'. It is the force of habit inherent or latent in an individual with a criminal insteinct 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 a ''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 or 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. 11-1204--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.
17. The word ''habit (has a clear, well understood meaning being nearly the same as ''accustomed' and cannot be applied to a 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 tnat 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 resutling 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.
18. 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."
23. The Act has been enacted for the purposes of control and suppression of goondas. If a person's activities are disturbing public peace and public order and the material against such a person justifies terming him as a goonda, District Magistrate or the Commissioner of Police, as the case may be, would be justified to pass an order under Section 3 of the Act for his externment from the concerned district.
24. From the long criminal history of the petitioner, it is evident that he has repeatedly and persistently committed the similar offences. Witnesses are not coming to depose against him out of his fear and terror. The two authorities have passed the impugned orders on the basis of material which is sufficient to term the petitioner as Goonda. Therefore, this Court does not find any error in two orders impugned herein.
25. The present petition being devoid of merit and substance is hereby dismissed.
Order Date :- 22.3.2021 prateek