Harsh Narain alias Hakshu v. District Magistrate — 1972 DIGILAW 283 (ALL)

JUDGMENT G.C. Mathur, J. - The three Petitioners are real brothers. The District Magistrate of Allahabad has passed orders against each one of them u/s 3(3) of the U.P. Control of Goondas Act, 1970, externing them from the district of Allahabad for a period of six months. These externment orders have been challenged by the Petitioners. After hearing counsel for the parties, we passed short orders on July 13, 1972, allowing the writ petitions and quashing the externment orders. We now proceed to give our reasons for the orders. 2. The Act was enacted for the purpose of controlling and suppressing goondas with a view to the maintenance of public order. Section 2(b) defines 'goonda' thus: 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, offences punishable u/Ch. XVI, Ch. XVII or Ch. XXII of the IPC; or (ii) has been convicted under the Suppression of Immoral Traffic in Women and Girls Act, 1956; or (iii) has been convicted not less than thrice under the U.P. Excise Act, 1910; or (iv) is generally reputed to be a person who is desperate and dangerous to the community. Any person, who falls within one or more of the four clauses, will be a goonda. Section 3 makes provision regarding the externment etc. of goondas. Sub-section (1) requires the District Magistrate to give a notice to the person against whom action is proposed to be taken. It reads: 3 (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 any offence punishable u/Ch. XVI, Ch. XVII, or Ch. XVI, Ch. XVII, or Ch. XXII of the IPC, or under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or under the U.P. Excise Act, 1910, 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. If it appears to the District Magistrate that a person satisfies the requirements of Clauses (a), (b) and (c) of this sub-section, he shall give him a notice under this sub-section, stating "the general nature of the material allegations" against him in respect of Clauses (a), (b) and (c). The District Magistrate is then required to give the person a "reasonable opportunity" of giving his explanation regarding the general nature of the material allegations. Sub-section (2) provides for an oral hearing before the District Magistrate in these words: 3 (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. It will be noticed that the person, at this stage, is to be given a "reasonable opportunity" to produce his evidence in support of his explanation. The sub-section does not provide for an opportunity to cross-examine any witnesses, obviously because the proceedings are initiated when there are no witnesses willing to give evidence against the person. The sub-section also does not specifically provide for the disclosure by the District Magistrate of the material or evidence in his possession or for giving an opportunity to the person to meet such material or evidence. The sub-section also does not specifically provide for the disclosure by the District Magistrate of the material or evidence in his possession or for giving an opportunity to the person to meet such material or evidence. After the hearing provided by Sub-section (2) is over, the District Magistrate may pass orders Under Sub-section (3) which provides: 3 (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 district or part, as the case may be, by such route, if any and within such time as may be specified in the order and to desist from entering the district or the specified part thereof until the expiry of such period not exceeding six months as may be specified in the 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. In Raja v. State of UP 1972 AWR 371 , a Division Bench of this Court has held that orders Under Clauses (a) and (b) of Sub-section (3) cannot be passed simultaneously and that, if an order is passed Under Clause (a), the question of passing any order Under Clause (b) does not arise. 3. Section 4 of the Act empowers the District Magistrate to grant permission to the externed Goonda to return temporarily. Section 5 gives power to the District Magistrate to extend the period of externment from time to time upto a maximum of two years in the aggregate. Section 6 provides for an appeal to the Commissioner against the order of the District Magistrate passed Under Sections 3, 4 and 5. Section 8 lays down that the District Magistrate or the Commissioner may take into consideration any evidence which he considers to have probative value and the provisions of the Indian Evidence Act shall not apply. Section 6 provides for an appeal to the Commissioner against the order of the District Magistrate passed Under Sections 3, 4 and 5. Section 8 lays down that the District Magistrate or the Commissioner may take into consideration any evidence which he considers to have probative value and the provisions of the Indian Evidence Act shall not apply. Section 9 empowers the District Magistrate and the Commissioner to rescind any orders made by them. Section 10 provides for punishment for contravention of orders, passed Under Sections 3, 4, 5 and 6. Section 11 provides for the forcible removal of the extended goonda who returns in contravention of the order. Section 15 empowers the State Government to make rules. 4. In May, 1971, the District Magistrate of Allahabad served separate notices u/s 3(1) upon the three Petitioners. The Petitioners submitted their explanations. At the hearing, the Petitioners examined certain witnesses and produced some documents. On February 5, 1972, the District Magistrate passed separate orders against the three Petitioners, externing them from the district of Allahabad for a period of six months. The orders directed the Petitioners to leave Allahabad by the Phaphamau-Sahson-Gyanpur route within five days and to desist from entering the District of Allahabad during the period of six months. The Petitioners were further directed to notify their movements and to report to the Senior Superintendent of Police, Varanasi, on every Friday. Each one of the Petitioners was required to furnish reliable and respectable sureties and personal bonds for carrying out the order of the District Magistrate. Against the orders of the District Magistrate, the Petitioners preferred appeals before the Commissioner. By three separate orders dated April 11, 1972, the Commissioner dismissed all the appeals. The Petitioners thereupon filed these three writ petitions. The petitions were admitted on April 17, 1972. On the same date, interim orders were passed by this Court, staying the operation of the externment orders on the condition that the Petitioners continued to reside within the limits of the Municipal Corporation of Allahabad during the pendency of the writ petitions. The writ petitions came up for. hearing before a learned Single Judge on July 5, 1972. He referred the Writ petitions for decision to a larger Bench. That is how these writ petitions came up for hearing before this Bench. 5. Sri S.C. Khare, learned Counsel for the Petitioners, has challenged the constitutionality of the Act. The writ petitions came up for. hearing before a learned Single Judge on July 5, 1972. He referred the Writ petitions for decision to a larger Bench. That is how these writ petitions came up for hearing before this Bench. 5. Sri S.C. Khare, learned Counsel for the Petitioners, has challenged the constitutionality of the Act. In Raja v. State of U.P. (supra), the attack on this Act on the ground of violation of Article 19 of the Constitution was repelled and the Act was held to be valid. In view of this decision, Sri Khare has not addressed any argument in respect of Article 19 but he has contended that the Act contravenes the provisions of Article 22(4) of the Constitution. Article 22(4) is concerned with "law providing for preventive detention" and says that no such law shall authorise the detention of a person for a longer period than three months unless an Advisory Board has reported, before the expiration of the said period of three months, that there is in its opinion sufficient cause for such detention. It is urged that externment under the Act amounts to preventive detention and since the Act provides for externment for more than three months without making a provision for an Advisory Board, it offends Article 22(4) of the Constitution. We are unable to agree with this contention. Externment as a preventive measure cannot be equated with preventive detention. Detention means confinement within a restricted area or space while externment means exolusion from a specified area. In A.K. Gopalan Vs. The State of Madras, AIR 1950 SC 27 , the Supreme Court held that a law relating to preventive detention could not be said to infringe the freedoms guaranteed by Article 19. But a law providing for preventive externment does restrict some of the fundamental rights guaranteed by Article 19. The restrictions imposed by the Act on the rights guaranteed by Article 19 have been held in Raja v. State of U.P. (supra) to be reasonable in the interest of the general public and the Act has been held to be protected by Article 19(5). In our opinion, the Act is not a law providing for preventive detention and cannot be challenged on the ground of being offensive to Article 22(4). In Hari Khemu Gawali Vs. In our opinion, the Act is not a law providing for preventive detention and cannot be challenged on the ground of being offensive to Article 22(4). In Hari Khemu Gawali Vs. The Deputy Commissioner of Police, Bombay and Another, AIR 1956 SC 559 , Section 57 of the Bombay Police Act, 1951, providing for externment was challenged before the Supreme Court, inter alia on the ground that the restrictions imposed by the provisions on the freedoms guaranteed by Article 19 were not reasonable as Section 57 did not provide for an Advisory Board. This contention was repelled by the Supreme Court. It said: It was next contended that unlike Preventive Detention laws there was no provision in the impugned law for an Advisory Board which could scrutinise the material on which the officers or authorities contemplated by Section 57 had taken action against a person. It cannot be and has not been laid down, as a universal rule that unless there is a provision for such an Advisory Board such a legislation would necessarily be condemned as unconstitutional. The very fact that the Constitution in Article 22(4) has made specific provision for an Advisory Board consisting of persons of stated qualifications with reference to the law for Preventive Detention, but has made no such specific provision in Article 19 would answer this contention. The Petitioners' attack on the constitutionality of the Act must fail. 6. The next contention of Sri Khare is that the externment orders are invalid as the condition precedent set out in Clause (c) of Section 3(1) is not satisfied. There is no doubt that an order u/s 3(3) cannot validly be made unless the District Magistrate is satisfied as to the existence of each one of the conditions mentioned in Clauses (a), (b) and (c) of Section 3(1). The condition mentioned in Clause (c) is 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". It is urged that, in order to fulfil this condition, there must be a criminal case pending against the person and the witnesses should be unwilling to come forward to give evidence in that case. Reliance is placed upon a decision of Hari Swarup J., in Kamla v. The State of U.P. Writ Petition No. 734 of 1972 D/- April 14, 1972. Reliance is placed upon a decision of Hari Swarup J., in Kamla v. The State of U.P. Writ Petition No. 734 of 1972 D/- April 14, 1972. Referring to Clause (c) of Section 3(1), Hari Swarup, J. observed: There is no finding by the District Magistrate or by the Commissioner that any criminal case was pending against the Petitioner in which the witnesses were not willing to come forward to give evidence against him. There is also no allegation in the counter-affidavit to that effect. As that is a necessary pre-condition for taking any action u/s 3(3) of the Act, the absence of any finding to that effect is fatal to the order. We regret our inability to agree with this view. The object of the Act and its other provisions indicate that Clause (c) cannot be confined to the non-availability of witnesses in a criminal case pending on the date on which the order is passed by the District Magistrate. If such a restricted meaning is given to Clause (c). then the operation of the Act will be limited to a very few cases and its object would be defeated. Two examples will illustrate this: Consider a case where the District Magistrate is satisfied that a goonda is about to commit an offence of the kind mentioned in Clause (b)(ii) of Section 3(1) and is also satisfied that preventive action under the Code of Criminal Procedure cannot be taken against him as witnesses are not willing to come forward and that, for the same reason, it will not be possible to successfully prosecute him after he has committed the offence. If, at that time, there is no criminal case pending against the goonda, the District Magistrate would not be able to take action against him under the Act if the view contended for by Sri Khare is accepted. This would frustrate the very object of the Act. The Act is meant to cover precisely this type of cases. Take another example. The District Magistrate is satisfied that the acts of a goonda are causing alarm and danger to persons and their property. There is also a case pending against him in which witnesses are not coming forward to give evidence against him for the reasons mentioned in Clause (c). The District Magistrate gives him a notice u/s 3(1). Take another example. The District Magistrate is satisfied that the acts of a goonda are causing alarm and danger to persons and their property. There is also a case pending against him in which witnesses are not coming forward to give evidence against him for the reasons mentioned in Clause (c). The District Magistrate gives him a notice u/s 3(1). Before the order u/s 3(3) is passed, the goonda is acquitted in the criminal case on account of the refusal of the witnesses to come forward to depose against him. The acquittal makes the goonda more vicious. If the restricted interpretation of Clause (c) is accepted, then the District Magistrate will now be powerless to pass an order u/s 3(3). This surely was not the intention of the Legislature. 7. In our opinion, the Legislature contemplated the taking of action under the Act against a goonda if his movements or acts are causing or are calculated to cause alarm, danger or harm to persons or property or, if he was about to commit or abet the commission of an offence mentioned in Section 3(1)(b)(ii) when the District Magistrate was satisfied that it would not be possible to take preventive action against him under the normal law (Code of Criminal Procedure) or punitive action under the IPC or under the Suppression of Immoral Traffic in Women and Girls Act or under the U.P. Excise Act for the reason that witnesses would not be coming forward to depose against him on account of fear for the safety of their person or property. The provisions of the Act are intended to prevent further mischief by a goonda and not to secure his conviction in a pending case. We have, therefore, come to the conclusion that it is not necessary for the fulfilment of the condition mentioned in Clause (c) of Section 3(1) that there should be a criminal case pending against the goonda on the date on which the District Magistrate takes action against him. It is sufficient if the District Magistrate is satisfied that generally witnesses are not willing, for the reasons mentioned in Clause (c), to give evidence against the goonda either to sustain preventive action under the Code of Criminal Procedure or a prosecution under the IPC or under the Suppression of Immoral Traffic in Women and Girls Act or under the U.P. Excise Act. Such preventive action or prosecution need not be pending on the date on which action is taken under the Act. The satisfaction of the District Magistrate can legitimately be based upon the past or present experience relating to the goonda or upon both. In this view, even if no criminal cases were pending against the Petitioners on the date on which the impugned orders were passed, that fact would not vitiate the satisfaction of the District Magistrate regarding the existence of the condition set out in Clause (c) of Section 3(1). 8. The last contention raised by Sri Khare is that there was no relevant material or evidence before the District Magistrate on which his satisfaction as to the existence of the three conditions mentioned in Clauses (a), (b) and (c) of Section 3(1) could be based. He has also contended that the Act requires the objective and not the subjective, satisfaction of the District Magistrate as to the existence of the three conditions. He relied on the fact that the Act lays down objective standards in respect of the three conditions and on the difference in the language of Sub-section (3) which requires the District Magistrate to be "satisfied as to the existence of the conditions" and the language of Sub-section (1) which uses the words "when it appears to him." The satisfaction being objective, it is said, it is open to this Court to examine the evidence and to see whether there was any relevant legal evidence to support the satisfaction of the District Magistrate. He has further contended that, even if the satisfaction of the District Magistrate is merely subjective, this Court can still see whether there is any relevant evidence or material in support of it. On the other hand, the learned Advocate General has submitted that, keeping in mind the facts that the action to be taken is preventive, that only the general nature of the material allegations are to be disclosed, that the opportunity to be given is only in respect of the general nature of the material allegations, that the District Magistrate is not required to disclose all or any of the material or evidence on which he relies and that the satisfaction for taking such preventive action is usually in the realm of suspicion and not proof, the satisfaction cannot but be held to be subjective and not objective. We do not feel called upon to decide these questions in these cases for the reason that the stage of the satisfaction of the District Magistrate, whether it be objective or subjective, was not legally and properly reached. 9. Notices u/s 3(1) were served by the District Magistrate on each of the Petitioners. The U.P. Control of Goondas Rules, 1970, set out in the schedule, the form in which the notice u/s 3(1) is to be given. The opening part of the notice recites in paragraphs (a), (b) and (c) that the conditions mentioned in Clauses (a), (b) and (c) of Section 3(1) appear to the District Magistrate to exist. The notices given to the Petitioners are in the prescribed form. In the opening part of each notice it is stated that it appeared to the District Magistrate that the Petitioners were goondas (satisfying the requirements of Section 2(b)(i) and (iv)), that their movements and acts were causing or were calculated to cause alarm, danger or harm to persons or property and that witnesses were not willing to come forward to give evidence against them by reason of apprehension on their part as regards the safety of their person or property. After the opening part, the prescribed form states: and whereas the material allegations against him in respect of the aforesaid Clauses (a)(b)(c) are of the following general nature: (1)... ... ... ... (2)... ... ... ... (3)... ... ... ... In each of the notices given to the Petitioners, in this blank space, instead of setting out the general nature of the material allegations against each one of the Petitioners is given a list of First Information Reports filed against each Petitioner in the last several years and references of cases in which they were convicted. The learned Advocate General has frankly and fairly accepted that the notices in the present cases do not set out the general nature of the material allegations against the Petitioners. He faintly argued that this defect in the notices did not handicap the Petitioner-sin making their representations. In our opinion, the defect of not setting out the general nature of the material allegations in the notices is a fatal defect as it results in non-compliance with the provisions of Section 3(1). The notices cannot be deemed to be notices u/s 3(1). In our opinion, the defect of not setting out the general nature of the material allegations in the notices is a fatal defect as it results in non-compliance with the provisions of Section 3(1). The notices cannot be deemed to be notices u/s 3(1). Section 3(1) enjoins upon the District Magistrate to inform the goonda of the general nature of the material allegations against him in respect of Clauses (a), (b) and (c) and further enjoins upon to give the goonda a reasonable opportunity of furnishing his explanation regarding them. If the goonda is not informed of the general nature of the material allegations regarding Clauses (a), (b) and (c), he can furnish no explanation in respect of them and would be deprived of the reasonable opportunity to which he is entitled u/s 3(1). Not only this, in the absence of a proper explanation, he would also be deprived of the reasonable opportunity Under Sub-section (2) of producing his evidence in support of his explanation. When he is deprived of the reasonable opportunity at both these stages, the action taken must be held to be illegal. Where a statute permits the executive to pass orders imposing restrictions on the fundamental rights of the citizens guaranteed by Article 19 of the Constitution, then such orders can be passed only after strictly complying with the provisions of the statute. If orders are passed without strictly complying with the provisions of the statute, they must be struck down. For these reasons, we think that the notices issued to the Petitioners were illegal, not having been issued in accordance with the provisions of Section 3(1) and the subsequent action taken on the basis of these notices must fall with the notices. The orders of externment passed by the District Magistrate and the appellate orders of the Commissioner confirming them deserve to be quashed. 10. We accordingly allow the writ petitions and quash the orders of externment passed by the District Magistrate against the Petitioners as well as the orders of the Commissioner upholding these orders. In the circumstances of these cases, there will be no order as to costs.