Mohan Lal v. State of Rajasthan — 1991 DIGILAW 521 (RAJ)

Honble B.R. ARORA, J.—By these writ petitions, the petitioners have challenged the validity of the notices issued by the District Magistrate, Nagaur, under section 3 of the Rajasthan (Control of Gundas) Act, 1975 (herein after referred to as the Act), by which the petitioners were informed that it appears to the District Magistrate, Nagaur, that the petitioners are Gundas as per clause 2(b) (viii) of the Act and are engaged in committing criminal offences either by himself or as a member or leader of a Gang and thereby creating panic in the area. Their activities or acts in the town of Ladnu and its adjoining area are calculated to cause danger or harm to the persons or properties and there are reasonable grounds for believing that they are engaged in the commission of the acts specified in sub-clause (viii) of Clause (b) of section 2 of the Act and the witnesses are not willing to come forward to give evidence against him for fear of violence to their persons or properties. The petitioners were, therefore, asked to appear before the learned District Magistrate, Nagaur, on the dates mentioned in the notices and to show cause why the order for externment of the petitioners under section 3(3) of the Act should not be passed. 2. Heard learned counsel for the petitioners and the learned Dy. Govt. Advocate. 3. It is contended by the learned counsel for the petitioners that the allegations made in the notices are vague, inadequate, incomplete and inconclusive and from the allegations made in the notices, it does not appear that the petitioners are Gundas as defined in the Act. It has further been submitted that the sine qua non for initiating the proceedings against the petitioners under section 3 of the Act are missing and the materials, on the basis of which the learned District Magistrate proceeded to initiate the proceeding sand issued the notices, have not been supplied to the petitioners. It was further submitted that in some cases, mentioned in the notices, even the final Reports have beep submitted but despite this, in the impugned notices, reliance has been placed on those First Information Reports. It has, also, been agitated that the conditions precedent, as laid down in Clauses (a), (b) and (c) of section 3 (1) of the Act are missing as no material has been produced by the prosecution. It has, also, been agitated that the conditions precedent, as laid down in Clauses (a), (b) and (c) of section 3 (1) of the Act are missing as no material has been produced by the prosecution. It is further submitted that mere registration of the First Information Reports is not sufficient for issuance of the notices until and unless the challan is submitted. Lastly, it is submitted that as per the Explanation appended to sub-clause (b) of section 2 of the Act, the person proceeded against must have been found on not less than three occasions to have committed the offence or breach of peace, riots or habituated to cause alarm or danger during the period of six months immediately before the commencement of the proceedings under section 3 of the Act and this condition is not satisfied in these cases and as such the impugned notices deserve to be quashed and set-aside. The learned Dy. Govt. Advocate, on the other hand, has supported the issuance of the impugned notices and according to him, the allegations made in the notices are specific and cannot be said, in any way, to be vague or incomplete. According to the learned Dy, Govt. Advocate, the learned District Magistrate, Nagaur, is required only to intimate the person concerned the general nature of the material allegations and these requirements have fully been complied with in these cases. The learned Dy Govt. Advocate, further, submitted that all the requirements for the issuance of the notices are present in the cases and the notices have been rightly issued. 4. I have considered the rival submissions made by the learned counsel for the parties. 5. The question which requires consideration is whether the impugned notices issued under section 3 of the Act, suffer from any infirmity? The impugned notices have been challenged by the learned counsel for the petitioners on two grounds : firstly, on the ground that the allegations made in the notices are vague, inadequate, incomplete or inconclusive, and secondly, that the conditions for initiating the proceedings under the Act and issuance of the notices under section 3(3) of the Act do not exist. 6. 6. The first infirmity pointed-out by the learned counsel for the petitioners that the notices issued by the District Magistrate, Nagaur, contain the allegations which are vague, inadequate, incomplete and inconclusive in nature and do not afford a reasonable opportunity to the petitioners to tender their explanation. 7. Section 3 (1) of the Act only requires that the District Magistrate, by a notice in writing may inform the person concerned, the general nature of the material allegations against him in respect of Clauses (a), (b) and (c) of section 3 (1) of the Act. As per section 3 of the Act, it is sufficient if the notices issued under section 3 of the Act contain the general nature of the material allegations and it need not to contain the detailed particulars. The material allegations that have been given in the impugned notices are to the effect that the First Informition Reports on various dates have been registered against the petitioners at police station, Ladnu, and in some of the cases, after investigation, the challans have been submitted as the cases were found against the petitioner. The dates and the number of the First Information Reports have, also been mentioned in the notices. It has also been mentioned in the notices that the petitioners earlier also, were found involved in the criminal activities and the number of First Information Reports with dates and the cases have been given. It was, also, mentioned in the impugned notices that to the learned District Magistrate, they appear to be Gundas and their activities have caused alarm, danger or harm to the persons or property in the town of Ladnu and its adjoining area and there are reasonable grounds for believing that the petitioners are engaged in the acts specified in sub-clause (viii) of Clause (b) of section 2 of the Act and the witnesses, on account of fear or violence to their person or properties, are not willing to come forward to give evidence against them. 8. I have gone-through the notices in all these cases. The allegations contained in the impugned notices against the petitioners, in my opinion, contain the general nature of material allegations as required under section 3 of the Act made against each of the petitioners in respect of which the petitioners have been asked to tender an explanation regarding them. 8. I have gone-through the notices in all these cases. The allegations contained in the impugned notices against the petitioners, in my opinion, contain the general nature of material allegations as required under section 3 of the Act made against each of the petitioners in respect of which the petitioners have been asked to tender an explanation regarding them. The notices, also, refer to the First Information Reports numbers, dates places of the occurrence, name of the police station and the details of the acts which are stated to have been committed as well as the place and the area where they said to have been committed. The persons against whom the order of extemment is proposed to be passed, while giving reply to the notices under section 3 of the Act, are required give the explanation which can be of a general nature. He can have a right to be consulted and defended by the counsel and can examine himself or may produce any other witness and/or the relevant document if he so desires, in support of his explanation. After going-through the notices, I am of the view that the allegations made in the notices, cannot be said to be vague or incomplete, but they are specific and relevant and afford a full opportunity to the petitioners to tender the explanation regarding those allegations if they so like. 9. The next infirmity pointed out by the learned counsel for the petitioners, on the basis of which the impugned notices are sought to be quashed, is that the conditions precedent for issuing the notices are not present in these cases. The Rajasthan (Control of Gundas) Act, 1975, was enacted by the State Legislature with a view to make specific provisions for the control of suppression of the Gundas and to maintain public order. It is preventive in nature and makes provisions for preventing the breach of peace and invasion on private rights and imposes certain restrictions on the individuals personal liberty and rights. The Act authorises the District Magistrate concerned to take action under section 3 of the Act to prevent a person, who has been proved to be a criminal, from acting in a way which may be criminal and in doing so, the State has put fetters on his complete movement in the good of larger number of people. The Act authorises the District Magistrate concerned to take action under section 3 of the Act to prevent a person, who has been proved to be a criminal, from acting in a way which may be criminal and in doing so, the State has put fetters on his complete movement in the good of larger number of people. The restriction on the freedom of fewer number of people has been imposed in order to give peace and harmony to the public at large and for the safe living of the majority of the community. The Legislature has, thus, entrusted the District Magistrate of the district concerned under section 3 of the Act, after examining the facts and circumstances of each case before him, to initiate the proceedings for the externment of the person or persons of bad character with previous record of conviction (a) or with criminal persistence whose presence in the district or a part of it constitutes a menace to the safety of the persons residing there in and against whom the witnesses are not willing to come forward to give evidence for fear of violance to their person or property. These powers under section 3 of the Act are to be exercised by the learned District Magistrate with care and caution. 10. These powers under section 3 of the Act are to be exercised by the learned District Magistrate with care and caution. 10. In order to attract the provisions of section 3 of the Act for issuance of the notices for the proposed externment, it is necessary that when it appears to the District Magistrate that any person is Gunda and his movements or acts in the district or any part thereof are causing or purported to cause alarm danger or harm to the person or the property, or there are reasonable grounds for believing that he is engaged or about to engage in the district or any part thereof, in the commission or abatement of any offence specified in sub-clauses (i) to (viii) of Clause (b) of section 2 of the Act and that witnesses are not willing to come-forward to give evidence against him by reasons of apprehension on their part as regard the safety of their person or property, the District Magistrate, by notice in writing, may inform him of the general nature of the material allegations against him in respect of the offences falling under sub-section (a), (b) or (c) of section 2 of the Act and may give him a reasonable opportunity of tendering and explanation regarding them. According to section 2(b) of the Act, Gunda means a person, who:— "(i) to(vii)... (viii) is habituated to commit affray or breach of peace, riot, or who is habituated to make forcible collection of sub scription or threatening people for illegal pecuniary gain for himself or for others, or who is habituated to cause alarm, danger, or harm to persons or property. Explanation:— The word habitual or habituated where used in relation to a person in this clause means a person, who during a period within six months immediately preceding the commencement of an action under section 3 has been found on not less than three occasions to have committed the offences or acts, as the case may be, referred to in sub-clauses (i), (vi), (vii) or (viii)." 11. A reading of section 2(b) (viii) and section 3 of the Act alongwith the explanation appended to sub-sec. A reading of section 2(b) (viii) and section 3 of the Act alongwith the explanation appended to sub-sec. (b) of section 2 makes it clear that in the matters covered under sub-clause (viii) of section 2 (b) of the Act, the person against whom action under section 3 (3) of the Act is to be taken must have been found in not less than three occasions to have committed the offences or acts as the case may be, referred to in sub-clause (viii) during the period within six months immediately preceding the commencement of the action under section 3. Thus, to bring a person within the meaning of Gunda under section 2 (b) (viii) of the Act, it must be shown that the person is habituated to commit affray or breach of peace, riot or is habituated to make forcible collection of subscription or threatening people for illegal pecuniary gain for himself or for others, or is habituated to cause alarm danger or harm to persons or property, within a period of six months immediately preceding the commencement of an action under section 3 of the Act. 12. In the light of the discussions made above, it has to be seen now, whether the petitioner, against whom the notices under section 3 have been issued, have committed the acts of affray or breach of peace, riots or have caused alarm, danger or harm to the person or property in the city of Ladu or it adjoining area ? 13. In Mohan Lal vs. the State of Rajasthan (S.B. Civil Writ Petition No. 1987/90) a notice under sec. 3 of the Act has been issued to the petitioner on April 26, 1990, in which reference has been made with respect to the First Information Reports lodged at police station, Ladnu, on October 19, 1989, Nov. 17, 1989 and Dec. 6, 1989, each, respectively, and three First Information Reports lodged on Dec. 16, 1989. Out of these six First Information Reports, Final Reports so far as the petitioner is concerned, have been given and the involvement of the petitioner was not found by the police during investigation on F.I.R. No. 144/1989, 161/1989 and 178/1989. So far as first Information Report No. 163/1989 is concerned, the challan against the petitioner for offences under sections 148 and 427 I.P.C. has been filed. So far as first Information Report No. 163/1989 is concerned, the challan against the petitioner for offences under sections 148 and 427 I.P.C. has been filed. In F.I.R. No. 173 of 1989, no challan has been filed against the petitioner and the challan against accused Liyakat, Gani, Yusuf, Hakam, Ayub, Nathu and Sher Ali has been filed and investigation with respect to F.I.R. No. 175/1989 is still pending. In this view of the matter, so far as four First Information Reports are concerned, no case has been made out or found against the petitioner and only with respect to one F.I.R. the challan has been filed and in another case the investigation is pending. Thus, in the preceding six months, there are less than three occasions regarding which the petitioner is alleged to have committed the offence or the act as the case may be, referred to in Clause (viii) of section 2 (b) of the Act. 14. In Anil Kumar Vs. the State of Rajasthan (S.B. Civil Writ Petition No. 1988 of 1991) in the notice Annexure 1, the allegations against the petitioner are with respect to five First Information Reports and out of these five F.I.Rs. Final Reports have been given with respect to First Information Reports No. 144, !73 and 178 and the challan has been presented against the petitioner only in F.I.R. No. 163 and with respect to F.I.R. No. 175, the investigation is still pending. In this view of the matter, there are only two incidents which can be taken note of against the petitioner. 15. In Bhanwar Lal vs. the State of Rajasthan S.B. Civil Writ Petition No. 1989) of 1990in the notice dated April 26, 1990, a reference has been made with respect to three First Information Reports lodged at police station, Ladnu. So far as F.I.R. No. 175/ 1989 is concerned, the investigation is still pending. So far as F.I.R. No. 161/1989 is concerned, the Final Report has been given by the police as no case was found during investigation against the petitioners so far as F.I.R. No. 163 of 1989 is concerned, the challan against the petitioners has been filed in the court of Chief Judicial Magistrate. Nagaur. So far as F.I.R. No. 161/1989 is concerned, the Final Report has been given by the police as no case was found during investigation against the petitioners so far as F.I.R. No. 163 of 1989 is concerned, the challan against the petitioners has been filed in the court of Chief Judicial Magistrate. Nagaur. Thus, in one case the challan has been filed and in the second case, the investigation is still pending but so far as the third case is concerned, in that case the Final Report has been submitted. 16. In Ladu Ram Vs. the State of Rajasthan (S.B. Civil Writ Petition No. 1990 of 1990) in the notice dated April 26, 1990, reference has been made with respect to three First Information Reports regarding the incidents which relate to Oct 19, 1990 and these acts were, thus, committed beyond the period of six months from the date issuance of the notice and after excluding three First Information Reports, there remains only one F.I.R. which is related to the offence alleged to have been committed on December 16, 1989, but a solitary incident would hardly be sufficient to initiate the action under sec. 3 of the Act. 17. Similar are the case of Yasin Khan vs. the State of Rajasthan (S. B. Civil Writ Petition No. 2259/90) Babu Lal vs. the State of Rajasthan (S.B. Civil Wit Petition No. 2281/90), Kasam Khan vs. the State of Rajasthan S.B. Civil Writ Petition No. 2283/90), Nabbu vs. the State of Rajasthan (S.B. (Civil Writ Petition No. 2284/90) Raju vs. the State of Rajasthan (SB. Civil Writ Petition No. 2285/90), Anish Mohammed vs. the State of Rajasthan (S.B. Civil Writ Petition No. 2286 and Babu Khan vs. the State of Rajasthan (S. B. Civil Writ Petition No. 1650/90) in which, in the notices dated April 26, 1990, reliance has been placed on the First Information Reports relating to the dates October 19, 1989), which is admittedly beyond the period of six months and the same cannot be taken into consideration, for initiating the proceedings as according to the Explanation appended to section 2(b) of the Act, the person against whom proceedings under section 3 of the Act can be initiated, must have been found on not less than three occasions to have committed the offence or breach of peace, riots or who is habituated to cause alarm or danger to the person or the property during a period within six months immediately preceding the commencement of an action under section 3 of the Act. In all these cases, the incident mentioned in the notices, within the period of six months immediately preceding the date of the notices, the offences are less than three, and, therefore, the requirement of section 3 read with section 2 (b) (viii) of the Act for initiating the proceedings, has not been made-out. 18. Now remains the case; Moideen Khan vs. the State of Rajasthan (S.B. Civil Writ Petition No. 2282/1090) in which the allegations are only with respect to three First Information Reports. The notice in that case was issued probably in the month of January, 1990 because in the notice the petitioner was asked to appear before the learned District Magistrate on February, 20, 1990, From the reply, filed by the State, it is clear that so far F.I.R. No. 137 of 1989 is concerned, in that case the final Report has been submitted by the police after necessary investigation as according to the investigation, no incident actually took-place. Thus, there remain only two First Information Reports against the petitioner Moideen Khan, in which the challan against the petitioner has been filed in this case, also the requirement of section 2 (b) (viii) of the Act is, also not made-out. 19. The proceedings under section 3 of the Act are not for the prosecution of the person of the criminal character but they are initiated only to put him off the harms way. 19. The proceedings under section 3 of the Act are not for the prosecution of the person of the criminal character but they are initiated only to put him off the harms way. Though the externment on the fact of it, does not appear to be a serious interference with the personal liberty of a person concerned, but in actual life, it causes serious injury to the person as it makes the person jobless and homeless and, also, seriously affects the rest of his family if he is the sole earning member of the family. The order of externment leaves the person in the streets to seek livelihood at a place stranger to him, but the imposition of such type of restriction on the right of free movement of certain person whose presence causes grave concern in the locality, has to be made and the indivutual right of a citizen to reside in and freely move in any part of the territory of India has to be yielded to the larger interest of the community, These provisions have been made in the interest of public at large and to avert the manace to the safety of public at large. As the act imposes a restriction of the free movement of certain persons and therefore, unless and until the condi- tions referred in the Act are present, the person concerned cannot be externed and the proceeding cannot be initiated against him. The Legislature has pro-vided certain safeguards against the arbitrary exercise of the powers by the learned District Magistrates and before passing an order of externment, a proce-dure has been provided under section 3 of the Act, which contains the provision of issuance of show cause notice, the filing of reply and defending his case through a counsel. The Legislature has, also, made a provision that before issuance of the notice under section 3 of the Act, the conditions precedent under Clauses (a), (b), and (c) section 3(1) of the Act should be complied with. These are pre-conditions in notice under section 3 of the Act, sub clauses (b) of Section 2 defines the word "Gunda.", who is the person against whom the order under Section 3 of the Act can be passed. These are pre-conditions in notice under section 3 of the Act, sub clauses (b) of Section 2 defines the word "Gunda.", who is the person against whom the order under Section 3 of the Act can be passed. According to the Explanation appended to sub-section (b) of section 2, "Gunda" means a person who during a period of six months immediately preceding the commencement of an action under section 3 of the Act, has been found on not less than three occasions to have committed the acts or offences, as the case may be referred to in Sub-Clauses (i), (vi), (vii) or (viii) of Clause (b) of section 2 of the Act, Thus, the requirement of law is that within a period of six months immediately preceding the commencement of action under section 3 of the Act, the 3erson must have committed an act or offences not less than three in number. Thus, if a person has committed less than three acts or offences then he cannot be termed as Gunda" for the purpose of S. 3(1) (a) read with S. 2(b) of the Act and no action under section 3 of the Act, can be taken against him. The solitary incident or number would hardly be sufficient to initiate the proceedings against any person. 20. In the present casea, as discussed above, none of the petitioners has been found to have committed three acts or offences referred to in sub-clause (viii) of Clause (b) of section 2 of the Act with in a period of six months immediately preceding the issuance of the impugned notices, which is the requirement of initiation of the proceedings under section 3 of the Act. 21. Consequently, all these writ petitions, filed by the aforesaid petitioners, are allowed and the notices issued against the petitioners by the learned District Magistrate, Nagaur, under section 3 of the Rajasthan (Control of Gundas) Act, 1975, are quashed.