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2015 DIGILAW 723 (ALL)

BINNI @ VIJAN v. STATE OF U. P.

2015-04-07

PANKAJ NAQVI

body2015
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Sri Gaurav Kakkar, Sri S.D. Goswami, learned counsel for petitioners in support of their respective petitions, Sri Vimlendu Tripathi, learned A.G.A and perused the records. 2. Since common issues are involved in both the writ petitions, facts stated in Writ Petition No. 6198/2015, is treated as a leading petition. Sri Tripathi, learned A.G.A. submits that there is no factual issue involved in the present petition, he does not propose to file any counter-affidavit, instead has filed materials like police report and other documents, which are taken on record to which learned counsel for petitioners, have no objection. Thus, in terms of the Rules of the Court, both the petitions are being disposed of by a common judgment at the admission stage itself. 3. The moot question is whether petitioners could be proceeded under the provisions of U.P. Control of Goondas Act, 1970 on the basis of a solitary case. The issue has arisen amidst the following backdrop. 4. The petitioner was confronted with a show-cause notice dated 16.12.2013, under Section 3 of U.P. Control of Goondas Act, 1970 (for short “the Act”), indicating his involvement in Case Crime No. 125/2013, under Sections 307/120-B/34 IPC, P.S. Kotwali Nagar, Saharanpur, alleging that on 7.6.2013, he inflicted serious fire-arm injuries to the son of informant, which led to the filing of the charge-sheet. The petitioner contested the notice. The A.D.M. (F.R.), Saharanpur on 11.11.2014 confirmed the notice and passed an order of externment against the petitioner for six months. The petitioner unsuccessfully preferred an appeal on 27.1.2015. Challenging the orders dated 11.11.2014 and 27.1.2015, petitioner has preferred this writ petition. 5. Learned counsel for petitioner would submit that to attract the applicability of the provisions of the Act, the essential pre-requisite is that a person must be a “goonda” as defined under Section 2(b) of the Act, which in terms of the definition read with clause (i) thereof, indicates plurality of offences. Elaborating his submission, he contends that the word “habitually” in the context of Section 2(b)(i) of the Act, connotes repeat offences, thus it would be an antithesis to apply the provisions of the Act on the basis of a solitary case. Elaborating his submission, he contends that the word “habitually” in the context of Section 2(b)(i) of the Act, connotes repeat offences, thus it would be an antithesis to apply the provisions of the Act on the basis of a solitary case. He relies on a judgment of the Apex Court in the case of Vijay Narain Singh v. State of Bihar and others, 1984 (3) SCC 40 and a Division Bench of this Court in the case of Imran @ Abdul Qudus Khan v. State of U.P. and others, 2000 Cr LJ 1328. 6. Learned A.G.A. while opposing the submissions, contends that it is not the number of offences, but the impact of the crime, generated from a case that would determine the applicability of the provisions of the Act. He places reliance on a judgment of the Apex Court in the case of State of Maharashtra v. Salem Hasan Khan, 1989 AIR 1304. 7. To appreciate the rival contentions, it would be apposite to first have the definition of the word “goonda” as defined under Section 2(b) of the Act, which is quoted hereunder : Section 2(b) defines a “goonda” as 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 a house-grabber. 8. 8. Thus, what we find from a perusal of the definition of the word “goonda” is that for the purposes of Clause (i), he should be a person who 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. The emphasis under sub-clause (i) is on the word “habitually” and the “specified offences”. 9. The Apex Court in the case of Vijay Narain Singh (supra) while dealing with the provisions of the Bihar Control of Crimes Act, 1981, a law relating to preventive detention, wherein the word “anti-social elements” as defined in Section 2(d) of the Act, was para materia with the definition of the word “goonda” as defined under the Act, it was held in paragraph-31 as under : The expression ‘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. If 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. This appears to be clear from the use of the word ‘habitually’ separately in sub-clause (i), sub-clause (ii) and sub-clause (iv) of Section 2 (b) and not in sub-clauses (iii) and(v) of Section 2 (d). This appears to be clear from the use of the word ‘habitually’ separately in sub-clause (i), sub-clause (ii) and sub-clause (iv) of Section 2 (b) and not in sub-clauses (iii) and(v) of Section 2 (d). If the State Legislature had intended that a commission of two or more acts or omissions referred to in any of the subclauses (i) to (v) of Section 2 (d) was sufficient to make a person an ‘anti-social element’, the definition would have run as ‘Anti-Social Element’ means ‘a person who habitually is .....’ As Section 2 (d) of the Act now stands, whereas under sub-clause (iii) or sub-clause (v) of Section 2 (d) a single act or omission referred to in them may be enough to treat the person concerned as an ‘anti-social element’, in the case of sub-clause (i), sub-clause (ii) or sub-clause (iv), there should be a repetition of acts or omissions of the same kind referred to in sub-clause (i), sub-clause (ii) or in sub-clause (iv) by the person concerned to treat him as an ‘anti-social element’. Commission of an act or omission referred to in one of the sub-clauses (i). (ii) and (iv) and of another act or omission referred to in any other of the said sub-clauses would not be sufficient to treat a person as an ‘anti-social element’. A single act or omission falling under sub-clause (i) and a single act or omission falling under sub-clause (iv) of Section 2 (d) cannot, therefore, be characterised is a habitual act or omission referred to in either of them. Because the idea of ‘habit’ involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omission in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between the they cannot be treated as habitual ones. 10. The view taken by the Apex Court was also followed by the Division Bench of this Court in the case of Imran @ Abdul Qudus Khan (supra). 10. The view taken by the Apex Court was also followed by the Division Bench of this Court in the case of Imran @ Abdul Qudus Khan (supra). The Apex Court in the case of State of Maharashtra and others v. Mehmud, 2007(12) SCC 358 , once again had an occasion to deal with the provisions of Section 2(b)(i) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, wherein the term “dangerous person” was defined, which is para materia with the word “goonda” under the Act and in that context, approved the view taken in Vijay Narain Singh (supra). 11. Thus what follows from the aforesaid discussion is that for a person to be a “goonda” under sub-clause (i) (b) of Section 2 of the Act, he is to be a person who has to his credit repeated/persistent overt acts, not isolated/individual act. 12. It is not disputed that there is only one case under Section 307 IPC, which formed the basis for initiation of a notice dated 16.12.2013 (Annexure-2), under Section 3 of the Act. A perusal of notice would manifest that it proceeds to record petitioner as a “goonda” on a solitary case under Section 307/120-B/34 IPC as he is alleged to have inflicted serious fire-arm injuries to the son of the informant, in which charge-sheet has been filed. A notice under Section 3 of the Act pre-supposes that for a person to be a “goonda” under Section 2(b)(i) of the Act, he should 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; meaning thereby he must be in the habit of committing repeated specified offences. 13. In so far the authority cited by learned A.G.A. is concerned, it relates to Bombay Police Act pertaining to externment proceedings, wherein it was held that the State Government is not obliged to give reasons while passing an order of externment or disposing of an appeal as that would frustrate the very purpose and object of the Act. 13. In so far the authority cited by learned A.G.A. is concerned, it relates to Bombay Police Act pertaining to externment proceedings, wherein it was held that the State Government is not obliged to give reasons while passing an order of externment or disposing of an appeal as that would frustrate the very purpose and object of the Act. The said case would have no application in the present case primarily on the ground that it is not a case of the petitioner that the impugned order has been passed in the absence of any reasons and also on the ground that statutory provisions involved therein, have not been quoted. Needless to state, a case is an authority only for the proposition it decides. 14. The position which now emerges is that the notice based only on a solitary case under Section 307/120-B/34 IPC, which in the considered opinion of the Court, could not form the basis for initiating the proceedings under Section 3(1) of the Act. The preventive laws have to be complied both substantively and procedurally as it affects the liberty of an individual. 15. In view of aforesaid, the Court has no option, but to hold that the impugned orders dated 16.12.2013 and 11.11.2014 in leading Petition and 12.6.2009 and 16.3.2015 in connected Petition are in the teeth of the settled legal position, which cannot be sustained and are liable to be quashed. 16. The writ petition succeeds and is allowed. The impugned orders dated 16.12.2013 and 11.11.2014 in leading Petition and 12.6.2009 and 16.3.2015 in connected Petition are quashed. No order as to costs. ———————