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2018 DIGILAW 1311 (ALL)

SURESH TEWARI v. STATE OF U P

2018-05-23

DEVENDRA KUMAR UPADHYAYA, RAJNISH KUMAR

body2018
JUDGMENT : 1. Supplementary affidavit in support of petition filed by the petitioner and the instructions dated 13.05.2018 received by the learned Government Advocate from the Additional District Magistrate, filed by the Additional Government Advocate, are taken on record. 2. The petitioner-Suresh Tiwari, by means of the present petition, has approached to this Court challenging the show-cause notice dated 22.03.2018 issued by the opposite party No. 2-Additional District Magistrate, Gonda, under Section 3(1) of the U.P. Control of Goondas Act, 1970, vide Case No. D-201808300000920, Police Station- Khargupur, District-Gonda contained in Annexure No. 1 to the writ petition. The petitioner has further prayed for a direction to the opposite parties not to give effect to the notice dated 22.03.2018 issued by opposite party No. 2. 3. It has been alleged in the writ petition that the impugned show-cause notice dated 22.03.2018 has been issued on the basis of only one criminal case, which is clear from the show-cause notice itself, against the petitioner vide Case Crime No. 097 of 2017, under Sections 323, 504, I.P.C. and Section 3(1) S.C./S.T. Act. It has further been alleged that the petitioner is accused in only one case, hence petitioner cannot be said to be habitual offender. In the said case also, he has falsely been implicated. 4. In the supplementary affidavit filed today, petitioner has disclosed that an F.I.R. was lodged against the petitioner at Case Crime No. 097 of 2017, Police Station Khargupur, District Gonda on 12.04.2017 at about 12:40 p.m. It has been alleged in the F.I.R. that the petitioner had assaulted the informant on 10.04.2017 at about 7:00 a.m. in the morning. The petitioner had appeared before the Special Judge (S.C./S.T. Act), Gonda and was enlarged on bail on 04.08.2017, on his furnishing personal bond of Rs. 20,000/- and two sureties in the like amount. It has further been alleged that no other criminal case is pending against the petitioner and he is not a habitual offender. 5. It has however been alleged that the local police with mala fide intention, prepared a G.D. Entry No. 37 dated 24.07.2017, Police Station-Khargupur and sent the recommendation to the opposite party No. 2, who without going into the merits of the allegations and without applying his mind issued show-cause notice dated 22.03.2018 under Section 3(1) of the Uttar Pradesh Control of Goondas Act, 1970,(hereinafter referred as Goondas Act). 6. 6. In the written instructions provided to the learned A.G.A. dated 13.05.2018 by the Additional District Magistrate, Gonda, it has been stated that the impugned notice has been issued under Section 3(1) of the Goondas Act, on the basis of the Challani report dated 28.07.2017 submitted by the Superintendent of Police, Gonda. It has further been informed that the Public Prosecutor had submitted a report dated 13.11.2017 indicating therein that the charge sheet has not been annexed alongwith the report and in case the same is annexed and submitted, there is no legal hurdle in issuing show-cause notice. Thereafter, on submission of the report alongwith the charge sheet, the show-cause notice was issued after considering the Beat information and the documents. It has however been contended that it has been revealed in the show-cause notice that the petitioner has to submit reply to the notice dated 22.03.2018. Further the petitioner appeared and furnished two sureties of Rs. 50,000/- each and a personal bond of Rs. 50,000/- which has been accepted by the Court and the case has been fixed on 26.05.2018 for objections. After receipt of the objections, the decision will be taken by the Court on merit. But instead of submitting his reply he has directly approached this Court. It has also been submitted that the petitioner has been charge sheeted in Case Crime No. 097 of 2017, vide charge sheet bearing No. A-17 dated 26.05. 2017, meaning thereby he has a criminal history. 7. Heard Sri. Praveen Tripathi and learned Additional Government Advocate and perused the records. 8. It has been submitted by the learned counsel for the petitioner that the impugned show-cause notice has been issued against the petitioner only on the basis of his alleged involvement in a solitary case. Learned counsel for the petitioner further submitted that the petitioner is neither a gang leader nor member of any gang. He further submitted that the petitioner has falsely been implicated in case referred in the show-cause notice, in which on being surrendered, he has been enlarged on bail by the Court concerned. It has further been submitted that the Beat report of the S.H.O., No. 037 dated 24.07.2017 has falsely been prepared with mala fide intentions for initiating the proceedings against the petitioner under Goondas Act. It has further been submitted that the Beat report of the S.H.O., No. 037 dated 24.07.2017 has falsely been prepared with mala fide intentions for initiating the proceedings against the petitioner under Goondas Act. It has further been alleged that it has falsely been mentioned in the Beat information that the accused are preparing to kill the complainant of the case Madhav while in Case Crime No. 097 of 2017, the petitioner is the only accused. The respondent No. 2 without any material in regard to him being an alleged habitual offender or any act of petitioner, issued a show-cause notice against the petitioner dated 22.03.2018 without application of mind and verifying the facts. 9. On the basis of aforesaid submissions, learned counsel for the petitioner submitted that the show-cause notice dated 22.03.2018 is liable to be quashed. 10. Learned Additional Government Advocate vehemently opposed the submissions of learned counsel for the petitioner. Primarily it has been submitted that the writ petition is not maintainable for the reason that it has been filed against a show-cause notice by which the petitioner has been directed to submit a reply to the show-cause notice and whatever has been submitted before this Court can be submitted in reply to the show-cause notice which can be considered by the authority concerned, as such the writ petition is pre mature and liable to be dismissed on this ground alone. Further it has been stated that show-cause notice can be issued under Section 3 of the Goondas Act on a solitary case, in case the conditions enumerated in the Goondas Act are satisfied, accordingly the show-cause notice has rightly been issued in accordance with law. 11. We have considered the submissions of the parties and perused the material available on record. 12. Since, the question of maintainability of the writ petition has been raised by the learned Additional Government Advocate, we will take up the said issue first. If a show-cause notice has been issued under any provision of law then it should satisfy the conditions of that provision under which it has been issued and if it does not satisfy the same, on the face of it, it can certainly be challenged before this Court under Article 226 of the Constitution of India. 13. If a show-cause notice has been issued under any provision of law then it should satisfy the conditions of that provision under which it has been issued and if it does not satisfy the same, on the face of it, it can certainly be challenged before this Court under Article 226 of the Constitution of India. 13. In this regard, a Division Bench of this Court in the case of Jaindendra alias Chhotu Singh v. State of U.P., (2007) 57 AllCriC 791 : 2007 (2) ALJ 476) relying on a Full Bench decision of this Court, held that a show-cause notice which fails to indicate general nature of material allegations may be challenged and quashed on that ground alone under Article 226 of the Constitution of India. The relevant paragraphs 13 and 15 of the said judgment, on reproduction, read as under:- "13-We cannot have any doubt nor we can raise any dispute with regard to the aforesaid two Full Bench judgments of this High Court consisting of three Judges in Ramji Pandey, (1981) AllLJ 898 (FB)), which was also held good by another five Judge Bench in Bhim Sain Tyagi. It is to be remembered that if there is no material, the individual petitioner has every right to challenge the notice in the writ jurisdiction of the Court and there is no bar to that extent. But if there is some material, then the notice cannot be held to be defective but will be tested on the basis of the factual analysis by the appropriate Magistrate." 15. So far as the five Judges Bench of the Allahabad High Court in Bhim Sain Tyagi is concerned, it has held that the earlier Allahabad Full Bench judgment of three Judges is good law. A show-cause notice, which fails to indicate general nature of material allegations, may be challenged and quashed on that ground under Article 226 of the Constitution of India with liberty to the respondents always to issue fresh notice in accordance with law." 14. In view of above, we are of the considered opinion that a show-cause notice can be challenged if the show-cause notice fails to indicate material allegations on the basis of some material in accordance with the relevant provision of the Act. In view of above, we are of the considered opinion that a show-cause notice can be challenged if the show-cause notice fails to indicate material allegations on the basis of some material in accordance with the relevant provision of the Act. Our view is also fortified by a Full Bench decision of the five Judges in the case of Bhim Sain Tyagi v. State of U.P. & others, (1999) 39 AllCriC 321 : (1999 All LJ 1845), relevant paragraphs 19 and 20 of which is extracted hereunder: "19. Before closing this chapter one may usefully refer to the latest decision of the Hon'ble Supreme Court in Whirlpool Corporation, in which has held that "alternative remedy does not affect jurisdiction of High Court." 20. In view of the aforesaid discussion, the combined answer to the aforesaid three questions is that the decision in Ramji Pandey is good law, a show-cause notice which fails to indicate general nature of material allegations may be challenged and quashed on that ground under Article 226 of the Constitution of India with liberty to the respondents always to issue fresh notice in accordance with law." 15. Now coming to the show-cause notice, for examining the same, it will be beneficial to extract definition of "Goonda" in Section 2(b) and Section 3 of the Goondas Act. 16. Sections 2(b) and 3 of "Goondas Act" are reproduced 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. Explanation. Explanation. - "Tout" means a person who- (a) accepts or obtains, or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means any public servant or member of Government, Parliament or of State Legislature, to do or forbear to do anything or to show favour or, disfavour to any person or to render or attempt to render any service or disservice to any person, with the Central or State Government, Parliament or State Legislature, any local authority, Corporation, Government Company or public servant; or (b) procures, in consideration of any remuneration moving from any legal practitioner interested in any legal business, or proposes to any legal practitioner or to any person interested in legal business to procure, in consideration of any remuneration moving from either of them, the employment of legal practitioner in such business; or (c) for the purposes mentioned in explanations (a) or (b), frequents the precincts of civil, criminal or revenue Courts, revenue or other offices, residential colonies or residences or vicinity of the aforesaid or railway or bus stations, landing stages, lodging places or other places of public resort; or (vii) is a house-grabber. Explanation. - "House-grabber" means a person who takes or attempts to take or aids or abets in taking unauthorised possession or having lawfully entered unlawfully remains in possession, of a building including land, garden, garages or out-houses appurtenant to a building.] 3. Externment, etc. of goondas. Explanation. - "House-grabber" means a person who takes or attempts to take or aids or abets in taking unauthorised possession or having lawfully entered unlawfully remains in possession, of a building including land, garden, garages or out-houses appurtenant to a building.] 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 sub-clauses (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. 17. Rule 4 of the Uttar Pradesh Control of Goondas Rules, 1970 provides that notice under sub-section (1) of Section 3 shall, as far as may be, conform to Form I. We have gone through Form I, in which various ingredients have been mentioned and it has been indicated that whichever ingredient is not applicable, be deleted. 18. Coming back to the facts of the case, we find that the impugned show-cause notice dated 22.03.2018 contained in Annexure No. 1 to the writ petition has been issued by respondent No. 2 against the petitioner on the basis of his involvement in only one case, namely Case Crime No. 097 of 2017, under Section 323/504, I.P.C. and Section 3(1) of S.C./S.T. Act Police Station Khargupur, District Gonda. The impugned show-cause notice also refers to a beat information vide G.D. entry No. 37 dated 24.07.2017, at P.S. Kotwali Khargupur, District Gonda, without any detail with regard to the subject-matter of the said beat information. 19. The impugned show-cause notice also refers to a beat information vide G.D. entry No. 37 dated 24.07.2017, at P.S. Kotwali Khargupur, District Gonda, without any detail with regard to the subject-matter of the said beat information. 19. The offence under Section 394/411, I.P.C. are covered in Chapter XVI and Chapter XXII of the Indian Penal Code and so the present case falls under clause (i) of the Act 1970. However offence under Section 3(1) of S.C./S.T. Act does not fall under any of the category. The requirement of applicability of the clause (i) is that Goonda means that 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 offences punishable referred to in the said clause. In the impugned show-cause notice there is a description of only one criminal case against the petitioner, while as per the definition and the law settled by this Court as well by the Hon'ble Apex Court, one cannot be treated to be a habitual offender unless and until there is recurrence of offences. Since, there is a reference of one stray incident only in the notice, the petitioner could not be deemed to be a habitual offender on the basis of that single incident only and so the notice fails to satisfy the legal requirement. 20. A Division Bench of this Court in the case of Imran alias Abdul Qudus Khan while examining the question whether a person can be labelled as "Goonda" and notice under Section 3(3) of the U.P. Control of Goondas Act can be clamped upon him only on the basis of a solitary incident has, in paragraph Nos. 11, 12, 13 and 14 of its aforesaid judgment, observed as hereunder:- "11. 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 almost akin to the expression "anti social element" occurring in section 2 (d) of Bihar Prevention 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 and Others, (1984) 3 SCC 14 : ( AIR 1984 SC 1334 ). 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 and Others, (1984) 3 SCC 14 : ( AIR 1984 SC 1334 ). The meaning put to the aforesaid expression by the Apex Court would squarely apply to the expression 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 was that the word "habitually" means "by force of habit". It is the force of habit inherent or latent in an individual with a criminal instinct 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 an "anti social element". There are thus two views with regard to the expression "habitually" flowing from the decision of Vijay Narain's case. 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 of 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. II. 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. II. 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. 12. The word "habit" has a clear well understood meaning being nearly the same as "accustomed" and cannot be applied to 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., (1960) AIR Allahabad 754 it was observed that it would be incorrect to say that 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 resulting 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 Indian Law Reports 6 Allahabad Series 2000 of the occasions but rather to the invariability of the practice. 13. 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 behavior 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. 14. 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. 14. Expressions like "by habit" "habitual" "desperate" "dangerous" and "hazardous" cannot be flung in the face of a man with laxity or semantics. The court must insist on specificity of facts and a consistent course of conduct convincingly enough to draw the rigorous inference that by confirmed habit, the petitioner is sure to commit the offence if not externed or say directed to take himself out of the district. It is not a case where the petitioner has ever involved himself in committing the crime or has adopted crime as his profession. There is not even faint or feeble material against the petitioner that he is a person of a criminal propensity. The case of the petitioner does not come in either of the clauses of Section 2 (b) of the Act, which defines the expression "Goonda". Therefore, to outright label bona fide student as "goonda" was not only arbitrary, capricious and unjustified but also counter productive. A bona fide student who is pursing his studies in the Post Graduate course and has never seen the world of the criminals is now being forced to enter the arena. The intention of the Act is to afford protection to the public against hardened or habitual criminals or bullies or dangerous or desperate class who menace the security of a person or of property. The order of externment under the Act is required to be passed against persons who cannot readily be brought under the ordinary penal law and who for personal reasons cannot be convicted for the offences said to have been committed by them. The legislation is preventive and not punitive. Its sole purpose is to protect the citizens from the habitual criminals and to secure future good behavior and not to punish the innocent students. The Act is a powerful tool for the control and suppression of the "Goondas"; it should be used very sparingly in very clear cases of "public disorder" or for the maintenance of "public order". If the provisions of the Act are recklessly used without adopting caution and desecretion, it may easily become an engine of operession. The Act is a powerful tool for the control and suppression of the "Goondas"; it should be used very sparingly in very clear cases of "public disorder" or for the maintenance of "public order". If the provisions of the Act are recklessly used without adopting caution and desecretion, it may easily become an engine of operession. Its provisions are not intended to secure indirectly a conviction in case where a prosecution for a substantial offence is likely to fail. Similarly the Act should not obviously be used against mere innocent people or to march over the opponents who are taking recourse to democratic process to get their certain demands fulfilled or to wreck the private vengeance." It is to be noted that the language of the show cause notice dated 22.03.2018 itself indicates that the same has been issued on a printed proforma without ascertaining whether the petitioner himself or as a member or leader of a gang is "goonda" and without recording reasonable grounds for believing that the petitioner is engaged or about to engage in the district or in part thereof in the commission of offences referred to in sub-clauses (i) to (iii) of Clause (b) of Section 2 or any such offence. While the show-cause notice itself shows in paragraph (b) that the petitioner is either engaged or about to engage in any such offence enumerated under Chapters 16, 17 and 22 of the Indian Penal Code, which goes to indicate that the show-cause notice has been issued without application of mind. 21. In view of above, we are unable to convince ourselves to agree with the contention of the learned Additional Government Advocate that there is material against the petitioner and he can justify his stand before the authority concerned. On perusal of show-cause notice we find that there is total non-application of mind in issuing the show cause notice. 22. The Hon'ble Apex Court in the case of Vijay Narain Singh v. State of Bihar and Others, (1984) 3 SCC 14 : ( AIR 1984 SC 1334 ) 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. 22. The Hon'ble Apex Court in the case of Vijay Narain Singh v. State of Bihar and Others, (1984) 3 SCC 14 : ( AIR 1984 SC 1334 ) 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 AllCriC 321 : (1999 All LJ 1845) (FB)). 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 alias Chhotu Singh v. State of U.P., (2007) 2 AllLJ 476. 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 Jaidendra which have been quoted above, also support this conclusion. 23. Hence, in view of the discussions made above, we are unable to convince ourselves that the impugned show-cause notice has been issued in accordance with law. Accordingly, we are unable to uphold the show-cause notice and the show-cause notice lacks merit on test in view of legal provisions and is liable to be quashed. 24. Thus the writ petition is allowed. The show cause notice dated 22.03.2018, vide Case No. D-201808300000920, Police Station- Khargupur, District-Gonda contained in Annexure No. 1 to the writ petition is hereby quashed. 25. Before parting, we observe that the quashing of the show-cause notice does not preclude the authorities from taking action in accordance with law, if there is sufficient material against the petitioner, in the light of the observations made hereinabove. 26. No order as to costs.