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2018 DIGILAW 494 (RAJ)

Mushtaque Son of Shri Shahabuddin Teli v. State of Rajasthan Through Secretary to Government, Home Department, Rajasthan, Government Secretariat, Jaipur

2018-02-09

M.N.BHANDARI

body2018
ORDER : 1. By this writ petition, a challenge is made to the order dated 19th January, 2018 passed by the Additional District Judge, Sawaimadhopur under the Rajasthan Control of Goondas Act, 1975 (for short “the Act of 1975”). 2. Learned counsel submits that impugned order herein has been passed in a cyclostyle manner. It is ignoring that petitioner does not fall in the definition of “Goonda”, as given under Section 2(b) of the Act of 1975. 3. It is stated though an order has been passed against the petitioner but in the operative portion, name of Purshottam Singh S/o Shri Gopal Singh has been given. It shows non-application of mind of the authority concerned, accordingly, impugned order deserves to be set aside. The Explanation appended to the definition of “Goonda”, the word “habitual or “habituated” has been referred. As per Explanation, the word “habitual or “habituated” would mean commission of offence given under sub-clauses (i), (vi), (vii) or (viii) not less than three occasions in previous six years. The petitioner has not committed any offence within a period of six months on three different occasions. In view of the above also, impugned order deserves to be set aside. 4. I have considered the submission made by learned counsel for petitioner and perused the record. 5. The challenge to the order dated 19th January, 2018 has been made in reference to Section 2(b) defining the word “Goonda” and Section 3 of the Act of 1975. In view of the above also, impugned order deserves to be set aside. 4. I have considered the submission made by learned counsel for petitioner and perused the record. 5. The challenge to the order dated 19th January, 2018 has been made in reference to Section 2(b) defining the word “Goonda” and Section 3 of the Act of 1975. For ready reference, both the provisions are quoted hereunder: “(b) "Goonda" means a person who: (i) either by himself or as a member or leader or gang, habitually commits, or attempts to commit, or abets the commission of, offences punishable under Chapter XVI, Chapter XVII or Chapter XXII of the Indian Penal Code, 1860 (Act XLV of 1860) or under sections 290 to 294 of the Indian Panel Code, 1860; or (ii) has been convicted under Suppression of a Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956); or (iii) has been convicted not less than twice under the Rajasthan Excise Act, 1950 (Rajasthan Act No. 11 of 1950); or (iv) has been convicted not Less than twice under the Opium Act, 1878 (Central Act No. 1 of 1878); or (v) has been convicted not less than twice under Rajasthan Public Gambling Ordinance, 1949 (Rajasthan Ordinance No.48 of 1949); or (vi) has been found habitually passing indecent remarks to or teasing women or girls; or (vii) has been found habitual in intimidation of law-abiding people by acts of violence or by show of force; or (viii) is habituated to commit affray or breach of peace, riot, or who is habituated to make forcible collection of subscription 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' wherever 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).” “3. Externment etc., of Goondas-(1) Where it appears to the District Magistrate- (a) that any person is a goonda; and (b)(i) that is movements or acts in the district or any part there of 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 or abetment of any offence or act specified in sub-clauses (i) to (viii) of clause (b) of section 2; 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 above 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 or to produce any relevant document 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 district or part, as the case may be, by such route, if any, arid 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 expiration of such period, not exceeding six months as may be specified in the order.” 6. Section 2(b) defines “Goonda” and therein, different categories to fall in the definition have been given. Explanation appended to it, however, makes it clear that wherever the word “habitual” or “habituated” is used in relation to a person then it would mean that a person, who within a period of six months immediately preceding the commencement of an action under Section 3 has been found not less than three occasions to have committed offence or acts, as referred under sub-clauses (i), (vi), (vii) or (viii). 7. Learned counsel submits that petitioner has not committed any offence in last six months of the nature given under sub-clauses (i), (vi), (vii) or (viii). 8. Learned counsel has failed to take note of Section 3 which provides that an order under it can be passed not only against “goonda” but for other categories also. It has been specified under clause (b) and (c). Clause (b)(i) of Section 3(1) permits an order under Section 3 if a person has movements or acts in the district or any part thereof causing or are calculated to cause alarm, danger or harm to persons or property. It has been specified under clause (b) and (c). Clause (b)(i) of Section 3(1) permits an order under Section 3 if a person has movements or acts in the district or any part thereof causing or are calculated to cause alarm, danger or harm to persons or property. Sub-clause (ii) of Section 3(1)(b) applies if there exist reasonable grounds for a person who is engaged or about to engage in the district or any part thereof in the commission or abatement of any offence or act specified under sub-clauses (i), (vi), (vii) or (viii). Clause (c) of Section 3(1) provides an order if 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 not necessary that an order can be passed only when a person falls in the definition of “goonda” but when he is falling in other categories given under Section 3(1)(b) and (c). 9. The perusal of order shows it to be not under Section 3(1)(a) but reasons given show it to be under Section 3(1)(b). It is no doubt true that while drawing order, name of another person has been mentioned instead of petitioner. It seems to be nothing but a typographical error. The order impugned herein cannot be said to be in a cyclostyle manner. The order gives details of the facts of this case, which could not have been, if order is passed in cyclostyle manner. 10. It is also informed that typographical error was subsequently corrected but it is only in the record. The bonafide typographic error cannot affect the case. Accordingly, finding no merit in the writ petition, it is dismissed.