Ashok Kumar alias T.T v. State of U.P.) and order dated
Case Details
Neutral Citation No. - 2023:AHC:147344 Court No. - 80 Case :- CRIMINAL MISC. WRIT PETITION No. - 6675 of 2023 Petitioner :- Ashok Kumar @ Tt Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pankaj Kumar Mishra,Satyendra Narayan Singh Counsel for Respondent :- G.A. Hon'ble Subhash Chandra Sharma,J.
Legal Reasoning
9. Similar view was taken by this Court in the case of Pavan @ Pavan Singhal (Supra). 10. Considering the submissions made by learned counsel for the petitioner as well as learned A.G.A. for the State and from the perusal of record, it appears that the cases against the petitioner were registered in the year 2017-18 and prior to that there was no any case against him. No repetition of similar act has been alleged against him by the police and no any such evidence was led before the Additional Police Commissioner, Commissionerate Ghaziabad. Even he has not been convicted in any of the case till now as per submission made by learned counsel for the petitioner. There is nothing on record to show that the activities of the petitioner are in the nature of threatening to the people or his reputation is such as can be said to be dangerous to the community. There appears no any co-relation between the said acts of the petitioner and the proceedings initiated against him by the Additional Police Commissioner. All these facts have not been taken into consideration either by the Additional Police Commissioner, while passing the order of externment dated 08.02.2023 or by the learned Commissioner in the order dated 24.03.2023. 11. In my considered opinion, the orders passed by Additional Police Commissioner, Commissionerate Ghaziabad as well as Commissioner, Meerut Region, Meerut are not based on sufficient material to bring the aforesaid offences under the purview of Section 2/3 of the U.P. Control of Goondas Act, therefore the orders passed by both the authorities cannot sustain in the eyes of law, as a result this petition has force and is allowed. Accordingly, the orders passed by Additional Police Commissioner, Commissionerate Ghaziabad as well as Commissioner, Meerut Region, Meerut dated 08.02.2023 and 24.03.2023 are hereby set aside. Order Date :- 24.7.2023 Ashok Gupta Digitally signed by :- ASHOK KUMAR GUPTA High Court of Judicature at Allahabad
Arguments
1. Heard learned counsel for the petitioner as well as learned A.G.A. for the State and perused the record. 2. The present writ petition (under Article 226 of the Constitution of India) has been moved with following prayers :- I- To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 24.03.2023 passed by respondent no.3/Commissioner, Meerut Region, Meerut in Case No.273 of 2023 (Ashok Kumar alias T.T. vs. State of U.P.) and order dated 08.02.2023 passed by respondent no.2/Additional Police Commissioner, Commisionerate Ghaziabad in Case No.33 of 2023 (State vs. Ashok Kumar @ T.T.) under Section 2/3 U.P. Control of Goondas Act-1970. II- Issue a writ, order or direction in the nature of mandamus directing the respondents to not harass the petitioner in any view of the manner in connection with the impugned order dated 24.03.2023 and 08.02.2023 passed by respondent nos.2 & 3 respectively. III- Issue a writ, order or direction in nature of mandamus directing the respondents not to adopt any coercive method against the petitioner in pursuance of the orders dated 24.03.2023 and 08.02.2023 passed by respondent nos.2 & 3 respectively and not interfere in personal liberty also. 3. It is submitted by learned counsel for the petitioner that in this case the proceeding under the provisions of U.P. Control of Goondas Act-1970 was initiated on the basis of two criminal cases as Crime No.1947 of 2017 u/s 444. 447 I.P.C. and Section 26 Ka of Nagar Vikas Act and Crime No.85 of 2018 u/s 2/3 Gangster Act alongwith beat information report no.47 dated 20.08.2020. Further submitted that the case u/s 2/3 Gangster Act was based on the aforesaid crime no.1947/2017 regarding which civil litigation was pending between the parties as O.S. No.1166/2017 in relation to bhumidhari land of the petitioner. It is further submitted that there is no material on record to show that the petitioner is a habitual offender or his activities are such as to bring him under the definition of Goonda as defined u/s 2 (b) of the Act. He has not grabbed any public property and his reputation is not desperate and dangerous to the community. On the basis of private dispute involved in Crime No.1947/17 the case u/s 2/3 Gangster Act was registered against the petitioner but till now he has not been convicted in any case. There is no any repetition on the part of the petitioner of any such offence as can be said to be of bad impact on the society. It is also submitted that show cause notice issued by the learned Additional District Magistrate for initiation of the proceedings can also not be said to be in conformity with the provisions of law because it contains no details or the basis of satisfaction of the Additional Police Commissioner as recorded that the petitioner was a Goonda only in crime numbers without any specific material mentioned in it which makes notice itself illegal. After 2018 there is no any other case against the petitioner and there is no any explanation of the time gap between the year 2018 and the date of show cause notice i.e. 28.09.2020 and also the order passed by Additional Police Commissioner for externment on 08.02.2023 after lapse of five years from the year 2018. During that period there was no complaint against the petitioner so as to bring his acts under the definition of Goonda. In this way, the order of exernment as passed by Additional Police Commissioner as well as the order passed by learned Commissioner in the appeal cannot be said to be in conformity with the provisions of law. Therefore, requested that the orders in question being illegal are likely to be set aside and this petition to be allowed. 4. Learned A.G.A. opposed the prayer as aforesaid and urged that the proceedings under the Act were initiated against the petitioner on the basis of two cases as aforesaid and as beat information shows that the reputation of the petitioner is desperate and dangerous to the community that was the reason no one dares to make a complaint against him. All these facts were taken into consideration by the Additional Police Commissioner as well as by the learned Commissioner while passing the orders in question. Therefore, there is no any illegality in the aforesaid orders but this petition being devoid of merit is liable to be dismissed. 5. Section 2 (b) of Uttar Pradesh Control of Goondas Act, 1970 defines the word 'Goonda' which is as under: Section 2(b) of the Act- '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 153B or Section 294 of the Indian Penal Code or Chapter XV, or Chapter XVI, Chapter XVII or Chapter XXII of the said Code; (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. 6. It is to note that for the act of the accused to come under the definition of Goonda there must be material to show that the accused was a habitual offender and committed the offence as aforesaid repeatedly and his general reputation is desperate and dangerous to the community or he habitually passes indecent remarks on women or girls. It is also to note that there must be reasonable nexus between the act of the accused and its impact on the society. There must not be time gap between the proceedings under this Act and the acts said to be committed by the accused must show relation between the two. The material on record itself also show that the accused-person was a habitual offender and he committed the offences under Chapter 16, 17 and 22 of the Indian Penal Code. 7. In the case of Shankar Ji Shukla vs Ayukt, Allahabad Mandal, Allahabad 2005 (52) ACC 638 this Court observed that: The emphasis is on the word habitual and a single or two acts after a long gap does not amount to the term 'Habitually'. 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. It connotes frequent commission of acts or omissions of the same kind. 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 omissions 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 them, they cannot be treated as habitual ones. Learned counsel for the petitioner further; relied on the case of Imran @ Abdul Qaddus Khan v. State of U.P. and Ors. 2001(1) JIC 431 (All). In Imran's case (Supra), the Court relied on the judgment of Hon'ble Supreme Court in the case of Vijay Narain Singh v. State of Bihar and Ors. (1984) 3 SCC 14 for defining the term 'Goonda'. It was further held in Imran's case (supra) that even the minority view which was taken in Vijay Narain's case (Supra) was that the word 'habitually' means 'by force of habit'. From the facts found above I find that the petitioner is not a habitual offender and he cannot be brought under the term 'Goonda' as defined under the Act. 8. The decision of the Division Bench in Imran shows that powers under the Act of 1970 are not required to be exercised, because someone has been reported to the Police in connection with a serious crime. It is also not to be exercised because that man has been admitted to bail. It has to be exercised against a person who, on the basis of tangible material on record before the Authorities under the Act of 1970, can be classified as a goonda, under one or the other clauses of Section 2 (b) of that Act. It must also be borne in mind that the Act of 1970, being one that seriously abridges liberty, no clause of the Statute can be liberally construed. It has to be strictly construed in favour of the citizen.