Allahabad High Court
Kamal Alias Kaju Jaiswal vs State Of U.P. And 4 Others on 8 November, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:175503 Reserved on: 17.10.2024 Delivered on: 08.11.2024 Court No. - 72 Case :- CRIMINAL MISC. WRIT PETITION No. - 17589 of 2024 Petitioner :- Kamal Alias Kaju Jaiswal Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ankit Srivastava,Rahul Srivastava Counsel for Respondent :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Rahul Srivastava, the learned counsel for petitioner and the learned A.G.A. for State-respondents- 1 to 5.
2. Perused the record.
3. Petitioner- Kamal Alias Kaju Jaiswal has filed this writ petition challenging the order dated 6.8.2024, passed by respondent-3 District Magistrate, Varanasi in Case No. 293 of 2021 (State Vs. Kamal Alias Kaju Jaiswal) under sections 3(3) of Uttar Pradesh Control of Goondas Act, 1970, whereby petitioner has been exterminated for a period of six months from the territorial limits of District-Varanasi and the order dated 31.8.2024 passed by Commissioner, Varanasi Division, Varanasi in Appeal No. 2163 of 2024 (Kamal Alias Kaju Jaiswal Vs. State of U.P.) under Section 6 (1) of the U.P. Control of Goondas Act, 1970, whereby aforementioned appeal filed by petitioner against order dated 06.08.2024 has been dismissed.
4. Counsel for the parties submit that present writ petition be dicided finally on the basis of the material on record. Learned A.G.A. further contends that he does not wish to file any counter affidavit. In view of above and as provided in the rules of the Code, this writ petition is being disposed of finally at the admission stage itself.
5. It transpires from record that the In-charge Inspector of Police Station- Dashshaswamedh Ghat submitted an adverse report against petitioner proposing therein that proceedings under the Uttar Pradesh Control of Goondas Act, 1970 be initiated against petitioner.
6. In response to the said report, respondent-4, Additional District Magistrate, Varanasi registered a case under Section 3 of the U.P. Control of Goondas Act against petitioner. A show cause notice dated 3.10.2021, under section 3(1) of U.P. Control of Goondas Act, 1970 was issued asking the petitioner to show cause as to why action be not taken against him, under section 3 of U.P. Control of Goondas Act, 1970. The basis of the show cause notice was the criminal antecedents of the petitioner, which are as follows:
1. Case No. 159 of 2016, under sections 395, 397, 412 IPC and 3/25/27 Arms Act, Police Station- Sigra, District Varanasi.
2. Case No. 396 of 2016, under section 3(1) Gangster Act, Police Station- Sigra, District Varanasi.
3. Case No. 194 of 2017, under sections 307, 34 IPC and 3/25/27 Arms Act, Police Station- Ramnagar, District Varanasi.
4. Case No. 196 of 2017, under sections 3/25 Arms Act, Police Station- Ramnagar, District Varanasi.
5. Case No. 195 of 2017, under sections 41, 411, 414 IPC Police Station- Ramnagar, District
Varanasi.
6.Beet Information, date 7.7.2020, Dashashwmedh Ghat, District- Varanasi.
Apart from above, on the basis of report submitted by Incharge Inspector, Police Station Dasaswamedh Ghat, it was also deduced by respondent-4-Additional District Magistrate, Varanasi that petitioner is a vicious criminal, he frequently indulges in fight (maar-peet) by extending fear and coercion, he purchases goods but does not pay for the same, no person of the public has the courage to lodge any complaint against him or give evidence against him, on account of conduct of petitioner, there is despair and anxiety within the public at large, as such, it is not conducive for the society to allow the petitioner to remain free, for personal gain, the petitioner is a habitual offender by committing offences under Chapters 16, 17 and 22 of IPC.
7. Petitioner replied to the said show cause notice by submitting his reply dated 23.7.2024 duly supported by an affidavit. Petitioner explained his status in aforementioned criminal cases. According to petitioner, all the cases mentioned in the show cause notice were of the years 2016/2017, as such, they were approximately eight years old. No criminal case was registered against petitioner since the year 2017. Petitioner is not guilty of committing an offence punishable under Chapters 16, 17 and 22 of I.P.C. Petitioner is a street hawker and earns his livelihood by selling clothes. On the above premise, it was thus prayed that the show cause notice issued against petitioner under Section 3 (1) of U.P. Control of Goondas Act be withdrawn.
8. Subsequent to above, respondent-4, Additional District Magistrate, Varanasi considered the reply submitted by petitioner as noted herein above. Upon examination and evaluation of the same, he came to the conclusion that an order under section 3 (3) of U.P. Control of Goondas Act, 1970 is warranted against petitioner. Accordingly he passed an order dated 6.8.2024 in terms of Section 3 (3) of the U.P. Control of Goondas Act, 1970, whereby petitioner was exterminated from the territorial limits of District Varanasi for a period of six months.
9. Against above order dated 6.8.2024, petitioner preferred an appeal as provided under section 6(1) of the U.P. Control of Goondas Act, 1970 before the appellate Authority i.e. Commissioner, Varanasi Division, Varanasi. The said appeal came to be registered as Appeal No. 2163 of 2024 (Kamal Alias Kaju Jaiswal Vs. State of U.P.). Respondent-2 Commissioner, Varanasi Division Varanasi vide order dated 31.8.2024, dismissed the appeal filed by petitioner.
10. Thus feeling aggrieved by above orders dated 6.8.2024 and 31.8.2024, petitioner has now approached this Court by means of present writ petition.
11. Mr. Rahul Srivastava, the learned counsel for petitioner submits that respondent-4-Additional District Magistrate, Varanasi has passed the order impugned dated 06.08.2024 without recording his subjective satisfaction in the matter. He has then referred to the above order and with reference to the same, he submits that respondent-4-Additional District Magistrate, Varanasi has not recorded any reason in the impugned order dated 06.08.2024 for passing an order under Section 3(3) of U.P. Control of Goondas Act against petitioner. He thus submits that repondent-4-Additional District Magistrate, Varanasi has simply recorded a bald conclusion. As such, the order impugned dated 06.08.2024 is not only illegal and arbitrary but also without jurisdiction. Respondent-4-Additional District Magistrate, Varanasi has simply narrated the contents of the show cause notice, the reply submitted by petitioner to the show cause notice and the objections raised by the State counsel to the reply submitted by petitioner. On the basis of above, respondent-4-Additional District Magistrate, Varanasi has drawn an abrupt conclusion that an order under Section 3(3) of U.P. Control of Goondas Act is required to be passed. Since no reasons have been assigned in the order impugned, therefore, there is nothing in the order to show that respondent-4-Additional District Magistrate, Varanasi has applied his mind to the facts of the case and thereafter came to a derivative conclusion that an order under Section 3(3) of U.P. Control of Goondas Act needs to be passed in the facts and circumstances of the case. He, therefore, submits that the order impugned dated 06.08.2024 passed by respondent-4-Additional District Magistrate, Varanasi cannot be sustained either in law or on facts. To buttress his submission, he has relied upon paragraph 8 of the judgement of Supreme Court in M. P. Singh Gill Vs. Chief Election Commissioner, AIR 1978 SC 851. The same reads as under:-
“The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”
Orders are not like old wine becoming better as they grow older:”
12. According to the learned counsel for petitioner, all the criminal cases registered against petitioner are of the year 2016/2017. As such, they are more than seven to eight years old. The show cause notice was issued to the petitioner on 03.10.2021. However, since 2018 upto 03.10.2021, no criminal case was registered against petitioner. On the above premise, he thus submits that petitioner cannot be Christened as a Goonda within the meaning of term Goonda as defined in Section 2 (b) of the U.P. Control of Goondas Act as petitioner is not habitual offencer. For ready reference, Section 2 (b) of U.P. Control of Goondas Act is reproduced herein-below:
“2. Definitions.- In this Act, unless the context otherwise requires –
(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 offences 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 Suppersession 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 ;
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 disfavor 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 explanation (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 unauthorized possession or having lawfully entered unlawfully remains in possession, of a building including land, garden, garages or out-houses appurtenant to a building.
[(viii) is involved in offences punishable under the Regulation of Money Landing Act, 1976 ;
(ix) is involved in offences punishable under the Unlawful Activities (Prevention) Act, 1966 and the Indian Forest Act, 1927 ;
(x) is involved in illegally transporting and/or smuggling of cattle and indulging in acts in contravention of the provisions in the Prevention of Cow Slaughter Act, 1955 and the Prevention of Cruelty to Animals Act, 1960 ;
(xi) is involved in human trafficking for purposes of commercial exploitation, forced labour, bonded labour, child labour, sexual exploitation, organ removing and trafficking, beggary and the like activities.”
13. On the above edifice, the learned counsel for petitioner submits that respondent-4-Additional District Magistrate, Varanasi has adopted a hyper technical approach in passing the impugned order dated 06.08.2024. Respondent-4, Additional District Magistrate, Varanasi has completely ignored the fact that petitioner is not in the habit of committing repeated offence. Furthermore, no criminal case was registered against petitioner after the year 2017 upto 31.10.2024 i.e. almost seven years. He therefore concludes that simply on the basis of the criminal cases registered against petitioner upto the year 2017 as detailed above, petitioner cannot be classified as a goonda within the provisions of U.P. Control of Goondas Act, 1970. To lend legal support to his above submission, he has referred to paragraphs 10, 11 and 12 of the judgement rendered by a learned Single Judge of this Court in Criminal Misc. Writ Petition No. 12979 of 2024 (Wahid @ Abdul Wahid Vs. State of U.P. and 3 others) decided on 02.09.2024. For ready reference, the same are reproduced herein below:-
“10. A perusal of the notice dated 30.3.2024 reveals that it is consisted of three criminal cases lodged against the petitioner and that was the cause of passing the order under Section 3(3) of the Act for his externment from the boundaries of district Ghaziabad. It further reveals from the perusal of the said show cause notice that it does mention general nature of material allegations which makes the said notice bad in law in view of the law laid down in Bhim Sen Tyagi vs. State of U.P., 1999 (39) ACC 321, Shiv Prakash Dubey @ Kattu vs. State of U.P. and another, 2007(2) AcrJ 506 and Rajkumar Dubey vs. State of U.P. and others, 2009(1) AcrJ 314.
11. The Court takes notice of this fact that three criminal cases and one beat information are assigned to the present petitioner, which are described in paragraph 2 of this judgment. Though any criminal activity of a person may be taken as a challenge to the law and order and a crime against society, but however, the criminal cases assigned to the petitioner are somehow of a personal nature and category and moreover it is also notable that out of the three criminal cases two cases are said to be committed in the year 2016 and thereafter in a span of about seven years no criminal activity on the part of the petitioner was disclosed in the impugned order and this situation raises a genuine question that if for a period of about seven years the petitioner never indulged in any criminal activity and the next criminal case was assigned to him in the year 2023, how the Additional Police Commissioner, Commissionerate, Ghaziabad was satisfied that the petitioner falls within the category of ‘goonda’, as defined in Section 2(b) of the Act. In the circumstances of this case, it appears that a very hyper technical approach has been adopted by the Additional Police Commissioner, Commissionerate, Ghaziabad while passing the impugned order dated 10.4.2024.
12. In Shankar Ji Shukla vs. Ayukt, Allahabad Mandal, Allahabad and others, 2005(52) ACC 638 it has been held that a person cannot be held to be ‘goonda’ only on the basis of one or two acts, he can be held to be goonda only when he is in habit of committing repeated offence. The same view has been expressed in Lalani Pandey @ Vijay Shanker Pandey vs. State of U.P. and others, 2011 (1) ACrJ 207.”
14. It is lastly contended by the learned counsel for petitioner that the appellate authority i.e. respondent-2, Commissioner Varanasi Division, Varanasi has dismissed the appeal filed by petitioner by passing an order of affirmance. No attempt has been made by the appellate authority to examine and evaluate the grounds raised and pressed on behalf of petitioner before him. The appellate authority has not made any endeavour to consider as to whether in the given set of facts and circumstances, the case of petitioner falls within the ambit and scope of Section 2 (b) of U.P. Control of Goondas Act, 1970 or not. It is therefore urged by the learned counsel for petitioner that the appellate authority has failed to duly exercise the jurisdiction vested in him. The appellate authority has thus not exercised it’s jurisdiction diligently. The appeal filed by petitioner has been rejected by the appellate authority in a casual and caviler fashion. Consequently, the order of the appellate authority being unsustainable in law and fact, is liable to be quashed by this Court.
15. Per contra, the learned A.GA.. representing State-respondents-1 to 5 has vehemently opposed the present writ petition. According to the learned A.G.A., both the orders impugned in present writ petition passed by respondents-2 and 3 (Annexure 1 to the writ petition collectively) are perfectly just and legal, and therefore the same are not liable to be interfered with, by this Court.
16. According to the learned A.G.A., proceedings under the U.P. Control of Goondas Act were initiated against petitioner on the grounds that petitioner has criminal history of five criminal cases as well as a Beet report dated 07.07.2020. As such, it cannot be said that petitioner is a man of clean antecedents.
17. It is then contended by the learned A.G.A. that on account of conduct of petitioner, there is eminent despair and anxiety within the members of public at large. Petitioner is a vicious criminal, who habitually indulges in fighting (mar-peet) and extending exhortation. Petitioner has the bad habit of purchasing goods but not making payment in lieu thereof. It is on account of above that respondent-4, Additional District Magistrate, Varanasi derived his subjective satisfaction that the presence of petitioner within the territorial limits of District-Varanasi it not conducive for the society at large.
18. On the above premise, the learned A.G.A. contends that since an order under Section 3 (3) of U.P. Control of Goondas Act is preventive in nature, therefore, no illegality can be attached to the orders impugned in present writ petition. The orders impugned do not suffer either from jurisdictional error nor the same are the outcome of exercise of jurisdiction by both the authorities below in such a manner so as to vitiate the same, warranting interference by this Court. Learned A.G.A. would thus submit that present writ petition is liable to be dismissed.
19. Having heard the learned counsel for petitioner, the learned A.G.A. for State-respondents 1 to 5 and upon perusal of record, this Court finds that it is an undisputed fact that petitioner is a man of criminal antecedents inasmuch as there are five criminal cases registered against him. However, all the criminal cases were registered against petitioner in years 2016 and 2017. The notice under Section 3 (3) of the U.P. Control of Goondas Act, 1970 was issued against petitioner on 31.10.2021. As such, no criminal case was registered against petitioner for a period of almost four years prior to the date of the show cause notice dated 31.10.2021. In view of above, it cannot be conclusively concluded that petitioner is a habitual offender. The conduct of petitioner is not such that he is liable to be classified as a goonda within the meaning of Section 2 (b) of the U.P. Control of Goondas Act, 1970. The Additional District Magistrate, Varanasi, respondent-3, ignoring the above and without recording any reason necessitating an order of externment against petitioner in terms of Section 3 (3) of the U.P. Control of Goondas Act passed the impugned order dated 06.08.2024. In view of the law laid down by the Apex Court in M.P. Singh Gill (supra), the veracity of an order is to be judged in the light of reasons recorded in the order itself. Since respondent-4 while passing the order dated 06.08.2024 has not recorded any reason but simply a bald conclusion, therefore, the order dated 06.08.2024 is unsustainable in law and fact. Respondent-4 has adopted a hyper technical approach in passing the impugned order dated 06.08.2024. The appellate authority has simply concurred with the view expressed by respondent-4, the Additional District Magistrate, Varanasi by passing an order of affirmance. The order impugned dated 31.08.2024 passed by the appellate authority i.e. respondent-2, Commissioner Varanasi Division Varanasi does not reflect that an attempt was made by the appellate authority i.e. respondent-2, to examine and evaluate the grounds raised and pressed by the petitioner in support of the appeal filed by him. The appellate authority has simply mentioned the facts of the case, the grounds raised on behalf of petitioner in support of appeal and on basis thereof has drawn an abrupt conclusion that since petitioner is a man of criminal antecedents, no illegality can be attached to the order dated 06.08.2024 passed by District Magistrate, Varanasi in exercise of jurisdiction under Section 3 (3) of U.P. Control of Goondas Act, 1970. As such, no reason has been assigned by the appellate authority regarding the legality of the order dated 6.8.2024. The appellate authority has miserably failed to examine the appeal in the light of the provisions contained in Section 2 (b) of the U.P. Control of Goondas Act, 1970. Though on behalf of the State, various adverse facts were pleaded i.e. petitioner is vicious criminal, petitioner indulges in frequent fight (mar-peet), petitioner has the bad habit of purchasing goods but not making payment in lieu thereof, on account of conduct of petitioner, there is fear and despair in the public at large, no person is ready to lodge an F.I.R. or give evidence against petitioner but this Court finds that no attempt was made on behalf of State to evidence the said facts by leading cogent and reliable evidence.
20. In view of the discussion made above, the inescapable conclusion is that both the authorities, ie. respondent-4, Additional District Magistrate, Varanasi and respondent-2, Commissioner Varanasi Division Varanasi have failed to exercise their jurisdiction diligently. Petitioner has been exterminated from the territorial limits of District-Varanasi in exercise of jurisdiction by Respondents 4 and 2 not diligently but in a casual and cavalier fashion inasmuch as no attempt has been made by respondents 4 and 2 to examine the case of the petitioner in the light of the provisions contained in Section 2 (b) of U.P. Control of Goondas Act nor any reason has been recorded by the Additional District Magistrate, Varanasi in support of the conclusion drawn that an action under Section 3 (3) of U.P. Control of Goondas Act is warranted against petitioner nor the appellate authority has dealt with the grounds raised and pressed in support of the appeal with reference to the record as well as Section 2(b) of the U.P. Control of Goondas Act.
21. As a result, the present writ petition succeeds and is liable to be allowed.
22. It is, accordingly, allowed.
23. The orders impugned dated 06.08.2024 passed by respondent-3, the District Magistrate, Varanasi and the order dated 31.08.2024 passed by the Commissioner, Varanasi Division Varansi (Annexure-1 to the writ petition collectively) are hereby quashed.
23. In the facts and circumstances of the case, cost is made easy.
Order Date :- 08.11.2024
Arshad