Allahabad High Court
Rajendra Singh @ Rajan vs State Of U.P. And 2 Others on 8 November, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:175914 Reserved on: 22.10.2024 Delivered on: 08.11.2024 Court No. - 72 Case :- CRIMINAL MISC. WRIT PETITION No. - 18106 of 2024 Petitioner :- Rajendra Singh @ Rajan Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Niraj Kumar Singh,Yogesh Kumar Singh Counsel for Respondent :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Yogesh Kumar Singh, the learned counsel for petitioner and the learned A.G.A. for State-respondents-1 to 3.
2. Perused the record.
3. This writ petition has been filed by petitioner-Rajendra Singh @ Rajan, challenging the order dated 12.08.2024 passed by respondent-3, Commissioner of Police, Commissionerate Varanasi in Case No. 567 of 2023 (State Vs. Rajendra Singh @ Rajan), under section 3(1) of U.P. Control of Goondas Act, 1970, whereby petitioner has been exterminated from the territorial limits of District-Varanasi for a period of three months as well as the order dated 19.09.2024 passed by respondent-2, Commissioner, Varanasi Division, Varanasi in Appeal No. 2380 of 2024 (Rajendra Singh @ Rajan Vs. State of U.P.), under section 6(1) of U.P. Control of Goondas Act, 1970, whereby aforementioned appeal filed by petitioner against the order dated 12.08.2024 has been dismissed.
4. Learned counsel for the parties agreed that present writ petition be decided finally on the basis of material on record. Learned A.G.A. further submitted that he does not wish to file any counter affidavit to the writ petition.
5. In view of above, the present writ petition is being disposed of finally at the admission stage itself, without calling for a counter affidavit.
6. Record shows that Station House Officer of Police Station-Chitaipur, District-Varanasi submitted an adverse report dated 08.09.2023 against petitioner. The said report was forwarded by Deputy Commissioner of Police, Varanasi to respondent-3- the Commissioner of Police, Commissionerate Varanasi.
7. In response to above, respondent-3-Commissioner of Police, Commissionerate Varanasi decided to initiate proceedings under the aforesaid Act against petitioner. Resultantly, Case No. 567 of 2024 (State Vs. Rajendra Singh @ Rajan), under section 3(1) of U.P. Control of Goondas Act, 1970 came to be registered against petitioner.
8. In the light of above, a show cause notice dated 25.09.2023 was issued by respondent-3-Commissioner of Police, Commissionerate Varanasi to the petitioner asking him to show cause as to why an order of externment be not passed against him. The basis of the show cause notice was the criminal antecedents of the petitioner which are as follows:
1. Case No. 044 of 2023, under sections 427,504, 506 IPC, Police Station- Rohaniya District- Varanasi
2. Case No. 070 of 2023, under sections 147, 504, 506, 352 IPC, Police Station- Rohaniya District- Varanasi
3. Case No. 114 of 2023, under sections 147, 504, 506 IPC, Police Station- Rohaniya District- Varanasi
4. Case No. 212 of 2021, under sections 147, 148, 149, 302, 504/34 IPC, Police Station- Rohaniya District- Varanasi
5. Case No. 475of 2016, under sections 419, 420, 406, 504, 506 IPC, Police Station- Rohaniya District- Varanasi
6. Case No. 522 of 2021, under sections 3(1) of Uttar Pradesh Gangsters Act, 1986, Police Station- Rohaniya District- Varanasi
7. Beet Information No. 28, dated 12.8.2023.
Apart from above, respondent-3-Commissioner of Police, Commissionerate Varanasi referred to the report dated 08.09.2023 submitted by the Station House Officer of Police Station-Chitaipur, wherein it was stated that petitioner is a vicious criminal, petitioner has committed offence, under Chapters 16 and 17 of IPC, there is anxiety and terror in the public at large, no person of the public is ready to lodge a complaint against petitioner or to give evidence against petitioner, therefore, it is not conducive for the society to allow the petitioner to remain free.
9. In response to the said show cause notice dated 25.09.2023, petitioner filed his objections dated 09.10.2023 to the show cause notice disputing the contents of the same. Petitioner explained his status in the criminal cases registered against him. Petitioner further stated that most of the criminal cases registered against him are false nor he has any information regarding some of the criminal cases registered against him. No complaint has been made against petitioner. In the absence of documentary evidence evidencing the adverse opinion drawn by the Station House Officer of Police Station-Chitaipur, the adverse facts stated against petitioner in the aforementioned report are not worthy of reliance. On the above premise, it was thus urged on behalf of petitioner that the show cause notice be withdrawn.
10. Respondent-3 examined the police report dated 08.09.2023, submitted by Station House Officer concerned and also the letter of Deputy Commissioner of Police, Varanasi and evaluated the same in the light of objections filed by petitioner. After having undertaken the aforesaid exercise, respondent-3 came to the conclusion that presence of petitioner within the territorial limits of District-Varanasi is not conducive for the society. He, accordingly, passed an order dated 12.8.2024, under Section 3(1) of the U.P. Control of Goodas Act, 1970, whereby petitioner was exterminated for a period of three months from the territorial limits of District-Varanasi
11. Perusal of order dated 12.08.2024 passed by respondent-3 will go to show that respondent-3 has firstly narrated the reply submitted by the petitioner to the show cause notice, the objections raised by State counsel to the reply submitted by petitioner and has thereafter, referred to the criminal antecedents of petitioner and the adverse facts recorded against petitioner in the report dated 08.09.2023 submitted by the Station House Officer of Police Station-Chitaipur. It is only on the basis of above that respondent-3 has recorded an abrupt conclusion that an order under Section 3 of U.P. Control of Goondas Act is warranted against petitioner. It is thus apparent that no finding has been returned by respondent-3 in the light of provisions contained in Section-2(b) of U.P. Control of Goondas Act, 1970 or the reply submitted by petitioner. As such, respondent-3 has exterminated the petitioner from the territorial limits of District-Varanasi without even recorded a prima-facie finding that petitioner is a habitual offender.
12. Against order dated 12.08.2024, passed by respondent-3 petitioner preferred an appeal before the Appellate Authority i.e. respondent-2 Commissioner Varanasi Division, Varanasi in terms of Section 6(1) of the Uttar Pradesh Control of Goondas Act. The same was registered as Appeal No. 2380 of 2024 (Rajendra Singh @ Rajan Vs. State of U.P.), under Section 6(1) of U.P. Control of Goondas Act, 1970. The grounds raised and pressed in challenge to the order dated 12.08.2024 passed by respondent-3 did not find favour with the Appellate Authority i.e. respondent-2. The Appellate Authority simply concurred with the view taken by respondent-3 observed that there is no illegality and perversity in the order dated 12.08.2024. As a result, the said appeal filed by petitioner came to be rejected by the Appellate Authority i.e. respondent-2 Commissioner Varanasi Division, Varanasi, vide order dated 19.09.2024.
13. Perusal of above order will go to show that Appellate Authority upon appraisal and appreciation of the material on record came to the conclusion that since petitioner is a vicious criminal, which fact is also established as per report of the Deputy Commissioner of Police, Varanasi and the presence of the petitioner within the territorial limits of District-Varanasi is not conducive for the society, therefore, none of the grounds raised and pressed in support of the appeal filed by petitioner found favour with the appellate authority.
14. Thus feeling aggrieved by aforesaid orders dated 19.9.2024 and 12.8.2024, petitioner has now approached this Court by means of present writ petition, under Article 226 of the Constitution of India.
15. Mr. Yogesh Kumar Singh, the learned counsel for petitioner would submit that respondent-3-Commissioner of Police, Commissionerate Varanasi has passed the order impugned dated 12.08.2024 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-3 has not recorded any reason in the impugned order dated 12.08.2024 necessitating an order under Section 3(3) of U.P. Control of Goondas Act, 1970 against petitioner. He thus submits that respondent-3 has simply recorded a bald conclusion. As such, the order impugned dated 12.08.2024 is not only illegal and arbitrary but also without jurisdiction. Respondent-3 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-3 has drawn an abrupt conclusion that an order under Section 3(3) of U.P. Control of Goondas Act is required to be passed against petitioner. Since no reasons have been assigned in the order impugned, therefore, there is nothing in the order to show that respondent-3 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 is required to be passed against petitionoer in the facts and circumstances of the case. He, therefore, submits that the order impugned dated 12.08.2024 passed by respondent cannot be sustained either in law or fact. 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:”
16. According to the learned counsel for petitioner, all the criminal cases registered against petitioner are of the years 2016/2017. As such, they are more than seven to eight years old. The show cause notice was issued to petitioner on 25.09.2023. However, after 25.09.2023, no criminal case was registered against petitioner. On the above premise, he thus submits that petitioner cannot be classified 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 a habitual offender. 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.”
17. On the above edifice, the learned counsel for petitioner further submitted that respondent-3-Commissioner of Police, Commissionerate Varanasi has adopted a hyper technical approach in passing the impugned order dated 12.08.2024. Respondent-3 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 show cause notice dated 25.09.2023 was issued. He, therefore, concludes by submitting that simply on the basis of the criminal cases registered against petitioner upto the year 2023 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.”
18. It was 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 was made by the appellate authority to examine and evaluate the grounds raised and pressed on behalf of petitioner in support of the appeal filed 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 thus 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 cavalier fashion. Consequently, the order of the appellate authority being unsustainable in law and fact, is also liable to be quashed by this Court.
19. Per contra, the learned A.GA.. representing State-respondents-1 to 3 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-3 and 2 respectively (Annexures 2 and 1 to the writ petition) are perfectly just and legal, therefore, the same are not liable to be interfered with by this Court.
20. 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 six criminal cases as well as a Beet report dated 12.08.2023. As such, it cannot be said that petitioner is a man of clean antecedents.
21. It was 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 (maar-peet) and extending exhortation. It is on account of above that respondent-3 derived his subjective satisfaction that the presence of petitioner within the territorial limits of District-Varanasi is not conducive for the society at large.
22. Learned A.G.A. further submitted that since the life of externment order shall come to an end on 11.11.2024, therefore, for all practical purposes the present writ petition has been rendered infructuous. Petitioner has already undergone externment substantially and therefore, no useful purpose shall be served in deciding the present writ petition on merits.
23. On the above premise, the learned A.G.A. vehemently urged 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 and warranting interference by this Court. He thus concludes by submitting that present writ petition is liable to be dismissed.
24. In rejoinder, the learned counsel for petitioner submitted that it is true that the life of externment order dated 12.08.2024 is three months, which shall come to an end on 11.11.2024. As such, the externment order still survives. Therefore, it is thus urged that the present writ petition has not been rendered infructuous.
25. Having heard the learned counsel for petitioner, the learned A.G.A. for State-respondents 1 to 3 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 six criminal cases registered against him. However, criminal cases were registered against petitioner in years 2016 to 2023. The cases registered against petitioner in the year, 2023 are trivial in nature being under Sections 323, 504, 506, 147, 427 IPC. The notice under Section 3(3) of the U.P. Control of Goondas Act, 1970 was issued against petitioner on 25.09.2023. No criminal case was registered agaisnt petitioner subsequent to the year, 2023. In view of above, it cannot be conclusively concluded that the petitioner is a habitual offendor and therefore, liable to be classified as a goonda within the meaning of Section 2 (b) of the U.P. Control of Goondas Act, 1970. Respondent-3-Commissioner of Police, Commissionerate Varanasi, 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 12.08.2024. In view of the law laid down by 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-3 while passing the order dated 12.08.2024 has not recorded any reason but simply a bald conclusion, therefore, the order dated 12.08.2024 is unsustainable in law and fact. Respondent-3-Commissioner of Police, Commissionerate Varanasi has adopted a hyper technical approach in passing the impugned order dated 12.08.2024. The appellate authority has simply concurred with the view expressed by respondent-3 by passing an order of affirmance. The order impugned dated 19.09.2024 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 the 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 12.08.2024 passed by respondent-3 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 12.08.2024. The appellate authority has miserably failed to examine the appeal in the light of 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 against petitioner i.e. petitioner is a vicious criminal, 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.
26. In view of the discussion made above, the inescapable conclusion is that both the authorities, i.e. respondent-3-Commissioner of Police, Commissionerate 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 3 and 2 not diligently but in a casual and cavalier fashion inasmuch as no attempt has been made by respondents 3 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 Commissioenr of Police, Commissionerate, 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.
27. As a result, the present writ petition succeeds and is liable to be allowed.
28. It is, accordingly, allowed.
29. The order impugned dated 12.08.2024 passed by respondent-3-Commissioner of Police, Commissionerate Varanasi and the order dated 19.09.2024 passed by respondent-2, Commissioner, Varanasi Division Varanasi (Annexures-2 and 1 to the writ petition respectively) are hereby quashed.
30. In the facts and circumstances of the case, cost is made easy.
Order Date :- 08.11.2024
Arshad