24 April 2022 3:07 PM GMT
The Allahabad High Court recently observed that only on the basis of a single incident, an order of externment can't be passed against a person under Section 3 [Externment, etc. of Goondas] of Uttar Pradesh Control of Goonda Act, 1970.The Bench of Justice Sadhna Rani (Thakur) further observed that one cannot be treated to be a habitual offender unless and until there is a recurrence...
The Allahabad High Court recently observed that only on the basis of a single incident, an order of externment can't be passed against a person under Section 3 [Externment, etc. of Goondas] of Uttar Pradesh Control of Goonda Act, 1970.
The Bench of Justice Sadhna Rani (Thakur) further observed that one cannot be treated to be a habitual offender unless and until there is a recurrence of the offence and at the most the general reputation of the person is that he is desperate and dangerous to the community.
The case in brief
An order of externment had been passed against the petitioner in March 2017, under Section 3 of the UP Goonda Act, by asserting that the petitioner is a goonda element (as per Section 2 (i) of the Act) and therefore, his externment for 6 months was ordered by Additional District Magistrate (Finance and Revenue) Saharanpur.
This order was affirmed by the Commissioner, Saharanpur Division, Saharanpur in May 2017.
Essentially, a Constable had given beet information that in the coming legislative assembly elections of 2017, there was an apprehension that the petitioner could affect the elections adversely.
This beet information was investigated by the police officer, wherein it was found that the petitioner is an extraneous goonda, who is involved in the offences regarding assault and causing injury and on the basis of apprehension of the coming elections being adversely affected by him the notice was issued against him.
Now, challenging both the orders, he moved to the High Court on the ground that though a notice under Section 3 (1) of the Goonda Act was issued to him, but the same was never served upon him, so he could not reply to the same and therefore, he was denied the opportunity of hearing.
However, the petitioner mainly confined his arguments to the second ground, that on the basis of a single criminal case the proceeding in the Goonda Act cannot be started, hence, the orders were prayed to be set aside.
At the outset, the Court noted that admittedly, as per the notice issued to him by the ADM Saharanpur, only one criminal case was said to be pending against the petitioner, however, on the basis of beet information, no first information report was registered against the petitioner.
In view of this, the Court, firstly referred to the Apex Court's ruling in the case of Vijay Narain Singh versus State of Bihar and others, (1984) 3 SCC 14, wherein it was observed that it is essential to refer to at least two incidents of commission of the crime for applicability of Clause (i) of section 2(b) of the 1970 Act, and thereafter remarked thus:
"Since there is a reference to one incident only in the notice in hand, it falls short of the legal requirement as provided in Clause (i) of section 2(b) of the 1970 Act...As per definition and the law settled by this Court as well by the Apex Court, one cannot be treated to be a habitual offender unless and until there is recurrence of the offence and at the most the general reputation of the person is that he is desperate and dangerous to the community."
Consequently, noting that in the instant case against the petitioner, there was a reference of one extreme instance only and on the basis of which, the Court held, the petitioner could not be deemed to be a habitual offender on the basis of that single incident.
The Court also observed that in the whole order of the ADM Saharanpur there was no mention that the general reputation of the petitioner was of a desperate person or of being dangerous to the community, hence, the Court held that the notice fell short of legal requirement as provided in Clause (1) of Section 2 (b) of the 1970 Act.
In view of above, the impugned order of ADM Saharanpur and the order of the appellate authority were quashed and the appeal was allowed.
Case Title - Shahanshah v. State Of U.P. And 2 Others [CRIMINAL MISC. WRIT PETITION No. - 10011 of 2017]
Case Citation: 2022 LiveLaw (AB) 201
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