HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 53 Case :- CRIMINAL MISC. WRIT PETITION No. - 16226 of 2015 Petitioner :- [ENTITY] (Minor) Respondent :- State Of U.P. And 2 Ors Counsel for Petitioner :- [ENTITY] Counsel for Respondent :- Govt.Advocate Hon'ble [ENTITY],J.
1. Heard Sri [ENTITY], learned counsel for the petitioner, and Sri [ENTITY], Government Advocate, assisted by Sri [ENTITY], learned AGA appearing for the State.
2. In compliance of the Court's order dated 08.07.2015, the Government Advocate, has filed two personal affidavits, one on behalf of Sri [ENTITY], Chief Secretary, Uttar Pradesh, Lucknow and the other Sri [ENTITY], [ENTITY], which are taken on record.
3. From the perusal of the said affidavit filed by the Chief Secretary, it appears that after the order dated 08.07.2015 passed by this Court, regarding the proceedings pending under the [ACT] (herein after referred as "the [ACT]"), the Chief Secretary call for the data, whereupon the information received from the various Commissioneries of the State of U.P., reveals that at present total 281 appeals with stay application are pending for disposal throughout the State of U.P.
4. After obtaining the said data the Chief Secretary examined the provisions of the [ACT]. It is also stated that after examining the object of the said enactment as well as the practical aspect of initiation and disposal of proceeding under the said enactment, and after due deliberation thereupon, the office of the Chief Secretary prepared a draft of proposed Government Order regarding few extremely important aspects of the proceedings under the said enactment.
5. It has been stated by him that the said draft of the proposed Government Order has been finalized by the Home Department, Government of Uttar Pradesh, Lucknow and has also been approved by the Chief Secretary, State of Uttar Pradesh, Lucknow.
6. The said Government Order No. HC-65/Chha-Pu-9-15-31(62)/2015, dated 24.07.2015 has been issued through Home (Police), Section 9, Home Department, Government of Uttar Pradesh, Lucknow. A copy of which has been annexed as annexure no.1 to the progress report.
7. In para 6, 7 and 8 of the affidavit of progress report, following contents has been made:-
"6. That the aforesaid government order clearly provides that as per the definition of term "Goonda"provided under [SECTION] of [ACT], the initiation of proceeding under the said enactment requires material to ascertain as to whether the person against whom proceeding is to be initiate is "habitual" of certain acts mentioned in the said definition or not and for this purpose and hence, such proceeding be not initiated against any person on the basis of only one criminal act or general complaints without getting it verified/inquired properly.
7. That the aforesaid government order further clearly provides that the time period of more than six months for disposal of appeals being presented before the Commissioner under th said enactment is not in consonance with the said enactment and as such, being a preventive action, appeals thereof are required to be disposed off diligently in a time bound manner.
8. That the aforesaid government order also provides that workshops regarding proper implementation of [ACT] be organized time to time by the District Magistrates and SSPs/SPs. It further provides that the matters, in which counter affidavit has been called by the Hon'ble Courts, be scrutinized and in case, any pending matter is found to be unwarranted under the facts of case, the same be closed and expunged from the police record and if requires, appropriate action be taken to withdraw the respective case. Such, scrutiny be done through a committee comprising the District Magistrate as Chairperson and the SSP/SP, the D.G.C. (Criminal), the Joint Director (Prosecution/S.P.O.) as members thereof. The government order further provides that the station officer of concerned police station is required to prepare a chart disclosing criminal details of Goondas therein for initiation of proceeding under the act and such chart is required to place before the SSP/SP after clear recommendation of concerned supervisory officer. The SSP/SP is required to verify the criminal details and activities from their own level and thereafter, such list is required to be finalized in consultation with the District Magistrate and after such approval by the District Magistrate, further action be taken. The government order further provides that the matters for which action has been taken once, the same should not be made basis to initiate action under the act again. Moreover, the criminal cases in which final report has been forwarded or the Hon'ble Court has acquitted the person, such cases be also not included into the criminal details of any person."
8. From the perusal of the said Government Order, which has been issued by the office of the Chief Secretary, U.P. Lucknow, shows the prompt action taken by the Chief Secretary in this regard, but it is painful that such steps should have been taken by the State, before the interference of this Court in the matter. As the Courts are already over burden with pressure of work and to interfere in such matters and calling upon the Chief Secretary or other Higher Officials of the State of U.P. drawing their attention towards the misuse of the laws and enactments should not be permitted and authorities of the State of U.P. should be more vigilant in proper implementation of laws, so that no person should be harassed in the garb of said enactments and laws, which adversely affect their personal liability enshrined under [SECTION] of the [ACT]. Hence the Court hopes and trust that the Chief Secretary and other higher officials of the State of U.P. should be more conscious and vigilant about the proper implementation of laws and enactments made by the Parliament and State Legislature.
9. The affidavit which has been filed by the Divisional [ENTITY], who has also in compliance of the order dated 08.07.2015 passed by this Court, and has given detailed of cases, which has been pending before the Commissionrate, Meerut, before the date of his joining and after his taking charge and further disposal about the same being made by him, while taking the charge of the Commissioner at Meerut.
10. It has been submitted by him that there has been a constant strike of lawyers at District Meerut and on account of which the lawyers do not appear to pursue the appeals. Moreover there was no application on behalf of the applicant or his counsel or any family members of the appellant, indicating that his appeal is likely to become infructuous, if the same is not decided within time.
11. He submitted that the said appeal was filed on 21.10.2014, when its term was to expire on 16.04.2015, no application has been moved by the applicant in this regard, hence he has been taking up the matters and deciding the cases on the basis of first come and first served. At present only 26 cases of different enactment are pending before the court of [ENTITY], for admission/stay, wherein 12 cases of [ACT], and oldest cases is dated 29.06.2015. He further submits that so far the information with regard to the last two years are concerned it is stated that 275 cases were filed under the [ACT] and out of which 209 cases have been disposed of and total 54 appears are pending for disposal and total 12 cases are pending for admission/stay.
12. He further submits that he joined on the post on 12.02.2015 and is continuance since then, and he worked diligency and reduced the pendency of fresh appeals from 130 to 26 only and has passed final orders in a total of 429 cases.
13. The efforts of the Divisional [ENTITY], as has been pointed out from the record appears to be commendable, and the Court hopes and trust that in future he should be more vigilant in monitoring of such appeals at his own level, so that such appeals do not become infructuous, due to non attendance of the same and innocent persons whose career is at stake may have to suffer irreparable loss because of laxity on the part of the authorities or of the system, which one have to be careful and vigilant to avoid such situations.
14. Now the Court proceeds to examine the instant case.
15. By means of this petition, petitioner has challenged the legality and validity of the impugned order dated 16.04.2015 passed by respondent no.2, the [ENTITY], in [CASE NUMBER] as well as [CASE NUMBER], under [SECTION] of [ACT] (herein after referred as the "[ACT]"), and order dated 30.09.2014 passed by the Additional District Magistrate(Admn.), Bulandshahr, the respondent no.3, in the case No. 90 of 2014 ([PRECEDENT]), under [SECTION] of [ACT], at Kotwali Nagar, District Bulandshahr.
16. The brief facts of the case are that a show cause notice was issued by the respondent no.3 to the petitioner on 04.04.2014 under [SECTION] of [ACT]. The said notice was issued on the basis of a police report of Police Station, Kotwali, Bulandshahr, that petitioner was wanted in [CASE NUMBER], under [SECTION], [SECTION] [ACT] dated 21.03.2014.
17. The petitioner has filed his reply dated 22.04.2014 to the show cause notice and in which he stated that he is the student of Polytechnic in Mechanical Engineering of Second Year from Shivam Technical Campus and is a minor, as his date of birth is 31.08.1997, as per his high school certificate, and stating that he is not a leader of any gang, and only on case has been registered against him under [SECTION] and [SECTION] [ACT]. He belongs to a respective family, he has been enlarged on bail. The applicant has no criminal history except this present case, hence notice be quashed.
18. The petitioner also filed some documentary evidence, such as high school certificate, character certificate issued by authorized signatory of Shivam Technical Campus and affidavits of some person showing his character etc.
19. The respondent no.3 passed an externment order dated 30.09.2014, directing him not to enter for six months, within district Bulandshahr and also informed the concerned police station about it and to implement the order.
20. Aggrieved by the said order dated 30.09.2014 passed by the respondent no.3, under [SECTION] of the [ACT]. The petitioner preferred an appeal under [SECTION] of the [ACT], alongwith stay application under [SECTION] of the [ACT]., before the [ENTITY] (respondent no.2), and said appeal was registered as [CASE NUMBER].
21. After the filing of the said appeal before the respondent no.2, no orders were passed on the said stay application nor the appeal was heard and lastly on 16.04.2015 an order was passed that the time period of the externment order has been completed, therefore, appeal has become infructuous, hence the petitioner has filed the present writ petition before this Court, challenging the order dated 16.04.2015 and 30.09.2014 passed by the respondent nos. 2 and 3, respectively.
22. The learned counsel for the petitioner argued that appeal of the petitioner was dismissed by the respondent no.2, who did not passed any order on the stay application and allowed the appeal to become infructuous.
23. Learned counsel for the petitioner further submits that present petition may be decided on merits after examining the records as the applicant is a student and his entire career would be spoiled, which would also affect his future, if the externment orders is not quashed, as he is a student and has to follow up studies and to get a job, under these circumstances the Court proceed to hear the matter on merits.
24. The court taken serious view of the matter, and called upon the [ENTITY] and Chief Secretary of the State, of Uttar Pradesh, vide order dated 10.07.2015, calling explanation from them, as to why the appeal was allowed to be become infructuous, who have filed their affidavits giving explanation of the same and Chief Secretary of the State has pointed out that he has issued necessary Government Order in this regard, giving guidelines to the Commissioners and other authorities to attained, such appeals with promptness and decide the same accordingly within time.
25. The said authority concerned have taken necessary action in compliance of the Court's order dated 10.07.2015, which has been discussed above.
26. It appears from the record that petitioner was involved in one criminal case which was registered against him as [CASE NUMBER], under [SECTION], [SECTION] [ACT], District Bulandshahr, in which the applicant-petitioner has been granted bail by the competent Court.
27. The present writ petition has been filed by the mother of the petitioner Smt. [ENTITY] wife of [ENTITY], being his natural guardian as the petitioner is minor. The petitioner appears to be a student of Polytechnic and doing Diploma in Mechanical Engineering from Shivam Technical Campus, Second Year, and is stated to be minor, as his date of birth is as per his high school certificate is 31.08.1997, and only on the basis of one criminal case he has been challened, under the [ACT], and externment order has been passed for 6 months by respondent no.3, and the appellant has been directed to be informed by the respondent no.2 as the externment order has enforced. The petitioner has annexed the documentary proof regarding he being the student of Mechanical Engineering, and further there is a certificate of said college of the authorized signatory, certifying his character that he bears good moral character. A copy of the said certificate is being filed herewith and marked as annexure no.6.
28. From the perusal of the definition of of [SECTION] of the [ACT] and [SECTION], [SECTION] of the Act, it is apparent that in order to term a person as a Goonda, within the meaning, under [SECTION] of the Act, he should be either by himself or the member or leader of a Gang, habitually commits of attempt to commits or abets the commission of an offence, and on the basis of one solitary case, it is difficult to come to the conclusion that the applicant is a Goonda. Moreover, the learned counsel for the applicant states that only on the basis of one case, the applicant cannot be term as a Goonda and the order passed by the respondent nos. 2 and 3 of externment is absolutely illegal and liable to be set-aside by this Court.
29. Learned counsel for the petitioner has reliance upon the judgment of this Court in the case of [PRECEDENT]. From the perusal of the said judgment it is apparent that this Court has examined definition of [SECTION], of the word 'Goonda' in a very exhaustive manner, in para 6 of the judgment, which quoted herein below:-
"Ex facie, a person is termed as a 'goonda' if he is a habitual criminal. The provisions of [SECTION] of the Act are almost akin to the expression 'anti social element' occurring in [SECTION] of [ACT]. In the context of the expression 'anti social element' the connotation 'habitually commits' came to be interpreted by the apex Court in the case of [PRECEDENT]. The meaning put to the aforesaid expression by the apex Court would squarely apply to the expression used in the Act, in question. The majority view was that the word '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 referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. Even the minority view which was taken in [PRECEDENT]'s case (supra) was that the word 'habitually' means 'by force of habit'. It is the force of habit inherent or latent in an individual with a criminal insteinct with a criminal disposition of mind, that makes a person accustomed to lead a life of crime posing danger to the society in general. If a person with criminal tendencies consistently or persistently or repeatedly commits or attempts to commit or abets the commission of offences punishable under the specified chapters of the Code, he should be considered to be a anti social element There are thus two views with regard to the expression habitually flowing from the decision of [ENTITY] case (supra). The majority was inclined to give a restricted meaning to the word habitually as denoting repetitive and that on the basis of a single act cannot be said to be forming the habit of the person. That is to say, the act complained of must be repeated more than once and be inherent in his nature. The minority view is that a person in habitual criminal who by force of habit or inward disposition inherent or latent in him has grown accustomed to lead a life or crime. In simple language, the minority view was expressed that the word habitually means by force of habit. The minority view is based on the meaning given in Strouds Judicial Dictionary, Fourth Ed. Vol. II-1204 - habitually requires a continuance and permanence of some tendency, something that has developed into a propensity, that is, present from day to day. Thus, the word habitual connotes some degree of frequency and continuity.
The word habit (has a clear, well understood meaning being nearly the same as accustomed and cannot be applied to a single act. When we speak of habit of a person, we prefer to his customary conduct to pursue, which he has acquired a tendency from frequent repetitions. In [PRECEDENT] it was observed that it would be incorrect to say that a person has a habit of anything from a single act. In the Law Lexicon - Encyclopedic Law Dictionary, 1997 Ed. By [ENTITY], the expression habitual has been defined to mean as constant, customary and addicted to a specified habit; formed or acquired by or resutling from habit; frequent use or custom formed by repeated impressions. The term habitual criminal, it is stated may be applied to any one, who has been previously more than twice convicted of crime, sentenced and committed to prison. The word habit means persistence in doing an act, a fact, which is capable of proof by adducing evidence of the commission of a number of similar acts. Habitually must be taken to mean repeatedly or persistently. It does not refer to frequency of the occasions but rather to the invariability of the practice.
The expression habitual criminal is the same thing as the habitual offender within the meaning of [SECTION] of the [ACT]. This preventive Section deals for requiring security for good behaviour from habitual offenders. The expression habitually in the aforesaid section has been used in the sense of depravity of character as evidence by frequent repetition or commission of offence. It means repetition or persistency in doing an act and not an inclination by nature, that is, commission of same acts in the past and readiness to commit them again where there is an opportunity.
30. From the perusal of the said judgment of this Court it is apparent that by no stretch of imagination it cannot be held that petitioner is a Goonda, within the meaning of [SECTION] of the [ACT], as there appears to be only on solitary case mentioned in the notice. He is a student of Mechanical Engineering and has also be given a certificate of the said institution of being good moral character, and the respondent no. 3, the Additional District Magistrate (Admn.), Bulandshahr, did not considered the same, which was enclosed alongwith the reply/explanation by the petitioner, of the show cause notice and he passed the said externment order on 30.09.2014, without applying his mind.
31. The learned Government Advocate also could not pointed out any other case or further material to show that the applicant is can be termed as Goonda within the meaning of [SECTION] of the Act. Hence under the said circumstances the externment order passed by the respondent no.3, the Additional District Magistrate (Admn.), Bulandshahr, is hereby set-aside and the order of dismissing the appeal of the petitioner by respondent no.2, the Divisional [ENTITY] is also set-aside.
32. The Court has interfere in this matter in a peculiar facts and circumstances of the case and it is made clear that the present case shall not be treated as a precedent, for challenging the order passed in the appeals which have become infructuous, due to unavoidable circumstances.
33. The petition stands allowed.
Order Date :- 30.07.2015 VKG