# Guddu Chauhan v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1252
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-27
- **Case number:** Criminal Misc. Writ Petition No. 7436 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/guddu-chauhan-v-state-of-u-p-ors-50526
- **Pages:** 7

## Headnote

Law-Constitution
of
India,1950-Article 226- U.P. Control of
Gundas Act, 1970-Section 3- Quashing of
-notice issued to petitioner under Section
3 of U.P. Control of Goodnas Act, 1970
and passed an externment order for six
months against the petitioner- Feeling
aggrieved by the impugned order passed
by learned Additional District Magistrate,
the petitioner filed a criminal appeal under
Section 3(1) of U.P. Control of Goondas
Act before Commissioner who denied to
interfere in impugned order and found the
appeal without any force and dismissed
the appeal-Held, Since the notice was
issued to the petitioner on the basis of
single
case
registered
under
Section
3/5A/8
of
U.P.
Prevention
of
Cow
Slaughter Act, in the year 2019 and such
notice falls short of legal requirement of
section 2(b) of the Act 1970-Hence, the
impugned order is set aside.(Para 1 to 14)

B. 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. Since in this case against the
petitioner there is reference of one
extreme instance only the petitioner could
not be deemed to be a habitual offender
on the basis of that single incident only, so
the notice falls short of legal requirement
as provided in Clause (1) of Section 2 (b)
of the 1970 Act.(Para 12)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

1252 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Keeping in view the nature of the
offence, evidence, complicity of the accused;
submissions of the learned counsel for the
parties noted above; finding force in the
submissions made by the learned counsel for
the applicant; keeping view the uncertainty
regarding conclusion of trial; one sided
investigation by police, ignoring the case of
accused side; applicant being under-trial
having fundamental right to speedy trial;
larger mandate of the Article 21 of the
Constitution of India; considering the dictum
of Apex Court in the recent judgment dated
11.07.2022 of the Apex Court in the case of
Satendra Kumar Antil vs. C.B.I., passed in
S.L.P (Crl.) No. 5191 of 2021; considering 56 times overcrowding in jails over and above
their capacity by the under trials and without
expressing any opinion on the merits of the
case, the Court is of the view that the
applicant has made out a case for bail. The
bail application is allowed

21. Let the applicant be released on bail
on his furnishing a personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned subject to
following conditions. Further, before issuing
the release order, the sureties be verified.

1. The applicant shall not tamper
with
the
prosecution
evidence
by
intimidating/ pressurizing the witnesses,
during the investigation or trial.

2. The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

3. The applicant shall not indulge
in any criminal activity or commission of
any crime after being released on bail.

4. That the applicant shall not,
directly
or
indirectly,
make
any
inducement, threat or promise to any
person acquainted with the facts of the
case so as to dissuade him from
disclosing such facts to the Court or to
any police officer;

5. The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence and the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law to ensure presence of
the applicant.

6. The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court default of this
condition is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of his bail and proceed against him
in accordance with law.

22. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.
----------
(2023) 8 ILRA 1252
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Misc. Writ Petition No. 7436 of 2023

Guddu Chauhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
8 All. Guddu Chauhan Vs. State of U.P. & Ors.
1253
Counsel for the Petitioner:
Sri Zeeshan Mazhar, Sri Abhishek Chandra

Counsel for the Respondents:
G.A.

A.
Criminal
Law-Constitution
of
India,1950-Article 226- U.P. Control of
Gundas Act, 1970-Section 3- Quashing of
-notice issued to petitioner under Section
3 of U.P. Control of Goodnas Act, 1970
and passed an externment order for six
months against the petitioner- Feeling
aggrieved by the impugned order passed
by learned Additional District Magistrate,
the petitioner filed a criminal appeal under
Section 3(1) of U.P. Control of Goondas
Act before Commissioner who denied to
interfere in impugned order and found the
appeal without any force and dismissed
the appeal-Held, Since the notice was
issued to the petitioner on the basis of
single
case
registered
under
Section
3/5A/8
of
U.P.
Prevention
of
Cow
Slaughter Act, in the year 2019 and such
notice falls short of legal requirement of
section 2(b) of the Act 1970-Hence, the
impugned order is set aside.(Para 1 to 14)

B. 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. Since in this case against the
petitioner there is reference of one
extreme instance only the petitioner could
not be deemed to be a habitual offender
on the basis of that single incident only, so
the notice falls short of legal requirement
as provided in Clause (1) of Section 2 (b)
of the 1970 Act.(Para 12)

The writ petition is allowed. (E-6)

List of Cases cited:

1. Vijay Narain Singh Vs St. of Bihar & ors.,
(1984) 3 SCC 14 ob

2. Bhim Sain Tyagi Tyagi Vs St. of U.P. 1999
(39) ACC 321

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant writ petition has been filed
praying for the following reliefs:

"(i) Issue a writ, order or
direction in the nature of certiorari setting
aside the order dated 31.3.2022 passed by
the Commissioner Vindhyachal Division at
Mirzapur in Case No.249 of 2022 (Guddu
Chauhan vs. Additional District Magistrate
and Another) under Section 6 of U.P.
Control of Goondas Act, alongwith order
dated 3.1.2022 passed by Additional
District Magistrate (Finance and Revenue),
Bhadohi in Case No.0321 of 2020 (State vs.
Guddu Chauhan), under Section 3(1) of
U.P. Control of Goodnas Act and notice
dated 22.6.2020, passed by Additional
District
Magistrate,
Bhadohi,
under
Section 3 of U.P. Control of Goodnas Act."

2. By means of order dated 3.1.2022,
Additional District Magistrate, Bhadohi,
made the notice issued to petitioner under
Section 3 of U.P. Control of Goodnas Act,
1970 absolute and passed an externment
order for six months against the petitioners
from District Bhadohi. Feeling aggrieved
by the impugned order passed by learned
Additional District Magistrate, Bhadohi,
the petitioner filed a criminal appeal under
Section 3(1) of U.P. Control of Goondas
Act before Commissioner Vindhyachal
Division
at
Mirzapur.
Learned
Commissioner examined the legality and
correctness of impugned order passed by
learned ADM, denied to interfere in
impugned order and found the appeal
without any force and dismissed the appeal.
Impugned order was affirmed in appeal.
1254 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Heard learned counsel for the
petitioner, learned AGA for the State and
perused the material placed on record.

4. Learned counsel for the petitioner
submitted
that
the
proceeding
under
Section 3 of U.P. Control of Goondas Act
was instituted against the petitioner after
issuance of notice under Section Section 3
(1) of U.P. Control of Goondas Act,
wherein,
it
was
stated
that
S.H.O.
Gopiganj/S.P. Bhadohi informed him that
Guddu Chauhan, son of Lallu Chauhan,
resident of Village Mahuari, Police Station
Gopiganj, District Bhadohi, is a goonda
who either himself or as a member or
leader of a gang habitually commits or
attempt to commit or abets the commission
of offence punishable under Chapter XVI,
Chapter XXII of Indian Penal Code. He is
generally reputed to be a person who is
desperate and danger to the community.
His activities are dangerous to the person
and property of the people of the locality.
The witnesses are not willing to come
forward to give evidence against him for
the reason of apprehension on their part as
regards the safety of their person and
property. A case is registered vide Crime
No.194 of 2019, under Section 3/5A/8 of
Cow Slaughter Act and Section 11 of
Animal Cruelty Act on 24.8.2019, when a
Sub-Inspector recovered four number of
progeny of cow from him, which were
loaded on a vehicle bearing registration
No.UP-66-T-88-72 in inhumane and cruel
manner. The petitioner was directed to
appear on 2.7.2020, at 10:00 A.M. before
Additional District Magistrate pursuant to
said notice and submit his explanation. He
was also given opportunity to examine
himself or any other witness in support of
his
stand.
The
Additional
District
Magistrate observed in impugned order that
even after sufficient service of notice, the
opposite party failed to appear before him
either personally or through counsel and
after perusing the report of Superintendent
of Police, he was satisfied that the opposite
party is a person, who is desperate to the
community and his act comes within the
purview of U.P. Control of Goondas Act
and on this finding, he was directed to be
externed from limits of District Bhadohi for
a period of six months. He next submitted
that the petitioner assailed the externment
order passed by the ADM before learned
Commissioner Vindhyachal Divison at
Mirzapur, who after hearing submissions of
petitioner and State counsel dismissed the
appeal and affirmed the impugned order
passed by learned ADM. He further
submitted that the accused appellant
already enlarged on bail in said case under
Section 3/5A/8 of Cow Slaughter Act by
order dated 13.9.2019, passed b learned
Incharge
Session
Judge,
Bhadohi
at
Gyanpur. The externment order passed by
ADM was ex-parte and without giving
opportunity of hearing to the petitioner, as
he was unaware of the aforesaid fact, he did
not leave the district due to which he was
arrested by the police and an FIR was
lodged on 16.1.2022, bearing Case Crime
No.19 of 2022, under Section 10 of U.P.
Control of Goondas Act, in which the
petitioner applied for bail and he was
enlarged on bail by orders of CJM vide
order dated 20.1.2022, a certified copy of
said bail order has been annexed as
Annexure No.6 to the writ petition. The
notice under Section 3(1) of U.P. Control
of Goondas Act was issued to the petitioner
with malafide intention, solely with a
purpose to harass the petitioner and to got
him expelled from the district where he is
residing since birth. The petitioner was
never served the copy of impugned notice
issued
by
learned
ADM.
Even
the
Divisional Commissioner i.e. respondent
8 All. Guddu Chauhan Vs. State of U.P. & Ors.
1255
No.2 failed to appreciate the true facts of
the case and dismissed the appeal without
application of judicial mind. The single
case under Section 3/5A/8 of Cow
Slaughter Act was falsely registered against
the petitioner merely on the basis of
presumption. The period of externment
granted in impugned order has already
expired yet the penal consequences of the
same continues to haunt the petitioner, as
the social stigma is attached with him that
he has been proceeded under Section 3 of
the U.P. Control of Goondas Act and
directed to be externed from District
Bhadohi. As a consequence of impugned
order dated 3.1.2022, the petitioner and his
family members are still being subjected to
the rigorous harassment at the hands of the
police personnel, who used to raid his
house for one and other reason. The
petitioner is not having any prior criminal
history except the case mentioned in writ
petition.

5. Learned counsel for the petitioner
lastly submitted that a writ, order or direction
in the nature of certiorari is prayed for setting
aside the order dated 31.3.2022 passed by
learned Commissioner Vindhyachal, Division
at Mirzapur as well as externment order
passed by learned ADM dated 22.6.2020. No
beet information is mentioned in impugned
order with regard to the petitioner.

6.

Per
contra,
learned
AGA
countenanced the impugned orders in his
submissions and stated that there is no
illegality or irregularity in impugned orders
passed by respondent Nos.2 and 3. The
impugned orders are based on proper material
even the petitioner failed to obey the
externment order and he was arrested by
police and a case under Section 10 of the Act
was registered against him, in which he was
subsequently bailed out.

7. The notice was issued to the
petitioner on the basis of single case
registered under Section 3/5A/8 of U.P.
Prevention of Cow Slaughter Act, in the year
2019 and accused was allegedly arrested by
the police while transporting four number of
progeny of cow in a Tata Magic Vehicle,
which was heading towards Gopiganj from
Seekhapur. Thus, the arrest and seizure was
effected within state limit. The petitioner has
denied service of notice under Section 3(1) of
the Act personally on him. Mode and manner
of service of notice upon the petitioner is not
mentioned in order passed by ADM. The
petitioner has feigned ignorance of the
proceeding before learned ADM and stated
that he could not appear before him due to
non service of notice.

8. So far as the allegations against the
petitioner
being
goonda
element
is
concenred, the word 'goonda' is described
in Section 2(b) of the Goonda Act as
under:-

"2(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 offence punishable under
Section 153 or Section 153-B or Section
294 of the Indian Penal Code or Chapter
XV., Chapter, Chapter XVI, Chapter XVII
or Chapter XXII of the said code: or

(ii) has been convicted not less
than thrice for an offence punishable under
the Supression 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 Pub
1256 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) is generally reputed to be a
person who is desperate and dangerous to
the community

(v) has been habitually passing
indecent remarks or teasing women or
girls: or

(vi) is a tout.

Regarding
externment
of
goondas, Section 3 of the Goonda Act is
being reproduced as under:-

3. Externment, etc. of Goondas. -
Where
it
appears
to
the
District
Magistrate.-

(a) that any person is a Goonda;
and

(b) (i) that his movements or acts
in the district or any part hereof are
causing, or are calculated to cause alarm,
danger or harm to persons or property;or

(ii) that there are reasonable
grounds for believing that he is engaged or
about to engage, in the district or any part
thereof, in the commission of an offence
referred to in subclauses (i) to (iii) of
clause (b) of Section 2, or in the abetment
of any such offence; and]

(c) that witnesses are not willing
to come forward to give evidence against
him by reason of apprehension on their
part as regards the safety of their person or
property-

the District Magistrate shall by
notice in writing inform him of the general
nature of the material allegations against
him in respect of clauses (a), (b) and (c)
and give him a reasonable opportunity of
tendering an explanation regarding them.

(2) The person against whom an
order under this section is proposed to be
made shall have the right to consult and be
defended by a counsel of his choice and
shall be given a reasonable opportunity of
examining himself, if he so desires, and
also of examining any other witnesses that
he may wish to produce in support of his
explanation, unless for reasons to be
recorded in writing the District Magistrate
is of opinion that the request is made for
the purpose of vexation or delay.

(3)
Thereupon
the
District
Magistrate on being satisfied that the
conditions specified in clauses (a), (b) and
(c) of sub-section (1) exist may by order in
writing-

[(a) direct him to remove himself
outside the area within the limits of his
local jurisdiction or such area and any
district or districts or any part thereof,
contiguous thereto, by such route, if any,
and within such time as may be specified
in the order and to desist from entering
the said area or the area and such
contiguous district or districts or part
thereof, as the case may be from which he
was directed to remove himself until the
expiry of such period not exceeding six
months as may be specified in the said
order;] (b)(i) require such person to notify
his movements or to report himself, or to
do both, in such manner, at such time and
to such authority or person as may be
specified in the order;

(ii) prohibit or restrict possession
or use by him of any such article as may be
specified in the order;
8 All. Guddu Chauhan Vs. State of U.P. & Ors.
1257

(iii) direct him otherwise to
conduct himself in such manner as may be
specified in the order, until the expiry of
such period, not exceeding six months as
may be specified in the order."

9. The Apex Court in the case Vijay
Narain Singh versus State of Bihar and
others, (1984) 3 SCC 14 observed that it is
essential to refer to at least two incidents of
commission of crime for applicability of
Clause (i) of section 2(b) of the 1970 Act.

10. Since there is reference of 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.

11. Again, a Division Bench of this
Court in Suresh Tewari Vs. State of U.P.
and others decided on 23.5.2018, after
considering the Apex Court judgement in
Vijay Narain Singh Vs. State of Bihar,
1984 (3) SCC 14 and Full Bench
judgement of this Court in Bhim Sain
Tyagi Tyagi Vs. State of U.P. 1999 (39)
ACC 321, while considering the issue
relating to slapping of the penal provisions
of the Act against an individual on basis of
a solitary case, has observed as follows:-

"The Hon'ble Apex Court in the
case of Vijay Narain Singh versus State of
Bihar and others (1984) 3 SCC 14 has been
pleased to hold that it is essential to refer
to at least two incidents of commission of
crime for applicability of Clause (i) of
section 2(b) of the Act. Since there is
reference of one incident only in the notice,
it falls short of the legal requirement as
provided in Clause (i) of section 2(b) and
in this way the notice being illegal could be
challenged before this Court as laid down
by the Full Bench of this Court in the case
of Bhim Sain Tyagi v. State of U.P. And
others 1999 (39) ACC 321. If there had
been reference of two or more incidents in
the impugned notice, then the minimum
legal requirement of section, 2(b) Clause
(i) would have been satisfied, and then in
that case sufficiency of the material on
merits could not be challenged before this
Court, but before the authority concerned
as laid down in the Division Bench ruling
in the case of Jaindendra @ Chhotu Singh
Versus State of U.P. (supra). But since the
impugned notice in the present case is short
of the legal requirement, it could be
challenged in this Court. The observations
in para 12 of the ruling in the case of
Jaindendra (supra) which have been
quoted
above,
also
support
this
conclusion."

12. 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. Since in this case against the
petitioner there is reference of one extreme
instance only the petitioner could not be
deemed to be a habitual offender on the
basis of that single incident only, so the
notice falls short of legal requirement as
provided in Clause (1) of Section 2 (b) of
the 1970 Act.

13. In view of above, the impugned
order dated 22.6.2020 lacks merit and
consequently, the order of appellate court
dated 31.3.2022 also cannot be sustained,
hence, both the orders are liable to be
quashed.

14. The writ petition is allowed. The
impugned order dated 22.6.2020 passed by
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondent no. 3 - Additional District
Magistrate (Finance & Revenue) Bhadohi
and the appellate court order dated
31.3.2022 passed by the respondent no. 2 -
Commissioner, Vindhyachal Division at
Mirzapur, are hereby quashed.

15. Let a copy of this order be
forwarded to District Magistrate, Bhadohi
for necessary actions
----------
(2023) 8 ILRA 1258
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Misc. Writ Petition No. 7581 of 2023

Arvind Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Brajesh Kumar Dwivedi

Counsel for the Respondents:
G.A., Sri Alok Krishna Tripathi, Sri Utpal
Singh

A. Criminal Law-Constitution of India,
1950-Article 226- Indian Penal Code,
1860-Sections 366, 120-B-Quashing of
first information report- The informant
had lodged second F.I.R. for harassing
the petitioners after 3 months of the
lodging of the previous first information
report in which final report was submitted
by
the
Investigating
Officer
in
the
investigation-
The
informant
did
not
pursue the legal remedy available to him
under law against submission of final
report in a case registered by him-He did
submit application u/s 156 (3) Cr.P.C
regarding the same incident before the
Magistrate concerned and got the second
F.I.R.
registered-The
second
F.I.R.
regarding the same incident is barred by
the law propounded by the Hon'ble Apex
Court-The second F.I.R. was also not
maintainable on the ground that the
informant had adequate remedy under the
law against the final report submitted by
the Investigating Officer in the first F.I.R.
lodged by him.(Para 1 to 14)
The petition is allowed. (E-6)

List of Cases cited:

1. Kari Choudhary Vs Mst. Sita Devi & Ors
(2002) 1 SCC 714

2. T.T. Antony Vs St. of Ker. & ors. CRLA No.
689 of 2001, Special Leave Petition (Crl.) 1522
of 2000

3. St. of Har. Vs Bhajan Lal & ors. (1992) Suppl.
1 SCC 335

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri Brajesh Kumar Dwivedi,
learned counsel for the petitioners, Sri Alok
Krishan Tripathi, learned counsel for the
informant and Smt. Manju Thakur, learned
A.G.A.
appearing
for
the
Staterespondents.

2. The present writ petition has been
preferred with the prayer to quash the
impugned first information report dated
06.04.2023 registered as Case Crime No.
216 of 2023 under Sections 366, 120-B
I.P.C., Police Station- Jeanpur, District-
Azamgarh, and for a direction to the
respondents not to arrest the petitioners
pursuant to impugned first information
report.

3. It has been submitted by learned
counsel
for
the
petitioners
that
the
informant/respondent no. 4, Ram Bilas