# Harischand Yadav v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1065
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-21
- **Case number:** Criminal Misc. Writ Petition No. 2268 of 2023
- **Bench:** Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harischand-yadav-v-state-of-u-p-ors-50078
- **Pages:** 7

## Headnote

Criminal Law - U.P. Control of Goondas
Act, 1970 - Section 3 - Externment of
Goonda - Challenged Appellate Order of
Commissioner
-
Petitioner
made
complaints against land grabbers for
eviction from public utility land of Gaon
Sabha as recorded in revenue records -
Enquiry initiated, revenue officials found
the land to be public utility land -
Aggrieved by enquiry, land grabbers only
to harass lodged FIR against petitioner
alongwith his son and friends - District
magistrate in a routine manner has passed
the
order
of
externment
-
Appeal,
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed - Held, externment order for six
months has been passed only on basis of
two criminal cases, the word habitual is
used in definition of word 'Goonda' - No
evidence before District Magistrate that
petitioner was habitual to commit crimes
or member or leader of any gang which
involved in criminal activities - On the
basis of one or two offences, petitioner
cannot be treated as Goonda - Impugned
orders quashed. (Para 8, 9, 16)

Writ Petitions Allowed. (E-13)

List of Cases cited:

Imran alias Abdul Quddus Khan Vs St. of U.P. &
ors., Criminal Misc. Writ Petition No.7111 of
1999, (Para 13 to 15)

## Text

5 All. Harishchand Yadav Vs. State of U.P. & Ors.
1065
source of income independently. She has a
baby of four years who is also dependent
upon her. She is totally dependent in all
respect on her father who is living presently
at District Mau. Although she did not
disclose
the
income
of
her
father
nevertheless it is the duty of the opposite
party no. 2 maintain the applicant and her
child. It has been argued that opposite party
no. 2 has paid only Rs. 25,000/- and Rs.
74,000/-
is
still
in
arrears
towards
maintenance. In these circumstances, it is
clear that the applicant has no sufficient
income to maintain herself, her minor
daughter and meet expenses of the
litigation. It is axiomatic that in the present
days of high inflammation, it is difficult to
lead a life without sufficient income. Thus,
she is living in her parental home due to
this matrimonial dispute between both the
parties. She has to attend the proceedings at
Azamgarh in both the cases. It has been
submitted that the father is to look her and her
daughter after only. It is also submitted that
he is an old man and unable to company her
on the each and every date fixed at Azamgarh.
This compels the applicant to go the court at
Azamgarh. Seizing the opportunity of her
loneliness in the court, the opposite party no. 2
may mishandle and cause injuries and he even
intimidate her life. Although there is no any
other proof to substantiate these grounds
nevertheless in the affidavit filed in support of
transfer application confirm these allegations.
Moreover, District Mau and Azamgarh are
situated nearby each other. So the cases may
conveniently be attended at Mau. Thus, in the
opinion of this court apprehension expressed
by the applicant is reasonable. In view of the
above facts and legal scenario, I am of the
view that it is in the interest of justice that the
instant transfer application should be allowed.

16.

Resultantly,
the
transfer
application is allowed. Let the Case No.
2554 of 2019 (Sonam Rai Vs. Rakesh Rai
& others), under Sections 498-A, 323, 504,
506, 120-B IPC and Section 3/4 Dowry
Prohibition Act, Police Station Tahabarpur,
District Azamgarh be transferred from
Judicial Magstrate, Azamgarh to the
competent court at District Mau for
disposal in accordance with law within
three months.

17. Let the copy of the order be sent
to the Judicial Magistrate, Azamgarh for
necessary action and compliance.
----------
(2023) 5 ILRA 1065
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2023

BEFORE

THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Misc. Writ Petition No. 2268 of 2023

Harischand Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pawan Kumar Rao

Counsel for the Respondents:
G.A., Sri Ashish Kumar Gupta

Criminal Law - U.P. Control of Goondas
Act, 1970 - Section 3 - Externment of
Goonda - Challenged Appellate Order of
Commissioner
-
Petitioner
made
complaints against land grabbers for
eviction from public utility land of Gaon
Sabha as recorded in revenue records -
Enquiry initiated, revenue officials found
the land to be public utility land -
Aggrieved by enquiry, land grabbers only
to harass lodged FIR against petitioner
alongwith his son and friends - District
magistrate in a routine manner has passed
the
order
of
externment
-
Appeal,
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed - Held, externment order for six
months has been passed only on basis of
two criminal cases, the word habitual is
used in definition of word 'Goonda' - No
evidence before District Magistrate that
petitioner was habitual to commit crimes
or member or leader of any gang which
involved in criminal activities - On the
basis of one or two offences, petitioner
cannot be treated as Goonda - Impugned
orders quashed. (Para 8, 9, 16)

Writ Petitions Allowed. (E-13)

List of Cases cited:

Imran alias Abdul Quddus Khan Vs St. of U.P. &
ors., Criminal Misc. Writ Petition No.7111 of
1999, (Para 13 to 15)

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. Case called out.

2. Sri Ashish Kumar Gupta, Advocate
has already filed caveat on behalf of
Akhilesh Kumar Pathak, the complainant.

3. At the outset,Mr. Pawan Kumar
Rao, learned counsel for the petitioner,
submits that Akhilesh Kumar Pathak has no
locus to oppose this writ petition.

4. Sri Ashish Kumar Gupta, Advocate
submits that he may be permitted to
withdraw his caveat application.

5. Prayer is allowed. Now, the writ
petition is proposed to be heard on
merit.

6. Heard Mr. Pawan Kumar Rao,
learned counsel for the petitioner and the
learned A.G.A. for the State.

7. The instant petition has been filed
for the following relief:

"To stay the effect and operation of
impugned order dated 19.1.2023 passed by
the respondent no.2/ Commissioner, Basti
Division, Basti in Appeal bearing Case No.
656/22 (Harishchand Vs. State of U.P.),
under Section 6 of U.P. Control of Goondas
Act,
1970,
Police
Station-Ghanghata,
District-Sant Kabir Nagar and order dated
11.11.2022 passed by the respondent no.
3/District Magistrate, Sant Kabir Nagar in
Case No. 480 of 2022, under Section 3/4 of
U.P. Control of Goondas Act, 1970, Police
Station-Ghanghata,, District Sant Kabir
Nagar during the pendency of present writ
petition
before
this
Hon'ble
Court,
otherwise
the
petitioner
shall
suffer
irreparable loss and injury."

8. Learned counsel for the petitioner
submitted that petitioner is renowned
person of the society and also he was the
then Gram Pradhan of village Dhanghata.
The reputation of the petitioner is good and
clear in the society and also his wife is the
present Gram Pradhan. It is further
submitted that prior to 16.5.2022 no
complaint or First Information Report was
registered against the petitioner. It is next
submitted
that
the
land
grabbers
(Bhumafiya), namely, Shri Bhal Chand
Pathak, Shivbrat Pathak, Akhilesh Pathak,
Rakesh Pathak, Sintu @ Piyush Pathak and
Subhas Pathak, who are the resident of
village
Dhanghata,
Police
Station
Dhanghata, District Sant Kabir Nagar, have
made encroachment on public utility land
Gata No. 177 & 178 belongs to the
Khalihan and Khadgaddha of the Revenue,
Village Mithana, Sithana, Police Station
Dhanghata, District Sant Kabir Nagar,
which is adjoining village of Dhanghata
and by playing fraud they have got entry on
the
aforesaid
public
utility
land
as
Sankramaniya Bhumidhar, which is not
permissible under the U.P. Revenue Code,
5 All. Harishchand Yadav Vs. State of U.P. & Ors.
1067
2006. In this regard the petitioner made
several complaints before the concerned
authorities as well as Chief Minister Portal
against the land grabbers (Bhumafiya),
namely, Shri Bhal Chand Pathak, Shivbrat
Pathak, Akhilesh Pathak, Rakesh Pathak,
Sintu @ Piyush Pathak and Subhas Pathak,
who are the resident of village Dhanghata,
Police Station Dhanghata, District Sant
Kabir Nagar praying therein to evict the
aforesaid persons from Gata No. 177 area
0.251 hectare and 178 area 0.051 hectare
situated in Revenue, Village Mithana,
Sithana, Police Station Dhanghata, District
Sant Kabir Nagar, which is adjoining
village of Dhanghata and restore the
aforesaid public utility land of the said
Gaon Sabha as was earlier recorded in the
revenue record.

9. Learned counsel has further
submitted that in compliance of the
aforesaid complaint made by the petitioner,
the respondent authorities have initiated
enquiry against the alleged land grabbers in
the aforesaid matter and in pursuance of
that the revenue official has submitted
report on 9.6.2022, 30.6.2022, 12.7.2022 and
19.7.2022, on the basis of Akarpartar 45 and
stating therein that the aforesaid land belongs
to the public utility land, therefore, made
recommendation to delete the name of the
said Degree College and recorded as
Khalihan and Khadgaddha. Subsequently, the
said land grabbers have annoyed with the
petitioner and being aggrieved with the said
enquiry the land grabbers only to harass the
petitioner has lodged the First Information
Reports against him including his son and
other friends on the false and concocted story.
The following two cases have been registered
against the petitioner which are given below:

(i) Case Crime No. 193 of 2022, under
Sections
147,323,352,506
IPC, Police
Station Dhanghata, District Sant Kabir
Nagar, in which the petitioner has been
granted bail by the court concerned;

(ii) Case Crime No. 200 of 2022,
under Sections 147, 341, 504, 506 IPC,
Police Station Dhanghata, District Sant
Kabir Nagar, in which the petitioner has
also been released on bail by the court
concerned.

10. Learned counsel for petitioner
further submitted that District Magistrate,
Sant Kabir Nagar while passing the order
of externment has not considered the
objection of the petitioner that he is not
habitual to commit crime and he does not
come under the meaning of 'Goondas'. The
District Magistrate in a routine manner has
passed the order of externment. It is next
submitted
that
Commissioner,
Basti
Division,Basti also had not applied its
judicial mind and has dismissed the appeal
preferred by petitioner. Both the authorities
have failed to consider that petitioner is not
habitual in committing crime and he does
not come under the meaning of 'Goondas'.
It is further
submitted that District
Magistrate has failed to consider that there
was only two cases registered against the
petitioner which were lodged by the land
grabbers only to harass the petitioner on
account of said complaint made by the
petitioner. The petitioner on the basis of
only two cases cannot be held to be a
Goonda within the meaning of Section 3 of
the Act. The findings recorded by both the
authorities i.e. District Magistrate as well
as Commissioner to the effect that
petitioner is a Goonda, is illegal and are
liable to be quashed.

11. Learned A.G.A. submitted that
petitioner is a Goonda and a habitual
offender. Nobody dares to come forward to
depose in the cases related to the petitioner
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
and there is terror in the area of petitioner.
Hence the petition is liable to be dismissed.

12. The externment order has been
passed by the District Magistrate under
Section 3 of the Act. The Section 3 of the
Act is reproduced as under:-

"3. Externment, etc. of Goondas. - (1)
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 thereof 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 sub clauses (i) to (iii) of clause (b) of
Section 2, or in the abetment of any such
offence; and]

(c) that witnesses 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 materials 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 witness 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 subsection (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 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 or any such article as may be
specified in the order;
(iii) direct him otherwise to conduct himself
in such manner as may be specified in the
order,

until the expiration of such period, not
exceeding six months as may be specified in
the order."

13. Section 3 of the Act empowered
the District Magistrate to pass the order of
externment if he is satisfied that any person
is engaged or about to engage in the district
or any part thereof in the commission of
offence referred to in sub clause (i) to (iii)
of clause b of Section 2.

14. The word 'Goonda' is defined in
sub clause b of Section 2 of the Act which
is reproduced as under:-
5 All. Harishchand Yadav Vs. State of U.P. & Ors.
1069

"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, or Chapter XVI, Chapter XVII or
Chapter XXII of the said Code; or

(ii) has been convicted for an offence
punishable under the Suppression 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;"

15. A perusal of Section 2(b) of the
Act reveals that Goonda means a person
who is either by himself or is 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 IPC or Chapter XV, or Chapter XVI,
Chapter XVII or Chapter XXII of the
Indian Panel Code.

16. From perusal of impugned orders
it is apparent that externment order has
been passed only on the basis of two cases
whereas the word habitual is used in the
definition of word 'Goonda'. There was no
evidence or material before the District
Magistrate that the petitioner was habitual
to commit crimes or was member or leader
of any gang which involved in criminal
activities. The word habitual means that by
habit he was involved in commission of
such offences. On the basis of one or two
offences the petitioner cannot be treated as
Goonda. The word 'Goonda' has been
considered by the Division Bench of this
Court in the case of Imran alias Abdul
Quddus Khan Vs. State of U.P. and
others, Criminal Misc. Writ Petition
No.7111 of 1999. The words 'Goonda' and
'habitual' have been considered. The
relevant paragraphs 13, 14, 15 of the said
judgment are quoted hereunder:-

"13. Ex facie, a person is termed as a
'goonda' if he is a habitual criminal. The
provisions of Section 2(b) of the Act are
almost akin to the expression 'anti social
element' occurring in Section 2(d) of Bihar
Prevention of Crimes Act, 1981. 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 Vijay Narain
Singh v. State of Bihar and others, (1984)
3 SCC-14 : AIR 1984 SC 1334. 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 Vijay Narain'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
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal instinct 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 an
'anti social element'. There are thus two
views with regard to the expression
'habitually' flowing from the decision of
Vijay Narain's 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 of 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 Stroud's
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.

14. The word 'habit' has a clear well
understood meaning being nearly the same
as 'accustomed' and cannot be applied to
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 B.N.
Singh v. State of U.P., AIR 1960 All 754 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
P.
Ramanatha
Aiyer,
the
expression
'habitual' has been defined to mean as
constant, customary and addicted to a
specified habit; formed or acquired by or
resulting 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.

15. The expression 'habitual criminal'
is the same thing as the 'habitual offender'
within the meaning of Section 110 of the
Code of Criminal Procedure, 1973. 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
evidenced
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."

17. The sole purpose of the Act, 1970
is to protect the citizens from the habitual
criminals and to secure future of the
citizens but it should be used very sparingly
and in very clear cases of public disorder or
for maintenance of public order and so this
Act should not be used against innocent
people.
5 All. Virendra Kasaudhan Vs. State of U.P. & Ors.
1071

18. It is well settled law that before
passing the order of externment the District
Magistrate should be satisfied that the
person against whom the externment order
has been passed, is habitual to commit
crimes and there are several materials
before him to the effect that there was
terror in the public and no one has come
forward to give evidence against that
person.

19. From perusal of impugned order
passed by District Magistrate it is apparent
that only on the basis of two criminal cases,
the externment order for six months has
been passed by the District Magistrate. The
Commissioner has also failed to consider
the grounds taken by the petitioner in his
appeal and in a routine manner has
dismissed the appeal preferred by the
petitioner.

20. On an overall conspectus of the
aforesaid, this Court finds that since there
was no sufficient material before the
District Magistrate in holding that the
petitioner is Goondas and is habitual to
commit crimes, the impugned orders dated
19.1.2023 passed by the respondent no.2/
Commissioner, Basti Division, Basti and
dated 11.11.2022 passed by the respondent
no. 3/District Magistrate, Sant Kabir Nagar
are bad in law and deserve to be quashed
and the writ petition is liable to be allowed.

21. Accordingly, the writ petition is
allowed.

22. The impugned orders dated
19.1.2023 passed by the respondent no.2/
Commissioner, Basti Division, Basti and
dated 11.11.2022 passed by the respondent
no. 3/District Magistrate, District-Sant
Kabir Nagar are quashed.
----------
(2023) 5 ILRA 1071
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

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

Criminal Misc. Writ Petition No. 2683 of 2023

Virendra Kasaudhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bipin Kumar Tripathi, Sri Shubham

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 279, 504 & 307 - Quashing of
F.I.R - U.P. Gangster and Anti-Social
Activities (Prevention) Act, 1986 - Section
3(i)
-
U.P.Gangster
and
Anti-Social
Activities (Prevention) Rules, 2021 - Rule
5(2), 5(3) - On the basis of single case as
mentioned in gang chart, the provisions of
Gangster Act has been imposed against
petitioner, violation of above Rule framed
under Gangster Act - District Magistrate
has not recorded subjective satisfaction
before
imposition
of
provisions
of
Gangster
Act
-
St.
contended
that
chargesheet has already been submitted
in base FIR - Held, satisfaction has been
recorded as per Gangster Rules, 2021 and
Form-I of Gangster Act, which provides
the format of gang chart - Petition was
devoid of merit, dismissed. (Para 5, 6, 9)

Writ Petitions dismissed. (E-13)

List of Cases cited:

1. Ram Rahees & anr. Vs St. of U.P. & ors.
reported in 2011 (1) JIC 440

2. Shraddha Gupta Vs The St. Of U.P.reported in
2022 SCC OnLine SC 514, (Para 37)