# Industries Limited v. Bhiwani Denim - **Citation:** (2008) 2 ILRA 621 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2008-06-19 - **Bench:** Rakesh Tiwari, Rakesh Sharma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/industries-limited-v-bhiwani-denim-41048 - **Pages:** 3 ## Headnote U.P. Control of Gunda Act 1970-Section 2(b)-2(iv)-Petitioner habitual of creating terror in society repeated offence under chapter 16, 17 and 22 etc in FIR-serious allegations made sufficient material disclosed in notice-against notice the petitioner to submit explanation before the authority concerned-writ Court cannot see the sufficiency or insufficience of material-it is the authority to take appropriate decisionpetition dismissed. Held: Para 8 From the facts and circumstances as narrated above, it is apparent from reading of notice that the petitioner is committing offence again and again to create terror in society therefore he can be said to be habitual of committing the acts which have been narrated in the notice impugned. The petitioner has come up against the notice only and it is always open to him to submit reply to the same. Sufficiency of Evidence is not to be seen by the High Court at this stage of notice . This Court under judicial scrutiny under Article 226 of the Constitution is to see, on existence of material and not the sufficiency or adequacy of material in the notice under the Uttar Pradesh Control of Goondas Act, 1970 read-with U.P. Control of Goonda Rules, 1970. Case Law discussed: (1984) 3 Supreme Court Cases Page 14. ## Text 2 All] M/s Rishabh Nath Developers & Builders and others V. State of U.P. and another 621 objections at the stage of framing of charges before the trial court. 7. As the applicants have already secured bail, they are permitted to appear through counsel and raise their objections to the initiation of trail proceedings against them at the stage of framing of charges. 8. This relief is being granted up to the stage of framing of charges provided the applicants give an undertaking to the satisfaction of the trial court that (a) their counsel will remain present on their behalf and represent them on each date, (b) they will not raise any objection as to their being the actual person who is facing trail, (c) they do not object to the evidence being recorded in their absence, (d) they undertake to be present before the Court whenever called upon to do so at any stage. 9. These undertaking are being taken in the light of the directions of the Supreme Court in the case of M/s Bhaskar Industries Limited Vs. Bhiwani Denim and Apparels Limited, 2001 Cri.L.J. 4250. 10. With these observations this application is disposed of. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 19.06.2008 BEFORE THE HON'BLE RAKESH TIWARI, J. THE HON'BLE RAKESH SHARMA, J. Criminal Misc. Writ Petition 9642 of 2008 Hari Ram ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri. S.P. Sharma Counsel for the Respondents: A.G.A. U.P. Control of Gunda Act 1970-Section 2(b)-2(iv)-Petitioner habitual of creating terror in society repeated offence under chapter 16, 17 and 22 etc in FIR-serious allegations made sufficient material disclosed in notice-against notice the petitioner to submit explanation before the authority concerned-writ Court cannot see the sufficiency or insufficience of material-it is the authority to take appropriate decisionpetition dismissed. Held: Para 8 From the facts and circumstances as narrated above, it is apparent from reading of notice that the petitioner is committing offence again and again to create terror in society therefore he can be said to be habitual of committing the acts which have been narrated in the notice impugned. The petitioner has come up against the notice only and it is always open to him to submit reply to the same. Sufficiency of Evidence is not to be seen by the High Court at this stage of notice . This Court under judicial scrutiny under Article 226 of the Constitution is to see, on existence of material and not the sufficiency or adequacy of material in the notice under the Uttar Pradesh Control of Goondas Act, 1970 read-with U.P. Control of Goonda Rules, 1970. Case Law discussed: (1984) 3 Supreme Court Cases Page 14. (Delivered by Hon'ble Rakesh Tiwari, J.) 1. Heard learned counsel for the parties. 622 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 The petitioner has come up before this Court, against the notice dated 17.04.2008 which according to the counsel for the petitioner contains allegations of general nature. 2. Learned A.G.A. denies these allegations and submits that it is not so, and notice has rightly been issued based on material allegations. 3. The learned counsel for the petitioner submits that petitioner has come up against the notice in which three cases have been shown against him, i.e. N.C.R. No.15/2007 dated 11.05.2007 under section 323, 504 I.P.C. and N.C.R. No. 53 of 2007 under section 504, 506, 427 I.P.C. dated 24.11.2007 was registered against him. Apart from above Case Crime No.111 of 2008 under section 4125 Arms Act is also registered against him for keeping a knife which according to the petitioner's counsel made a basis for the purpose of proceedings under the U.P. Control of Goonda Act-1970. 4. The contention of the learned counsel for the petitioner is that the petitioner does not come under the definition of U.P. Control of Goondas Act, 1970 hereinafter referred to as the "Goonda Act" and Uttar Pradesh Control of Goondas Rules, 1970 hereinafter referred to as the 'Rules, 1970'. Learned counsel for the petitioner has relied upon the Preamble of the Act which itself make special provisions for the Control of Goondas. Goondas Act has been defined in section 2(b) which is as under:- 2(b) "Goondas" means a person who-- (i)either by himself or as a member or leader of a gang, habitually commits or abets, the commission of an offence punishable under 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 community; or (v) has been habitually passing indecent remarks or teasing women or girls; or (vi) is a tout; 5. It is apparent from records that other two N.C.Rs exists against the petitioner, section 29b) of Control of Goondas read-with section 2 (IV) provide that even a person who abets in commission of Crime under Chapter XV, XVI and XII I.P.C., and whose general reputation is of a dangerous person to the community is covered by the definition under the Act. From reading of the notice it is apparent that the petitioner is repeatedly committing offence as given under Chapter 16,17 and 22 I.P.C. He is not a respected person and is dangerous to the community or society. Material allegations against the petitioner prima facie have been made in the impugned F.I.R. 6. The Judgement reported in Civil journal Imran alias Abdul Gaffar Vs. State of U.P. and others in which section 2(b) relied upon by the counsel for the petitioner have also been considered by 2 All] Hari Ram V. State of U.P. and others 623 us. It is in the peculiar facts and circumstances of that case that the Court has held that for calling a person Goonda he must necessary come under the category of goonda. The allegations were made against a student of M.A. in the aforesaid case. The facts of that peculiar case were considered for the purpose to ascertain whether he fell within the ambit of 'Goonda' as defined in Section 2 of the .Act. The second, case on which reliance has been placed rendered by the Apex Court in Vijay Narain Singh Vs. State of Bihar (1984) 3 Supreme Court Cases Page 14. 7. In the aforesaid cases the word habitually is considered which is as under:- "The word 'habitually' means by force of habit. It is the force of habit inherent or latent in an individual with 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 commits or abets the commission of offences punishable under Chapter XVI or Chapter XVII of the Penal Code, he should be considered to be an "anti social element". 8. From the facts and circumstances as narrated above, it is apparent from reading of notice that the petitioner is committing offence again and again to create terror in society therefore he can be said to be habitual of committing the acts which have been narrated in the notice impugned. The petitioner has come up against the notice only and it is always open to him to submit reply to the same. Sufficiency of Evidence is not to be seen by the High Court at this stage of notice. This Court under judicial scrutiny under Article 226 of the Constitution is to see, on existence of material and not the sufficiency or adequacy of material in the notice under the Uttar Pradesh Control of Goondas Act, 1970 read-with U.P. Control of Goonda Rules, 1970. 9. For the reasons stated above, we are not inclined to interfere in the matter. It is open for the authorities concern to place the material before the authority and pass appropriate orders. 10. Writ Petition is, accordingly, dismissed. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 15.05.2008 BEFORE THE HON'BLE S.K. JAIN, J. Criminal Misc. Application 10413 of 2008 Smt. Mamta Kanojia@ Pinki ...Applicant Versus Davesh Kumar Kanojia and another ...Respondents Counsel for the Applicant: Sri. Shiv Nath Singh Sri. Pramod Srivastava Counsel for the Respondents: A.G.A. Code of Criminal Procedure-Section 190(1)(b)-power of Magistrate-treating the protest application as complaintinstead of taking cognizance on the basis of statements of witness-Magistrate rightly exercised 4th option given by the Apex Court in Pakhando case-no interference under section 482 called for.