# Parvindra v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 916
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-23
- **Case number:** Crl. Misc. Writ Petition No. 25689 of 2019
- **Bench:** Anil Kumar-Ix
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parvindra-v-state-of-u-p-ors-45740
- **Pages:** 6

## Headnote

A. Criminal Law-Uttar Pradesh Control of
Goondas Act, 1970-Section 3-challenge
to-externment of the petitioner for a
period of six months passed by ADM and
Commissioner-for declaring a person as
"Goonda" as defined u/s 2(b) of the Act,
there must be repeated/ persistent overt
acts not isolated and individual act-a
single or two acts of accused will not be
sufficient to hold that he is habitually
involved
in
the
commission
of
the
offences referred in the Act-In the
present case, show cause notice was
issued on the basis of his involvement in
only one case-thus, petitioner does not
fall within the ambit of 'Goonda' as
defined u/s 2(b) of the Act-Hence,
allowed.(Para 7 to 20)

Crl. Misc. writ petition allowed. (E-6)

List of Cases Cited:-

## Text

916 INDIAN LAW REPORTS ALLAHABAD SERIES
company and, after payment of few
installments, they committed default and,
when it was inquired, it was found that the
property belonging to someone else was
mortgaged by setting up a false document. The
first information report was lodged in the year
2015 whereas the settlement between the
parties came in the year 2018 much after the
order of the Magistrate directing further
investigation in the matter.

23. Whether the aforesaid transaction has
potential to have an impact on the society at
large would have to be examined with
reference to the manner in which a finance
company functions.

24. The business of a public limited
finance company, as is the case here, is
ordinarily run by borrowing funds from open
market and by subscription of its shares by
members of the public. In a public limited
company, the shareholders and the creditors
put their money to run its business. Finance
companies may also generate finances by
taking deposits from members of public.
Therefore if a finance company is defrauded,
the impact of its financial morass would be on
the public at large and such impact may shake
the confidence of the public in the financial
system.

25. In view of the above, keeping in
mind the law laid down by the Apex Court
noticed above, we are of the considered view
that an act of defrauding a public limited
finance company by setting up forged papers,
is an act which has potential to affect the
society at large and, therefore, a criminal case
based on such a transaction cannot be quashed
on the basis of settlement or compromise.

26. A fortiorari, the prayer of the
petitioners to quash the first information report
and the consequential investigation, cannot be
accepted. The petition is dismissed. It is made
clear that we have not expressed any opinion
on the merits of the allegations made in the
impugned FIR.
----------
(2020)02ILR A916

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE
THE HON'BLE ANIL KUMAR-IX, J.

Crl. Misc. Writ Petition No. 25689 of 2019

Parvindra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vinai Shanker Singh

Counsel for the Respondents:
A.G.A.

A. Criminal Law-Uttar Pradesh Control of
Goondas Act, 1970-Section 3-challenge
to-externment of the petitioner for a
period of six months passed by ADM and
Commissioner-for declaring a person as
"Goonda" as defined u/s 2(b) of the Act,
there must be repeated/ persistent overt
acts not isolated and individual act-a
single or two acts of accused will not be
sufficient to hold that he is habitually
involved
in
the
commission
of
the
offences referred in the Act-In the
present case, show cause notice was
issued on the basis of his involvement in
only one case-thus, petitioner does not
fall within the ambit of 'Goonda' as
defined u/s 2(b) of the Act-Hence,
allowed.(Para 7 to 20)

Crl. Misc. writ petition allowed. (E-6)

List of Cases Cited:-

1. Shankar Ji Shukla Vs. Ayukt Allahabad
Mandal, Allahabad
2 All. Parvindra Vs. State of U.P. & Ors.
917
2. Imran @ Abdul Quddus Khan Vs. St. Of U.P.
& Ors,(2000) SCC 171 Alld.

3. Vijay Narain Singh Vs. St. Of Bih. & Ors,
(1984) 3 SCC 14

(Delivered by Hon'ble Anil Kumar-IX, J)

1. Heard Sri Vinai Shankar Singh,
learned counsel for the petitioner and Sri
Virendra Singh Rajbhar, learned A.G.A.
for the State.

2. This writ petition under Article
226 of the Constitution of India is directed
against the order dated 30.10.2019 passed
by
Commissioner
Meerut
Division,
Meerut (O.P. No.2) as well as order dated
25.09.2019 passed by Additional District
Magistrate
(Administration),
Gautam
Budh Nagar directing externment of the
petitioner for a period of six months under
Section 3 of U.P. Control of Goondas' Act,
1970 (hereinafter referred to as 'Act').

3. Briefly stated the relevant facts
giving rise to the present writ petition are
that the A.D.M. (Administration) Gautam
Budh Nagar on 31.07.2019 issued notice
to the petitioner under Section 3 of the Act
with the allegation that on the basis of
information received by him it appeared
that Parvindra (Petitioner) s/o Baraf Singh
resident of village Navada, Police Station-
Bita-2, District- Gautam Budh Nagar
commits offence under Chapter XVI, XVII
or XXII of I.P.C., his general reputation is
that he terrorizes the people and he is
dangerous to the community, he operates
his activity within the area of Gautam
Budh Nagar. No person is ready to give
evidence against him on account of his
arduous activities. He is an accused in
Case Crime No. 772 of 2018, under
Section 384 I.P.C. P.S. Bita-2 which was
registered on written report of the police
Sub-Inspector. This notice also refers beat
report no.43 dated 27.06.2019 received
without any detail regarding subject matter
of the beat information.

4. The petitioner by the said notice
was called upon to furnish written
explanation as to why an externment order
be not passed against him under Section 3
(3) of the Act. The petitioner was served
with the notice, he appeared before the
learned Additional District Magistrate and
submitted his detailed written explanation
enclosing certain documents, copy of the
said notice is annexed as Annexure no.3 to
the affidavit. On the basis of materials
available on record, learned Additional
District Magistrate (O.P. No.3) declared
him to be 'Goonda' and passed order for
his externment for a period of six months
by the impugned order dated 25.09.2019.

5. Against the aforesaid order dated
25.09.2019 passed by O.P. No.3, petitioner
preferred an appeal before Commissioner
Meerut Division, Meerut (O.P. No.2) on
03.10.2019 under Section 6 of Goondas
Act that was dismissed by the impugned
order dated 30.10.2019 passed by O.P.
No.2.

6. Being aggrieved by the aforesaid
both the impugned orders this writ petition
has been moved by the petitioner.

7. It was submitted by the learned
counsel for the petitioner that show cause
notice issued against the petitioner suffer
from the vice of totally application of
mind. It was next submitted that neither
the petitioner have criminal antecedents
nor he has been involved in any anti social
activity, except the solitary case shown in
the notice. The show cause notice was
issued against the petitioner only on the
918 INDIAN LAW REPORTS ALLAHABAD SERIES
ground of his involvement in a solitary
case. Thus, the petitioner does not come
within the meaning of 'Goonda' as defined
under Section 2(b) of the Act. The
petitioner filed his objection to the show
cause notice but the respondent no.3
rejected the same and passed the impugned
order. The respondent no.2 has also
wrongly affirmed the order passed by the
respondent no.3. Learned counsel for the
petitioner further submitted that the
Division Bench of this Court in the case of
Imran @ Abdul Quddus Khan Vs. State
of U.P. and other reported in 2000
(suppl.) ACC 171 (HC) has taken the
view that for a person to be a 'Goonda'
under Sub Section (1) (b) of the Act, it is
to be a person who has to his credit
repeated/persistent overt acts not isolated
and individual act and in view of the
above, the impugned orders are liable to be
quashed. In support of his submission
learned counsel for the petitioner has also
placed reliance in Shankar Ji Shukla Vs.
Ayukt Allahabad Mandal and others
reported in 2005 (52) ACC 633.

8. Learned A.G.A. submitted that the
petitioner failed to make out any case for
quashing the orders. It was further
submitted that a single act or omission is
enough to treat the person concerned as an
anti social element. There is no illegality
or infirmity in the impugned orders
warranting interference by this Court.

9. I have considered the submissions
made by learned counsel for the parties
and perused the impugned orders, further
materials brought on record and case law
cited by learned counsel for the petitioner
in support of his submission.

10. The law of preventive detention
is a hard law and, therefore, it should be
strictly construed and care should taken
that the liberty of a person is not
jeopardized unless his case falls squarely
within the four corners of the relevant law.
The law of preventive detention should not
be used merely to clip the wings of the
accused who is involved in a criminal
prosecution. It is not intended for purpose
of keeping a man under detention when
under ordinary criminal law it may not be
possible to resist the issue of order of bail,
unless the material available is such as
would satisfy the requirements of the legal
provisions authorising such detention.
When a person is enlarged on bail by a
competent criminal Court, great caution
should be exercised in scrutinizing the
validity of an order of preventive detention
which is based on the very same charge
which is to be tried by the criminal Court.

11. A Division Bench of this Court in
the case of Imran alias Abdul Quddus
Khan
(supra)
while
examining
the
question whether a person can be labelled
as 'Goonda' and notice under Section 3(3)
of the U.P. Control of Goondas Act can be
clamped upon him only on the basis of a
solitary incident has, in paragraph nos. 11,
12, 13 and 14 of its aforesaid judgment,
observed as under :-

"11. 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. The meaning put to the
aforesaid expression by the apex court
2 All. Parvindra Vs. State of U.P. & Ors.
919
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 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.

12. 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.AI.R. 1960Allahabad ?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 INDIAN LAW
REPORTS 6 ALLAHABAD SERIES
[2000 of the occasions but rather to the
invariability of the practice.

13. The expression 'habitual criminal'
is the same thing as the 'habitual offender'
within the meaning of section 110 of the
920 INDIAN LAW REPORTS ALLAHABAD SERIES
Code of Criminal Procedure, 1973. This
preventive Section deals for requiring
security for good behavior 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.

14. Expressions like 'by habit'
'habitual'
'desperate'
'dangerous'
and
'hazardous' cannot be flung in the face of a
man with laxity or semantics. The court
must insist on specificity of facts and a
consistent course of conduct convincingly
enough to draw the rigorous inference that
by confirmed habit, the petitioner is sure to
commit the offence if not externed or say
directed to take himself out of the district.
It is not a case where the petitioner has
ever involved himself in committing the
crime or has adopted crime as his
profession. There is not even faint or
feeble material against the petitioner that
he is a person of a criminal propensity.
The case of the petitioner does not come in
either of the clauses of Section 2 (b) of the
Act,
which
defines
the
expression
'Goonda'. Therefore, to outright label bona
fide student as 'goonda' was not only
arbitrary capricious and unjustified but
also counter productive. A bona fide
student who is pursing his studies in the
Post Graduate course and has never seen
the world of the criminals is now being
forced to enter the arena. The intention of
the Act is to afford protection to the public
against hardened or habitual criminals or
bullies or dangerous or desperate class
who menace the security of a person or of
property. The order of externment under
the Act is required to be passed against
persons who cannot readily be brought
under the ordinary penal law and who for
personal reasons cannot be convicted for
the offences said to have been committed
by them. The legislation is preventive and
not punitive. Its sole purpose is to protect
the citizens from the habitual criminals
and to secure future good behavior and not
to punish the innocent students. The Act is
a powerful tool for the control and
suppression of the 'Goondas'; it should be
used very sparingly in very clear cases of
'public disorder' or for the maintenance of
'public order'. If the provisions of the Act
are recklessly used without adopting
caution and desecretion, it may easily
become an engine of operession. Its
provisions are not intended to secure
indirectly a conviction in case where a
prosecution for a substantial offence is
likely to fail. Similarly the Act should not
obviously be used against mere innocent
people or to march over the opponents
who are taking recourse to democratic
process to get their certain demands
fulfilled
or
to
wreck
the
private
vengeance."

15. In the case of Shankar Ji Shukla
Vs.
Ayukt
Allahabad
Mandal,
Allahabad (supra) the word "habitually"
came for consideration before this Court.
The
Court
relying on
its
previous
judgement in the case of Imran @ Abdul
Quddus Khan Vs. State of U.P. and
others reported in 2000 SCC 171 Alld.,
as well as the case of Vijay Narain Singh
Vs. State of Bihar and others 1984 (3)
SCC 14 decided by the Hon'ble Apex
Court held that a single or two acts of the
accused will not be sufficient to hold that
he is habitually involved in commission of
the
offences
referred
in
the
Act.
2 All. Smt. Monika Gupta Vs. Jitendra Gandhi
921

16. Thus, what follows from the above is
that a person can be termed as 'Goonda' and
clamped with a show cause notice under
Section 3(3) of the Act when there is material
indicating that he either by himself or as a
member or leader or a gang, habitually
commits or attempts to commit, or abet the
commission of the offences punishable under
Sections 153, 153(b) or Section 294 I.P.C. or
Chapter XV, or Chapter XVI, Chapter XVII or
Chapter XXII of the I.P.C. or has been
convicted for an offence punishable under the
Suppression of Immoral Traffic in Women and
Girls Act, 1956 or 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 is generally reputed to be a
person who is desperate and dangerous to the
community or has been habitually passing
indecent remarks or teasing women or girls as
tout.

17. In the present case, the show cause
notice was issued by the O.P. No.3 against the
petitioner on the basis of his involvement in
only one case, namely Case Crime No. 772 of
2018, Section 384 I.P.C., P.S. Bita-2, District
Gautam Budh Nagar. The show cause notice
also refers to a beat information report no.43
dated 27.06.2019 recorded without any detail
with regard to the subject matter of the beat
information.

18. From the above facts and discussion,
it appears that the respondent no.3 without
applying his judicial mind and observing the
provision of law has issued the show cause
notice under the Act in routine, casual and
mechanical manner and passed the impugned
order dated 25.09.2019. The Appellate
authority i.e. Commissioner Meerut Division,
Meerut (O.P. No.2) also did not consider these
facts and dismissed the appeals filed by the
petitioner affirming the order passed by O.P.
No.3.

19. There is nothing in show cause
notice which may indicate that the petitioner
fall within the ambit of 'Goonda' as defined
under Section 2(b) of the Act. Thus, the
impugned orders dated 25.09.2019 and
30.10.2019
passed
by
the
Courts
below/Authorities concerned suffer from
inherent infirmity and illegality and cannot be
sustained.

20. The writ petition succeeds and is
allowed.
The
impugned
orders
dated
25.09.2019 and 30.10.2019 are hereby
quashed.

21. No order as to costs.
----------
(2020)02ILR A921

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2019

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

First Appeal No. 60 of 2016
with
First Appeal No. 61 of 2016

Smt. Monika Gupta ...Appellant
Versus
Jitendra Gandhi ...Respondent

Counsel for the Appellant:
Sri Rajesh Khare, Sri Jitendra Kumar
Chakraborty

Counsel for the Respondent:
Sri Gulab Chandra

A. Civil Law-Hindu Marriage Act (25 of
1955) - S. 9 - Restitution of Conjugal
Rights
-
Case
filed
by
respondenthusband for restitution of conjugal rights