# Rampur in S.T. No. 223 of 2007 (State v. Mahendra

- **Citation:** (2008) 2 ILRA 461
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-15
- **Case number:** Criminal Misc. Writ Petition No.6514 of 2007
- **Bench:** S.Rafat Alam, R.K. Rastogi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rampur-in-s-t-no-223-of-2007-state-v-mahendra-41105
- **Pages:** 7

## Headnote

U.P. Control of Gundas Act 1970-Section
3-only one criminal case under section
186/353/504 IPC pending-due to civil
litigation-can not be said to be gundanotice quashed with liberty to issue fresh
notice if sufficient material found.

Held: Para 10

In the case in hand, admittedly, the only
case against the petitioner is pending
under Sections 186, 353 and 504 IPC
and
that
too
on
account
of
civil
litigations pertaining to eviction from ahouse and for the enhancement of the
rent of another house between the
parties,
which
are
of
civil
nature.
Therefore, in the facts of the case and
looking to the definition of 'Goonda' in
the Act, it is difficult to hold that the
petitioner can be said to be a Goonda as
per provisions of Section '(2) (b) of the
Act.

(B) Constitution of India, Art. 226-Writ
Petition-maintainability-against
show
cause notice-when the allegations do not
cover with the definition of 'Gunda'-No
use of issuing notice -petitioner can not
be denied on technical plea.

Held: Para 11

On the other hand, from a perusal of the
impugned notice it is apparent that only
one incident has been given in the notice
of Case Crime No. 75 of 2005, under
Sections 186, 353 and 504 IPC, Police
Station
Civil
Lines,
District
Muzaffarnagar and so it is illegal in view
of the above ruling of the Hon'ble Apex
Court.
Case law discussed:
1984 Vol.3 SCC 14, 2007 (57) ACC 791, 1999
(39) ACC 321.

## Text

2 All] Ranjan Mittal V. State of U.P. and others
461
7. The applicant had lodged FIR
against the accused persons at P.S.
Kotwali Rampur. The averments made by
the informant in that FIR were not found
false and after investigation charge sheet
was filed by the investigating officer in
case crime No.322 of 2002. Hence there
was no occasion for the S.H.O. P.S.
Kotwali Rampur or his superior officer to
file complaint against the informant for
the offence punishable under section 182
IPC. During trial in S.T. No. 223 of 2007,
the applicant Lekh Raj did not support
FIR version in his statement recorded as
P.W. 1 and he stated that name of the
accused persons were mentioned in the
report on the saying of village people. If
this statement was false in the opinion of
learned Trial Judge, then the informant
Lekh Raj could either be punished for
giving false evidence in the summary
proceedings under section 344 Cr.P.C. or
complaint could be filed against him in
competent
court
for
the
offence
punishable under section 193 IPC, as
lodging of FIR for this offence is barred
by section 195 (1) Cr.P.C. If the
informant (applicant) had falsely charged
the
accused
persons
with
having
committed an offence, knowing that there
is no just or lawful ground for such charge
against the accused persons, then also
complaint could be filed against the
informant/applicant
for
the
offence
punishable under section 211 IPC, as
lodging of FIR for the offence punishable
under section 211 IPC is also prohibited
by sub section (1) (b) (I) of section 195
Cr.P.C. for these offences, cognizance can
be taken on the basis of the complaint
only, as provided in section 195 Cr.P.C.
and lodging of FIR for committing these
offences is not permissible. In any case,
there was no occasion for the learned
Trial Judge at the time of passing the
judgment in S.T. No. 223 of 2007 to
direct SSP Rampur to lodge the FIR
against the informant for the offence
punishable under section 182 IPC.

8. For the reasons mentioned hereinabove, the challenged part of the
impugned judgment being wholly illegal
and without jurisdiction deserves to be
quashed.

9. Consequently, the application
under section 482 Cr.P.C. is allowed and
that part of the impugned judgment dated
20.02.2008, passed by the Sessions Judge
Rampur in S.T. No. 223 of 2007 (State
Vs.
Mahendra
&
others),
whereby
direction has been issued to SSP Rampur
to get the FIR lodged against the
informant/applicant Lekh Raj for the
offence punishable under section 182 IPC
and consequent FIR, if lodged in
pursuance of that direction, are hereby
quashed.

The Registrar General is directed to
send a copy of this order to Shri N.K.
Jain, the then Sessions Judge Rampur
(Now Sessions Judge Ghaziabad) for his
guidance in future. Application allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2008

BEFORE
THE HON'BLE S.RAFAT ALAM, J.
THE HON'BLE R.K. RASTOGI, J.

Criminal Misc. Writ Petition No.6514 of
2007

Rajan Mittal

...Petitioner
Versus
State of U.P. and others ...Respondents
462 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Counsel for the Petitioner:
Sri Amit Daga

Counsel for the Respondents:
A.G.A.

U.P. Control of Gundas Act 1970-Section
3-only one criminal case under section
186/353/504 IPC pending-due to civil
litigation-can not be said to be gundanotice quashed with liberty to issue fresh
notice if sufficient material found.

Held: Para 10

In the case in hand, admittedly, the only
case against the petitioner is pending
under Sections 186, 353 and 504 IPC
and
that
too
on
account
of
civil
litigations pertaining to eviction from ahouse and for the enhancement of the
rent of another house between the
parties,
which
are
of
civil
nature.
Therefore, in the facts of the case and
looking to the definition of 'Goonda' in
the Act, it is difficult to hold that the
petitioner can be said to be a Goonda as
per provisions of Section '(2) (b) of the
Act.

(B) Constitution of India, Art. 226-Writ
Petition-maintainability-against
show
cause notice-when the allegations do not
cover with the definition of 'Gunda'-No
use of issuing notice -petitioner can not
be denied on technical plea.

Held: Para 11

On the other hand, from a perusal of the
impugned notice it is apparent that only
one incident has been given in the notice
of Case Crime No. 75 of 2005, under
Sections 186, 353 and 504 IPC, Police
Station
Civil
Lines,
District
Muzaffarnagar and so it is illegal in view
of the above ruling of the Hon'ble Apex
Court.
Case law discussed:
1984 Vol.3 SCC 14, 2007 (57) ACC 791, 1999
(39) ACC 321.

(Delivered by Hon'ble S. Rafat Alam, J.)

1. In the instant writ petition the
petitioner· has questioned validity of the
notice dated 20.3.2007 (Annexure-1 to the
writ petition) issued under Section 3 of
U.P. Control of Goondas Act, 1970 (in
short the Act).

2. We have heard learned counsel
for the petitioner and the learned
Additional Government Advocate for the
State-respondents.

3. It is submitted that the petitioner
is an Advocate of the District Court
Muzaffarnagar, and has no criminal
antecedent, inasmuch as, he has not been
involved in any criminal case nor any anti
social
activity
except
the
incident
mentioned in the impugned notice as Case
Crime No.75 of 2005, under Sections 186,
353 and 504 IPC, Police Station Civil
lines, District Muzaffarnagar and thus, he
does not come within the meaning of
Goonda, as defined under Section 2 (b) of
the Act. It is submitted that the petitioner
is co-owner of a large number of
properties and some of them are under the
tenancy of various departments of the
State Government. It is stated that one of
the house known as 'Sheronwali Kothi'
situated in City Muzaffarnagar is under
the tenancy of the State Government.
However, when there was default in the
payment of rent S.C.C. Suit No.1 of 2001
(Yatendra Kumar Jain and others v. State
of U.P. and another) was filed for eviction
and recovery of arrears of rent, which was
allowed and decreed vide judgment dated
30.8.2003. It is stated that the above
judgment has also been affirmed by the
High Court in Civil Revision No.758 of
2003 vide judgment dated 22.10.2003.
Similarly, in another house, in which
2 All] Ranjan Mittal V. State of U.P. and others
463
police club was inducted as tenant by
original
tenant
Harish
Tayal,
an
application was moved for enhancement
of rent. The said application was partly
allowed vide judgment dated 23.9.2002
and the tenants were directed to pay
Rs.2,76,000/- towards annual rent. The
enhancement of rent was challenged
before this Court in Civil Misc. Writ
Petition Nos.40467 of 2006 and 40470 of
2006. It is further submitted before us that
in the aforesaid writ petitions the District
Magistrate and the Senior Superintendent
of Police, Muzaffarnagar appeared in
person and gave undertaking to vacate the
premises by 31st December, 2006. It is
submitted that the local administration
was having grudge and prejudice against
the
petitioner
and,
therefore,
the
impugned notice has been issued only to
harass and put pressure on him. Learned
counsel for the petitioner further relying
on a judgment of Hon'ble Apex Court in
the case of Vijay Narain Singh Vs. State
of Bihar and others, 1984 Vol.3 SCC 14
submitted that the alleged single incident,
mentioned in the impugned notice, does
not come within the definition of clause
(1) Section 2 (b) of the Act, hence it
cannot be said that the petitioner was
habitually committing or attempting to
commit an offence to level him as
Goonda.

4. On the other hand, learned AGA
opposed the writ petition and submitted
that the order impugned is simply a notice
calling upon the petitioner only to show
cause and thus, he instead of approaching
this Court ought to have shown cause
before the concerned authority and,
therefore, this petition is premature and
does not lie at this stage.

We
have
considered
the
rival
submissions made before us.

5. Section 2 (b) of the Act defines
'Goonda' which is as under:-

"(b) 'Goonda, means a person who-
(i) either by himself or as 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 India Penal
Code or Chapter XV, 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(Prevention)
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;"

Explanation.- 'Tout' means a person who-

(a) accepts or obtains, or agrees to
accept or attempts to obtain from any
person for himself or for any other
person, any gratification whatever as
a motive or reward for inducing, by
corrupt or illegal means any public
servant or member of Government,
Parliament or of State Legislature, to
do or forbear to do anything or to
464 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
show favour or disfavour to any
person or to render or attempt to
render any service or disservice to
any person, which the Central or
State Government, Parliament or
State
Legislature,
any
local
authority, corporation, Government
company or public servant; or
(b) procures, in consideration of any
remuneration moving from any legal
practitioner interested in any legal
business, or proposes to any legal
practitioner
or
to
any
person
interested in legal business to
procure, in consideration of any
remuneration moving from either of
them, the employment of legal
practitioner in such business; or
(c) for the purposes mentioned in
explanation (a) or (b), frequents the
precincts
of
civil,
criminal
or
revenue courts, revenue or other
offices,
residential
colonies
or
residences
or
vicinity
of
the
aforesaid or railway or bus stations,
landing stages, lodging places or
other places or public resort: or
(vii) is a house-grabber.
Explanation.-"House-grabber' means a
person who takes or attempts to take or
aids or abets in taking unauthorized
possession or having lawfully entered
unlawfully remains in possession, of a
building including land, garden, garages
or out-houses appurtenant to a building."

6. From a perusal of the impugned
notice it is evident that Clauses (ii) to (vii)
of Section 2 have no application to the
present case; as the notice does not
contain any allegation mentioned in these
clauses. It appears from record that a
report was submitted that the petitioner is
a land grabber under the last clause of the
Section
but
that
proposal
was
subsequently dropped and the impugned
notice was issued to him containing
allegations of Clause (i) only.

7. In the impugned notice there is
allegation of commission of Crime No. 75
of 2005 of Police Station Civil Lines
punishable under Sections 186, 353 and
504 IPC. The offence under Section under
Section 186 IPC is not covered in the
offences referred to in Clause (i). The
offences under Sections 353 and 504 IPC
are covered in Chapter XVI & XXII
respectively of the IPC and so the present
case falls under Clause (i). The basic
requirement of applicability of Clause (I)
is that the person concerned must be
habitually
committing
the
offences
referred to in this clause. In the impugned
notice there is description of one
individual case only which was registered
as Case Crime No. 75 of 2005 at Police
Station Civil Lines; but one cannot be
treated to be habitual unless and until
there is recurrence of the offence. Since
there is reference at one stray incident
only in the notice, the petitioner could not
be deemed to be a habitual offender on
the basis of that single incident only and
so the notice fails to satisfy the legal
requirement.

8.

The
learned
Additional
Government Advocate submitted before
us that one may be a habitual criminal and
it is not essential to prove repetition of
offence for holding a person to be
habitual criminal, so the notice cannot be
deemed to be invalid. In reply the learned
counsel for the petitioner cited before us a
ruling of the Hon'ble Apex Court in Vijay
Narain Singh Vs. State of Bihar and
others (supra). This was a case on the
Bihar Control of Crimes Act and
definition of the term 'Anti Social
2 All] Ranjan Mittal V. State of U.P. and others
465
Element' in Section 2(d), of this Act is
similar to that of the term 'Goonda' in our
Act. Section 2(d) of the above Act runs as
under:

"2. (d) "Anti-Social Element" means
a person who is-
(i) either by himself or as a member
of or leader of a gang, habitually
commits, or attempts to commit or abets
the commission of offences, punishable
under Chapter XVI or Chapter XVII of the
Indian Penal Code; or
(ii) habitually commits or abets the
commission
of
offences
under
the
Suppression of Immoral Traffic in Women
and Girls Act, 1956; or
(iii) who by words or otherwise
promotes or attempts to promote on
grounds of religion, race, language, caste
or community or any other grounds
whatsoever feelings of enmity or hatred
between different religions, racial or
language
groups
of
castes
or
communities; or
(iv) has been found habitually
passing indecent remarks to or teasing
women or girls; or
(v) who has been convicted of an
offence under Sections 25,26,27, 28 or 29
of the Arms Act of 1959."

9. Interpreting the word "habitually"
in Clause (i) their Lordships observed as
under:

"The
word
'habitually'
used
separately in clauses (i), (ii) and (iv) of
Section 2 (d) 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 omissions of the same
kind referred to in each of the said subclauses or an aggregate of similar acts or
omissions.
Absence
of
the
word
'habitually' in clauses (iii) and (v) of
Section 2(d) suggests that in order to treat
a person as 'anti-social element' under
clauses (iii) and (v) a single act or
omission referred to therein may be
enough, whereas in the case of clauses (i),
(ii) and (iv) there should be a repetition of
acts or omission of the same kind referred
to therein. If the acts or omissions in
question are not of the same kind or even
if they are of the same kind when they are
committed with a long interval of time
between them they cannot be treated as
habitual ones." Commission of an act or
omission referred to in one of the clauses
(i), (ii) and (iv) and of another act or
omission referred to in any other of the
clauses of Section 2(d) would not be
sufficient to treat a person as an 'antisocial element'. A single act or omission
falling under clause (i) and a single act or
omission falling under clause (iv) of
Section 2 (d) cannot, therefore, be
characterized as a habitual act or
omission referred to in either of them."

10. The above observations apply
with full force to Clause (i) of Section 2
(b) of the U.P. Goonda Act also.
Therefore, in order to declare a person
Goonda under Clause (i) of Section 2 (b)
of the U.P. Control of Goondas Act, it is
necessary that he is a habitual or is
wanted in more than one case. In the case
in hand, admittedly, the only case against
the petitioner is pending under Sections
186, 353 and 504 IPC and that too on
account of civil litigations pertaining to
eviction from a-house and for the
enhancement of the rent of another house
between the parties, which are of civil
466 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
nature. Therefore, in the facts of the case
and looking to the definition of 'Goonda'
in the Act, it is difficult to hold that the
petitioner can be said to be a Goonda as
per provisions of Section '(2) (b) of the
Act.

11. On the other hand, from a
perusal of the impugned notice it is
apparent that only one incident has been
given in the notice of Case Crime No. 75
of 2005, under Sections 186, 353 and 504
IPC, Police Station Civil Lines, District
Muzaffarnagar and so it is illegal in view
of the above ruling of the Hon'ble Apex
Court.

12. Learned Additional Government
Advocate submitted before us that the
petitioner could take all these pleas before
the
Additional
District
Magistrate
concerned, as he has been given an
opportunity to put up his case before that
authority and so this writ petition filed
before this Court was not maintainable. In
support of this contention, he cited before
us a Division Bench ruling of this court in
the case of Jaindendra @ Chhotu Singh
Vs. State of U.P., 2007 (57) ACC 791
and referred to para 15 of the ruling in
which it has been observed:

"It is well settled by now that when
there is no material, the Court will
interfere but when there is some material
the Court will not interfere."

13. His contention was that the
present case is not a case of 'no material'
because there is reference of one incident
in the notice, and so this aspect of the case
whether the material is sufficient or not is
to be considered by the authority which
issued the notice and so this Court has got
no jurisdiction as laid down in the above
ruling.

14. We do not agree with the above
contention. In view of the ruling of the
Hon'ble Apex Court in the case of Vijay
Narain Singh Vs. State of Bihar and
others (Supra) 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 was
reference of one incident only in the
notice,
it
fell
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 Vs. State of U.P. & 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 Vs. 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 following
observations in para 12 of the ruling in the
case of Jaindendra (supra) which are
quoted
below,
also
support
this
conclusion:

"We can not have any doubt nor we
can raise any dispute with regard to
aforesaid two Full Bench judgements of
this High Court consisting of three Judges
in Ramji Pandey (supra), which was also
held good by another five Judge Bench in
Bhim Sain Tyagi (supra). It is to be
2 All] Shyam Lal V. Smt. Shanti Devi
467
remembered that if there is no material,
the individual petitioner has every right to
challenge
the
notice
in
the
writ
jurisdiction of the Court and there is no
bar to that extent. But if there is some
material, then the notice can not be held
to be defective but will be tested on the
basis of the factual analysis by the
appropriate Magistrate."

15. Hence, in view of the
discussions made above, the impugned
notice cannot sustain and the same is
hereby quashed. The writ petition is,
accordingly,
allowed.
However,
the
respondents will be at liberty to issue a
fresh notice, if they have got sufficient
material against the petitioner and in that
case the proceedings may be started again
in accordance with law in the light of the
observations made in the body of the
judgment after referring to that material in
the fresh notice.
Petition allowed.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2008

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Revision No. 98 of 200S

Shyam Lal
...Defendant/Revisionist
Versus
Smt. Shanti Devi ...Plaintiff/Opposite Party

Counsel for the Revisionist:
Sri Divakar Rai Sharma

Counsel for the Opposite Party:
Sri Atul Dayal

Code of Civil Procedure-Section 21 (2)-
Compromise
deed-after
finality
of
litigation-even
before
the
execution
Court-such compromise not produced-No
applicability of limitation Act-delay can
not be condoned.

Held: Para 12

In view of the aforesaid pronouncement
of the Hon'ble Apex Court, in the case in
hand, the alleged compromise having not
been presented within time before the
executing court for recording adjustment
of the decree and the delay being not
liable to be condoned in as much as
Section 5 of the Limitation Act is not
applicable being expressly excluded, the
alleged
compromise
will
not
effect
executability of the decree in favour of
the
landlord-respondent
and
the
execution is not liable to be struck
off/dismissed on the basis of the said
compromise.
Case law discussed:
1981 AWC 727, (2000) 7 SCC-240, (2006) 12
SCC-138

(Delivered by Hon'ble Krshna Murari, J.)

1. Heard Sri Divakar Rai Sharma,
learned counsel for the applicant and Sri
Atul Dayal appearing for opposite party.

2. The short question which arises
for determination in this case is whether
provisions of Section 5 of Limitation Act
are applicable and delay can be condoned
in
making
application
to
record
adjustment or satisfaction of decree under
Section 21(2) of the Code of Civil
Procedure, 1908 (for short the 'Code').

3. Facts, giving rise to the dispute,
are as under.

Suit filed by the plaintiff-respondent
before the Judge, Small Causes Court for
arrears of rent and ejectment was decreed
vide exparte judgment and order dated
30.3.1990. Application flied by the
tenant-application under Order IX Rule