# Umar @ Mohd. Umair v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 844
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-08
- **Case number:** Crl. Misc. Writ Petition No. 4874 of 2024
- **Bench:** Siddharth, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umar-mohd-umair-v-state-of-u-p-anr-51860
- **Pages:** 13

## Headnote

Criminal Law - U.P. Control of Goondas
Act, 1970 - Sections 2(b), 3 - Indian Penal
Code, 1860 - Section 376 - Indian
Evidence Act, 1872 - Section 114 -
4 All. Umar @ Mohd. Umair Vs. State of U.P. & Anr.
845
Constitution of India,1950 - Article 21 -
Petitioner sought quashing of show cause notice
dated 06.03.2024 issued under Section 3 for
externment, based on one case under Section
376 I.P.C. and three beat reports. Court held:
(1) A single case and beat reports do not
establish habitual criminality required to classify
petitioner as a "goonda" under Section 2(b), as
habituality
necessitates
repeated
offences
(Shankar Ji Shukla Vs Ayukt Allahabad Mandal,
2005 (52) ACC 638). (2) Notice failed to specify
general nature of material allegations, violating
mandatory requirements under Section 3,
rendering it defective (Ramji Pandey Vs St. of
U.P., 1981 Cri LJ 1083). (3) Petitioner's bail in
the solitary case, supported by victim's
St.ment under Section 164 Cr.P.C. indicating
consent, negated allegations of habitual
criminality (Idu Ali Vs St. of U.P., Crl. Misc.
Writ Petition No. 2895 of 2023). (4) Issuance
of notice on insufficient grounds constituted
abuse of power, rebutting presumption of
regularity under Section 114 of Evidence Act,
and violated petitioner's rights under Article
21 (Kailash Jaiswal Vs St. of U.P., Crl. Misc.
Writ Petition No. 10241 of 2019). (5) St.'s
failure to issue uniform guidelines for applying
the Act, despite prior court directions,
highlighted rampant misuse by authorities
(Govardhan Vs St. of U.P., Crl. Misc. Writ
Petition No. 12619 of 2023). Notice quashed;
writ allowed with Rs. 1,00,000/- cost payable
by St.; disciplinary action recommended
against erring officials. (Paras 8-19)

Writ Petition Allowed.

List of Cases cited:

## Text

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844 INDIAN LAW REPORTS ALLAHABAD SERIES
petition were clearly available to the
petitioner at the time of challenging the
impugned order in the earlier petition
(Criminal Misc. Writ Petition No. 10390 of
2023).

9. Although copy of the Special
Leave Petition has not been annexed with
present petition, however, presumably all
such grounds that are now being taken,
must have been advanced before the
Hon'ble Apex Court and thereafter the
petition was sought to be withdrawn for
which permission was granted and in place
of filing review application, second petition
with full knowledge that it would not be
placed before this Bench, was filed by a
new counsel, which, in our opinion, is
nothing but an attempt of Bench hunting
and is thus, an abuse of process of law.

10. At this stage, a prayer was made
that the petition may be permitted to be
withdrawn with liberty to file review
application. We are not inclined to accept
the same, as we have already noticed the
grounds taken in the present petition,
which, as already observed, clearly reflect
that the petitioner is seeking re-hearing of
the matter on merits, which would be
beyond the scope of review application as
per settled law. A Division Bench of this
Court (of which one of us, Vivek Kumar
Birla, J. was the member) has considered
the scope of review in detail in the case of
Vinod Kumar vs. State of U.P. and
others, reported in 2022 (11) ADJ 25 (DB).

11. Therefore, even if it is considered
to be a review application, the re-hearing of
matter is not permissible.

12. In such view of the matter, present
petition filed under Article 226 of the
Constitution of India being second writ
petition
for
the
same
relief
stands
dismissed with a cost of Rs. 20,000/- (Rs.
Twenty Thousand), which the petitioner
shall deposit with the Registrar General of
this Court within a period of one month
from today. On deposit of such cost, it shall
be transmitted to the account of 'Allahabad
High Court Mediation and Conciliation
Centre, Allahabad'. If the petitioner fails to
deposit the cost of Rs. 20,000/- (Rs.
Twenty Thousand), the Registrar General
of this Court shall inform the District
Magistrate/Collector
concerned
for
recovery of the said amount as arrears of
land revenue, who shall after recovering the
said amount from the petitioner, transmit it
to the Registrar General of this Court for
depositing in the account of 'Allahabad
High Court Mediation and Conciliation
Centre, Allahabad' within a further period
of three months.
----------
(2024) 4 ILRA 844
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE SURENDRA SINGH-I, J.

Crl. Misc. Writ Petition No. 4874 of 2024

Umar @ Mohd. Umair ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri M. J. Akhtar

Counsel for the Respondents:
G.A.

Criminal Law - U.P. Control of Goondas
Act, 1970 - Sections 2(b), 3 - Indian Penal
Code, 1860 - Section 376 - Indian
Evidence Act, 1872 - Section 114 -
4 All. Umar @ Mohd. Umair Vs. State of U.P. & Anr.
845
Constitution of India,1950 - Article 21 -
Petitioner sought quashing of show cause notice
dated 06.03.2024 issued under Section 3 for
externment, based on one case under Section
376 I.P.C. and three beat reports. Court held:
(1) A single case and beat reports do not
establish habitual criminality required to classify
petitioner as a "goonda" under Section 2(b), as
habituality
necessitates
repeated
offences
(Shankar Ji Shukla Vs Ayukt Allahabad Mandal,
2005 (52) ACC 638). (2) Notice failed to specify
general nature of material allegations, violating
mandatory requirements under Section 3,
rendering it defective (Ramji Pandey Vs St. of
U.P., 1981 Cri LJ 1083). (3) Petitioner's bail in
the solitary case, supported by victim's
St.ment under Section 164 Cr.P.C. indicating
consent, negated allegations of habitual
criminality (Idu Ali Vs St. of U.P., Crl. Misc.
Writ Petition No. 2895 of 2023). (4) Issuance
of notice on insufficient grounds constituted
abuse of power, rebutting presumption of
regularity under Section 114 of Evidence Act,
and violated petitioner's rights under Article
21 (Kailash Jaiswal Vs St. of U.P., Crl. Misc.
Writ Petition No. 10241 of 2019). (5) St.'s
failure to issue uniform guidelines for applying
the Act, despite prior court directions,
highlighted rampant misuse by authorities
(Govardhan Vs St. of U.P., Crl. Misc. Writ
Petition No. 12619 of 2023). Notice quashed;
writ allowed with Rs. 1,00,000/- cost payable
by St.; disciplinary action recommended
against erring officials. (Paras 8-19)

Writ Petition Allowed.

List of Cases cited:

1. Shankar Ji Shukla Vs Ayukt Allahabad Mandal,
2005 (52) ACC 638 (Para 10)

2. Lalani Pandey @ Vijay Shankar Vs St. of U.P.,
2011 (1) ACrJ 207 (Para 10)

3. Idu Ali Vs St. of U.P., Crl. Misc. Writ Petition
No. 2895 of 2023 (Para 11)

4. Ramji Pandey Vs St. of U.P., 1981 Cri LJ 1083
(Para 11)

5. Bhim Sen Tyagi Vs St. of U.P., 1999 (2) JIC
192 (All) (FB) (Para 11)
6. Kailash Jaiswal Vs St. of U.P., Crl. Misc. Writ
Petition No. 10241 of 2019 (Para 12)

7. Suresh Tewari Vs St. of U.P., 2018 (5) ALJ 1
(Para 12)

8. Govardhan Vs St. of U.P., Crl. Misc. Writ
Petition No. 12619 of 2023 (Para 14)

9. Satendra Kumar Antil Vs C.B.I., SLP (Crl.) No.
5191 of 2021 (Para 4)

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

1. Heard learned counsel for the
petitioner and learned A.G.A. for the State.

2. The petitioner has approached this
Court with a prayer to quash the impugned
showcause notice dated 06.03.2024 issued
by respondent no. 2, Additional District
Magistrate
(Administration),
District-
Moradabad.

3. The petitioner has been implicated
in the present proceedings on account of his
implication in Case Crime No. 282 of 2023
u/s 376 I.P.C., P.S.- Mainather, District-
Moradabad and three beat reports.

4. Learned counsel for the petitioner has
submitted that in Case Crime No. 282 of
2023, he was granted bail by this Court vide
order dated 08.11.2023 passed by this Court
in Criminal Misc. Bail Application No.
47674 of 2023 which is reproduced
hereinbelow :

"Heard learned counsel for the
applicant; Ms. Ruchi Singh, learned counsel
for the informant learned AGA for the State
and perused the material placed on record.

The instant bail application has
been filed on behalf of the applicant,
846 INDIAN LAW REPORTS ALLAHABAD SERIES
Umair, with a prayer to release him on bail
in Case Crime No. 282 of 2023, under
Section 376 IPC, Police Station Mainather,
District- Moradabad during pendency of
trial.

Learned
counsel
for
the
informant prays for and is granted two
days' time to file counter affidavit.

Put up this case on 21.11.2023 as
a fresh case.

Learned counsel for the applicant
has submitted that in the statement of the
victim recorded under section 164 Cr.P.C
she has admitted her long physical
relationship with applicant.Both are well
known to each other.It is a case of consent.
He has no criminal history to his credit and
is languishing in jail since 26.9.2023.

Learned A.G.A. and learned
counsel for the informant have opposed the
prayer for bail of the applicant, but have
not disputed the aforesaid statement made
by learned counsel for the applicant.

Considering the rival submissions
and totality of facts & circumstances of the
case, applicant is directed to be enlarged
on interim bail till the date fixed..

Having considered the submissions
of the parties noted above, finding force in
the submissions made by the learned counsel
for the applicant; keeping in view 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; larger
mandate of the Article 21 of the Constitution
of India, considering the dictum of Apex
Court in the case of Satendra Kumar Antil
Vs. C.B.I. & Another, passed in S.L.P.(Crl.)
No. 5191 of 2021, judgement dated 11.7.2022
and considering 5-6 times overcrowding in
jails over and above their capacity by under
trials and without expressing any opinion on
the merits of the case, let the applicant
involved in the aforesaid crime be released
on bail till the date fixed on his furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned with the following conditions that
:-

(i) The applicant shall not tamper
with the evidence or threaten the witnesses.

(ii) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence when 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.

(iii) The applicant shall remain
present before the Trial Court on each date
fixed, either personally or as directed by
the Court. In case of his absence, without
sufficient cause, the Trial Court may
proceed against him under Section 229-A
of the Indian Penal Code.

(iv) In case the applicant misuse
the liberty of bail during trial and in order
to secure his presence, proclamation under
Section 82 Cr.P.C. is issued and the
applicants fail to appear before the Court
on the date fixed in such proclamation then
the Trial Court shall initiate proceedings
against him in accordance with law under
Section 174-A of the Indian Penal Code.

(v) The applicant shall remain
present in person before the Trial Court on
the dates fixed for (i) opening of the case,
4 All. Umar @ Mohd. Umair Vs. State of U.P. & Anr.
847
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the Trial Court absence of
the applicant is deliberate or without
sufficient cause, then it shall be open for
the Trial Court to treat such default as
abuse of liberty of bail and proceed against
him in accordance with law.

In case, of breach of any of the
above conditions, it shall be a ground for
cancellation of interim bail.

Identity and residence proof of
the applicant and sureties be verified by the
court concerned before the bonds are
accepted.

In failure to comply this order, the
interim bail till the date fixed granted to the
applicant shall stand cancelled and he
shall be taken into custody forthwith."

5. Learned counsel for the petitioner
has further submitted that apart from above
case, there is no other implication of the
petitioner of similar nature in any case. The
impugned notice dated 06.03.2024 issued
by respondent no. 2 is bad in law and
deserves to be quashed. It does not contains
the general nature of material allegations.

6. Learned A.G.A. has opposed the
submissions and has stated that the
petitioner has opportunity of making
representation before the respondent no. 2
and therefore his writ petition does not
deserves to be entertained by this Court.
Petitioner has criminal history of one case
and three beat reports are also against him
as mentioned in the notice.

7. There are no disputed facts
warranting call of counter-affidavit from
the respondents.

8. After hearing the rival contentions
a look at the definition of ''Goonda'' is
required to be made as defined under
section 2(b) of U.P. Control of Goondas
Act, 170 which is as follows:-

"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 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;

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,
848 INDIAN LAW REPORTS ALLAHABAD SERIES
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 show favour or, disfavour to any
person or to render or attempt to render
any service or disservice to any person,
with 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 of 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 unauthorised
possession or having lawfully entered
unlawfully remains in possession, of a
building including land, garden, garages or
out-houses appurtenant to a building.]

(viii) is involved in offences
punishable under the Regulation of Money
Lending Act, 1976;

(ix)
is
involved
in offences
punishable
under
the
Unlawful
Activities(Prevention) Act, 1966 and the
Indian Forest Act, 1927;

(x)
is
involved
in
illegally
transporting and/or smuggling of cattle and
indulging in acts in contravention of the
provisions in the Prevention of cow
Slaughter Act, 1955 and the Prevention of
Cruelty of Animals Act, 1960;

(xi)
is
involved
in
human
trafficking for purposes of commercial
exploitation, forced labour, bonded labour,
child labour, sexual exploitation, organ
removing and trafficking, beggary and like
activities.]

9. This Court finds that the petitioner
is not alleged to be leader of or member of
any gang or he himself habitually commits
or attempts to commit or abets the
commission of offences mentioned in the
definition clause quoted above.

10. There is a solitary case registered
against him and he was not found to be
habitual of abduction of women or girls.
This Court in the case of Shankar Ji
Shukla Vs. Ayukt Allahabad Mandal
and others reported in 2005 (52) ACC 638
and in the case of Lalani Pandey @ Vijay
Shankar Vs. State of U.P. and others,
2011(1) ACrJ 207 has held that a person
cannot be held to be 'goonda' only on the
basis of one or two acts. He can be held to
be 'goonda' only when he is in the habit of
committing repeated offences.

11. The Division Bench of this Court
in the case of Idu Ali Vs. State of U.P.
(Criminal Misc. Writ Petition No. 2895
of 2023) and others has held that where
general nature of material allegations have
4 All. Umar @ Mohd. Umair Vs. State of U.P. & Anr.
849
not been mentioned in the notice issued
under section 3 of the Act, notice will not
be considered to be in accordance with
mandatory provision of law as follows:-

"Learned
counsel
for
the
petitioner drew our attention to two Full
Bench decisions in Ramji Pandey Vs. State
of U.P. and others; 1981 Cri LJ 1083 and
Bhim Sen Tyagi v. State of U.P. through
D.M. Mahamaya Nagar, 1999 (2) JIG 192
(All) (FB).

In Ramji Pandey's case (supra),
it has specifically been observed in
paragraph 7 of the judgment that although
the expression "material allegations" has
not been defined by that Act, according to
the
dictionary
meanings,
the
word
"material"
means
"important
and
essential", "of significance". The word
"allegation" means statement or assertion
of facts. Thus, the notice under Section 3(1)
should contain the essential assertions of
facts in relation to the matters set out in
clauses (a), (b) and (c) of sub-section (1) of
Section 3 of the Act. It needs not refer to
any evidence or other particulars or
details. The names of witnesses, and
persons who may have made the complaint
against the person against whom action is
proposed to be taken or the time, date and
place of the offence committed by the
person needs not be mentioned in the
notice. There is a distinction between the
"general nature of material allegations"
and
"particulars
of
allegations".
In
accordance with the former expression, the
notice needs not give any details of the
allegations, instead the requirement of law
would be satisfied if the notice contains a
general statement of facts which need not
contain any details or particulars. In Ramji
Pandey's
case,
where
there
were
allegations that, (a) the petitioner was a
goonda, (b) his movements were causing
alarm, danger and harm to the lives and
properties of the persons within the circle
of
P.S.-Sikandarpur
and
there
was
reasonable ground for believing that he
was engaged in the commission and
abetment of offences punishable under
Chapters XI, XII and XXII of the Indian
Penal Code, and (c) the witnesses were not
willing to give evidence against him by
reason of apprehension on their part as
regards their safety and danger to their
persons and personal property. Regarding
the aforesaid sub-paragraphs (a), (b) and
(c), the material allegations of general
nature were that there were various cases
pending against the petitioner and the
crime numbers and sections of those cases
had been given in the notice and it was
mentioned therein whether the petitioner
had been convicted or acquitted in the
cases or they were pending. In spite of
mention of the crime numbers and sections
and status of those cases, the notice in
Ramji Pandey's case (supra) was held not
to contain the general nature of material
allegations and it was struck down.

In the present case also, nothing
more than mention of the crime number
and sections is all that we find, instead of
the general nature of material allegations.
A list of case crimes/first information
reports/beat report registered against the
petitioner does not satisfy the test of a valid
notice under Section 3(1) carrying the
"general nature of material allegations".
Truly, the notice, on the foundation of
which the order impugned has been made,
is strictly in the teeth of the law laid down
consistently by this Court; particularly, the
Full Bench decision in Ramji Pandey
(supra) and reiterated in Bhim Sain Tyagi
(supra). A notice under Section 3(1) of the
kind that is the foundation of proceedings
850 INDIAN LAW REPORTS ALLAHABAD SERIES
here has been held in Bhim Sain Tyagi
(supra) and in earlier decisions also, to
violate the minimum guarantee of the
opportunity that the Statute envisages for a
person proceeded with/against under the
Act of 1970. Thus, in this case, the
impugned order, founded as it is, on a
notice under Section 3(1) of the Act, stands
vitiated by defects that go to the root of the
matter."

12.

In
view
of
the
above
consideration, it is clear that the respondent
no. 2 has issued the impugned notice
without considering the provisions of law
only on the basis of implication of the
petitioner in a single case and on the basis
of three beat reports. The implication of the
petitioner in the Case Crime No. 282/2023
was not supported by victim herself in her
statement recorded under section 164
Cr.P.C., and she had married the applicant
as well. Therefore, the recital in the notice
that the petitioner is a goonda and
habitually commits the offences under
Chapter XVI, XVII and XXII of the Indian
Penal Code and witnesses are not willing to
give evidence against him by reason of
apprehension on their part regarding their
safety etc., are absolutely false.

13. There is presumption in favour of
performance of official acts under section
114, illustrations (e) of Evidence Act that
they have been regularly performed. This
Court finds that the presumption in favour
of respondent no.2 of performance of his
official acts in accordance with law stands
rebutted by the undisputed facts of this case
and relevant provisions of law.

14. This Court finds that the powers
of the State vested in state authorities is
being misused by issuing wanton and
arbitrary notices under Section 3 of U.P.
Control of Goondas Act, 1970 by the
public servants like respondent no. 2.
Earlier this Court vide Criminal Misc. Writ
Petition No. 12619 of 2023 had cautioned
the State Government for forming uniform
guidelines regarding the applicability of
U.P. Control of Goondas Act and granted
time by 31st October, 2023 for circulation
of the same to all the District Magistrates
of the State by the following order :

"1.
Heard
Sri
Akhilesh
Srivastava,
learned
counsel
for
the
petitioner and the learned A.G.A. for the
State and also perused the record.

2. Present petition has been filed
on behalf of petitioner Govardhan seeking
following main prayer:

"Issue a writ, order or direction
in the nature of Certiorari quashing the
show cause notice dated 15.6.2023, issued
by the Additional District Magistrate
(Finance & Revenue), Aligarh, in Case No.
3400 of 2023 (State Vs. Govardhan), under
Section 3 of the Uttar Pradesh Control of
Goondas
Act,
1970,
Police
Station
Chharra, District Aligarh (Annexure No. 1
to the writ petition)."

3. Normally, we do not entertain
such type of petitions, where only show
cause notice is issued by the Additional
District Magistrate (Finance & Revenue),
Aligarh (the Executive Authority of the
District), in Case No. 3400 of 2023, State
Vs. Govardhan), under Section 3 of the
Uttar Pradesh Control of Goondas Act,
1970, Police Station Chharra, District
Aligarh.

4. In the instant case, the notice
under Section 3 of the Uttar Pradesh
Control of Goondas Act, 1970 dated
4 All. Umar @ Mohd. Umair Vs. State of U.P. & Anr.
851
15.6.2023 has been issued on the basis of
two cases, (i) Case Crime No. 69 of 2023,
under Sections 323, 504, 506, 354, 354B,
452 IPC, Police Station Chharra, District
Aligarh and (ii) Rapat No. 20, dated
3.5.2023. On the basis of these "so called
two
cases"
the
Additional
District
Magistrate (Finance & Revenue), Aligarh
has issued a notice under aforesaid section
of the Act, 1970 against the petitioner for
the purposes of bringing an additional
offence within the four corners of Uttar
Pradesh Control of Goondas Act, 1970.
For this objective the person must be a
"Goonda" and this expression of "Goonda"
has been defined in Section 2(b) of the
Uttar Pradesh Control of Goonda Act,
1970.

5. The peculiar feature of this
enactment that the person who is branded
as "Goonda" should be ousted from the
municipal limits of the city as a preventive
measure by the executive authorities of the
district by passing externment order. That
the person either himself or as a member or
leader of a gang, who is habitually commits
the offences mentioned in the Section 2(b)
of the Act or he has got the tendency to
commit the offence time and again. If a
person is having a solitary case to his
credit, he cannot be branded that he has a
habitual Goonda pleaded by the learned
counsel for the petitioner.

6. Provisions of Uttar Pradesh
Control
of
Goonda
Act,
1970
are
applicable in the entire State of U.P. From
the plain reading of the enactment, it could
be said with utmost certainty that this
enactment has been promulgated to save
the citizens from habitual "Goonda". The
expression of Goonda has been defined in
Section 2(b) of Uttar Pradesh Control of
Goonda Act, 1970 which is 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, 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
incident remarks or teasing women or
girls; or

(vi) is a tout.

7. Its punishment is provided in
Section 3 of the aforementioned enactment
that when it appears to the District
Magistrate that any person is a "Goonda"
or his movements or acts in the district or
any part thereof may cause or are
calculated to alarm, danger or harm to the
persons or property of the district. The
District Magistrate feels and have a
sufficient material of believing that, he is
852 INDIAN LAW REPORTS ALLAHABAD SERIES
engaged or about to engage in the District
or any part thereof, in the commission of
offence referred to in sub-clauses (i) to (iii)
of clause (b) of Section 2, or its abetment of
such an offence and no witness would come
forward to give evidence against him,
meaning thereby, that individual has
earned lots of bad name and has got
sufficient 'nuisance value' in the district. By
this reason of apprehension with regard to
the safety of their person or property, the
District Magistrate may pass externment
order for a period of six months as
specified in law with sole motive to save the
citizens from the wrath of that individual
"Goonda". Thus, it can safely be termed
that under this enactment, the District
Magistrate are empowered to handle such
type of miscreants and oust them from the
municipal limit of the district maximum for
the period of six months by way of
preventive measures. This is a deterrent
law whereby a person who is termed as a
"Goonda" is asked to leave the premises of
the district. It shall be branded as
"Goonda" for rest of his life.

8. The District Magistrate before
exercising this extraordinary and unusual
powers conferred by this enactment, must
exercise with all caution and care, but we
are noticing that there is a rampant misuse
of provisions of this enactment. The
executive authorities for the extraneous
consideration exercising this extraordinary
powers at their whims and capricious and
are issuing notices on a solitary case or
some beat reports. This amounts to make
the
deterrent
enactment
blunt.
The
indiscreet exercise of provisions of Goonda
Act and sending the notices to the persons
is not based on executive authorities' sweet
will or choice. Issuing notice on solitary
case is quite irritating and unnecessarily,
there is piling up of litigation. In the instant
case there is solitary case and solely on
this basis no executive authority can justify
that the petitioner is a 'habitual offender' or
involved in the cases mentioned in Section
2(b) of the Uttar Pradesh Control of
Goondas Act, 1970.

9. It is a fundamental right of
every citizen to reside peacefully and
profess his business, but if the executive
authorities are issuing notice under this
deterrent law, then they must be doubly
sure about the individual's past image, his
past
credentials,
his
family,
social
educational
back
ground
and
after
assessing all these factors if the executive
authorities comes to the conclusion that
individual is a "Goonda" or a potential
threat to society at large and should be
thrown out from the municipal limits, then
only by well reasoned order, after applying
his own independent judicial mind pass a
well reasoned order for externment of that
individual or even issue notice to that
individual calling upon him to justify his
past conduct.

10.
The
public
perception
regarding the individuals' image carries
weight. If the individual is enjoying a bad
reputation and name in the area and coupled
with the fact that he has got a chequered past
then executive authorities are well within
their right to issue notice to that individual or
to pass an externment order for that
individual. Trivial and insignificant offences
having one or two in number would not make
the person branded as a "Goonda". This
adjective "Goonda" itself carries bundle load
of bad name, and the executive authorities
casually and irresponsibly brand a person as
a Goonda, goes without saying, that his
entire future and reputation would go to dogs
and cause irreparable damage to his name
and reputation of his family.
4 All. Umar @ Mohd. Umair Vs. State of U.P. & Anr.
853

11.
Sri
Srivastava,
learned
counsel for the petitioner has relied upon a
judgment of this Court in the case of
Kailash Jaiswal Vs. State Of U.P. And 3
Others (Criminal Misc. Writ Petition No.
10241 of 2019) decided on 14.11.2022 in
which the co-ordinate Bench of this Court
while relying upon the judgment of Suresh
Tewari Versus State of U.P. and others,
2018 (5) ALJ 1 opined that requirement of
applicability of clause (1) of Section 2 of
Uttar Pradesh Control of Goondas Act,
1970 is that a person who either himself or
as a member or leader of a gang habitually
commits or attempt to commits or abets the
commission of offence is punishable as
referred in the clause (1) itself.

12. Paragraph nos. 11, 12, 14 &
16 of Kailash Jaiswal (Supra) are
reproduced hereunder:

"11. In this backdrop, it is
submitted that the notice under the U.P.
Goondas Act Is not only malicious but
misuse of the power vested upon the
District Magistrate, the proceedings have
been initiated in colourable exercise of
power to coerce the petitioner to vacate the
premises which admittedly does not vest
with the State. Further, it is submitted that
on a single case, proceedings under the
U.P. Goondas Act cannot be initiated as
the petitioner is not a habitual offender.

12. Reliance has been placed on
the decision of this Court rendered in
Suresh Tewari Versus State of U.P. and
others, 2018 (5) ALJ 1.

14. Learned counsel for the
petitioner submits that impugned notice is
not in conformity with the Rule 4 of the
U.P. Control of Goondas Rules, 1970. He
further submits that Section 3 of the U.P.
Control of Goondas Act, 1970 (hereinafter
to be referred to as the "Act") confers
powers
on
the
concerned
District
Magistrate to extern anyone, who is the
Goonda outside the district or to place
restriction on his movement. If the District
Magistrate is satisfied that the matters set
forth in clauses (a), (b) and (c) of subSection (1) of the Goondas Act are made
out he may issue notice to the Goonda
informing him of the general nature of
material allegations against him in clause
(d) of the Act. He further submits that in the
instant case clause (d) mentions about the
only case registered against the petitioner
being Case Crime No. 212 of 2019, thus the
second respondent has mechanically noted
the case pending against the petitioner in
the prescribed proforma without applying
its mind, as well as, without recording
satisfaction about the matter set out in
clauses (a), (b) and (c) of Act.

16. The Division Bench of this
Court in Suresh Tewari (2018(5) ALJ1),
held relying upon the Supreme Court
judgment that on one stray incident only
petitioner could not be deemed to be
habitual offender on the basis of that single
incident. Para no. 19 reads thus:-

19........... The requirement of
applicability of the clause (i) is that
Goonda means that a person who either by
himself or as a member or leader of a
gang, habitually commits or attempts to
commit, or abets the commission of
offences punishable referred to in the said
clause. In the impugned show cause notice
there is a description of only one criminal
case against the petitioner, while as per the
definition and the law settled by this Court
as well by the Hon'ble Apex Court, one
cannot be treated to be a habitual offender
unless and until there is recurrence of
854 INDIAN LAW REPORTS ALLAHABAD SERIES
offences. Since there is a reference of 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."

13. In the impugned notice, there is
a description of only one criminal case and
one beat report against the petitioner while
as per the definition and law settled by the
Hon'ble Apex Court as well a by this Court
"one" cannot be treated to be a 'habitual
offender' unless and until there is a tendency
of recurrence of the offence. In the instant
case there is a solitary case to the credit of
the petitioner, in which he has been granted
anticipatory bail till the conclusion of trial,
we find that this notice is nothing, but a sheer
abuse of power vested in the executive
authorities of the district.

14. In addition to above, there is
mandatory requirement of the law, that if
the executive authority is satisfied that the
proceedings under Goonda Act spells out
offences under clause (a), (b) and (c) of
sub-Section 1 of the Act, he may issue
notices
to
the
particular
"Goonda"
informing him general nature of material
allegations against him in clause (d) of the
Act, his image among the masses, his
nuisance value by which he is a potential
threat to the peace and public order of the
society at large.

15. But in the instant case, in the
notice under challenge spells out the cases
required against the petitioner which is
allegedly issued on a "prescribed printed
proforma" without application of mind by
the executive authorities. Not only this,
except enumeration of pending solitary
case and a beat report, there is total lack of
any judicial mind spelling out the general
nature of material allegations against the
petitioner, making entire impugned notice
per se defective and cannot be acted upon
any further.

16.
We
record
our
strong
displeasure in such type of routine pasting
of such provisions of the Uttar Pradesh
Control of Goondas Act, 1970 and Uttar
Pradesh
Gangsters
and
Anti-Social
Activities (Prevention) Act, 1986 in a most
capricious and casual way.

17. At this juncture, learned
A.G.A. stood up and informed the Court
that in addition to the cases mentioned in
the show cause notice, the petitioner is also
involved in two-three more cases which do
not find place in the show cause notice.
This submissions advanced by the learned
A.G.A. itself is amusing. This clearly
indicates that one hand does not know what
another hand is doing. All of a sudden
learned A.G.A. woke up and revealed that
in addition to two cases mentioned in
impugned notices, the petitioner has got
two more cases. The Court cannot take the
judicial notice of those additional cases;
we cannot permit this hide and seek
practice with the proposed "Goonda" i.e.
the petitioner.

18. Present matter is squarely
covered by the aforesaid judgment and
liable to be quashed. Accordingly, we are
quashing the show cause notice dated
15.6.2023, issued by the Additional District
Magistrate (Finance & Revenue), Aligarh,
in Case No. 3400 of 2023, State Vs.
Govardhan), under Section 3 of the Uttar
Pradesh Control of Goondas Act, 1970,
Police Station Chharra, District Aligarh.

19. Registrar General, High
Court is directed to circulate the copy of
4 All. Umar @ Mohd. Umair Vs. State of U.P. & Anr.
855
this judgment apprising all the executive
authorities of the State of U.P. to strictly
adhere the ratio laid down mentioned
above. Hence forth it is expected from the
authorities that they would necessarily
spell out 'general nature of particular
allegations against the proposes Goonda',
his personal image among the masses his
social family background and then only
pass a well reasoned order not on a
prescribed proforma while issuing a show
cause notice and thereafter a pass a well
reasoned order of externment, (if at all
required and needed) by the said executive
authorities concerned. All the District
Magistrates and the executive authorities
working under him are directed to take
appropriate action hence forth and proceed
against the individual where they have got
a strong reason to believe that the
individual is rogue to the society and his
externment is a desirable.

20. As mentioned above, we are
witnessing
rampant
misuse
of
the
provisions of Uttar Pradesh Control of
Goondas Act, 1970. There is no uniformity
in the executive authorities of the districts
of UP regarding applicability of this
deterrent enactment causing unwarranted
piling up of the cases, challenging the
notices under this Act etc.

(A). Thus in this regard, it is
directed that the State Government too
would
form
a
uniform
guide
lines
regarding the applicability of this Act in the
light of the above judgment.

(B). This guidelines must be
framed latest by 31st October 2023 and
shall be circulated among all the District
Magistrates of the Districts, so that they
may strictly adhere to those guidelines and
their shall be Uniformity in the application
of the provisions of Uttar Pradesh Control
of Goondas Act, 1970.

21. With this direction, the writ
petition stands allowed. The impugned
show cause notice dated 15.6.2023 issued
by the Additional District Magistrate
(Finance & Revenue), Aligarh is hereby
quashed. No order as to cost."

15. This Court finds that despite
earlier order of this Court, the State
Government has not bothered to issue any
guidelines to the District Magistrates
regarding applicability of the Act and the
District Magistrates and their subordinates
are continuously issuing illegal notices
under Section 3 of the Act.

16. The present case is one such
example. It is clear that respondent no. 2,
Additional
District
Magistrate
(Administration), District- Moradabad has
issued showcause notice dated 06.03.2024
in abuse of power vested in him by law and
has acted against the presumption of
fairness in due discharge of his official
duties.

17. This Court restraints itself from
passing any further remarks against the
respondent no. 2 but a direction is being
issued to the respondent no.1, Secretary,
Department of Home, Government of U.P.,
Lucknow that he should ensure that the
public servants exercising powers of the
State should remain within the bounds of
law and violation of law may entail
disciplinary proceedings against them.

18. The impugned showcause notice
is hereby quashed.

19. The writ petition is, accordingly,
allowed with cost of Rs. 1,00,000/- payable
856 INDIAN LAW REPORTS ALLAHABAD SERIES
to the petitioner by the State within two
months.

20. Registrar (Compliance) is directed
to communicate this order to respondent
nos. 1 and 2 within two weeks.

21. Respondent no. 1 will report
compliance of this order to the Registrar
(Compliance) of this Court within ten weeks.
----------
(2024) 4 ILRA 856
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Crl. Misc. Writ Petition No. 9074 of 2022

Aftab Alam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sandeep Kumar Dubey, Sri Manish
Ojha

Counsel for the Respondents:
G.A.

Criminal Law - U.P.