# Yogeshwar Tyagi & Anr v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 717
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-21
- **Case number:** Crl. Misc. W.P. No. 17692 of 2020
- **Bench:** Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogeshwar-tyagi-anr-v-state-of-u-p-ors-46789
- **Pages:** 6

## Headnote

Criminal Law-Order of externment passed
by the District Magistrate-only on the
basis of one criminal case-grounds in
appeal and affidavits of several village
pradhans
not
considered-impugned
quashed.

W.P. allowed. (E-7)

List of Cases cited:-

## Text

2 All. Yogeshwar Tyagi & Anr. Vs. State of U.P. & Ors.
717

20. It is beyond the scope of the
present writ petition to go into the
aforesaid question. The Commissioner
has executed the order of the SubDivisional Magistrate, Meja, Prayagraj
passed in proceedings under Section 145
Cr.P.C. In case, Smt. Gudiya or any other
party respondent(s) or any other person is
aggrieved by this delivery of possession
made by the learned Commissioner,
giving effect to the orders of the SubDivisional Magistrate, it will be open to
the
person
concerned
to
file
an
appropriately framed suit before the
Court of competent jurisdiction and
establish his/ her rights.

21. Before parting with this matter,
this
Court
places
on
record
our
appreciation for the steadfast and flawless
execution of commission by Ms. Babita
Pathak, the learned Civil Judge (Sr. Div.),
Allahabad in compliance with the Court's
orders and aid of justice.

22. This writ petition is disposed of
in terms of the aforesaid orders. There
shall be no order as to costs.
----------
(2021)02ILR A717
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2021

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

Crl. Misc. W.P. No. 17692 of 2020

Yogeshwar Tyagi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Santosh Kumar Shukla, Sri Amul Kumar
Tyagi
Counsel for the Respondents:
A.G.A.

Criminal Law-Order of externment passed
by the District Magistrate-only on the
basis of one criminal case-grounds in
appeal and affidavits of several village
pradhans
not
considered-impugned
quashed.

W.P. allowed. (E-7)

List of Cases cited:-

1. Imran alias Abdul Quddus Khan Vs St. of U.P.
& ors., Criminal Misc. Writ Petition No.7111 of
1999.

(Delivered by Hon'ble Vipin Chandra Dixit, J.)

1. The instant writ petition has been
filed by the petitioners challenging the
order dated 30.9.2020 passed by District
Magistrate, Hapur in Case No.796 of 2019
by which externment order has been passed
under Section 3/4 of Uttar Pradesh Control
of Goondas Act, 1970 (hereinafter referred
to as 'Act') against the petitioner no.1 and
the order dated 30.9.2020 passed by
District Magistrate, Hapur in Case No.795
of 2019 by which externment order has
been passed against petitioner no.2 as well
as order dated 21.10.2020 passed by
Commissioner, Meerut Division, Meerut in
Case No.938 of 2020 by which appeal filed
by petitioner no.1 was rejected and order
dated 21.10.2020 passed by Commissioner,
Meerut Division, Meerut in Case No.939 of
2020 by which appeal preferred by
petitioner no.2 was rejected.

2. The brief facts of the case are that
District Magistrate, Hapur had issued
notices dated 16.10.2019 under Section 3/4
of the Act to the petitioner no.1 in Case
No.796 of 2019 and to the petitioner no.2
in Case No.795 of 2019, calling upon them
718 INDIAN LAW REPORTS ALLAHABAD SERIES
to submit their reply as to why the
externment order have not been passed
against them. The District Magistrate has
relied on the report of Incharge Inspector,
P.S. Hapur Dehat, District Hapur which
was sent on the basis of one criminal case
being Case Crime No.42 of 2019, under
Sections 147, 148, 149, 452, 307, 323, 504,
506 I.P.C. The petitioners had appeared
before the District Magistrate and filed
their objections on 25.11.2019 denying the
allegations of show cause notice and it was
specifically mentioned that the petitioners
having no criminal history except Case
Crime No.42 of 2019 which was lodged by
one Sri Pankaj Tyagi against the petitioners
on false allegations due to election rivalry.
It is specifically stated that wife of
petitioner no.1 and Bhabhi of petitioner
no.2 is the Village Pradhan and only to
harass the petitioners, the F.I.R. was lodged
altogether with incorrect facts which was
registered as Case Crime No.42 of 2019.
The
police
after
investigation
had
submitted the charge-sheet and the trial is
pending. It is further submitted that
petitioners have already been released on
bail in the aforesaid case.

3. The petitioners had also filed several
certificates issued by village Pradhans of
different villages to the effect that petitioners
are men of good character and one case has
been registered on account of election rivalry
against the petitioners and the petitioners are
not habitual criminals and they are belonging
to
a
respectful
family.
The
District
Magistrate, Hapur vide impugned order dated
30.9.2020
had
passed
the
order
for
externment against the petitioners in Case
Nos.796 of 2019 and 795 of 2019
respectfully for the period of six months. The
appeals preferred by petitioners before the
Commissioner, Meerut Division, Meerut
were registered as Case No.938 of 2020 and
939 of 2020 which were also dismissed by
the Commissioner, Meerut Division, Meerut
vide order dated 21.10.2020 and both the
orders passed by District Magistrate, Hapur
as well as of Commissioner, Meerut Division,
Meerut have been challenged by the
petitioners by means of the present writ
petition.

4. Heard Sri Amul Kumar Tyagi,
learned counsel for petitioners, learned
A.G.A. for the State and perused the record.

5. It is submitted by learned counsel for
petitioners that District Magistrate, Hapur
while passing the order of externment has not
considered that the petitioners are not
habitual to commit crime and they do not
come under the meaning of 'Goondas'. The
District Magistrate in a routine manner has
passed the orders of externment. It is further
submitted
that
Commissioner,
Meerut
Division, Meerut also had not applied its
judicial mind and has dismissed the appeals
preferred by petitioners. Both the authorities
have failed to consider that petitioners are not
habitual in committing crime and they do not
come under the meaning of 'Goondas'. It is
further submitted that District Magistrate has
failed to consider that there was only one case
registered against the petitioners which was
lodged by informant only to harass the
petitioners on account of election dispute.
The petitioners on the basis of only one case
cannot be held to be a Goonda within the
meaning of Section 3 of the Act. The findings
recorded by both the authorities i.e. District
Magistrate as well as Commissioner to the
effect that petitioners are Goondas, is illegal
and are liable to be quashed.

6. Learned A.G.A. has opposed the
prayer of writ petition and has submitted
that there was terror of the petitioners in the
district and no person was ready to give
2 All. Yogeshwar Tyagi & Anr. Vs. State of U.P. & Ors.
719
evidence against them in the criminal case
registered against both the petitioners and
as such the order of externment has rightly
been passed by the District Magistrate and
after considering the grounds taken by the
petitioners, the Commissioner has passed a
detailed order by which appeals preferred
by the petitioners were rejected.

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

"3. Externment, etc. of Goondas. - (1)
Where
it
appears
to
the
District
Magistrate.-

(a) that any person is a Goonda; and

(b) (i) that his movements or acts in
the district or any part thereof are causing,
or are calculated to cause alarm, danger or
harm to persons or property;or

[(ii) that there are reasonable grounds
for believing that he is engaged or about to
engage, in the district or any part thereof,
in the commission of an offence referred to
in sub clauses (i) to (iii) of clause (b) of
Section 2, or in the abetment of any such
offence; and]

(c) that witnesses not willing to come
forward to give evidence against him by
reason of apprehension on their part as
regards the safety of their person or
property.

The District Magistrate shall by notice
in writing, inform him of the general nature
of the materials allegations against him in
respect of clauses (a), (b) and (c) and give
him a reasonable opportunity of tendering
an explanation regarding them.

(2) The person against whom an order
under this Section is proposed to be made
shall have the right to consult and be
defended by a Counsel of his choice and
shall be given a reasonable opportunity of
examining himself, if he so desires, and
also of examining any other witness that he
may wish to produce in support of his
explanation, unless for reasons to be
recorded in writing the District Magistrate
is of opinion that the request is made for
the purpose of vexation or delay.

(3) Thereupon the District Magistrate
on being satisfied that the conditions
specified in clauses (a), (b) and (c) of subsection (1) exist may by order in writing-

[(a) direct him to remove himself
outside the area within the limits of his
local jurisdiction or such area and any
district or districts or any part thereof,
contiguous thereto, by such route, if any,
and within such time as may be specified in
the order and to desist from entering the
said area and such contiguous district or
districts or part thereof, as the case may
be, from which he was directed to remove
himself until the expiry of such period not
exceeding six months as may be specified in
the said order.]

(b)(i) require such person to notify his
movements, or to report himself, or to do
both, in such manner at such time and to
such authority or person as may be
specified in the order;

(ii) prohibit or restrict possession or
use by him or any such article as may be
specified
in
the
order;
(iii) direct him otherwise to conduct himself
in such manner as may be specified in the
order,
until the expiration of such period, not
exceeding six months as may be specified in
the
order."
8. Section 3 of the Act empowered the
District Magistrate to pass the order of
externment if he is satisfied that any person
is engaged or about to engage in the
district or any part thereof in the
commission of offence referred to in sub
clause (i) to (iii) of clause b of Section 2.
720 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The word 'Goonda' is defined in
sub clause b of Section 2 of the Act which
is reproduced 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
indecent remarks or teasing women or
girls; or

(vi) is a tout;"

10. From bare perusal of Section 2(b)
of the Act it is apparent that Goonda means
a person who is either by himself or is a
member or leader of a gang, habitually
commits or attempts to commit, or abets
the commission of an offence punishable
under Section 153 or Section 153-B or
Section 294 of IPC or Chapter XV, or
Chapter XVI, Chapter XVII or Chapter
XXII of the Indian Panel Code.

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

"13. Ex facie, a person is termed as a
'goonda' if he is a habitual criminal. The
provisions of Section 2(b) of the Act are
almost akin to the expression 'anti social
element' occurring in Section 2(d) of Bihar
Prevention of Crimes Act, 1981. In the
context of the expression 'anti social
element'
the
connotation
'habitually
commits' came to be interpreted by the
apex Court in the case of Vijay Narain
Singh v. State of Bihar and others, (1984) 3
SCC-14 : AIR 1984 SC 1334. The meaning
put to the aforesaid expression by the apex
court
would
squarely
apply
to
the
expression used in the Act, in question. The
majority view was that the word 'habitually'
means 'repeatedly' or 'persistently'. It
implies a thread of continuity stringing
together similar repetitive acts. Repeated,
persistent and similar but not isolated,
individual
and
dissimilar
acts
are
necessary to justify an inference of habit. It
connotes frequent commission of acts or
omissions of the same kind referred to in
2 All. Yogeshwar Tyagi & Anr. Vs. State of U.P. & Ors.
721
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.

14. The word 'habit' has a clear well
understood meaning being nearly the same
as 'accustomed' and cannot be applied to
single act. When we speak of habit of a
person, we prefer to his customary conduct to
pursue, which he has acquired a tendency
from frequent repetitions. In B.N. Singh v.
State of U.P., AIR 1960 All 754 it was
observed that it would be incorrect to say that
a person has a habit of anything from a
single act. In the Law Lexicon - Encyclopedic
Law Dictionary, 1997 Ed. by P. Ramanatha
Aiyer, the expression 'habitual' has been
defined to mean as constant, customary and
addicted to a specified habit; formed or
acquired by or resulting from habit; frequent
use
or
custom
formed
by
repeated
impressions. The term 'habitual criminal', it
is stated may be applied to any one, who has
been previously more than twice convicted of
crime, sentenced and committed to prison.
The word 'habit' means persistence in doing
an act, a fact, which is capable of proof by
adducing evidence of the commission of a
number of similar acts. 'Habitually' must be
taken to mean repeatedly or persistently. It
does not refer to frequency of the occasions
but rather to the invariability of the practice.

15. The expression 'habitual criminal' is
the same thing as the 'habitual offender'
within the meaning of Section 110 of the
Code of Criminal Procedure, 1973. This
preventive Section deals for requiring
security for good behaviour from 'habitual
offenders'. The expression 'habitually' in the
aforesaid section has been used in the sense
of depravity of character as evidenced by
frequent repetition or commission of offence.
It means repetition or persistency in doing an
act and not an inclination by nature, that is,
commission of same acts in the past and
readiness to commit them again where there
is an opportunity."

12. The sole purpose of the Act, 1970
is to protect the citizens from the habitual
criminals and to secure future of the
citizens but it should be used very sparingly
722 INDIAN LAW REPORTS ALLAHABAD SERIES
and in very clear cases of public disorder or
for maintenance of public order and so this
Act should not be used against innocent
people.

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

14. From perusal of impugned order
passed by District Magistrate it is apparent
that only on the basis of one criminal case,
the externment order for six months have
been passed by the District Magistrate. The
District Magistrate has failed to consider the
affidavits filed by several village Pradhans in
favour of petitioners that they are belonging
to a respectful family and are not criminals
and one case registered against them, was
lodged due to election dispute as the wife of
petitioner no.1 was elected as village
Pradhan. The Commissioner has also failed
to consider the grounds taken by the
petitioners in their appeals and in a routine
manner has dismissed the appeals preferred
by the petitioners.

15. In view of the aforesaid discussions,
since there was no sufficient material before
the District Magistrate in holding that the
petitioners are Goondas and are habitual to
commit crimes, the order of externment is
bad in law and deserves to be quashed and
the writ petition is liable to be allowed.

16. Accordingly, the writ petition is
allowed and the order of externment passed
by District Magistrate dated 30.9.2020 as
well as the order dated 21.10.2020 passed
by Commissioner, Meerut Division, Meerut
are quashed.
----------
(2021)02ILR A722
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 350 of 2021

Ravindra Kumar & Ors. ...Petitioners
Versus
Board of Revenue Lucknow & Ors.
 ...Respondents

Counsel for the Petitioners:
Anoop Kumar Upadhyay, Narayan Dutt
Awasthi

Counsel for the Respondents:
C.S.C., Mohan Singh

Civil Law-At the admission stage of
appeal-no question of law was framedand
impugned
orders
were
stayedimpugned appellate order set aside.

W.P. disposed. (E-7)

List of Cases cited:-

1.V. Ramaswamy Vs Ramachandran & anr.,
reported in 2009 AIR SCW 4335

2.Subramaniaswamy Temple, Ratnagiri Vs V.
Kanna Gounder (Dead) through LRs 2009 (27)
LCD 517.

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

(Oral)

1. Heard learned counsel for the
petitioners, Sri Mohan Singh, learned