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Raja Sukhnandan Vs. State of U.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 162 of 1972
Judge
Reported inAIR1972All498
ActsConstitution of India - Articles 14, 19 and 19(5); Uttar Pradesh Control of Goondas Act, 1971 - Sections 3, 3(1), 3(3), 4, 5, 6 and 9; Code of Criminal Procedure (CrPC) - Sections 110 and 117; Uttar Pradesh Control of Goondas Rules, 1970 - Rule 23
AppellantRaja Sukhnandan
RespondentState of U.P. and anr.
Appellant AdvocateK.B. Singh and ;R.N. Singh, Advs.
Respondent AdvocateK.C. Agrawal, Adv.
DispositionPetition dismissed
Excerpt:
.....are of probative value - provision of rule 23 are not invalid. - - according to this section the district magistrate is authorised to issue a notice in writing to the person concerned in case it appears to him that the conditions laid down in clauses (a), (b) and (c) thereof are satisfied. sub-section (3) provides that after the aforesaid procedure has been gone through and the district magistrate is satisfied that the conditions specified in clauses (a), (b) and (c) of sub-section (1) exist he may by order in writing (a) direct him to remove himself outside the district, or part, as the case may be, by such route, if any, and within such time as may be specified in the order, and to desist from entering the district or thespecified part thereof until the expiry of such period not..........challenged the notice on merits. the proceedings initiated the notice are still pending before the district magistrate and no final order has yet been passed.3. section 2 (b) of the act gives the definition of a goonda. according to section 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, offences punishable under chapter xvi, chapter xvii or chapter xxii of the indian penal code, 1898 (act v of 1898) or (ii) has been convicted under the suppression of immoral traffic in women and girls act, 1956; or (iii) has been convicted not less than thrice under the u. p. excise act, 1910; or (iv) is generally reputed to be a person who is desperate and dangerous to the community,'.....
Judgment:

H. Swarup, J.

1. A notice under Section 3 (1) of the U. P. Control of Goondas Act, 1970 (hereinafter referred to as the Act) was issued by the District Magistrate, Varanasi to the petitioner Raja for taking action against him under Sub-section (3) of Section 3 of the Act.

2. The petitioner has challenged the notice, inter alia, on the ground that the provisions of Section 3 (3) of the Act are unconstitutional, ultra vires and void. He has also challenged the notice on merits. The proceedings initiated the notice are still pending before the District Magistrate and no final order has yet been passed.

3. Section 2 (b) of the Act gives the definition of a Goonda. According to Section 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, offences punishable under Chapter XVI, Chapter XVII or Chapter XXII of the Indian Penal Code, 1898 (Act V of 1898) or

(ii) has been convicted under the suppression of Immoral Traffic in Women and Girls Act, 1956; or

(iii) has been convicted not less than thrice under the U. P. Excise Act, 1910; or

(iv) is generally reputed to be a person who is desperate and dangerous to the community,'

Section 3 (1) provides the conditions under which action may be taken against a Goonda. According to this section the District Magistrate is authorised to issue a notice in writing to the person concerned in case it appears to him that the conditions laid down in Clauses (a), (b) and (c) thereof are satisfied. These conditions are as follows:

'(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 any offence punishable under Chapter XVI, Chapter XVII or Chapter XXII of the Indian Penal Code, or under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or under the U. P. Excise Act, 1910, or in the abetment of any such offence and

(c) That witnesses are 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 notice is required to convey information to the person concerned of the material allegations against him. The District Magistrate is also required to give to the person concerned a reasonable opportunity of tendering an explanation regarding these allegations. Under Sub-section (2) of Section 3 the person is given a right to consult and be defended by a counsel of his choice and a reasonable opportunity of examining himself and any other witness that he may wish to produce in support of his explanation. Sub-section (3) provides that after the aforesaid procedure has been gone through and the District Magistrate is satisfied that the conditions specified in Clauses (a), (b) and (c) of Sub-section (1) exist he may by order in writing

'(a) direct him to remove himself outside the district, or part, as the case may be, by such route, if any, and within such time as may be specified in the order, and to desist from entering the district or thespecified part thereof until the expiry of such period not exceeding six months as may be specified in the 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 of 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.'

4. Section 4 provides for permission to return temporarily to the place from where the person is externed. Section 5 provides for extension of the period provided by the original order and in Section 6 an appeal is provided against the order within fifteen days from the date of the order. The Commissioner is given the power on appeal either to confirm the order with or without modification or to set it aside. He also can pass interim stay orders. Section 8 provides the nature of evidence to be considered by the District Magistrate or the Commissioner.

5. Before the enactment of the Act there was in force the U. P. Control of Goondas Ordinance 1970 and thereunder certain rules were framed which were known as U. P. Control of Goondas Rules, 1970 (hereinafter referred to as the Rules). Section 16 of the Act repeals the Ordinance.

6. The chief contention of learned counsel for the petitioner is that Sub-section (3) of Section 3 gives the District Magistrate such unlimited powers which, if exercised, will contravene the fundamental rights guaranteed to the petitioner under Clauses (d), (e), (f) and (g) of Article 19 of the Constitution. The petitioner's case is that the powers are not saved by Clause (5) of Article 19(2) of the Constitution as the restrictions imposed on the fundamental rights of the petitioner are not reasonable. There is no dispute that the powers contained in Section 3 (3) can if exercised affect the fundamental rights of the person guaranteed under the Clauses (d), (e) and (f) of Article 19 of the Constitution. Clause (g) of Article 19 is hardly applicable as none of the clauses gives the power to the District Magistrate to pass any order concerning the carrying on of a business or profession by the person concerned.

7. But for the true construction of the Act it is not possible to read Clauses (a) and (b) of Section 3 (3) of the Act bereft of the context in which they have been enacted. The entire section is a composite section and the various sub-sections and clauses have to be interpreted and construed in the light of what is contained in Sub-section (1) of Section 3. The interpretation of Sub-section (3) will also have to be made keeping in view the purpose of the enactment and the object sought to be achieved by the order. The heading of the enactment, viz. 'The Uttar Pradesh Control of Goondas Act' shows that the purpose of the Act is to control the nefarious activities of the unsocial elements. The preamble of the Act is:

'An Act to make special provisions for the control and suppression of Goondas with a view to the maintenance of public order.'

The definition of the term 'Goonda' also shows that a Goonda is a person who carries on activities which are against the people and which if permitted are likely to endanger the interests of the general public. Sub-section (1) of Section 3 also points to the same conclusion. We have therefore no doubt that the power given by Section 3 (3) to the District Magistrate contains a law made in the interest of the general public as contemplated by Clause (5) of Article 19 of the Constitution.

8. Clauses (d) and (e) of Article 19(1) of the Constitution guarantee to every citizen the freedom to move freely throughout the territory of India and reside and settle in any part of the territory of India. Clause (f) of Article 19(1) guarantees the right to acquire, hold and dispose of property. For the purpose of testing whether the restrictions imposed by the statute are reasonable or not when the restriction is in respect of Clauses (d) and (e) of Article 19(1), two factors are relevant, viz. the territorial extent and the duration of externment. The area from which the person can be directed to be externed under Sub-section (3) of Section 3 of the Act is limited to a district or a part thereof. It cannot be regarded as such a wide area the externment from which might by itself be unreasonable. We also see no force in the contention that the removal of a person from the area where he has a home or carries on business is necessarily unreasonable. No doubt it will adversely affect his convenience, comforts and, may be, opportunity of making a living, but these circumstances by themselves cannot make the law bad if the same is necessary in the interest of the general public. The reasonableness of restriction will also depend upon the purpose for which the restriction is imposed. The purpose in the present case being to keep the bad character away from the area where he operates, his removal from that area cannot be unreasonable.

9. In the case of Narendra Kumar v. Union of India, AIR 1960 SC 430 it was held that 'a restriction can under Article 19 include a case of prohibition also and an order of externment from a particular area could be valid if the restriction was reasonable.' It was also observed there that:

'In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, and the ratio of the harm caused to individual citizens, by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public.'

Applying the test in the present case, where the purpose is to prevent commission of crime and to make it possible for witnesses to give evidence against bullies, the restrictions imposed by Section 3 (3) cannot be held to be unreasonable.

10. Learned counsel for the petitioner relied on the case of State of Madhya Pradesh v. Bharat Singh, AIR 1967 SC 1170 and contended that the law which directs externment of a person from the district of his residence is per se unreasonable. No such law was laid down in that case. That case arose out of an order passed under the Madhya Pradesh Public Security Act. Clause (a) of Section 3 (1) of that Act provided for the externment of a person and Clause (b) provided that such a person may be required to remain in such area as may be specified in the order. Clause (b) came up for consideration before the Supreme Court and it was held that an order directing a person to reside at a particular place was not reasonable. Clause (a) did not come up for consideration before the Supreme Court, but the Madhya Pradesh High Court had held it to be valid. This case therefore is no authority for holding that a pure order for externment from a particular area is per se unreasonable.

11. Learned counsel then contended that Sub-clause (iii) of Clause (b) of Section 3 (3), authorising the District Magistrate to direct the person to conduct himself in such manner as may be specified in the order, could be used to direct him to stay in a particular place. We are unable to accept this contention, as in our opinion under Sub-clause (iii) no such order can be passed. Clauses (a) and (b) are not meant to be exercised simultaneously. Once an order is passed under Clause (a), the question of passing an order under Clause (b) does not arise, because once a person is externed out of the area where he operates and creates alarm, danger or threat to persons and property of persons living in that area or where he is likely to commit a crime, the purpose is achieved when he is externed from that area, and the question of placing any further restrictions on his movements or possessing objectionable articles does not arise. There is a more serious reason for the view thatthe District Magistrate cannot pass simultaneously orders under Clauses (a) and (b), and it is that the District Magistrate cannot exercise jurisdiction beyond the territorial limits of the district.

He cannot pass an order affecting a person or his property outside his district. Hence, once a person is externed out of the district there is no question of imposing any other restriction on him as contemplated by Clause (b). It is only when, a person is permitted to remain within the area in which he operates that restrictions are required to be placed and it is then alone that Clause (b) can come into play. In the case of AIR 1967 SC 1170 (supra) it was observed that appropriate orders can be passed under Clauses (c) and (d) of Section 3 (1) of the M. P. Public Security Act to restrict movements of a person and maintain possession over him. Sub-clause (iii) of Clause (b) of Section 3 of the Act authorises the District Magistrate 'otherwise to conduct himself in such manner as may be specified in the order'. The word 'otherwise must mean a conduct different from the one contemplated in the other two Sub-clauses of Clause (b). It cannot include in its domain the power to direct a person to live in a particular place outside the district or within the district. This contention of learned counsel is therefore untenable and has to be rejected.

12. Coming to the next criterion for determining whether the restrictions are reasonable or not, viz., the duration of the restrictions, we find that the maximum duration permissible in the Act is six months. Learned counsel for the petitioner contends that the duration of six months is unreasonable while it is contended by learned Advocate General that the restriction of six months is not of a period so long as to make it unreasonable within the meaning of Clause (5) of Article 19 of the Constitution. The Supreme Court, in Gurbachan Singh v. State of Bombay, AIR 1952 SC 221, upheld the validity of Section 27(1) of the City of Bombay Police Act and observed:

'There can be no doubt that the provision of Section 27(1) of the Bombay Act was made in the interest of the general public and to protect them against dangerous and bad characters whose presence in a particular locality may jeopardize the peace and safety of the citizens .... The maximum duration of the externment order made under Section 27(1) of the Bombay Act is a period of two years and the Commissioner of Police can always permit the externee to enter the prohibited area even before the expiration of that period. Having regard to the class of cases to which this sub-section applies and the menace which an externment order passed under it is intended to avert, it is difficult to say that this provision is unreasonable.'

Section 4 of the present Act gives thepower to the District Magistrate to permit any person in respect of whom an order has been made under Clause (a) of Section 3 (3) to return for a temporary period into the area from which he was directed to remove himself. Section 9 further gives the District Magistrate and the Commissioner the power to rescind at any time an Order made under Section 3, whether or not such Order was confirmed on appeal under Section 6. In view of these provisions and looking at the purpose of the enactment, the period of six months cannot be held to be unreasonable within the meaning of Clause (5) of Article 19.

13. Learned counsel has attacked Sub-clauses (ii) and (iii) of Clause (b) of Section 3 (3) on the ground that they give unguided and unreasonably wide powers to the District Magistrate. We do not find any force in this contention. Sub-section (3) is an integral part of Section 3 and must be read along with the earlier provisions of the section. The power to be exercised under Sub-section (3) is only to remedy the evil contemplated by Sub-section (1). The powers given to the District Magistrate under Sub-clauses (ii) and (iii) of Section 3 (3) (b) cannot, therefore, be held to be unchannelised or undefined or without any guidance or restrictions. These provisions cannot be interpreted to mean that the Act has conferred on the District Magistrate to do whatever he likes irrespective of the purpose for which the power has been conferred on him. It was pointed out by the Supreme Court in Harishanker Bagla v. State of Madhya Pradesh, AIR 1954 SC 465 that:

'The policy underlying the Order is to regulate the transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy. The conferment of such a discretion cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief.'

Similarly, in Kerala Education Bill, 1957, AIR 1958 SC 956 the Supreme Court observed:

'Reference has already been made to the long title and the preamble of the Bill. That the policy and purpose of a given measure may be deduced from the long title and the preamble thereof has been recognised in many decisions of this court. .... The general policy of the Bill as laid down in its title and elaborated in the preamble is ........ Each and every one of the clauses in the Bill has to be interpreted and read in the light of this policy. When, therefore, any particular clause leaves any discretion to the Government totake any action it must be understood that such discretion is to be exercised for the purpose of advancing and in aid of implementing and not impeding this policy. It is therefore not correct to say that no policy or principle has at all been laid down by the Bill to guide the exercise of the discretion left to the Government by the clauses of this Bill.'

We have already referred to the preamble and object of the Act and its long title and other provisions which show the purpose and policy behind the Act and it cannot be urged that the power given to the District Magistrate is an unguided power.

14. Learned counsel then contended that Section 3 of the Act is void as it provides no procedure for enabling the accused person to defend himself. The contention is that as the District Magistrate is not required to disclose the evidence on which he intends to take action and to produce witnesses for cross-examination by the accused, the opportunity of explanation and the procedure laid down in Sub-sections (1) and (2) of Section 3 is only illusory. Here too we are not prepared to accept the contention. Sub-section (1) of Section 3 requires that the District Magistrate shall give notice in writing informing the person concened of the general nature of the material allegations against him in respect of Clauses (a), (b) and (c) and give him a reasonable opportunity of tendering explanation regarding them. When the law requires a District Magistrate to inform the accused of the general nature of the material allegations, it means that the material supplied must be of objective nature and must be such to explain and disprove which the accused may give explanation and furnish evidence. Sub-section (2) of Section 3 not only gives the person an opportunity to defend himself but a right to consult and be defended by a counsel of his choice, and also an opportunity of examining himself and of examining any other witness that he may wish to produce. The order finally passed is subject to an appeal to the Commissioner. The procedure laid down in the Act cannot, therefore, be held to be illusory. The procedure provided in the Act is almost similar to that provided in the City of Bombay Police Act. In the case of AIR 1952 SC 221 (supra) the Supreme Court, when dealing with the procedure to be followed in cases under Section 27(4) of the Bombay Act, observed:

'The law is certainly an extraordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitute a menace to the safety of the public residing therein. This object would be wholly defeated if a right to confront or cross-examine these witnesses wasgiven to the suspect. The power to initiate proceedings under the Act has been vested in a very high and responsible officer and he is expected to act with caution and impartially while discharging his duties under the Act.'

With these observations the contention that the Bombay Act provided no reasonable procedure was rejected by the Supreme Court. We are similarly unable to hold that Section 3 of the Act does not provide a reasonable procedure.

15. Learned counsel for the petitioner further contended that the section is void on the ground of Article 14 of the Constitution as procedure provided in the Act is different from the one provided for action against suspects in Sections 110/117 of the Code of Criminal Procedure. We however find that the category of persons to be dealt with under Section 110 and Section 117 Cr. P. C. is different from the category of persons to be dealt with under this Act. The purpose and the object sought to be achieved by the two enactments are also different. A similar contention was raised in the case of Gurbachan Singh, AIR 1952 SC 221 (supra) and it was rejected by the Supreme Court. The Supreme Court laid down:

'It is true that a procedure different from what is laid down under the ordinary law has been provided for a particular class of persons against whom proceedings could be taken under Section 27(1) of the City of Bombay Police Act. But the discrimination, if any, is based upon a reasonable classification which is within the competency of the legislature to make. Having regard to the objective which the legislation has been in view and policy underlying it, a departure from the ordinary procedure can certainly be justified as the best means of giving effect to the object of the legislature.' (para 8).

In our opinion, on the same reasoning the provisions of Section 3 of the Act are not hit by Article 14 of the Constitution.

16. The last contention of learned counsel challenging the validity of the various provisions of the Act is that Section 8 read with Rule 23 gives to the District Magistrate power to take into consideration material which could not reasonably be treated as good material for passing orders. Section 8 states that the District Magistrate or the Commissioner may for the purpose of satisfying himself as to whether the conditions necessary for the making or confirmation of an order under Section 3 or Section 5 exist or not, take into consideration any evidence which he considers to have probative value, and the provisions of the Indian Evidence Act, 1872, have been made inapplicable. Rule 23 states that:--

'For the purposes of Section 8 the following circumstances may also be taken to have probative value:--

(i) that the person concerned was acquitted of any offence punishable under all or any of the provisions mentioned in Clause (b) of Section 2 merely on technical grounds or on benefit of doubt being given to him;

(ii) that the person concerned has previously been bound down under Section 107, Section 108, Section 109 or Section 110 of the Code.' Learned counsel for the petitioner attacked the first part of this rule on the ground that it gives a discretion to the District Magistrate to treat even the circumstance where a person is acquitted of an offence as of probative value. However, on a true construction of this Rule, read with Section 8 of the Act, we think that what the Rule means is that it is open to the District Magistrate to take into consideration the circumstance that a person was prosecuted though conviction could not be secured against him for technical reasons or that the evidence fell short of proving beyond reasonable doubt that the person had committed the crime. As the entire Act is of a preventive nature and its purpose is to remove any hindrance to fair trial when it becomes impossible due to witnesses not coming forward to depose against the person concerned, the circumstance of a person getting acquitted for technical reasons or lack of sufficient evidence cannot be held to be irrelevant. Moreover, the Rule only gives a discretion, but the final determination is to be made by the District Magistrate himself to see if the circumstance is of probative value or not. While considering a similar matter, the Supreme Court in Hari v. Dy. Commr. of Police, AIR 1956 SC 559 observed: 'It cannot be laid down as a general proposition of law that a previous order of discharge or acquittal cannot be taken into account by those authorities when dealing with persons under any one of the provisions we have been examining in this case.'

We cannot therefore hold that the procedure laid down in the Act is bad because Section 8 or Rule 23 provides that the circumstance of acquittal in certain cases is of probative value.

17. The last contention of learned counsel for the petitioner is that the notice issued by the District Magistrate is bad on merits as the material allegations mentioned in the notice are not such on the basis of which the District Magistrate can come to any conclusion that the conditions of Clauses (a), (b) and (c) of Sub-section (1) of Section 3 of the Act had been satisfied. We do not think it appropriate to enter into the merits of the matter at this stage. The matter is being examined by the District Magistrate. It would be open to the petitioner to show to him that on merits no case is made out against him. If the order is passed against the petitioner it would be subject to an appeal to the Commissioner. We therefore do not think it,appropriate to consider the matter on merits in these proceedings.

18. In the result, the petition fails and is dismissed with costs.


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