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Ummaida Ram anr. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Applications Nos. 110 and 222 of 983
Judge
Reported in1984WLN27
AppellantUmmaida Ram anr.
RespondentThe State of Rajasthan
DispositionPetition allowed
Cases ReferredRamji Pandey v. State of U.P. and Anr.
Excerpt:
.....are, therefore, invalid and should be quashed on this ground alone.;rajasthan control of goondas rules - rule 3(2)--secret inquiry--it con be dispensed with for exceptional reasons--district magistrate neither making secret inquiry nor recording reasons for noncompliance--held, proceedings are invalid.;the use of words 'shall ordinarily cause' shows that secret inquiry is a must and can be dispensed with only for exceptional cases.;the record reveals that no such secret inquiry as is contemplated by sub-rule (2) of rule 3 of the rules was caused to be made by the district magistrate he has also not recorded any reasons for making a departure from the salutory provision of this sub-rule (2). since, he had failed to make a compliance of the provisions of sub-rule (2), the proceedings are..........lal of village punarasar district churu filed an application on november 11, 1982 before the district magistrate, churu to initiate the proceedings under section 3 of the act against the petitioners. it was alleged therein that the petitioners were habitual in intimidation of law abiding citizens by acts of violence or by show of force. they were involved in various criminal cases under sections 107 and 110 cr. p.c. they were also convicted in number of cases, a list of which appended in para 3 of the application. it was prayed therein that the petitioners be declared 'goonda' and order for their externment from the district be passed. the learned district magistrate thereupon issued notice to them under section 3 of the act in the prescribed form. aggrieved against the said action.....
Judgment:

S.S. Vyas, J.

1. By these petitions, the petitioners challenge validity of action commenced against them under the Rajasthan Control of Goondas Act, 1975 (herein after referred to as 'the Act'). They were initially filed under Section 482, Cr.PC but were subsequently treated as writ petitions under Article 226 of the Constitution. Since, both the petitions are based on identical grounds, they were heard together and are disposed of by a common judgment.

2. In order to properly appreciate the contentions involved, the facts and circumstances leading to the petitions may briefly be narrated.

3. One Girdharilal lal of village Punarasar District Churu filed an application on November 11, 1982 before the District Magistrate, Churu to initiate the proceedings under Section 3 of the Act against the petitioners. It was alleged therein that the petitioners were habitual in intimidation of law abiding citizens by acts of violence or by show of force. They were involved in various criminal cases under Sections 107 and 110 Cr. P.C. They were also convicted in number of cases, a list of which appended in para 3 of the application. It was prayed therein that the petitioners be declared 'Goonda' and order for their externment from the District be passed. The learned District Magistrate thereupon issued notice to them under Section 3 of the Act in the prescribed form. Aggrieved against the said action of the District Magistrate, Churu, the petitioners have come to this Court. Various contentions were raised on their behalf to show that action commenced against them by the District Magistrate is wholly erroneous and is in direct contravention of fie provisions of the Act and the Rules made thereunder. On the allegations disclosed in the application, the District Magistrate had no jurisdiction to initiate the proceedings against them under the Act. The validity of notice was also challenged on the ground that it does not inform the petitioners of the general nature of material allegations against them. The State filed no reply but put the contest.

4. Before dealing with the arguments advanced on behalf of the petitioners, it would be useful to first examine-the relevant provisions of the Act and Rules made thereunder. The Act came into force on 22nd of March, 1975. As its preamble shows, it was enacted to make special provisions for the control and suppression of Goondas with the view to the maintenance of the Public Order. Section 3 of the Act empowers the District Magistrate to pass an order of externment against Goondas after following the procedure laid down therein. 'Goondas' has been defined in the Act as under:

(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 XVIII or the Indian Penal Code, 1860 (Act XLV of 1860) or under Section 290 to 294 of the Indian Penal Code, 1860; or

(ii) has been convicted under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956); or

(iii) has been convicted not less than twice under the Rajasthan Excise Act, 1950 (Rajasthan Act No. 11 of 1850); or

(iv) has been convicted not less than twice under the Opium Act, 1878 (Central Act No. 1 of 1978); or

(v) has been convicted not less than twice under the Rajasthan Public Gambling Ordinance, 1949 (Rajasthan Ordinance No. 48 of 1949); or

(vi) has been found habitual passing indecent remarks to or teasing women or girls; or

(vii) has been found habitual in intimidation of law abiding people by acts of violance or by show of force; or

(viii) is habituated to commit affray or breach of peace, riot, or who is habituated to make forcible collection of subscription or threatening people for illegal pecuainry gain for himself or for others or who is habituated in causing alarm, danger, or harm to persons or property.

Explanation.--The word 'habitual' or 'habituated' wherever used in relation to a person in this clause means a person who during a period within six months immediately preceding the commencement of an action under Section 3, has been found on not less than three occasions to have committed the offences or acts as the cause may be, referred to in Sub-clauses (i), (vi), (vii) or (viii).'

Section 3 of the Act, which has a material bearing on the controversy involved, reads as under:

3. Externment etc. of Goondas:

(1) Where it appears to the District Magistrate;

(a) that any person is goonda; and

(b) (i) that his movements or acts in 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 or abetment of any offence or act specified in Sub-clause (1) to (viii) of Clause (b) of Section 2; 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 District Magistrate shall by notice in writing inform him of the general nature of the material allegations against him in respect of above Clause (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them.

(2) ... ... ...

(3) ... ... ...

5. In exercise of the powers conferred by Section 15 of the Act, the Slate Government framed the rules called the Rajasthan Control of Goondas Rules (for short 'the Rules'). Rules 3 of the Rule stands as under:

3. Requirement for action Under Sub-section (1) of Section 3 of the Act

(1) Action Under Sub-section (1) of Section 3 of the Act shall not ordinarily be taken by the District Magistrate except on, information in writing received from the Superintendent of Police of the District or Magistrate incharge of Sub-division or on information in writing received from two respectable citizens of the locality in which the person to be proceeded against is ordinarily, resident or is active. It will not be necessary for the District Magistrate to disclose the identity of the informants and particulars from which such identity can be ascertained, to the person proceeded against but only the general nature of the material allegations shall be intimated to such person.

(2) Before initiating action on information received from a private individual the District Magistrate shall ordinarily cause secret inquiries to be made in order to ensure that information given is not motivated by private grudge.

6. In assailing the entire proceedings, the action taken thereunder and the notice issued, various contentions were raised, which may conveniently be classified into four heads:

(1) Under Sub-rule (1) of Rule 3, the information must have been lodged before the District Magistrate by two respectable citizens of the locality. In the instant case, the information was lodged by only one person. The District Magistrate had, therefore, no jurisdiction to initiate proceedings under Section 3 of the Act.

(2) Since, the information was received from a private individual, it was incumbent on the District Magistrate to cause secret inquiries to be made. The District Magistrate failed to do so and as such he had no jurisdiction to proceed under the Act.

(3) The allegations disclosed in the application filed by Girdhari Lal, do not show that the petitioners are Goondas within the meaning of the definition of the word given in the Act. The District Magistrate before initiating the action under Section 3 of the Act did not go through these allegations, and

(4) The notice issued to them is defective and invalid, in as much as, it does not contain the information of the general nature of the material allegations against the petitioners.

7. It would be proper to take up the contentions of the the petitioners in the manner they have been referred to above.

8. Taking the first contention, it was vehemently contended that where the information is not received from the Superintendent of Police or the Magistrate-in-charge of sub-division, the information in writing must give, from two respectable citizens of the locality in order to empower the District Magistrate to take action Under Sub-section (1) of Section 3 of the Act. The contention has considerable force. In the instant case, the information in the shape of written application has been filed only by one individual Girdharilal. A perusal of sub Rule (1) of Rule 3 of the Rules makes it amply clear that where the information is not received from the Superintendent of Police or the Magistrate-in-charge of sub-division, it is only on the information in writing received from two respectable citizens of he locality that a District Magistrate can take action Under Sub-section ((sic)) of Section 3 of the Act. The requirement of two respectable citizens is mardatory and admits no exception. Where the information is received only from one citizen, it does not empower he District Magistrate to proceed under the Act. The information should (sic) from two respectable citizens is the basic requirement for the District Magistrate for taking action under the Act. The District Magistrate failed to like this aspect into consideration before initiating proceedings against the petitioners. The proceedings under the Act are, therefore, invalid and should be quashed on this ground alone.

9. It was next contended that Sub-rule (2) of Rule 3 of the Rules (sic)asts a duty on the District Magistrate to cause secret inquiries to be made (sic)hen information is received from a private individual. In the instant case, was argued that this mandate of law again violated by the District Magistrate and as such, his action is without jurisdiction. The contention is well-(sic)ounnded. Sub-rule (2) of rule 3 of the Rules makes it obligatory on the part of the District Magistrate that before he initiates an action under the Act on information received from a private individual, he should ordinarily cause (sic)crct inquiries to be made in order to ensure that information given is not motivated by private grudge. The use of words 'shall ordinarily cause' (sic)ows that secret inquiry is a must and can be dispensed with only for excep(sic)eral cases The reason for making this provision of secret inquiries is to (sic)eck the malicious, vexacious proceedings and to protect the citizens from (sic)rassment. If secret inquiry is held the District Magistrate may not think proper in many cases to proceed under the Act. The desirability of secret (sic)quiry is thus always there.

10. In the instant case, the record reveals that no such secret inquiry as is contemplated by Sub-rule (2) of rule 3 of the Rules was caused to be made by the District Magistrate. He has also not recorded any reasons for making a departure from the salutory provision of this Sub-rule (2). Since, he had failed to make a compliance of the provisions of Sub-rule (2), the proceedings are rendered illegal. In fact, the District Magistrate acted without jurisdiction in commencing action against the petitioners when he failed to make a compliance of the provisions of Sub-rule (2).

11. The next contention raised is equally forceful and lenders the proceedings illegal. It was argued and argued vehemently that as per allegations made in the application filed by Girdharilal, the petitioners ca n not be taken to be of 'Goondas' by any standard. It was argued that the allegations disclosed, do not bring them within the definition of 'Goondas' by any stretch of imagination.

12. The District Magistrate can proceed under Section 3 of the Act only when it appears to him that any person is Goonda as defined therein. Admittedly, the petitioners have not been convicted for the offence as mentioned in sub clauses (ii), (iii), (iv) and (v) of the definition of 'Goonda' given in Sub-clause (b), so also no allegation has been made against them in respect of the matter covered by Sub-clause (vi). In matter covered by Sub-clauses (i) (vii) and (viii), the explanation appended to Sub-clause (b) makes it abundantly clear that the person preceded against must have been found on not less than three occasions to have committed the offences, or acts during a period of six months immediately proceeding the commencement of an action under Section 3. The provisions relating to three occasions and six months are mandatory and admit no exception of whatsoever nature. The allegations disclosed in his application by Girdharilal do not meet these mandatory requirements of three occasions and six months. The application was filed on November 11, 1982. As such, the acts or offences alleged to have been committed by the petitioners before 11-5-82, can not be taken into consideration for initiating actions against them under Section 3 of the Act. The petitioner were convicted for offences under Sections 427 and 352, IPC i.e. for offences punishable under Chapter XVI and XVII of the Indian Penal Code on 26-11-80. This could not be taken into consideration as the conviction was made prior to six months immediately preceding the commencement of the action under Section 3. The allegations relating to the commission of offence under Section 406 IPC and for some other offences relating to the first information report No. 77 of 1966 could not similarly be taken into consideration as they related long back to the years 1974 and 1966. In relation to the proceedings under Sections 110 and 107, no dates were disclosed as to when the acts mentioned therein were committed by the petitioners. The proceeding under Section 110 was dropped as mentioned in the applications itself. Like-wise, relating to the criminal cases launched by Tikkuram and that of abducation, as particulars have been given in his application filed by Girdharilal. The only allegation having a material bearing is that a criminal case instituted on FIR No. 266 dated 22-9-82 under Section 379, IPC is pending investigation at police station Sadar Bikaner. But this alone is not sufficient to vest jurisdiction in the Magistrate to proceed under the Act for the simple reason that a single act of their is not sufficient to attract the provisions of the Act.

13. The District Magistrate can proceed under Section 3 of the Act only when it appeals to him that any person is Goonda. It is true that the word 'appear' can rot be equated with 'satisfaction'. But still then, it is necessary that the allegations made are visible and apparent on the face of record so as to make it appear that a person proceeded against is Goonda as defined in the Act. From the allegations, made in his application filed by Girdharilal, it does not appear Hut the petitioners are Goondas as defined in the Act. In order to vest jurisdiction in the District Magistrate, it must appear to him that the person proceeded against is Goonda before he initiates action against him under Section 3 of the Act. As discussed above, the allegations fall short and do not vest the necessary jurisdiction in the District Magistrate to proceed under Section 3 of the Act. The proceedings are liable to be quashed on this ground also.

14. Coming to the last contentian, it was argued that the notice issued to the petitioners in the prescribed form under Rule 4 of the Rules is also invalid in as much as, it does not inform the general nature of the material allegations against them. There is considerable merit in the contention, Notice issued by to the non-petitioners, reads as under:

OFFICE OF THE DISTRICT MAGISTRATE

NOTICE UNDER SECTION 3 OF THE RAJASTHAN CONTROL OF GOONDAS ACT, 1975 (See Rule No. 4)

Whereas it appears to me on basis of information laid before me that:

(a) Shri Ummaidaram son of Sh. Arjunram Jat ordinarily residing at Punarasar Teh. Dungargarh is a 'Goonda' that it is to say, he either himself or as a member or leader of a gang, habitually commits or attempts to commit, abets the commission of offence punishable under.........(mention ingredient of Section 2 (b)(i) to (xiv) whichever is applicable is generally reputed to be a.........(mention ingredient from 2 (b)(xv) whichever is applicable

(b) His movements or acts in Churu Dist. are causing or are calculated to cause alarm danger or harm to persons or property there are reasonable grounds for believing that heirs engaged or about to engage in the district or any there of in the commission of any offence punishable under Chapter XVI/Chapter XVII or Chapter XXVI of the Indian Penal Code or under Suppression of Immoral Traffic in Women and Girls Act, 1956 or under the Rajasthan Excise Act, 1910 or...... or in the abetment of any such offence and that

(c) 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.

And where as the material allegations against him in respect of the aforesaid clauses (a)(b)(c) are of the following general nature

1. FIR No. 266 dt. 22-9-822. ' ' 6 dt. 26-3-803. ' ' 5 dt. 8-1-744. ' ' 77 dt.23-12-66The said Shri Ummaidaram is hereby called upon to appear before me on 7-4-83 (date) at 10 a.m. (time) in my court room and if he so desires, to tender an explanation in writing regarding the said material allegations showing cause why order Under Sub-section (3) of Section 3 of the Rajasthan Control of Goondas Act, 1975 may not be made against him also intimating me whether he desires to examine himself or any other witness (if so their names and address in support of his explanation).

The said Shri Ummaidaram is hereby informed that if he fails to appear in aforesaid of if no explanation or intimation is received within the time specified it will be presumed that Shri Ummaidaram has no desire to tender any explanation/examine any witness in regard to the said allegation and I will proceed to pass the proposed order.

Sd/- Dist. Magistrate,

Churu (Raj.)

15. A bare perusal of this notice shows that matters relating to Items Nos. 2, 3 and 4 relating to the first information reports are vague and disclosed no material allegations. The notice does not show where the cases are pending and to which offences they relate. No statement of fact relating to the petitioner's conduct has been stated. It only mentions the first information reports lodged with the police, nothing also has been mentioned. This is not sufficient to meet the requirements of setting out 'the general nature of the material allegations' referred to in Sub-section (3) of the Act. It can be, therefore, said without the least hesitation that the notice issued to the petitioners does not fulfill the requirements of Section 3(i) of the Act as it fails to set out the general nature of the material allegations against the petitioners. A similar situation arose in Ramji Pandey v. State of U.P. and Anr. 1981 Cr. LJ 1083. A Full Bench of the Allahabad High Court held that merely giving the lists of the first information reports or pending cases, does not fulfill the requirements of a valid notice under Section 3 (1) of the Act. It may be mentioned that the provisions of Section 3 of the U.P. Control of Goondas Act, 1971 are analogous to those of Section 3 of our Act. A contention was raised therein that if the notice is read as a whole with its various clauses, it was possible to discern the material allegations against the petitioners. The contention was repelled, it was observed:

Clause (d) of the notice is intended to set out general nature of material allegations against the petitioner with a view to give him opportunity to submit his explanation and to defend himself. In this view of the matter, it is not possible to account the contention that columns (a)(b) and (c) of the notice set out the general nature of material allegations against the petitioner.

Exactly, the same situation is here in the instant case. The impugned notice can not, therefore, be held valid.

16. Article 19(1)(d) ensures a fundamental right to a citizen, to move freely throuhout the territory of India. Clause (v) of this Article abridges this right and empowers that State for making any law imposing reasonable restrictions on the exercise of the aforesaid right. The Rajasthan Control of Goondas Act, 1975 is such a piece of legislation imposing restrictions on this right. When restrictions are imposed by following a certain procedure, strict adherence to those provisions of restrictions must be made by the concerned authority. The mandate of law made in this behalf must be faithfully complied with. As the Act makes an in road on this right of free movement, the provisions of the Act must be followed both in letter and spirit. If the authority fails to make a faithful compliance of the provisions of the Act, his such an action can not be upheld and must be quashed.

17. The petitions are consequently allowed. The proceedings launched against the petitioners under Section 3 of the Rajasthan Control of Goondas Act, 1975 and the notices issued to them thereunder are quashed.


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