Mahipal vs State of U.P.& Ors.

G. S. N. Tripathi, J.—This is a petition under Article 226 of the Constitution of India directed against the order dated 3597 passed by the Additional District Magistrate, Ghaziabad (Annexure 1 to the petition), whereby he was declared the petitioner to be a "Goonda" and has ordered that he should be externed for a period of 6 months from the district of Ghaziabad and the appellate order dated 171197 passed by the Commissioner, Meerut Division, Meerut, whereby he has dismissed the appeal on the ground that it was time barred and the explanation given for explaining the delay, did not appear to be correct.

The facts are very brief. The Senior Police Superintendent, Ghaziabad reported on 15996 to the District Magistrate that the O.P. (petitioner Mahipal) is "Goonda" as defined under Section 2 of the U.P. Control of Goonda Act, (hereinafter referred to as the Act). There are three cases pending against him one under Section 25, Arms Act and the second under Section 307, IPC and third one under Sections 323/504, IPC.

Aggrieved by the order dated 31597, the petitioner appealed before the Commissioner, Meerut Division, Meerut, who passed the order impugned holding that the appeal was timebarred. Hence this petition under Article 226 of the Constitution.

In between, allegedly, the petitioner violated the order of externment on 2897 and he was sent to Jail on the same date for committing an offence punishable under Section 10 of the Act.

Feeling aggrieved, this petition has been preferred and reliefs have been sought that the aforesaid orders passed by the District Magistrate and the Commissioner be set aside and the petitioner be set at liberty by the C.J.M. concerned.

Under Section 2 of the Act, the word ''Goonda'' has been defined as below:

"(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, 1860 (Act XLV of 1860); or

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

(iii) or 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."

For our purpose, clause (iv) is relevant. The District Magistrate acted upon the report of the SSP, who had alleged in his report dated 15998 that the petitioner is a criminal and "Goonda" by committing several acts as noted above in total defiance of law and has no respect for maintaining peace. In response to showcause notice sent by the District Magistrate, the petitioner filed his reply. He has alleged that he is a peace loving person and not a criminal. The three case under Sections 25 Arms Act, 307, IPC and 323/504, IPC have not resulted in the conviction of the petitioner as yet. Therefore, the report of the police is biased and it should not be accepted. But he did not deny that he was involved in three cases noted in the report of the SSP.

Of course, the petitioner may be convicted in the aforesaid cases or may not be. But that was not the problem at stake before the District Magistrate. What was at stake was that general law and order situation and public peace had been disturbed and people were not prepared to depose against the petitioner in any criminal acts on account of fear and terror created in the locality. Under these circumstances, the District Magistrate could be subjectively satisfied that the petitioner is a "Goonda" as noted in the definition of the word under Clause (iv) specifically. Hence this Court cannot revise or supervise the satisfaction recorded by the District Magistrate. Of course, had there been the case in which no case had been launched against the petitioner or a case of very vegetarian nature, for which fine or simple imprisonment has been provided, the District Magistrate could ignore that. But whether the ground was sufficient or not, for acting under the Act, is a matter of subjective satisfaction of the District Magistrate, and this Court cannot say at this stage that there was absolutely no material before the District Magistrate to form such an opinion. This Court, under Article 226 of the Constitution, cannot sit as an appellate court over the orders passed by the District Magistrate and Commissioner. So, I do not agree with the learned Counsel''s contentions that there was no material before the District Magistrate for personal satisfaction, to act under the Act. This way, the order dated 31597 passed by the Additional District Magistrate, Ghaziabad does not suffer for want of jurisdiction or void of illegality or impropriety.

Unfortunately, when the matter went to the Commissioner in appeal, it was found that the appeal was time barred. It was also been mentioned in the order of Commissioner that admittedly, information regarding the District Magistrate''s order was received by the petitioner on 8897. But he did not file the appeal even within time thereafter. His allegation is that, on account of his mother''s illness, he could not file the appeal in time. But he brought no material before the learned Commissioner to justify his absence on account of his mother''s illness. Therefore, it was rightly held that there was absolutely new credible explanation for filing the appeal with delay. Therefore, the order passed by the learned Commissioner (Annexure 2) is found to be perfect) right and not suffering from any leg" I defact entitling this Court to interfere in the same. Both the impugned orders passed by the District Magistrate and the Commissioner, are found to be valid in law.

Thereafter, instead of abiding by the orders of the courts below and remaining outside the district for a period of 6 months, the petitioner violated the same. He came within the limits of the District Ghaziabad and was found to be threatening the witnesses and residents. Therefore, he was arrested by the police and sent to Jail. The remand order was passed by the IVth Additional CJM, Ghaziabad on 9897.

The learned Counsel Sri V.P. Srivastava has argued the case very well and with his usual thoroughness. In fact, his submission was that only one punishment coulr1 be given to the petitioner i.e. provided under Section 11 of the Act, i.e. he should be removed from the limits of the District Ghaziabad but instead, he has been punished twice by sending him to Jail under Section 10 of the Act.

Unfortunately, this contention of the learned Counsel is not correct. Section 11 provides for externment of a person who reenters in the boundary of the district. The District Magistrate, under such circumstances, was entitled to cause the petitioner arrested and to remove him in police custody to such place outside the area specified in the said order. Subclause (2) provides that a police officer may arrest without warrant any person reasonably suspected of an act or omission specified in subsection (1), and shall forthwith forward the person so arrested to the nearest Magistrate, who shall cause him to be forwarded to the District Magistrate, who may thereupon cause the person to be removed in police custody to such place outside the area specified in the said order as he may direct. Subclause (3) specifically provides that the provisions or this Section are in addition to and not derogation of the provisions of Section 10. Therefore, this is the first reason for rejecting the contention of the learned Counsel and I do accordingly.

Another fallacy in the argument of the learned Counsel is that in Section 11, no punishment has been provided as such. It is, in fact, a reiteration of the order of externment against a person concerned and a direction to him to obey the orders passed under the Act and in case of failure to be abided by the same, he could be removed by the District Magistrate with the aid of police:

The punishment has been provided under Section 10 of the Act, which runs as under:

"Whoever contravenes any order made under Section 3, Section 4, Section 5 or Section 6, shall be punishable with rigorous imprisonment for a term which may extend to three years but shall not be less than six months and shall also be liable to fine."

Learned Counsel''s argument was that the provisions of the Cr PC will not apply. This is wrong. No procedure for trial of the offences under Section 10 of the Act has been provided in the Act. Therefore, the provisions of Cr PC shall apply as regards that procedure to be adopted by the courts and the police against a person who has violated the order passed under Section 3 of the Act. The preamble of the Cr PC., 1973 (Central Act No. 2 of 1974) goes to show that this is an Act to consolidate and amend the law relating to criminal procedure. Section 4 of the Cr PC reads as follows:

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offence." (Emphasis supplied)

It means that it is a general law of the land providing for criminal trials etc. in India.

Section 5, Cr PC reads as under:

"Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

That provides that unless there is any special Act or special general Act providing otherwise that the Cr PC will not be applicable to the procedure of any particular case or type of cases, or any special form of procedure prescribed, by any other law, the procedure provided under the Cr PC shall alone be followed.

Section 10 of the Act provide for punishment, which may extend to 3 years R.I. but not less than 6 months. Section 2 (x) defines warrant cases as below:

"Warrantcase" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years."

It means that any offence for which punishment has been provided, exceeds two years, shall become a warrant case. Subsection (w) defines the summons case as a case or offence not being a warrant case. Since the minimum sentence provided under Section 10 of the Act may extend to 3 years, it becomes automatically a warrant case and for that the police gets an authority to arrest the accused without warrant. Under these circumstances, the police could arrest the accused for committing an offence punishable under Section 10 of the Act. Thus for the procedure as discussed above by me, has been followed by the police and there cannot be any objection to it. The learned Counsel does not say that the Act provides any special procedure for trying the offence under Section 10 of the Act. Therefore, by virtue of subsections (4) and (5) noted above, the provisions of Cr PC shall alone be followed for trying the offence under Section 10 of the Act. It further means and goes to state that any person who contravenes the orders passed under Section 3,primafacie commits an offence punishable under Section 10 of the Act. Therefore, any Magistrate having jurisdiction may remand him to police custody or Jail custody as deemed proper and, thereafter, the procedure as noted above prescribed under the Cr PC, shall be followed. That stage has yet to come. Only one step has been taken under the Cr PC that after obtaining a legal remand from the Judicial Magistrate concerned, the petitioner has been sent to Jail. In case the dentention continues, remand may be sought under the provisions of Section 167, Cr PC. Then automatically, the provisions of bail contained in the Cr PC, Chapter XXXIII, shall be followed.

The petition is dismissed as it has no force. The petitioner may apply for bail according to the provisions contained in Chapter XXXIII, Cr PC. The learned Magistrate concerned, shall consider his bail application as early as possible and after hearing parties, shall pass suitable orders in accordance with law.