Nafees and Others vs State of U.P.

J.C. Gupta and S.K. Agarwal, JJ.—We have heard learned Counsel for the Petitioners and learned A.G.A.

Since the validity of the show cause notice has been challenged on a point of law, we find that even without having any counter-affidavit, this writ petition can be disposed of. Learned A.G.A. has also no objection to this proposition.

Undisputedly against all the Petitioners show cause notices u/s 3 of the U.P. Control of Goondas Act were issued by the District Magistrate, Fatehpur. Copy of the said notices are Annexures-1, 2 and 3 to the writ petition.

It is argued by the Petitioners'' counsel Shri R.B. Sahai that even taking the allegations of the impugned notices to be correct on their face value, none of the Petitioners are covered by the term "Goonda" under the aforesaid Act.

"Goonda" has been defined under Clause B of Section 2 as follows:

"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 u/s 153 or Section 153B 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 less than thrice for an offence punishable under the U.P. Excise Act, 1990 or the Public Gambling Act 1967 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.

It is not disputed by the learned A.G.A. also that notice u/s 3 can be issued against a person who is a ''Goonda'' within the meaning of the aforesaid definition and from a perusal of the definition, it emerges that before a person can be called a ''Goonda'', it must be alleged and shown that he either by himself or as a member or the leader of the gang habitually commits or attempts to commit, or abets commission of an offence punishable u/s 153 or 153B or Section 294 of the I.P.C. or Chapter XV, Chapter XVI, Chapter XVII or Chapter XXII of the said Code. He could also be placated as a Goonda if condition of Sub-clauses 2, 3, 4, 5 and 6 are also satisfied inasmuch as where it is found that he has been convicted for an offence punishable under the suppression of the Immoral Traffic in Women and Girls Act or was convicted not less than thrice for an offence punishable under U.P. Excise Act or the Public Gambling Act or Section 25, Section 27 or Section 29 of the Arms Act or is generally reputed to be a person, who is desperate and dangerous to the community, or he has been habitually passing indecent remarks or teasing women and girls or is a tout within the meaning of the Explanation.

In the present case admittedly Clauses 2, 3, 4, 5 and 6 are inapplicable. In the impugned notice, it is alleged by the District Magistrate that the Petitioners are habitually committing offences under Chapter XV, XVI, XVII, XXII of the Penal Code. Details of offences in the impugned notices astound us. Notices do not disclose any offences under the above Chapters of the Penal Code. One case relating to Arms Act is also mentioned in the notices. However, it is nowhere alleged in the said notices that any of the Petitioners have suffered three convictions for the above said offences under the Arms Act. The notice discloses commission of offences under the Prevention of Cow Slaughter Act which is not mentioned in either of the clauses of the definition of the impugned Act. The fact that no offence under I.P.C. is available, yet in the narration, in the very beginning of the notices made by the District Magistrate that he is satisfied that the Petitioners are habitually committing offence enumerated under Chapters XV, XVI, XVII and XXII of the Penal Code leaves no room for any doubt in our mind that the impugned notices were issued in a routine manner without any exhibition of application of mind by the authority concerned. The stereo typed notices appear to have been signed by the District Magistrate in a manner which professes his utter disregard for personal liberty of a citizen.

This conduct not only exposes his total ignorance of the fundamental rights guaranteed by our Constitution to every citizen but also indicates complete lack of awareness of the provisions of law under which curtailment of such liberty is channelised by any legislation which he is using as a measure to curb such liberty.

No doubt, liberty of a citizen so zealously guarded by the framers of our Constitution can be curtailed but strictly in accordance with law. The law enforcing agencies are thus under an obligation to be more careful, cautious and vigilant in doing so. Such draconian provisions that tend to restrict the liberties, enshrined as fundamental rights in the Constitution, should and must not be used as any tool of repression or oppression, that too by a State. Now-a-days instead of adhering to established modes of corrective measures provided by Penal Code, Code of Criminal Procedure and other laws of the same nature, use of draconian measures are quite frequently resorted to by State. A District Magistrate is an authority of the State through him the wish of the State is given effect to.

He is required to use such measures only as a last resort when all other measures of correction fail that too with utmost care and caution and a fair, honest and wholly unbiased application of mind.

We Find total lack of the above elements in the present case.

The writ petition is accordingly allowed. The impugned notices, Annexures-1, 2 and 3, issued against the Petitioners respectively are hereby quashed.