No one can be declared a habitual offender on the basis of one incident: Allahabad High Court

The Allahabad High Court while allowing the petition said that no one can be declared a habitual offender on the basis of one incident.

A Single Bench of Justice Ram Manohar Narayan Mishra passed this order while hearing a petition filed by Guddu Chauhan.

The petition has been filed praying for the following reliefs:

“(i) Issue a writ, order or direction in the nature of certiorari setting aside the order dated 31.3.2022 passed by the Commissioner Vindhyachal Division at Mirzapur in Case No 249 of 2022 (Guddu Chauhan vs Additional District Magistrate and Another) under Section 6 of UP Control of Goondas Act, alongwith order dated 3.1.2022 passed by the Additional District Magistrate (Finance and Revenue), Bhadohi in Case No 0321 of 2020 (State vs Guddu Chauhan), under Section 3(1) of U.P Control of Goondas Act and notice dated 22.6.2020, passed by Additional District Magistrate, Bhadohi, under Section 3 of UP Control of Goondas Act.”

By means of order dated 3.1.2022, Additional District Magistrate, Bhadohi, made the notice issued to petitioner under Section 3 of UP Control of Goondas Act, 1970 absolute and passed an externment order for six months against the petitioners from District Bhadohi.

Feeling aggrieved by the impugned order passed by the Additional District Magistrate, Bhadohi, the petitioner filed a criminal appeal under Section 3(1) of UP Control of Goondas Act before Commissioner Vindhyachal Division at Mirzapur.

Commissioner examined the legality and correctness of impugned order passed by ADM, denied to interfere in impugned order and found the appeal without any force and dismissed the appeal. Impugned order was affirmed in appeal.

Counsel for the petitioner submitted that the proceeding under Section 3 of UP Control of Goondas Act was instituted against the petitioner after issuance of notice under Section Section 3 (1) of UP Control of Goondas Act, wherein, it was stated that S.H.O Gopiganj/S.P Bhadohi informed him that Guddu Chauhan, son of Lallu Chauhan, resident of Village Mahuari, Police Station Gopiganj, District Bhadohi, is a goonda who either himself or as a member or leader of a gang habitually commits or attempt to commit or abets the commission of offence punishable under Chapter XVI, Chapter XXII of Indian Penal Code. He is generally reputed to be a person who is desperate and dangerous to the community. His activities are dangerous to the person and property of the people of the locality. The witnesses are not willing to come forward to give evidence against him for the reason of apprehension on their part as regards the safety of their person and property.

A case is registered vide Crime under Section 3/5A/8 of Cow Slaughter Act and Section 11 of Animal Cruelty Act on 24.8.2019, when a Sub-Inspector recovered four number of progeny of cow from him, which were loaded on a vehicle in an inhuman and cruel manner.

The petitioner was directed to appear on 2.7.2020, at 10:00 am before the Additional District Magistrate pursuant to said notice and submit his explanation. He was also given the opportunity to examine himself or any other witness in support of his stand.

The Additional District Magistrate observed in impugned order that even after sufficient service of notice, the opposite party failed to appear before him either personally or through counsel and after perusing the report of Superintendent of Police, he was satisfied that the opposite party is a person, who is desperate to the community and his act comes within the purview of U.P. Control of Goondas Act and on this finding, he was directed to be externed from limits of District Bhadohi for a period of six months.

He next submitted that the petitioner assailed the externment order passed by the ADM before the Commissioner Vindhyachal Division at Mirzapur, who after hearing submissions of petitioner and State counsel dismissed the appeal and affirmed the impugned order passed by ADM.

He further submitted that the accused appellant already enlarged on bail in said case under Section 3/5A/8 of Cow Slaughter Act by order dated 13.9.2019, passed by Incharge Session Judge, Bhadohi at Gyanpur.

The externment order passed by ADM was ex-parte and without giving opportunity of hearing to the petitioner, as he was unaware of the aforesaid fact, he did not leave the district due to which he was arrested by the police and an FIR was lodged on 16.1.2022, bearing Case under Section 10 of UP Control of Goondas Act, in which the petitioner applied for bail and he was enlarged on bail by orders of CJM vide order dated 20.1.2022.

The notice under Section 3(1) of UP Control of Goondas Act was issued to the petitioner with malafide intention, solely with a purpose to harass the petitioner and to get him expelled from the district where he has been residing since birth.

The petitioner was never served the copy of impugned notice issued by ADM. Even the Divisional Commissioner i.e respondent No 2 failed to appreciate the true facts of the case and dismissed the appeal without application of judicial mind.

The single case under Section 3/5A/8 of Cow Slaughter Act was falsely registered against the petitioner merely on the basis of presumption.

The period of externment granted in impugned order has already expired yet the penal consequences of the same continues to haunt the petitioner, as the social stigma is attached with him that he has been proceeded under Section 3 of the U.P. Control of Goondas Act and directed to be externed from District Bhadohi.

As a consequence of the impugned order dated 3.1.2022, the petitioner and his family members are still being subjected to the rigorous harassment at the hands of the police personnel, who used to raid his house for one and other reasons. The petitioner does not have any prior criminal history except the case mentioned in the writ petition.

Per contra, AGA countered the impugned orders in his submissions and stated that there is no illegality or irregularity in impugned orders passed by respondent Nos 2 and 3. The impugned orders are based on proper material even though the petitioner failed to obey the externment order and he was arrested by police and a case under Section 10 of the Act was registered against him, in which he was subsequently bailed out.

“As per definition and the law settled by the Court as well by the Apex Court, one cannot be treated to be a habitual offender unless and until there is recurrence of the offence and at the most the general reputation of the person is that he is desperate and dangerous to the community. Since in this case against the petitioner there is reference of one extreme instance only the petitioner could not be deemed to be a habitual offender on the basis of that single incident only, so the notice falls short of legal requirement as provided in Clause (1) of Section 2 (b) of the 1970 Act.

In view of above, the impugned order dated 22.6.2020 lacks merit and consequently, the order of appellate court dated 31.3.2022 also cannot be sustained, hence, both the orders are liable to be quashed”, the Court observed while allowing the petition.

“The order dated 22.6.2020 passed by the respondent no 3 – Additional District Magistrate (Finance & Revenue) Bhadohi and the appellate court order dated 31.3.2022 passed by the respondent no 2 – Commissioner, Vindhyachal Division at Mirzapur, are hereby quashed”, the Court ordered.

The post No one can be declared a habitual offender on the basis of one incident: Allahabad High Court appeared first on India Legal.

from India Legal https://ift.tt/nrNcLEQ