S. S. BYAS, J. - (1.)BY these petitions,the petitioners challenge validity of action commenced against them under the Rajasthan Control of Goondas Act, 1975 (hereinafter referred to as 'the Act' ). They were initially filed under Sec. 482, Cr. P. C. but were subsequently treated as writ petitions under Art. 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.
One Girdhari Lal Nai of village Panarasar District Churu filed an application on November 11, 1982 before the District Magistrate, Churu to initiate the proceedings under Sec 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 Sec. 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 indrect contravention of the 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.

Before dealing with the arguments advanced on behalf of the petitioners, it would be useful to first examine the relevant provisions of the Acts 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. "goonda" has been defined in the Act as under :- " (b) "goonda" means a person who; (1) 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 of Chapter XXII or the Indian Penal Code, 1860 (Act XLV of 1860) or under Section 290 to 294 of the Indian Penal Code, 1960; 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 1950); or (iv) has been convicted not less than twice under the Opium Act, 1978 (Central Act No. l of. 1978); or (v) has been convicted not less than twice under 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 violence 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 pecuniary gain for himself or for others or who is habituated in cause 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 case may be, referred to in sub-clauses (i), (vi), (viii) 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 abetement of any offence or act specified in sub-clause (i) to (viii) of clause (b) of section 2; and (c) that witnesess are not willing to come forward to give evidence against him by reason of apprehension on their part regaras 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 ). . . . . . . . . . . . . . . . . . . . . . .

In exercise of the powers conferred by Sec. 15 of the Act, the State Government framed the rules called the Rajasthan Control of Goondas Rules (for short 'the Rules' ). Rule 3 of the Rules 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 subdivision 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 allegation 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".

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 Sec. 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 Sec. 3 of the Act did not go through these allegations, and (4) The notice issued to them is defective and invalid, inasmuch as, it does not contain the information of the general nature of the material allegations against the petitioners.

(3.)IT would be proper to take up the contentions of the petitioners in the manner they have been referred to above.
Taking the first contention, it was vehemently contended that where the information is not received from the Superintendent of Police or the Magist-rate-in-charge of sub-division, the information in writing must give from two respectable citizens of the locality in order to empower the District Magistrae to take action under sub-sec. (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 Lal Girdharial, 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 the locality that a District Magistrate can take action under sub-sec. (I) of sec. 3 of the Act. The requirement of two respectable citizens is mandatory and admits no exception. Where the information is received only from one citizen, it does not empower the District Magistrate to proceed under the Act. The information should be from two respectable citizens is the basic requirement for the District Magistrate for taking action under the Act. The District Magistrate failed to take 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.

It was next contended that sub-rule (2) of rule 3 of the Rules casts a duty on the District Magistrate to cause secret inquiries to be made when information is received from a private individual. In the instant case, it was argued that this mandate of law was again violated by the District Magistrate and as such, his action is without jurisdiction. The contention is well-founded. 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 secret inquiries to be made in order to ensure that information given is not motivated by private grudge. The use of words "shall ordinarily cause" shows that secret inquiry is a must and can be dispensed with only for exceptional cases. The reason for making this provision of secret inquiries is to check the malicious, vexacious proceedings and to protect the citizens from harassment. If secret inquiry is held the District Magistrate may not think it proper in many cases to proceed under the Act. The desirability of secret inquiry is thus always there.