G.C. Mathur, J. - (1.) The three Petitioners are real brothers. The District Magistrate of Allahabad has passed orders against each one of them Under Sec. 3(3) of the U.P. Control of Goondas Act, 1970, externing them from the district of Allahabad for a period of six months. These externment orders have been challenged by the Petitioners. After hearing counsel for the parties, we passed short orders on July 13, 1972, allowing the writ petitions and quashing the externment orders. We now proceed to give our reasons for the orders.
(2.) The Act was enacted for the purpose of controlling and suppressing goondas with a view to the maintenance of public order. Sec. 2(b) defines 'goonda' thus: 2(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 u/Ch. XVI, Ch. XVII or Ch. XXII of the IPC; or (ii) has been convicted under the Suppression of Immoral Traffic in Women and Girls Act, 1956; or (iii) 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. Any person, who falls within one or more of the four clauses, will be a goonda. Sec. 3 makes provision regarding the externment etc. of goondas. Sub -section (1) requires the District Magistrate to give a notice to the person against whom action is proposed to be taken. It reads: 3 (1) -Where it appears to the District Magistrate - (a) that any person is a Goonda; and (b)(i) that his movements or acts in the 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 of any offence punishable u/Ch. XVI, Ch. XVII, or Ch. XXII of the IPC, or under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or under the U.P. Excise Act, 1910, or in the abetment of any such offence; 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 Clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them. If it appears to the District Magistrate that a person satisfies the requirements of Clauses (a), (b) and (c) of this sub -section, he shall give him a notice under this sub -section, stating "the general nature of the material allegations" against him in respect of Clauses (a), (b) and (c). The District Magistrate is then required to give the person a "reasonable opportunity" of giving his explanation regarding the general nature of the material allegations. Sub -section (2) provides for an oral hearing before the District Magistrate in these words: 3 (2) -The person against whom an order under this Sec. is proposed to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires and also of examining any other witnesses that he may wish to produce in support of his explanation, unless, for reasons to be recorded in writing, the District Magistrate is of opinion that the request is made for the purpose of vexation or delay. It will be noticed that the person, at this stage, is to be given a "reasonable opportunity" to produce his evidence in support of his explanation. The sub -section does not provide for an opportunity to cross -examine any witnesses, obviously because the proceedings are initiated when there are no witnesses willing to give evidence against the person. The sub -section also does not specifically provide for the disclosure by the District Magistrate of the material or evidence in his possession or for giving an opportunity to the person to meet such material or evidence. After the hearing provided by Sub -section (2) is over, the District Magistrate may pass orders Under Sub -section (3) which provides: 3 (3) -Thereupon the District Magistrate, on being satisfied that the conditions specified in Clauses (a), (b) and (c) of Sub -section (1) exist, may, by order in writing, - (a) direct him to remove himself outside the district or part, as the case may be, by such route, if any and within such time as may be specified in the order and to desist from entering the district or the specified part thereof until the expiry of such period not exceeding six months as may be specified in the order; (b) (i) require such person to notify his movements, or to report himself, or to do both, in such manner, at such time and to such authority or person as may be specified in the order; (ii) prohibit or restrict possession or use by him of any such article as may be specified in the order; (iii) direct him otherwise to conduct himself in such manner as may be specified in the order, Until the expiry of such period, not exceeding six months as may be specified in the order. In Raja v/s. State of UP, 1972 AWR 371, a Division Bench of this Court has held that orders Under Clauses (a) and (b) of Sub -section (3) cannot be passed simultaneously and that, if an order is passed Under Clause (a), the question of passing any order Under Clause (b) does not arise.
(3.) Sec. 4 of the Act empowers the District Magistrate to grant permission to the externed Goonda to return temporarily. Sec. 5 gives power to the District Magistrate to extend the period of externment from time to time upto a maximum of two years in the aggregate. Sec. 6 provides for an appeal to the Commissioner against the order of the District Magistrate passed Under Ss. 3, 4 and 5. Sec. 8 lays down that the District Magistrate or the Commissioner may take into consideration any evidence which he considers to have probative value and the provisions of the Indian Evidence Act shall not apply. Sec. 9 empowers the District Magistrate and the Commissioner to rescind any orders made by them. Sec. 10 provides for punishment for contravention of orders, passed Under Ss. 3, 4, 5 and 6. Sec. 11 provides for the forcible removal of the extended goonda who returns in contravention of the order. Sec. 15 empowers the State Government to make rules.;