Sankla Ram vs State of Rajasthan and Another

R.R. Yadav, J.—Today, S.B. Civil Writ Petition No. 4148/92 -- Sankla Ram v. State of Rajasthan and another is listed for admission and another writ petition No. 4046/92 - Karan Singh and another is listed for orders. With the consent of learned counsel for the parties and also looking into the urgency in the matter, these writ petitions are being heard together on merits 4o dispose them off finally at admission and orders stage by a composite order.

These two writ petitions are directed against the notice (Annx. 4) in case of Sankla Ram and notice (Annx. 3) in the case of Karan Singh issued by the Additional District Magistrate, Pali u/s 3 of the Rajasthan Control of Goondas Act, 1975 (Rajasthan Act No. 14 of 1975) (hereinafter referred to as ''the Act of 1975''). By these notices Annx. 3 and 4, the petitioners have been called upon to appear before the Additional District Magistrate, Pali and if they so desire, to tender an explanation in writing in respect of the allegations made against them.

The aforesaid notices Annxs. 3 and 4 have been challenged by way of writ petitions on the ground inter alia that these notices Annxs. 3 and 4 do not furnish substance of material allegations of three criminal cases referred in the notices. Secondly, these notices Annxs. 3 and 4 further do not disclose date whether these criminal cases were registered against the petitioners within six months from the date of issuance of the said notices.

After service of notices upon the respondents a reply to the writ petition has been filed on behalf of respondents Nos. 1 and 2 in the writ petition of Sankla Ram (S. B. Civil Writ Petition No. 4148/92) and the same reply is adopted in another writ petition. In reply to the averments made in paragraph 9 of the writ petition, the answering-respondents have stated in their return as follows :-

"(b) That the contents mentioned in this sub-para of the writ petition are indefinite, baseless and devoid of any force. It is further submitted that it is clearly mentioned in the aforesaid notice that the petitioner has committed the offences punishable under the Indian Penal Code, which brings him under the provisions of the Act of 1975. The impugned notice has been issued after due application of mind by three officers as stated hereinabove."

Thus the facts stated in the writ petition have not been specifically denied. Only evasive reply has been given which amounts admission on behalf of the respondents. The law is well-settled that evasive reply is always treated to be an admission.

I have heard Mr. Sandeep Mehta, learned counsel for the petitioners and Mr. U.C.S. Singhvi, learned Additional Government Advocate appearing on behalf of respondents Nos. 1 and 2 and critically gone through the material available on record.

On the basis of the averments made in the writ petition, learned counsel Mr. Sandeep Mehla, appearing on behalf of the petitioners invited my attention towards the explanation to Sub-section (b) of Section 2 of the Act of 1975. Under sub-sec, (b) of Section 2 of the aforesaid Act, the word "Goonda" has been defined. According to the 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 u/s 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), (vii) or (viii).

A close scrutiny of notices Annxs. 3 and 4 reveal that in these notices, issued by the Addl. District Magistrate, Pali u/s 3 of the Act of 1975, it is nowhere mentioned that the petitioners during a period within six months immediately preceding the issuance of impugned notices have been found on three occasions to have committed the offences punishable under the Indian Penal Code which brought them within the purview of the provisions of the said Act. In reply, Mr. U.C.S. Singhvi, learned Additional Government Advocate submitted that this ground of in accurate facts mentioned in these notices can be raised before the Addl. District Magistrate, Pali by way of filing their explanations.

In my considered opinion, the Additional District Magistrate, Pali while issuing notices u/s 3 of the Act of 1975 against the petitioners was required to mention substance of allegations of three criminal cases registered against them enabling the petitioners to file an effective explanation to these notices impugned before this Court. Thus, both the notices Annxs. 3 and 4 issued by the Additional District Magistrate, Pali against the petitioners do not fulfil the required conditions of explanation added in Sub-section (b) of Section 2 of the Act of 1975.

There is yet another reason not to accept the arguments advanced by the learned counsel appearing on behalf of the State. The action proposed to be taken by issuing notices u/s 3 of the Act of 1975. the Additional District Magistrate, Pali proposed to invade the personal liberty of the petitioners, which cannot be taken away except in accordance with the procedure established by law. The concept of liberty in a democratic country like ours is sacrosanct, which cannot be under mined except in accordance with the procedure established by law.

It is well to remember that the concept of liberty enshrined under Article 21 of the Constitution of India has gone into a redical change by this time. Now, it is ruled by the Apex Court that concept of liberty within the meaning of Article 21 of the Constitution of India includes a dignified living with human dignity which cannot be eroded by declaring the petitioners to be ''Goondas'' except in accordance with the procedure established by law.

The safe guards which are provided under the Act of 1975 and Rules framed thereunder are in consonance with human dignity of a citizen which cannot be allowed to be eroded by issuing the impugned notices Annxs. 3 and 4 with closed mind in utter violation of explanation added in Sub-section (b) of Section 2 of the said Act.

Next contention of learned counsel for the petitioners before me is that under similar circumstances, notices issued u/s 3 have been quashed by this Court. In support of his argument, he placed reliance on a decision rendered by the learned Single Judge of this Court in the case of Hanuman Sharma v. State of Rajasthan reported in 1986 RLR 246 and another decision rendered by another learned single Judge of this Court in the case of Ummaida Ram v. State of Rajasthan reported in 1984 Cri. LR (Raj) 206.

It is apparent from perusal of the aforesaid two decisions that notices issued u/s 3 of the Act of 1975 have been quashed by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

I respectfully concur and agree with the ratio decidendi laid down in the case of Ummaida Ram (supra) and Hanuman Sharma (supra) on the point of quashing notices issued u/s 3 of the Act of 1975 in exercise of jurisdiction under Article 226 of the Constitution.

The powers u/s 3 of the Act of 1975 are extra ordinary and interference with the personal liberty of a person is to be viewed seriously. Hence before initiating the proceedings it was incumbent upon the Addl. District Magistrate, Pali to form an opinion objectively after considering the relevant material on record to the effect that initiation of proceedings u/s 3 of the said Act was necessary within the stipulated period of six months. In the present case, it is apparent on the face of the record that there was no material on record to form an objective opinion that initiation of proceedings u/s 3 of the said Act against the petitioners were necessary without making compliance of Sub-section (b) of Section 2 of the Act of 1975 as stated above. Mere reproduction of the wordings of the relevant Section of the Act of 1975 and Rules framed thereunder in typed pro forma does not tantamount to the compliance of the provisions of the said Act without mentioning the substance of allegations of three criminal cases alleged to have been registered against the petitioners enabling them to file an effective reply. Secondly, neither from the impugned notices nor from the reply filed on behalf of the respondents, it is established before this Court that the notices Annxs. 3 and 4 were issued against the petitioners within six months immediately preceding the commencement of actions against them u/s 3 of the Act of 1975. Commission of offences or acts on three occasions alone are not sufficient to initiate proceedings u/s 3 of the aforesaid Act against the petitioners depriving them to file an effective explanation.

For the reasons stated above, the writ petitions are allowed and notices Annxs. 3 and 4 are quashed. In the peculiar facts and circumstances of the case, the parties are directed to bear their own costs.