An externment order under the Rajasthan Control of Goondas Act requires evidence of causing alarm or harm and witness intimidation, not merely prior convictions.

ORDER :

1. By way of filing the instant Writ Petition, a challenge is made to the order dated 31-03-2021 passed by the Court of Deputy Commissioner of Police, Jodhpur West in Criminal Case No.37/2019, whereby the petitioner has been directed to extern from the area of Police Commissioner, Jodhpur and so also directed that for a period of one month he shall mark his weekly attendance in the office of Superintendent of Police, Barmer and that he won't enter in Police Commissionerate, Jodhpur without permission of the competent authority.

2. I have heard the counsel for the parties and gone through the order under assail dated 31-03-2021 and the other material annexed with the petition.

3. The sum and substance of the case is that a complaint came to be filed on behalf of the SHO, Police Station, Udaimandir, before the DCP Jodhpur on dated 05-11-2019 seeking initiation of proceeding against the petitioner under the provisions of Rajasthan Control of Goondas Act 1975 (herein after referred as ‘Goondas Act’). The learned DCP made observance of a single fact that the petitioner was convicted on two occasions for committing offence under the penal provisions of Gambling Ordinance. As per the facts in the order under challenge, the petitioner was convicted on 31-01-2019 and sentenced with fine and at a subsequent occasion, he was sentenced to fine. Interestingly, no other conviction or list of pending cases is reported in the order under challenge.

4. After perusing the material available on record, it is necessary to first examine the provisions of the Goondas Act. It is important to understand who can be considered or called a ‘Goonda’ under the Act. For ready reference, the definition of ‘Goonda’ as provided under Section 2(b) of the Goondas Act is reproduced below:-

“(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 under Chapter XVI, Chapter XVII or Chapter XXII or the Indian Penal Code, 1860 (Act XLV of 1860) or under Sections 290 to 294 of the Indian Penal Code, 1860;

(ii) has been convicted under the Suppression of immoral Traffic in Women and Girls [Act, 1956] (Act No. 104 of 1956);

(iii) has been convicted not less twice under the Rajasthan Excise Act, 1950 (Rajasthan Act No. 11 of 1950);

(iv) has been convicted not less than twice under the Opium Act, 1878 (Central Act No. 1 of 1878);

(v) has been convicted not less than twice under Rajasthan Public Gambling Ordinance, 1949 (Rajasthan Ordinance No. 48 of 1949);

(vi) has been found habitual passing indecent remarks to or teasing women or girls;

(vii) has been found habitual in intimidation of law abiding people by acts of voilence or by show of force;

(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 to cause alarm danger, or harm to persons or property.

Explanation—The words '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 occassions to have committed the offences or acts, as the case may be, referred to in sub-clauses (i), (vi) or (viii).”

A bare perusal of the provision makes it evident that a person can be considered a “Goonda” if he/she fall under any of the sub-clauses mentioned above.

5. Now moving on to the externment of Goondas and how an order of externment can be passed as mentioned in the Goondas Act. For ease of reference, Section 3 of the Goondas Act is reproduced herein below:-

“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 the district or any part thereof are causing, or are calcula