Harishchand Yadav vs State Of U. P. - 2023 Supreme(All) 725

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 725

IN THE HIGH COURT OF ALLAHABAD
MOHD. AZHAR HUSAIN IDRISI, J.
Harishchand Yadav – Appellant
Versus
State Of U.P. And Others – Respondents
Criminal Misc. Writ petition No.2268 of 2023
Decided on : 21-02-2023

Advocates:
Advocate Appeared:
For the Appellant : Pawan Kumar Rao
For the Respondent: Ashish Kumar Gupta

Headnote:
Code of Criminal Procedure, 1973 - Section 110 - Indian Penal Code,1860 - Sections 147, 323, 352, 506, 341,504, 153 or 153-B and 294 - U.P. Control of Goondas Act, 1970 - Section 6 - U.P. Control of Goondas Act, 1970 - Section 3/4 - Suppression of Immoral Traffic in Women and Girls Act, 1956 - U.P. Excise Act, 1910 - U.P. Excise Act, 1910 - Arms Act, 1959 - Sections 25, 27 and 29 - Public Gambling Act, 1867 – Criminal Intimidation – Punishment for voluntarily causing hurt - Petitioner is renowned person of society and also he was then Gram Pradhan of village - Reputation of petitioner is good and clear in society and also his wife is present - First Information Report was registered against petitioner - Adjoining village of and by playing fraud they have got entry on public utility land which is not permissible U.P. Revenue Code, 2006 – Held, Expression 'habitually' in aforesaid section has been used in sense of depravity of character as evidenced by frequent repetition or commission of offence - It means repetition or persistency in doing an act and not an inclination by nature, that is, commission of same acts in past and readiness to commit them again where there is an opportunity - Impugned order passed by District Magistrate it is apparent that only on basis of two criminal cases, externment order for six months has been passed by District Magistrate - Commissioner has also failed to consider grounds taken by petitioner in his appeal and in a routine manner has dismissed appeal preferred by petitioner - Court finds that since there was no sufficient material before District Magistrate in holding that petitioner and is habitual to commit crimes, impugned orders - Writ petition is allowed.

JUDGMENT :

1. Case called out.

2. Sri Ashish Kumar Gupta, Advocate has already filed caveat on behalf of Akhilesh Kumar Pathak, the complainant.

3. At the outset, Mr. Pawan Kumar Rao, learned counsel for the petitioner, submits that Akhilesh Kumar Pathak has no locus to oppose this writ petition.

4. Sri Ashish Kumar Gupta, Advocate submits that he may be permitted to withdraw his caveat application.

5. Prayer is allowed. Now, the writ petition is proposed to be heard on merit.

6. Heard Mr. Pawan Kumar Rao, learned counsel for the petitioner and the learned A.G.A. for the State.

7. The instant petition has been filed for the following relief:

"To stay the effect and operation of impugned order dated 19.1.2023 passed by the respondent no.2/ Commissioner, Basti Division, Basti in Appeal bearing Case No. 656/22 (Harishchand Vs. State of U.P.), under Section 6 of U.P. Control of Goondas Act, 1970, Police Station-Ghanghata, District-Sant Kabir Nagar and order dated 11.11.2022 passed by the respondent no. 3/District Magistrate, Sant Kabir Nagar in Case No. 480 of 2022, under Section 3/4 of U.P. Control of Goondas Act, 1970, Police Station-Ghanghata,, District Sant Kabir Nagar during the pendency of present writ petition before this Hon'ble Court, otherwise the petitioner shall suffer irreparable loss and injury."

8. Learned counsel for the petitioner submitted that petitioner is renowned person of the society and also he was the then Gram Pradhan of village Dhanghata. The reputation of the petitioner is good and clear in the society and also his wife is the present Gram Pradhan. It is further submitted that prior to 16.5.2022 no complaint or First Information Report was registered against the petitioner. It is next submitted that the land grabbers (Bhumafiya), namely, Shri Bhal Chand Pathak, Shivbrat Pathak, Akhilesh Pathak, Rakesh Pathak, Sintu @ Piyush Pathak and Subhas Pathak, who are the resident of village Dhanghata, Police Station Dhanghata, District Sant Kabir Nagar, have made encroachment on public utility land Gata No. 177 & 178 belongs to the Khalihan and Khadgaddha of the Revenue, Village Mithana, Sithana, Police Station Dhanghata, District Sant Kabir Nagar, which is adjoining village of Dhanghata and by playing fraud they have got entry on the aforesaid public utility land as Sankramaniya Bhumidhar, which is not permissible under the U.P. Revenue Code, 2006. In this regard the petitioner made several complaints before the concerned authorities as well as Chief Minister Portal against the land grabbers (Bhumafiya), namely, Shri Bhal Chand Pathak, Shivbrat Pathak, Akhilesh Pathak, Rakesh Pathak, Sintu @ Piyush Pathak and Subhas Pathak, who are the resident of village Dhanghata, Police Station Dhanghata, District Sant Kabir Nagar praying therein to evict the aforesaid persons from Gata No. 177 area 0.251 hectare and 178 area 0.051 hectare situated in Revenue, Village Mithana, Sithana, Police Station Dhanghata, District Sant Kabir Nagar, which is adjoining village of Dhanghata and restore the aforesaid public utility land of the said Gaon Sabha as was earlier recorded in the revenue record.

9. Learned counsel has further submitted that in compliance of the aforesaid complaint made by the petitioner, the respondent authorities have initiated enquiry against the alleged land grabbers in the aforesaid matter and in pursuance of that the revenue official has submitted report on 9.6.2022, 30.6.2022, 12.7.2022 and 19.7.2022, on the basis of Akarpartar 45 and stating therein that the aforesaid land belongs to the public utility land, therefore, made recommendation to delete the name of the said Degree College and recorded as Khalihan and Khadgaddha. Subsequently, the said land grabbers have annoyed with the petitioner and being aggrieved with the said enquiry the land grabbers only to harass the petitioner has lodged the First Information Reports against him including his son and other friends on the false and concocted story. The following