JAG MOHAN LAL Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Upendra Sharma, learned counsel for the petitioner, Sri Rajendra Kumar Dwivedi, learned A.GA. and perused the material placed on record.

(2.) Taking a cue from the case of Baldeo Singh v. State of U.P, reported in ACC 1978 (15) 345 (Hon'ble Mr. Justice Hari Swarup and Hon'ble Mr. Justice D.N. Jha), learned counsel for the petitioner submits that in the present case four offences have been shown. The first case is of the year 1987, the second case is of the year 1996, the third case is of the year 1999. All these cases are under different Sections of the I.PC. whereas the last case is of the year 2002 under Section 25 Arms Act which is not relevant for the purpose of Goonda Act. It is said that notice was issued after a long gap in the month of April, 2007 i.e. after about 8 years and then the case was decided by the District Magistrate concerned in December, 2009. The ratio of the Supreme Court decisions is that when a preventive law is to be enforced, there must not be such a long gap of time between the complained act and the preventive order so as to break the link between the two. The nexus between the activity and the order must continue. If the time lag exceeds the limits of reasonableness and becomes unreasonably long, the link in the chain can get broken, and if this happens, the Magistrate will lose power to pass the ultimate order. In the aforesaid case of Baldeo Singh (supra), the offences complained of were of the year 1972, 73 and 74. The notice was issued in July, 1974 and ultimate order was passed in December, 1977 i.e. more than three years of the issuance of the notice. It was, therefore, observed that the circumstances may have changed during this period and the man may have changed his habits and the need of prevention may have disappeared.

(3.) As discussed herein above, the case in hand is squarely covered by the aforesaid decision of Division bench of this Court. In the case before this Court also three cases have been shown in the chart. The first case is of the year 1987 while the second case is of the year 1996 and the third is of the year 1999. Though a case of the year 2002 has also been shown but that being under Section 25 of Arms Act is not relevant for the purpose of Goonda Act. Thus last case shown is of the year 1999. The notice as mentioned hereinabove was issued after a long gap of about 8 years and the case was decided by the District Magistrate concerned in the year 2009. The distinction between a penal and a preventive law is that the former looks at the past while the later at the future. In respect of penal law the essence is the time of the alleged incident. But in case of preventive law the relevant date is the one on which the order is passed. Therefore in such matters where the law gives an authority to issue orders for the purpose of preventing further commission of offences, the time becomes the essence of the law. In such cases the relevant circumstances should be reviewed on the date of order by the concerned authority. The matter assumes greater importance particularly because such power effects the fundamental right of a citizen envisaged under the Constitution. In such matters the District Magistrate is authorized to restrict the movements of a citizen and to forbid him to reside even in his own house in the locality. On account of this reason it is a serious kind of preventive law and the action taken in furtherance thereof has to be properly scrutinized.