HANUMAN SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These petitions are directed against the notices (Annex.2) issued by the District Magistrate, Nagaur under S.3 of the Rajasthan Control of Goondas Act, 1975 (Act No.14 of 1975) (for short "the Act"). By those notices, the petitioners have been called upon to tender an explanation in respect of the allegations made against them. The notices have been challenged on the ground that the notices do not specify the pre-requisite conditions contemplated for proceeding to take action under S.3 of the said Act. For initiating the proceedings under S.3 of the Act, it should appear to the District Magistrate that the conditions mentioned in Clauses (a), (b)and (c) exist. If any one of the conditions is missing then no action can be taken under S.3 of the Act.

(2.) For proper appreciation of the controversy, the provision of S.3 of the Act is reproduced hereunder : - "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 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 or abetment of any offence or act specified in sub-clauses (i) to (viii) of Clause (b) of S.2; and (c) that the 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 persons 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 above clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them. (2) The person against whom an order under this section 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 or to produce any relevant document that he may wish to produce in support of his explanation, unless for reason to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay. (3) There upon 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, 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 in 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 expiration of such period, not exceeding six months as may be specified in the order.

(3.) According to sub-sec. (1) of S.3 of the Act, the conditions specified in Clauses (a), (b) and (c) have to be fulfilled. In these three Clauses, the conjunction used is"and" and not"or".This shows that all the conditions have to be satisfied. Then only the District Magistrate can initiate the proceedings under S.3 of the Act. This construction of S.3(1) gets further support from the provisions of this section. By the notice issued by the District Magistrate, he is required to inform the person of the general nature of the material allegations against him in respect of the above Clauses (a), (b) and (c). This shows that the material allegations in respect of all the three Clauses have to be furnished, so that, the person to whom the notice his been given, is able to tender his explanation in respect of them. Further, under sub-sec. (3) of S.3 of the Act, the order may be passed by the District Magistrate, if he is satisfied that the conditions specified in Clauses (a),(b) and (c) of sub-sec. (1) exist. The only material, which was placed before the District Magistrate, Nagaur was the complaint or the report by the Superintendent of Police, Dist. Nagaur accompanied with the copies of the three charge-sheets, for which the petitioners were prosecuted. In the report or in the complaint of the Superintendent of Police, Nagaur, there is no reference worth the name that on account of the presence of the persons i.e. the petitioners; witnesses are not willing to come forward to give evidence against the petitioners by reason of apprehension on their part as regards the safety of their person or property. What is stated in the report is that the petitioners are terrorists and the public is terrorised by them. These allegations would fall under Cl. (b) and specifically, there is no allegation in respect of Cl. (c), so it cannot be said that it appeared to the District Magistrate that on account of the presence of the petitioners the witnesses are not willing to come forward to give evidence against them. Although in the notices, under Cl. (a), the requirements of S.3(1)(c) in its legal form exist. But there is no material for supporting it. In the absence of any supporting material, it would not appear to the District Magistrate that the witnesses are not willing to come forward to give evidence against the petitioners, by reason of apprehension on their part as regards the safety of their person or property. Not only the ground has to be stated in the notice but the material allegations have also to be stated in the notice, so that, effective explanation can be given by the petitioners. Thus, the notices issued to the petitioners do not fulfil the requirements of sub-sec. (i) of S.3 of the Act. There was no material available to the District Magistrate to appear to him that condition (c) exists. Besides that in respect of the condition (c), no material has been informed to the petitioners, so for both these reasons the notices are liable to be quashed.