Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 11645 of 2010 Petitioner :- Adesh Respondent :- State Of U.P. & Others Petitioner Counsel :- Akhilesh Kumar Pandey Respondent Counsel :- Govt. Advocate Hon'ble Imtiyaz Murtaza,J.
Hon’ble Naheed Ara Moonis,J.
Challenge in this petition is to the show cause notice dated 29.3.2010 issued
to the petitioner under the U.P. Control of Goondas Act by respondent no. 2 i.
e. District Magistrate, Jalaun.
From a perusal of the notice, it would transpire that the notice has been issued
listing charges firstly that he is a Goonda and has committed an offence
defined under Chapters 16,17 and 22 I.P.C. secondly, the charge against the
petitioner is that either no one dares to lodge the F.I.R. or give the evidence
against him. Three cases have been cited to prop up the invocation of the
provisions of the U.P. Control of Goondas Act against the petitioner. On
the basis of alleged criminal history as embodied in the notice, the action was
initiated under section (3) of the U.P. Control of Goondas Act 1970 spelling
out the ground that the activities of the petitioner are causing alarm and
danger to person or property or that there are reasonable grounds for believing
that that such person is engaged or is about to be engaged in commission of
enumerated offenses or in the abetment of any such offense or is so desperate
and dangerous as to render his being at large hazardous to the community.
The main brunt of the submissions advanced across the bar by the learned
counsel for the petitioner is that the petitioner is not a habitual offender. It is
further argued that the District Magistrate recited in the notice that the
petitioner is indulging in offenses punishable under Chapter 16,17 and 22 of
the Act but the petitioner has never been involved in the offenses listed in the
Chapters afore-stated. Another submission advanced across the bar is that the
notice issued against the petitioner militates against the relevant provisions of
the Control of Goondas Act inasmuch as the same do not contain “general
nature of material allegations”. It is further argued that the notice has been
issued in a routine manner.
Reference in connection with the grounds and submission urged before us be
made to two decisions of the Apex Court i.e. (1) Kabir Chawla V. State of
U.P. and others 1994 SCC (Crl) 577 and (2) State of U.P. V. Chandra
Shekhar Shukla (2000) 9 SCC 392. In Kabir Chawla V. State of U.P. and
others (supra), wherein the Apex Court taking exception to the order of the
High Court quashing the notice observed that there is no ground for quashing
the said proceedings at the stage of listing show cause notice. It appears from
the said decision that the petitioner in that case challenged the show cause
notice issued by the District Authority and in the facts of that case, the, the
High Court proceeded to quash. The Apex Court made the following
observations.
” There is no ground for quashing the said proceedings at this stage. The
matter is under consideration before the District Magistrate. It is open to the
petitioner to satisfy the District Magistrate that no ground has been made out
for passing the order against him. In the writ petition , the petitioner has not
made out a case that in issuing the show cause notice, the District Magistrate
was actuated by mala-fides. There is, therefore no reason to assume that the
District Magistrate would not give a fair consideration to the matter.”
(Emphasis supplied).
The decision of the Apex Court in the second case (State of U.P. V. Chandra
Shekhar Shukla, (2000) 9 SCC 392) revolves round non application of mind
by the High Court while passing interim order. In the said case show cause
was issued to the respondent under section 3 of the U.P. Control of Goondas
Act, 1970. The High Court through an interim order stayed further
proceedings. The State of U.P. went up in Appeal before the Apex Court. The
Apex Court in its order held that the High Court passed the impugned interim
order without application of mind, mechanically and there was no justification
for the High Court to pass such interim order at this stage. Ultimately, the
Apex Court set aside the impugned order of stay granted by the High Court.
The order in so far as it germane to the controversy involved in this petition is
quoted below.
” On a notice being issued to the respondent to show cause under the
provisions of Section 3 of the U.P. Control of Goondas Act, 1970, a writ
petition was filed and the High court by the impugned order, without
application of mind mechanically has passed order of interim stay of the
further proceedings. We see no justification for the High Court to pass such
interim order at this stage. This appears to us to be a total non-application of
mind by the High Court while passing the interim order. We, therefore, set
aside the impugned order of stay granted by the High Court and allow this
appeal accordingly. ” (Emphasis supplied).
Be that as it may, in the above conspectus, no case is made out for
interference at this stage as the matter is still inactive process of consideration
before the District Magistrate and the petitioner would have ample
opportunity of urging his contentions as canvassed in this court before the
District Magistrate concerned.
The petition being premature, is not sustainable and therefore, it is
accordingly dismissed in limine.
Order Date :- 3.7.2010
o.k.