Court No. - 9 Case :- CRIMINAL MISC. WRIT PETITION No. - 10300 of 2010 Petitioner :- Nanhoo Respondent :- State Of U.P. & Anr. Petitioner Counsel :- D.M. Tripathi Respondent Counsel :- Govt. Advocate Hon'ble Vijay Manohar Sahai,J.
Hon’ble Vikram Nath,J.
Heard learned counsel for the petitioner and learned A.G.A.
By means of this petition filed under Article 226 of the
Constitution of India, challenge has been made to the notice dated
21.5.2010 issued by respondent no. 2 under Section 3(1) of U.P.
Control of Goondas Act (hereinafter referred to as ‘the Act’).
It is contended by learned counsel for the petitioner that since the
notice issued by the District Magistrate does not contain the
material allegations on the basis of which he formed his opinion as
such it does not meet the requirement and is not in accordance
with Section 3(1) of the Act. Reliance in support of the contention
has been placed on two Full Bench judgements of this Court in the
case of Ramji Pandey vs. State of U.P., 1981 Cri..L.J. 1083, Bhim
Sien Tyagi vs. State of U.P., 1999(2) JIC 192 (Alld.) and the
Division Bench in the case of Raj Kumar Dubey vs. State of U.P.
& others, [2009(3) ADJ 361(DB)].
Learned A.G.A. has, however, tried to justify the impugned notice
by stating that in the notice subjective satisfaction has been
recorded by the District Magistrate on the ground the activities of
the petitioner is dangerous to the general public and there is reason
to believe that he can commit any offence under Part-16, 17 & 22
I.P.C. and thus the notice meets the requirement of Section 3(1) of
the Act.
We have considered the argument advanced by learned counsel for
the parties.
In the case of Ramji Pandey (Supra), it has been held by the Full
Bench that although the expression material allegations has not
been defined by that Act, according to the dictionary meanings, the
word material means important and essential, of significance. The
word allegation means statement or assertion of facts. Thus the
notice under Section 3(1) should contain the essential assertions of
facts in relation to the matters set out in clauses (a), (b) and of sub-
section (1) of Section 3 of the Act. It need not refer to any
evidence or other particulars or details.
A bare perusal of the impugned notice filed as annexure-1 to the
writ petition goes to show that case crime number and sections
under which the petitioner has been challaned have been
mentioned but the assertions of the broad particulars which are
required to be mentioned with regard to each of the cases, have not
been mentioned in the notice.
We do not find that the impugned notice conforms to the
requirement of Section 3(1) of the Act inasmuch as it does not
contain the material allegations even of general nature on the basis
of which the District Magistrate can be said to have formed his
opinion.
The law on the point being settled by two Full Bench decisions
referred above, the impugned notice does not conform to the
mandatory provision of Section 3(1) of the Act and cannot be
sustained and is hereby quashed.
The petition stands allowed.
It shall, however, be open to the Upper District Magistrate,
Kaushambi to issue a fresh notice in accordance with law.
Order Date :- 15.6.2010
Ram Murti