Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Goonda Act-no Interference At The Stage Of Issue Of Show Cause Notice-see Kabir Chawla V. State Of U.P. 1994 SCC (Crl.) 577
JUDGEMENT TITLE : Ajmeruddin & Others Vs. State Of U.P. & Others On 16/07/2008 By Allahabad High Court
CASE NO : CRIMINAL MISC. WRIT PETITION NO. 12278 OF 2008
CORAM : Hon'ble Imtiyaz Murtaza,J. And Hon'ble Vikram Nath,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 44

Criminal Misc. Writ Petition No. 12278 Of 2008

Ajmeruddin And Others .....................................Petitioners
Versus
State Of U.P. And Others....................................Respondents.

Hon. Imtiyaz Murtaza, J.
Hon. Vikram Nath, J.

Challenge In This Petition Is To The Show Cause Notices Each Dated 23.5.2008 Issued Separately To The Petitioners Namely Ajmer Uddin, Dashai And Laddu Ansari Under The U.P. Control Of Goondas Act By Respondent No. 2 I.e. District Magistrate, Sonbhadra.

From A Perusal Of The Notices, It Would Transpire That The Notices Have Been Issued Listing Charges Firstly That The Petitioners Are Goondas And Have Committed Offences Defined Under Chapters 16, 17 And 22 I.P.C. Secondly, The Charge Against The Petitioners Is That Either No One Dares To Lodge The F.I.R. Or Give The Evidence Against Them. As Many As Three Cases Have Been Cited Against Each Of The Petitioners To Prop Up The Invocation Of The Provisions Of The U.P. Control Of Goondas Act Against Them. 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 Petitioners Are Causing Alarm And Danger To Person Or Property Or That There Are Reasonable Grounds For Believing That That Such Persons Are Engaged Or Are About To Be Engaged In Commission Of Enumerated Offences Or In The Abetment Of Any Such Offence Or Are So Desperate And Dangerous As To Render Their Being At Large Hazardous To The Community.

The Main Brunt Of The Submissions Advanced Across The Bar By The Learned Counsel For The Petitioners Is That There Is Complete Non Application Of Mind In Issuing Notice And That The Notice Has Been Issued In A Routine Manner Inasmuch As There Is Long Interregnum Between The Alleged Commission Of The Crime Which Relates Back To The Year 2004 And The Show Cause Notices Which Have Been Issued In The Year 2008. It Is Further Argued That The District Magistrate Recited In The Notice That The Petitioners Are Indulging In Offences Punishable Under Chapter 16, 17 And 22 Of The Act But The Petitioners Were Never Involved In The Offences Listed In The Chapters Aforestated. Another Submission Advanced Across The Bar Is That The Notices Issued Against The Petitioners Militate Against The Relevant Provision Of The Control Of Goondas Act Inasmuch As The Same Do Not Contain "general Nature Of Material Allegations". The Learned Counsel Also Placed Credence On A Decision In Baldeo Singh V. State Of U.P. Reported In 1978 (15) ACC 345 Stating That The Said Decision Squarely Applies To The Facts Of The Present Case And That The Petitioners Are Entitled To Reliefs Prayed For In The Light Of The Ratio Flowing From The Said Decision. We Have Been Taken Through The Said Decision Rendered By A Division Bench Of This Court. From A Perusal Of The Said Decision, It Would Transpire That The Incidents Complained Of Were Of Remote Past I.e Of The Year 1972, And 1973 And Jan 1974 And The Ultimate Order Was Passed On Dec 8,1977 I.e. More Than Three Years Even After The Issue Of The Notice And Regard Being Had To The Facts In That Case, The Court Observed That The Circumstances May Have Changed The Man May Have Changed His Habits; And The Need Of Prevention May Have Disappeared And Ultimately Converged To The Conclusion That The Long Eclipse Must Be Deemed To Have Snapped The Chain Between The Offending Acts And The Order Of Externment. Yet Another Case Relied Upon By The Learned Counsel For The Petitioners Is The One Rendered In Crl. Misc. Writ Petition No. 6140 Of 2002 Decided On 5.5.2003 Sushil Kumar Yadav V. Addl. District Magistrate And Others. The Said Order Was Passed In The Context Of Facts That The Cases Shown In The Earlier Notice Were Also Taken Into Reckoning In The Subsequent Notice Issued To The Petitioner. The Crux Was That The Notice Had Been Issued On Stale Grounds. The Learned Counsel Also Relied Upon Oft-quoted B.S.Tyagi's Case In Order To Bolster Up His Contentions.

In Connection With The Grounds And Submission And Also Decisions Cited Above, We Feel Called To Refer 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), 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 Issuing 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 Which In The Facts Of That Case 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 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 Is 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).

In So Far As Submission Advanced Across The Bar By The Learned Counsel For The Petitioners That The Notice Issued Is Not Sustainable Considering The Long Interregnum In Between The Commission Of The Crime And Issuance Of The Notices Is Concerned, We Advert To What Precisely Has Been Observed And Held By The Apex Court In Kabir Chawla V. State Of U.P And Others 1994 SCC (Crl.) 577. In The Case Supra, The Apex Court Interfered With The Order Quashing The Notice Holding That The Matter Was Under Consideration Before The District Magistrate And It Would Be Open To The Petitioner To Satisfy The District Magistrate That No Ground Has Been Made Out For Passing The Order Against Him.

Even Otherwise, We Have Bestowed Our Anxious Consideration To The Pointed Submission That The Notices Do Not Disclose "general Nature Of Material Allegations" In The Light Of The Ratio Flowing From Full Bench Decision In B.S.Tyagi V. State Of U.P. ACC 1999 (2) P 321. From A Punctilious Reading Of The Notices It Is Amply Clear That The Notices Do Disclose "general Nature Of Material Allegations" Which Requirement, In Our Opinion, Is Intended To Give The Person Concerned A Reasonable Opportunity Of Tendering His Explanation. The Position In Law As Enunciated In A Stream Of Decisions Is That The Defect Of Not Setting Out The General Nature Of Material Allegations In The Notice Is A Fatal Defect As It Results In Non Compliance Of The Provisions Of Section 3(1) Of The Act The Necessary Consequence Of Which Is That The Notice Cannot Be Deemed To Be A Notice Under Section 3 (1) Of The Act. No Fatal Defect Is Discernible From The Notice At Issue In This Petition. Besides The Petitioner Would Have Ample Opportunity To Canvass The Points Before The District Magistrate Concerned. At This Stage,there Appears To Be No Cogent Ground To Interfere With The Impugned Notices.

As A Result Of Foregoing Discussion, We Are Of The View That There Appears To Be No Material Defect Or Taint Warranting Interference By This Court And Also Considering Had To The Fact That The Petitioner Would Have Ample Opportunity To Canvass The Validity Of Notice Before The District Magistrate.

The Petition Being Devoid Of Merit Is Not Sustainable And Therefore, It Is Accordingly Dismissed In Limine.

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