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2021 DIGILAW 1061 (ALL)

Shiv Prasad Gupta v. State of U. P.

2021-09-15

PIYUSH AGRAWAL, SURYA PRAKASH KESARWANI

body2021
JUDGMENT : 1. Heard Sri R.V. Chaudhary, learned counsel for the petitioner and Sri Roopak Chaubey, learned A.G.A. for the State-respondents. 2. Briefly stated facts of the present case are that the impugned show-cause notice dated 23.2.2021, under Section 3(1) of the Uttar Pradesh Control of Goondas Act, 1970 (hereinafter referred to as, 'the Act, 1970') has been issued by the Additional District Magistrate, Sonbhadra to the petitioner, mainly, on the ground that a Case Crime No. 52/2020, under Sections 498-A, 354, 323, 504, 506 and 120-B IPC and Sections 3/4 of Dowry Prohibition Act is registered against the petitioner. 3. In our order dated 3.9.2021, we observed/directed as under: ''We are constrained to observe that now, the authorities have started issuing notices under the Act, 1970 in matters relating to matrimonial dispute, which, prima-facie, appear to be a mischievous act on the part of the authorities. A similar Criminal Misc. Writ Petition No. 5477 of 2021 was entertained by this Court and when the authorities were required to show-cause, then they withdrew the notices. In view of the aforesaid, we direct the respondent Nos. 1, 2 & 5 to file their personal affidavits narrating the reasons for initiating proceedings under the provisions of the Act, 1970 in matters where the First Information Report arising out of matrimonial dispute has been lodged. The respondent No. 1 shall also file, alongwith the personal affidavit, the steps taken by him to rule out the repetition of such misuse of the Uttar Pradesh Control of Goondas Act, 1970 by the District Magistrates/Additional District Magistrates/Police in the State of Uttar Pradesh.'' 4. Today, personal affidavit of respondent No. 1, dated 10.9.2021, personal affidavit of respondent No. 2 dated 8.9.2021 and a personal affidavit of respondent No. 5 dated 8.9.2021 have been filed, which all are taken on record. 5. In paragraph Nos. 3, 4, 5, 6 & 7 of his affidavit, the respondent No. 1 i.e. the State of U.P. through Additional Chief Secretary, has stated as under: ''3. That this Hon'ble Court had been pleased to direct, vide order dated 3.9.2021, the respondent No. 1 to file his personal affidavit narrating the reasons for initiating proceedings under the provisions of the Act, 1970 in matters where the First Information Report arsing out of matrimonial dispute has been lodged. That this Hon'ble Court had been pleased to direct, vide order dated 3.9.2021, the respondent No. 1 to file his personal affidavit narrating the reasons for initiating proceedings under the provisions of the Act, 1970 in matters where the First Information Report arsing out of matrimonial dispute has been lodged. The Hon'ble Court has further directed the respondent No. 1 to apprise the Hon'ble Court regarding steps taken by him to rule out the repetition of such misuse of Uttar Pradesh Control of Goondas Act by the District Magistrates/Additional District Magistrates/Police in the State of Uttar Pradesh. In pursuance of the said order passed by this Hon'ble Court, the deponent/respondent No. 1 is filing his personal affidavit. 4. That the deponent tenders his unfettered and unconditional apologies to this Hon'ble Court for the inconvenience caused, though the same was inadvertent. 5. That it is humbly submitted that on 7.9.2021, the District Magistrate, Sonbhadra has submitted a report before the deponent disclosing therein that the Station House Officer concerned, who has submitted a report before the higher authorities to initiate proceeding against the petitioner under Section 3(1) of U.P. Control of Goonda Act, has been suspended by the Superintendent of Police, Sonbhadra on 7.9.2021. A Copy of the report submitted by the District Magistrate, Sonbhadra before the deponent alongwith suspension order passed by the Superintendent of Police, Sonbhadra dated 7.9.2021 are being enclosed herewith and marked as Annexure 1 to this affidavit. 6. That the then Additional District Magistrate, Sonbhadra had issued impugned show-cause notice dated 8.3.2021 under Section 3(1) of U.P. Control of Goondas Act, 1970, which has been withdrawn by the Additional District Magistrate, Sonbhadra vide order dated 7.9.2021, as issuance of show-cause notices in such type of cases was not justified. 7. 6. That the then Additional District Magistrate, Sonbhadra had issued impugned show-cause notice dated 8.3.2021 under Section 3(1) of U.P. Control of Goondas Act, 1970, which has been withdrawn by the Additional District Magistrate, Sonbhadra vide order dated 7.9.2021, as issuance of show-cause notices in such type of cases was not justified. 7. That in order to prevent the misuse of Uttar Pradesh Control of Goonda Act, 1970, the State Government, vide order No. 1057/chah-pu-11-21-40 writ/21 dated 10.9.2021, has issued a direction to all the Divisional Commissioners/Commissioners of Police, Lucknow, Kanpur, Varanasi, Gautam Budh Nagar/District Magistrates/Senior Superintendent of Police/Superintendent of Police of the State of Uttar Pradesh, that while initiating the proceedings under the U.P. Control of Goonda At, 1970, before registering the case the concerned District Magistrate shall examine the matter very carefully and prior to finalizing the case, matter shall be thoroughly scrutinized according to provisions of the Act to rule out any possibility of misuse of the aforesaid Act, and the said directions shall be strictly followed. If any lapses are found in compliance of the abovementioned order, in such situation, disciplinary proceedings will be initiated against the erring officials in accordance with the Rules. A copy of the order dated 10.9.2021 passed by the deponent is being enclosed herewith and marked as Annexure 2 to this affidavit. 8. That the deponent states that every endeavor will be made for compliance of the abovementioned circular in its letter and spirit.'' 6. Alongwith the aforesaid personal affidavit, the Chief Secretary has filed a copy of the order dated 10.9.2021, issued to all the District Magistrates, Police Commissioners and Senior Superintendent of Police/Superintendent of Police in the State of Uttar Pradesh. That the deponent states that every endeavor will be made for compliance of the abovementioned circular in its letter and spirit.'' 6. Alongwith the aforesaid personal affidavit, the Chief Secretary has filed a copy of the order dated 10.9.2021, issued to all the District Magistrates, Police Commissioners and Senior Superintendent of Police/Superintendent of Police in the State of Uttar Pradesh. The relevant portion of the aforesaid order of the State Government is reproduced below: ^^2- ekuuh; mPp U;k;ky; bykgkckn }kjk mDr vkns'k esa dgk x;k gS fd ;kfpdkdrkZ ds f[kykQ ntZ mijksDr vkijkf/kd ekeyk ;kfpdkdrkZ vkSj mldh iRuh ds chp dqN oSokfgd fooknksa dks bafxr djrk gSA vf/kfu;e] 1970 dh /kkjk&2 ¼ch½ ^^xqaMk** 'kCn dks ifjHkkf"kr djrh gSA ÁFke n`"V;k ,slk Árhr gksrk gS fd vf/kfu;e 1970 dh /kkjk&2 ¼ch½ dh dksbZ Hkh lkexzh visf{kr uksfVl esa ekStwn ugha gSA bl Ádkj] ÁFke n`"V;k] uksfVl fcuk vf/kdkj {ks= ds tkjh fd;k x;k Árhr gksrk gSA 3- mi;qZDr rF;ksa ds n`f"Vxr eq>s ;g dgus dk funs'k gqvk gS fd Áns'k esa xq.Mk ,DV ds ekeyksa dks vR;Ur lko/kkuhiwoZd iathd`r fd;k tk; rFkk mUgsa vfUre :i nsus ls iwoZ lEcfU/kr ftykf/kdkjh }kjk mRrj Áns'k xq.Mk fu;a=.k vf/kfu;e] 1970 ds Ákfo/kkuksa ds vuq:i lE;d :i ls ijh{k.k vo'; dj fy;k tk; rkfd mDr vf/kfu;e ds nq:i;ksx dh lEHkkouk u jg tk;sA 4- mijksDr funsZ'kksa dk dM+kbZ ds lkFk vuqikyu lqfuf'pr fd;k tk;A ;fn bu funsZ'kksa ds vuqikyu esa f'kfFkyrk gsrq fdlh vf/kdkjh@deZpkjh dks mRrjnk;h ik;k tkrk gS] rks mlds fo:} laxr fu;eksa ds vUrxZr n.MkRed dk;Zokgh dh tk;sxhA Hkonh; vouh'k dqekj voLFkh vij eq[; lfpoA** 7. In paragraph Nos. 8 and 9 of his affidavit the respondent No. 2 i.e. District Magistrate, Sonbhadra, has stated as under: “8. That the respondent No. 5 (i.e. Additional District Magistrate, Sonbhadra), who was seized with the matter, had withdrawn the aforesaid notice issued under Section 3(1) of U.P. Control of Goondas Act on 7.9.2021. A copy of the order dated 7.9.2021 passed by the Additional District Magistrate, Sonbhadra is being enclosed herewith and marked as Annexure 1 to this affidavit. 9. That the respondent No. 5 (i.e. Additional District Magistrate, Sonbhadra), who was seized with the matter, had withdrawn the aforesaid notice issued under Section 3(1) of U.P. Control of Goondas Act on 7.9.2021. A copy of the order dated 7.9.2021 passed by the Additional District Magistrate, Sonbhadra is being enclosed herewith and marked as Annexure 1 to this affidavit. 9. That it is humbly submitted that on 7.9.2021, the deponent has sent a report to the Additional Chief Secretary (Home), Government of Uttar Pradesh, Lucknow disclosing therein that the Station House Officer of Police Station Babhani, District Sonbhadra, who has submitted a report before the higher authorities to initiate proceeding against the petitioner under Section 3(1) of U.P. Control of Goonda Act, has been suspended by the Superintendent of Police, Sonbhadra on 7.9.2021. A copy of the report submitted by the deponent to Additional Chief Secretary (Home), Government of Uttar Pradesh, Lucknow is being enclosed herewith and marked as Annexure 2 to this affidavit.” 8. In paragraph Nos. 7 & 9 of his personal affidavit, the respondent No. 5 i.e. present Additional District Magistrate, Sonbhadra, has stated as under: “7. That the deponent admits that the issuing of the notices under Section 3(1) of U.P. Control of Goondas Act is not required under the law in such type of matrimonial disputes. 9. That it is further submitted that in the aforesaid case, on 7.9.2021, the notices under Section 3(1) of U.P. Control of Goondas Act issued against the petitioner has been withdrawn. A copy of the order dated 7.9.2021 passed by the deponent is being enclosed herewith and marked as Annexure 1 to this affidavit.” 9. The aforesaid criminal case registered against the petitioner indicates some matrimonial disputes between the petitioner and his wife. Section 2(b) of the Act, 1970 defines the word ''Goondas''. None of the ingredients of Section 2(b) of the Act, 1970 is present in the impugned notice. Thus, the impugned notice is without jurisdiction. 10. Perusal of the aforequoted personal affidavits of the respondent Nos. 1, 2 and 5 leaves no manner of doubt that the impugned notices were issued by the respondent No. 5 on initiative of the respondent No. 3, was without jurisdiction and wholly uncalled for. 11. Thus, the impugned notice is without jurisdiction. 10. Perusal of the aforequoted personal affidavits of the respondent Nos. 1, 2 and 5 leaves no manner of doubt that the impugned notices were issued by the respondent No. 5 on initiative of the respondent No. 3, was without jurisdiction and wholly uncalled for. 11. Since the State Government has itself taken appropriate action and the respondent No. 5 has itself withdrawn the impugned notice, therefore, we do not find any good reason to proceed further with this matter except the direction to the respondent No. 1 and the Director General of Police, Uttar Pradesh, both to ensure that the directions given by the State Government in the order dated 10.9.2021 (relevant portion quoted above) shall be implemented strictly. 12. Writ petition is disposed of with the aforesaid directions.