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2022 DIGILAW 107 (ALL)

Prashant Tiwari Alias Jammu v. State of U. P.

2022-01-27

SUNEET KUMAR, VIKRAM D.CHAUHAN

body2022
JUDGMENT : Vikram D. Chauhan, J. 1. The present writ petition is filed by the petitioner challenging the show cause notice dated 3rd July 2020 said to be issued by the respondent no. 2 - District Magistrate, Jaunpur. 2. Heard learned counsel for the petitioner and learned AGA on behalf of the State. 3. It is submitted by the learned counsel for the petitioner that the petitioner has been subjected to a show notice issued under Section 3(1) of the Uttar Pradesh Control of Goondas Act, 1970 (U.P. Act No. VIII of 1971). The impugned show cause notice is illegal as the general material allegation under Section 3(1) of the U.P. Act No. VIII of 1971 has not been stated in the impuned show cause notice. Learned counsel for the petitioner has further relied upon the Full Bench judgment of this Court in Bhim Sain Tyagi Vs. State of U.P. and others, reported in 1999 (39) ACC 321 (FB) and submits that the writ petition against the show cause notice is maintainable as has been held by the Full Bench of this court and as such the impugned notice is liable to be quashed. 4. The learned AGA for the State has raised objection with regard to the maintainability of the present writ petition and has stated that in the writ petition the prayer is made for challenging the show cause notice whereas petitioner can always submit a reply to the show cause notice before the concerned authority and as such, the writ petition is premature and is liable to be dismissed. 5. The writ petition involves challenge to the alleged show cause notice dated 3rd July, 2020 said to have been issued by the District Magistrate, Jaunpur. As per the argument of the learned counsel for the petitioner, the aforesaid notice being Annexure 1 to the writ petition, is a show cause notice issued under Section 3(1) of the U.P. Act No. VIII of 1971. A perusal of the impugned notice would demonstrate that except mentioning of the criminal cases pending against the petitioner, the general material allegations in respect of the petitioner has not been stated in the impugned notice and on the strength of the aforesaid, learned counsel for the petitioner submits that the notice is bad in law and as such is liable to be quashed. 6. 6. It is to be seen that the alleged notice dated 3rd July, 2020 is annexed as Annexure No. 1 to the writ petition at page 17. A perusal of the aforesaid document would demonstrate that the document is a requisition issued by the Superintendent of Police, Jaunpur and is addressed to the District Magistrate, Jaunpur wherein the details as to why the proceedings under Section 3(1) of the U.P. Act No. VIII of 1971 be issued against the petitioner is stated, with a further request to the District Magistrate, Jaunpur to initiate proceedings under Section 3(1) of the U.P. Act No. VIII of 1971. 7. On the aforesaid requisition by the Superintendent of Police there is an endorsement by the District Magistrate, Jaunpur directing for registering the aforesaid case and transferring the aforesaid matter before the Additional District Magistrate, Finance and Revenue for disposal. 8. In the present case, the dispute pertains to Section 3 of the U.P. Act No. VIII of 1971 and for convenience, the same is reproduced herein-below :- “3. Externment, etc. of Goondas. – (1) Where it appears to the District Magistrate : (a) that any person is a goonda; and (b) (i) that his movements or acts in the 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 of an offence referred to in sub-clauses (i) to (iii) of clause (b) of Section 2, or in the abetment of any such offence; and (c) That witnesses not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or property. The District Magistrate shall by notice in writing, inform him of the general nature of the materials allegations against him in respect of clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them. The District Magistrate shall by notice in writing, inform him of the general nature of the materials allegations against him in respect of 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 witness that he may wish to produce in support of his explanation, unless for reasons to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay. (3) Thereupon the District Magistrate on being satisfied that the conditions specified in clauses (a), (b) and (c) of subsection (1) exist may by order in writing – (a) direct him to remove himself outside the area within the limits of his local jurisdiction or such area and any district or districts or any part thereof, contiguous thereto, by such route, if any, and within such time as may be specified in the order and to desist from entering the said area and such contiguous district or districts or part thereof, as the case may be, from which he was directed to remove himself until the expiry of such period not exceeding six months as may be specified in the said order; (b) (i) require such person to notify his movements, or to report himself, or to do both, in such manner at such time and to such authority or person as may be specified in the order; (ii) prohibit or restrict possession or use by him or 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.” 9. until the expiration of such period, not exceeding six months as may be specified in the order.” 9. A bare perusal of Section 3 (1) of the U.P. Act No. VIII of 1971 would demonstrate that the aforesaid authorises the District Magistrate to issue a notice in writing informing of the general nature of the material allegations against the petitioner in respect of clauses (a), (b), (c) and Section 3(1) of U.P. Act No. VIII of 1971 and to provide a reasonable opportunity to the petitioner for tendering an explanation and thereafter on being satisfied pass an order under Section 3(3) of the U.P. Act No. VIII of 1971 including an externment order. 10. Under Section 15 of the U.P. Act No. VIII of 1971, the State Government has been authorised to make Rules for the purpose of carrying out the provisions of the Act. In pursuance thereof, the State Government has notified Uttar Pradesh Control of Goondas Rules, 1970. Under Rule 3(1) it is provided that the action under Section 3(1) will not ordinarily be taken by the District Magistrate except on the information in writing received from the Superintendent of Police of the District or Magistrate in-charge of the sub-division or on information in writing received from two respectable citizens of the locality in which the person to be proceeded against is ordinarily resident or is active. In this respect, the Rule 3(1) is quoted hereinbelow : “3. (1) Action under sub-section (1) of Section 3 will not ordinarily be taken by the District Magistrate except on information in writing received from the Superintendent of Police of the District or Magistrate in-charge of a sub-division or on information in writing received from two respectable citizens of the locality in which the person to be proceeded against is ordinarily resident or is active. It will not be necessary for the District Magistrate to disclose the identity of the informants and particulars from which such identity can be ascertained to the person proceeded against but only the general nature of the material allegations shall be intimated to such person.” 11. Rule 4 of the Uttar Pradesh Control of Goondas Rules, 1970 further provides that the notice to be issued under Section 3(1) shall be, as far as, may be in conformity with the Form I provided along with the said Rules. Rule 4 of the Uttar Pradesh Control of Goondas Rules, 1970 further provides that the notice to be issued under Section 3(1) shall be, as far as, may be in conformity with the Form I provided along with the said Rules. It is to be seen that a specific Form has been provided in the Rules for initiating proceedings/show cause notice under the U.P. Act No. VIII of 1971. The FORM I prescribed under the Rules is extracted herein-below : “SCHEDULE FORM I Notice under Section 3 of the Uttar Pradesh Control of Goondas Act, 1970 (See Rule 4) Whereas it appears to me on basis of information laid before me that- (a) Sri......son of Sri.....ordinarily residing in.....is as "goonda", that is to say, he either himself *or* as a member or leader of gang, habitually commits, *or* attempts to commit, *or* abets the commission of offences punishable under *Chapter XVI*, Chapter XVII or *Chapter XXII of the Indian Penal Code* has been convicted under the Suppression of Immoral Traffic in Women and Girls Act, 1956/* has been convicted not less than thrice under the U.P. Excise Act, 1910/* is generally reputed to be a person who is desperate and dangerous to the community; and that (b) his movements or acts in......are causing or are calculated to cause alarm, danger or harm to persons or property/* there are reasonable grounds for believing that he is engaged or about to engage in the district or any part thereof, in the commission of any offence punishable *under Chapter XVI/* Chapter XVII/* or Chapter XXII of the Indian Penal Code, *or under the Suppression of Immoral Traffic in Women and Girls Act, 1956* or under the U.P. Excise Act, 1910,* or in the abetment of any such offence, and that (c) witnesses are not willing to come forward to give evidence against him by reasons of apprehension on their part as regards the safety of their person or property ; And whereas the material allegations against him in respect of the aforesaid clauses (a)/(b)/(c) are of the following general nature : 1. ............. 2. ............. 3. ............. ............. 2. ............. 3. ............. The said Sri......is hereby called upon to appear before me on (date) at (time) in my Court-room and if he so desires, to tender an explanation in writing regarding the said material allegations showing cause why an order under sub-section (3) of Section 3 of the Uttar Pradesh Control of Goondas Act, 1970, may not be made against him, also intimating me whether he desires to examine himself of any other witness (if so, their names and address) in support of his explanation. The said Sri.......is hereby informed that if he fails to appear in aforesaid or if no explanation or intimation is received with the time specified it will be presumed that Sri......has no desire to tender any explanation/examine any witness in regard to the said allegations and I will proceed to pass the proposed order. Seal of Court District Magistrate/ Additional District Magistrate.” 12. A perusal of the aforesaid would demonstrate that under Section 3(1) it is the District Magistrate who is authorised to issue the show cause notice under the U.P. Act No. VIII of 1971 and the District Magistrate is obliged under Rules to issue notice in FORM I giving details of the general nature of material allegations against the person to be proceeded with. 13. In the present case, a perusal of the alleged impugned show cause notice, at page 17 of the writ petition, would go to show that the aforesaid is information/requisition received from the Superintendent of Police, Jaunpur by the District Magistrate, Jaunpur, for proceeding under Section 3 of the U.P. Act No. VIII of 1971 and on the aforesaid information so received, the District Magistrate has directed registration of the same and has further transferred the matter to the Additional District Magistrate, Finance and Revenue, for disposal. The aforesaid document, at page 17 of the writ petition, is neither in FORM I as prescribed under the Rules for issuance of the show cause notice nor the same can be said to be a show cause notice as it is only an information that has been received from the Superintendent of Police, Jaunpur to the office of the District Magistrate, Jaunpur for initiation of proceedings. Under the U.P. Act No. VIII of 1971 the aforesaid document at page 17 of the writ petition is relatable to Rule 3(1) of the Uttar Pradesh Control of Goondas Rules, 1970 and cannot be said to be a notice under Section 3(1) of U.P. Act No. VIII of 1971. 14. Once the show cause notice itself is not before this Court, it would not be proper for this Court to exercise the writ jurisdiction as the basic principle for quashing any order under writ jurisdiction is that the aforesaid order ought to have been placed before the Court and that no order under writ jurisdiction can be passed without such document being brought on record by the petitioner. 15. In so far as the issuance of show cause notice under Section 3(1) of the U.P. Act No. VIII of 1971 is concerned, the notice can be issued when the conditions prescribed under Section 3(1) of the aforesaid Act are fulfilled and on the basis of the aforesaid, a notice in writing has been issued to the person concerned informing him of the general nature of material allegations against him and a reasonable opportunity of tendering an explanation regarding the same is provided. It is to be noted that the show cause notice so issued by the District Magistrate under the Act is for the purpose of calling an explanation in order to ascertain whether the proceedings under Section 3 of U.P. Act No. VIII of 1971 may be proceeded with against the person concerned or not. 16. It is to be seen that against a show cause notice, the writ petition may be premature as the show cause does not give rise to any cause of action as no adverse order which affects the right of the party is in operation and unless the same is issued to the person concerned, the litigant have no right to challenge the show cause notice. It is also the settled law that the writ petition would lie when some right of the party is infringed. Further, where the show cause notice alleged to have been issued without jurisdiction of the authority, to do so, the writ petition would lie. 17. The Apex Court in Special Director v. Mohd. It is also the settled law that the writ petition would lie when some right of the party is infringed. Further, where the show cause notice alleged to have been issued without jurisdiction of the authority, to do so, the writ petition would lie. 17. The Apex Court in Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 has deprecated the practice of entertaining writ petition against the show cause notice and in paragraph 5 has held “This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted.” 18. It is also to be noted that the Full Bench decision in the case of Bhim Sain Tyagi (supra) has held that a show cause notice which fails to indicate the general nature of material allegations may be challenged and quashed on that ground under Article 226 of the Constitution of India with liberty to the respondents to issue fresh notice in accordance with law. In this reference, attention is drawn to paragraph no. In this reference, attention is drawn to paragraph no. 17 of the aforesaid judgment and the same is quoted hereinbelow:- “17. The aforesaid anxiety of the Division Bench should be taken due note by the Executive and whenever a show cause notice is issued it should strictly comply with the provisions of the Act and rules. Once the decision of Ramji Pandey has held the field in this State for more than 18 years there does not seem to be any necessity of taking a contrary view for the simple reason that all that the District Magistrate was expected by that decision to do is that the proposed Goonda should be made aware of "general nature of material allegation" against him, which is the requirement of the law. By asking the respondents to furnish to the proposed Goonda the general nature of material allegations against him, the Full Bench in Ramji Pandey only required the law to be followed. None should doubt that once in the show cause notice the general nature of the material allegations exists, no Court interference with such a show cause notice is called for. Challenge to a valid show cause notice complying with the requirement of law has always failed and no scope of exercising provisions under Article 226 of the Constitution of India exists in such matters. On the contrary, whenever general nature of material allegations are absent and the proposed goonda raises a grievance through a petition under Article 226 of the Constitution of India, this Court's interference to the extent of the illegality of the notice being examined has been rightly upheld in Ramji Pandey but simultaneously it must be added that, always ensuring that, fresh notice may be issued by the District Magistrate in accordance with law. It has already been noticed above that in Subas Singh (supra) the respondents right to issue fresh notice in accordance with law was upheld and even in Harsh Narain (supra) subsequent proceedings alone were quashed due to the defective notice.” 19. In the present case, it has to be seen whether the alleged show cause notice, as impugned in the present writ petition, is within the four corners of Section 3(1) of the U.P. Act No. VIII of 1971 or the general nature of material allegations are missing in the alleged notice. 20. In the present case, it has to be seen whether the alleged show cause notice, as impugned in the present writ petition, is within the four corners of Section 3(1) of the U.P. Act No. VIII of 1971 or the general nature of material allegations are missing in the alleged notice. 20. The alleged notice dated 3rd July, 2020 specifically states that the petitioner is a Goonda and there is a terror; fear in the mind of the ordinary citizens; the petitioner is having connection with other persons having criminal antecedents; is involved in abatement of the crime and there is an atmosphere where no ordinary citizens is ready to be witness against the petitioner. Further, the Superintendent of Police, Jaunpur has also reported seven cases of crime or offence pending against the petitioner and on the basis of the aforesaid, the Superintendent of Police, Jaunpur has recommended for action under the U.P. Act No. VIII of 1971 against the petitioner. 21. The meaning of the words “general nature of material allegations” has not been provided in the Act and the same has to be considered in light of the object of the Act. A plain reading of the above referred provision of law would indicate that what is required to be informed in writing is only the general nature of the material allegations in order to give the person proposed to be externed a reasonable opportunity of tendering an explanation regarding the allegations. When it is said that the material allegations against the person be communicated to him generally or in a manner as to give an idea of the general nature of material allegations, it necessarily means that the material allegations with all their details regarding the date, place and specific facts of the incident must not be disclosed and only as much indication of these allegations be made in general terms as is sufficient to give notice to the proposed externee about what he has to face and explain in the enquiry. Such information must contain in general terms the main allegations made against the proposed externee and not all the details of the allegations. In all these proceedings, the notice to be issued under section 3(1) should contain as much of material allegations stated in general terms as would be necessary for constituting a sufficient notice contemplated under the Act. Such information must contain in general terms the main allegations made against the proposed externee and not all the details of the allegations. In all these proceedings, the notice to be issued under section 3(1) should contain as much of material allegations stated in general terms as would be necessary for constituting a sufficient notice contemplated under the Act. If the show-cause notice were to furnish to the proposed externee concrete data like specific dates of incidents or the names of persons involved in those incidents, it would be easy enough to fix the identity of those who out of fear of injury to their person or property are unwilling to depose in public. If such details are to be given, it would defeat the very purpose of an extemment proceeding. 22. The Hon’ble Apex Court in Pandharinath Shridhar Rangnekar Vs. Commr. of Police, (1973) 1 SCC 372 in para 9 has observed as under:- 9. These provisions show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances. An order of externment can be passed under clause (a) or (b) of Section 56, and only if, the authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person or property. A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If the show-cause notice were to furnish to the proposed externee concrete data like specific dates of incidents or the names of persons involved in those incidents, it would be easy enough to fix the identity of those who out of fear of injury to their person or property are unwilling to depose in public. There is a brand of lawless element in society which is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is impossible to obtain, because out of fear of reprisals witnesses are unwilling to depose in public. That explains why Section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed externee “of the general nature of the material allegations against him”. And legal evidence is impossible to obtain, because out of fear of reprisals witnesses are unwilling to depose in public. That explains why Section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed externee “of the general nature of the material allegations against him”. That obligation fixes the limits of the co-relative right of the proposed externee. He is entitled, before an order of externment is passed under Section 56, to know the material allegations against him and the general nature of those allegations. He is not entitled to be informed of specific particulars relating to the material allegations.” 23. In the present case, the general nature of allegations have been stated in the alleged notice dated 3rd July, 2020 and the factual foundation in general terms have been laid down by the authority concerned in the impugned order. The correctness or sanctity of the aforesaid allegations are not subject matter of enquiry before this Court at this stage. Once the general nature of material allegations is provided by the concerned authority in the impugned order, it would not be open for this Court to examine the correctness of the general allegations on merit in the writ jurisdiction specifically when the authority concerned is seized of the matter and the petitioner has an opportunity to file an explanation before the authority concerned. Even if an order has been passed under Section 3 (1) of the U.P. Act No. VIII of 1971, the person concerned has a right of appeal under Section 6 of the aforesaid Act. 24. In view of the aforesaid, since the nature of the general allegations are provided in the impugned order. This Court under extraordinary jurisdiction decline to interfere with the impugned order at this stage and liberty is granted to the petitioner to approach the authority concerned for appropriate redressal. 25. It is made clear that we have not addressed the issues raised by the petitioner on the merit of the allegation in the impugned order dated 3rd July, 2020 and it shall be open for the authority concerned to independently apply its mind to the facts and circumstances and material available and come to a logical conclusion in accordance with law. 26. Accordingly, the writ petition lacks merit and is dismissed with liberty to the petitioner to approach the authority concerned in accordance with law.