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2022 DIGILAW 546 (ALL)

Amit Sharma v. State of U. P.

2022-04-12

ANJANI KUMAR MISHRA, DEEPAK VERMA

body2022
JUDGMENT : DEEPAK VERMA, J. 1. Heard learned counsel for the petitioner; learned A.G.A. for the State/respondents and perused the record. 2. The instant writ petition seeks quashing of the impugned show cause notice dated 01.02.2022 issued by the Additional District Magistrate (Finance and Revenue), Gorakhpur, under Section 3/4 U.P. Control of Goondas Act, 1970. 3. It is contended by learned counsel for the petitioner that petitioner is a student of B.A. II year and his examination is going to start from 22.03.2022 and his conduct has always been good. He has been falsely implicated in the impugned notice on account of involvement in a solitary case under Section 3/4 U.P. Control of Goondas Act. The petitioner is neither the gang leader nor he is associated with any gang as member and, therefore, no offence under the Goondas Act is made out. He has falsely been implicated in Case Crime No. 161 of 2021, under Sections 147, 148, 452, 323, 504, 506, 336, 352, 427 I.P.C. It has next been contended that Investigating Officer has submitted charge sheet in the aforesaid case. The petitioner has been enlarged on anticipatory bail. 4. Counsel for the petitioner next argued that the respondents with mala-fide intention initiated proceedings and issued notice dated 01.02.2022 under Section 3/4 of U.P. Control of Goondas Act, 1970 against the petitioner, which is faulty and without following the mandatory provisions provided under Section 3(1) of the Act. It has been further argued that notice should contain essential assertion of facts in relation to matter set out in clause a, b and c sub Section 1 of Section 3 of Goondas Act. The notice dated 01.02.2022, challenged herein, does not refer to any evidence or facts. 5. Learned counsel for the petitioner has placed reliance upon full Bench decision (five Judges) Bhim Sain Tyagi vs. State of U.P. 1999 (39) All. Criminal Cases 321 and Ramji Pandey vs. State of U.P. and Another, 1981 Criminal Law Journal 1083 and two other judgments passed by Co-ordinate Bench of this Court. 6. Learned A.G.A. opposed the submissions of counsel for the petitioner and submitted that present petition has been filed against the show cause notice and petitioner has remedy to reply of the show cause notice before the authority. 6. Learned A.G.A. opposed the submissions of counsel for the petitioner and submitted that present petition has been filed against the show cause notice and petitioner has remedy to reply of the show cause notice before the authority. The impugned notice issued against the petitioner is just and proper and according to provisions laid down in Section 3 of Goondas Act. It is further submitted that it is well settled proposition of law that on solitary case, notice can be issued. 7. We have heard learned counsel for the parties and perused the aforesaid judgments. 8. The argument raised on behalf of the petitioner with regard to notice is that it does not contain the essential assertions which are required by Section 3(1) clauses a, b and c of Goondas Act. The notice issued under Section 3/4 of the petitioner does not contain the mandatory ingredients provided under Section 3(1) of Goondas Act. 8. The argument raised on behalf of the petitioner with regard to notice is that it does not contain the essential assertions which are required by Section 3(1) clauses a, b and c of Goondas Act. The notice issued under Section 3/4 of the petitioner does not contain the mandatory ingredients provided under Section 3(1) of Goondas Act. Notice issued to the petitioner is quoted below: mRrj Áns'k xq.Mk fu;a=.k vf/kfu;e dh /kkjk 3@4 ds vUrxZr uksfVl%& la[;k% 249@is'kdkj&22 fnukad 01-02-2022 pwafd esjs lkeus j[kh x;h lwpuk ds vk/kkj ij eq>s ;g Árhr gksrk gS fd vfer 'kekZ iq= /kesZUæ 'kekZ fuoklh feJjkSyh] Fkkuk xxgk] ftyk xksj[kiqj ,d xq.Mk gS vFkkZr o Lo;a Hkkjrh; n.M lafgrk ds v/;k; 16] 17] 22 ds vUrxZr n.Muh; vijk/k djrk gSA lekt ds fy;s nq%lkgfld ,oa [krjukd O;fDr gksus dh bldh lkekU; [;kfr gSA og HkkŒnŒlaŒ ds v/;k; 16] 17] 22 esa of.kZr vijk/kksa dks djus dk vijk/kh gSA bldh xfrfof/k;ka O;fDr;ksa dks {kfr igaqpkus okyh gSa blds Hk; ds dkj.k turk dks dksbZ Hkh O;fDr blds fo:} iqfyl dks lwpuk nsus xokgh nsus dks rS;kj ugha gksrk gSa ,oa blds fo:} lkjoku vkjksi layXu gS%& 1- vfHk;qDr ds fo:} eqŒvŒ la[;k 161@2021] /kkjk 147] 148] 452] 323] 504] 506] 336] 352] 427 HkkŒnŒfoŒ vf/kfu;e ds fo:} iathd`r gqvk] ftlds foospukijkUr iathd`r gqvk] vkjksi i= fnukad 31-07-2021 dks U;k;ky; Ásf"kr fd;k x;k] tks fopkjk/khu U;k;ky; gSA 2- ohV lwpuk fnukad 11-12-2021 Fkkuk xxgk] jiV la[;k 53 vr% vfHk;qDr vfer 'kekZ iq= /kesUæ 'kekZ fuoklh feJjkSyh] Fkkuk xxgk] ftyk xksj[kiqj dks ,rn}kjk vkns'k fn;k tkrk gS fd og esjs le{k fnukad 28-02-2022 dks le; 10%00 cts esjs U;k;ky; esa mifLFkr gksos vkSj ;fn pkgs rks mDr lkjoku vkjksiksa ds lEcU/k esa dkj.k crykrs gq;s viuk fyf[kr Li"Vhdj.k ÁLrqr djs fd D;ksa u mlds fo:} mRrj Áns'k xq.Mk fu;a=.k vf/kfu;e v/;kns'k 1970 dh mi/kkjk ¼3½ ds v/khu vkns'k fn;k tk;s rFkk lkFk gh eq>s ;g Hkh lwfpr djs fd D;k og vius Li"Vhdj.k ds leFkZu esa viuk vFkok fdlh vU; lk{kh dk ¼;fn ,slk gks lkf{k;ksa ds uke ,oa iRrs½ dk ijh{k.k djkuk pkgrs gSA vfHk;qDr vfer 'kekZ iq= /kesZUæ 'kekZ fuoklh feJjkSyh] Fkkuk xxgk] ftyk xksj[kiqj dks iqu% ;g lwfpr fd;k tkrk gS fd ;fn og mi;qZDr Ádkj ls mifLFkr ugha gksrk gS ,oa fufnZ"V le; ds vUnj dksbZ Li"Vhdj.k vFkok lwpuk ugha nsrk gS rks eku fy;k tk;sxk fd vfHk;qDr dks mijksDr ds lEcU/k esa dksbZ Li"Vhdj.k nsuk@fdlh Hkh lk{kh dk ijks{ki.k ugha djuk pkgrk gS vkSj esjs }kjk ÁLrkfor vkns'k ikfjr djus dh dk;Zokgh dj nh tk;sxhA 9. On perusal of notice, it is apparent that notice impugned lacks the assertion of facts in relation to the matters set out in Clause a, b and c and sub Section 1 of Section 3 of Goondas Act. In the instant case, the notice is general in nature and lacking is material particulars. The notice states that petitioner habitually commits crimes or attempts to commit or abets the commission of offences and is generally reported to be a person, who is desperate and dangerous to the community. Witnesses are not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person and property. 10. In Para-17 of judgment in Ramji Pandey (Supra), the Court has held as under: “17. Learned Standing Counsel urged that on a liberal construction of the notice the material allegations on the basis of which action against the petitioner is proposed' to be taken are discernable and as such the notice is not rendered illegal and the proceedings taken against the petitioner are valid. It is true that validity of a notice is generally upheld if it substantially conforms with the requirement of law but while considering the validity of a notice issued under Section 3 of the Act the same considerations cannot be applied. As noted earlier, the Act is extraordinary in nature. Its provisions permit serious in road on the liberty of a citizen as the provisions permit extemment of a driven (without a judicial trial. The power conferred on the authorities and the procedure provided by the Act seriously impinge upon the fundamental rights of a citizen and it makes a serious inroad on the personal liberty. The provisions of the Act provide slender safeguards to a citizen in requiring the District Magistrate and other authorities to give notice to the person against whom action is proposed under the Act and to set out the general nature of material allegations in the notice with a view to give opportunity to the person concerned to submit his explanation and to defend himself. The persons against whom action is proposed to be taken under the Act has a meagre opportunity of submitting his explanation to the allegations contained in the notice issued to him and to defend himself by producing evidence before the District Magistrate. The persons against whom action is proposed to be taken under the Act has a meagre opportunity of submitting his explanation to the allegations contained in the notice issued to him and to defend himself by producing evidence before the District Magistrate. These are the only safeguards which the provisions of the Act provide to a citizen against whom action is proposed to be taken. In such a situation the question of liberal construction of notice does not arise, The Drovisiento of the Act, in our opinion, should be strictly complied by the extortive while taking action under the Act. This was emphasised by the Supreme Court in Pandharinath's Case 1973 Cri. L.J. 612 Where it observed (at P. 615): We will only add that case must be taken to ensure that the terms of Sections 56 and 59 are strictly complied and the slender safeguard which those provisions offer are given, to the proposed exrternee this Court also made similar observations; in Harsh Narain's case 1972 All. L.J. 762 in saying that the executive must strictly comply with the provisions of the Act. We are therefore of the opinion that if notice issued) under, Section 3(1) of the Act is not in accorder lance with the provisions of Section 3(1) of the Act and if it fails to comply, with the mandatory requirements of, setting out the general nature of material allegations further proceedings Initialed, in, pursuance of that notice would, also be rendered Illegal.” 11. In the aforesaid judgment, it has been held that while issuing notice, the executive must strictly comply with the provisions of Section 3(1) of the Goondas Act. 12. We find that in view of the full Bench decision, notice issued against the petitioner is not in accordance with the provisions of Section 3(1) of the Goondas Act, hence, impugned notice under Section 3/4 of Goondas Act against the petitioner fails to comply with the mandatory requirement of setting out the material allegation and is not in accordance with the provisions of Section 3(1) of the Act. 13. Accordingly, the writ petition is allowed. The impugned show cause notice dated 01.02.2022 issued by the Additional District Magistrate (Finance and Revenue), Gorakhpur, under Section 3/4 U.P. Control of Goondas Act, 1970 is hereby, quashed. However, it is open to the District Magistrate to pass a fresh order, if any material is available against the petitioner.