Photo v. District Magistrate, Azamgarh) and consequential order dated
Case Details
Neutral Citation No. - 2023:AHC:101129 Court No. - 50 Case :- CRIMINAL MISC. WRIT PETITION No. - 6840 of 2023 Petitioner :- Madhukant @ Phirtoo Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajesh Kumar Mishra,Shravan Kumar Mishra Counsel for Respondent :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.
Legal Reasoning
Heard learned counsel for the petitioner and learned A.G.A. for the State. Instant petition under Article 226 of the Constitution of India has been filed with following prayer:- "(i) Issue a writ, order or direction in the nature of certiorari calling upon the respondents to produce the record of the case of the petitioner and to quash the impugned orders dated 18.1.2023 passed by Commissioner Azamgarh Division, Azamgarh in Case No. 638 of 2014 (Madhukant @ Photo Vs. District Magistrate, Azamgarh) and consequential order dated 15.4.2014 passed by District Magistrate, Azamgarh, in Case No. 41/22/2014 (State Vs. Madhukant), under Section 3(1) of Uttar Pradesh Control of Goondas Act, P.S. Didarganj, District Azamgarh. (ii) To issue any other writ order or direction which this Court may deem fit and proper under the fact and circumstances of the case. (iii) To award cost of the petition." Learned counsel for the petitioner submitted that initially the proceedings under Section 3(1) of U.P. Control of Goondas Act were drawn against the petitioner on the basis of four criminal cases lodged against him at P.S. Deedarganj, District Azamgarh i.e. Case Crime No. 74 of 1994, under Secton 395, 397 IPC, dated 9.6.1994, Case Crime No. 25 of 1996, under Section 382 IPC, dated 8.2.1996, Case Crime No. 78 of 1995, under Section 25 of Arms Act, dated 16.8.1995 and Case Crime No. 363 of 2007, under Sections 323, 325, 504, 506, 452 IPC, dated 17.6.2007. Notice was issued to the petitioner. He appeared in compliance of notice dated 10.4.2008 before Additional District Magistrate (Admn.) and filed his explanation wherein he stated that he is gentle and respectable man of a good character. The police has filed false report against him to tarnish his image. Learned Additional District Magistrate concerned withdrew notice dated 10.4.2008 issued against the petitioner and dropped the proceedings against him vide order dated 7.3.2014. Learned Additional District Magistrate concerned observed that for last three years the accused has not been attributed any criminal record or no offence against him has been registered with allegation that he has created panic or fear in society by his criminal activities, however, fresh notice was issued against him under Section 3(1) of U.P. Control of Goondas Act by District Magistrate citing same offences against him including one case registered vide crime no. 591-A of 2009, under Sections 147, 148, 323, 324, 452 IPC. Learned D.M. concerned observed that from period 1994 to 2009, four criminal cases under the Indian Penal Code has been registered against opposite party (petitioner) which proves that opposite party is dangerous to society and he is a notorious person. He has not filed any explanation of the notice issued against him and has shown no interest in proceedings of the case and he further submitted that vide order dated 15.3.2014 in second proceedings under Section 3(1) of U.P. Control of Goondas Act, petitioner was directed to be externed for six months from the District Azamgarh. Petitioner preferred an appeal under Section 6 of the Act before Divisional Commissioner, Azamgarh and the appeal preferred by the petitioner was dismissed by impugned order dated 18.1.2023. He lastly submitted that D.M. concerned has assigned no reason while dismissing the appeal filed by the petitioner. Petitioner has been acquitted in Case No. 78 of 1995, under Section 25 of Arms Act, P.S. Deedarganj, District Azamgarh and Case Crime No. 74 of 1995, under Section 395 and 397 IPC, P.S. Deedarganj, District Azamgarh by orders of competent court and a copy of the acquittal order has been filed as Annexure Nos. 5 and 6 to the affidavit. Impugned order passed by learned District Magistrate is vitiated prior to that order in view of the fact that in previous order competent Magistrate has discharged notice issued against him and dropped the proceedings initiated in favour of the petitioner. The impugned order of D.M. concerned as well as Divisional Commissioner concerned are not sustainable in the eye of law as they are illegal and unfair. Learned counsel cited a judgment of this Court in Azad Singh Vs. State of U.P., decided on 11.9.2012, 2012 LawSuit (All) 1321, wherein writ petition under Article 226 of the Constitution of India was allowed which was filed by the petitioner against order dated 5.5.2012 passed by Additional District Magistrate, C.S.M. Nagar directing externment of petitioner for a period of six months under Section 3(1) of U.P. Control of Goondas Act. This Court observed that it is true that D.M. has to form an opinion on the basis of subjective satisfaction but then satisfaction has to be based upon the material made available under Section 3(3) of the Act. Satisfaction arrived on an extraneous material, not contemplated in law i.e. other than the one supplied by police forming part of notice or by noticee in reply to notice' would vitiate the decision making process and the ultimate order. Per contra, learned A.G.A. submitted that there is no illegality or irregularity in impugned order passed by learned Divisional Commissioner as well as learned District Magistrate concerned which is impugned in present petition. Learned Divisional Commissioner while dismissing the criminal appeal under Section 6 filed by the petitioner has observed as he has neither participated in proceedings of appeal nor filed any explanation before the court below after receiving notice dated 13.11.2012. The impugned order passed by learned court below is based on material on record and submissions of prosecution and no error was found in impugned order passed by learned District Magistrate. From perusal of order of learned Divisional Commissioner it appears that no specific reason has been assigned in impugned order while dismissing the criminal appeal filed by the petitioner except the fact that he did not participate in proceedings before the court below and offered any explanation in reply to the notice issued against him by learned District Magistrate. The grounds taken in appeal memo were not addressed duly. Even if appellant did not participate in proceedings of criminal appeal, the same was liable to be decided on merits and on the basis of ground taken in appeal memo and not in summarily manner as reflected in impugned appellate order, therefore, impugned order passed by learned Divisional Commissioner is liable to be quashed as not supported with proper reasoning and matter is liable to be remanded to appellate court for decision afresh on merits. Accordingly, writ petition is allowed. Impugned order passed by learned Divisional Commissioner, Azamgarh dated 18.1.2023 in Case No. 638 of 2014 under Section 6 of U.P. Control of Goondas Act is set aside. Matter is remanded to Divisional Commissioner with direction to hear and decide the criminal appeal filed by the petitioner afresh on the basis of ground taken in appeal memo and affording opportunity of hearing to the petitioner. Petitioner is directed to appear before the court below i.e. Divisional Commissioner, Azamgarh within 15 days from today. Appellate court is directed to decide the appeal in the light of observations of this Court, preferably within a period of three months from the date of production of certified copy of this order. Order Date :- 10.5.2023 A.P. Pandey Digitally signed by :- ANAND PRAKASH PANDEY High Court of Judicature at Allahabad