High Court
Case Details
Court No. - 43 Case :- CRIMINAL MISC. WRIT PETITION No. - 10086 of 2022 Petitioner :- Badruddin Respondent :- State of U.P. and Another Counsel for Petitioner :- Mohammad Yunus Khan Counsel for Respondent :- G.A. Hon'ble Ashwani Kumar Mishra,J. Hon'ble Sameer Jain,J.
Legal Reasoning
Heard learned counsel for the petitioner and learned AGA for the State and have perused the record. A notice issued to petitioner under Section 3(1) of U.P. Control of Goondas Act, 1970, dated 01.04.2022, is challenged in the present petition, primarily on the ground that the notice itself is not in accordance with the provisions of the Act as well as Rules framed thereunder, as material particulars in support of the notice are not disclosed by the concerned authority while issuing the notice itself. Reliance is placed upon a Full Bench judgment of this Court in Bhim Sain Tyagi Vs. State of U.P. and others, 1999 (39) ACC 321, as well as a recent judgment of Lucknow Bench of this Court in Suresh Tewari Vs. State of U.P. and others, passed in Misc. Bench No. 12459 of 2018, decided on 23.5.2018. The view taken in that regard has also been reiterated in a recent decision of this Court in Amit Sharma Vs. State of U.P. and others, 2022 (5) ADJ 322. In paragraphs 9 to 13 of the judgment in Amit Sharma (supra), the Division Bench has observed as under:- "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 dis-cernable, 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. These are the only safeguaids 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 jconstruction of notice does not arise, The Drovisiento of the Act, in our opinjjon, 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 LJ 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 Narainfs case 1972 All LJ 762 in saying that the executive must strictly comply with the pirvisions of the Act. We are therefore ' o$ 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 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.
Decision
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 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." In the facts of the present case also, the notice is in the standard format, which merely refers to implication of petitioner in Case Crime No.218 of 2021 as also the beet report nos.48 and 52, dated 10.02.2022, without any material particular recited therein. We are, therefore, of the view that notice fails to meet the requirement of law, as is laid down by the Full Bench of this Court and reiterated in Suresh Tewari and Amit Sharma (supra). Learned AGA states that instead of keeping the matter pending it would be appropriate that the authority be permitted to re- visit the matter in light of the law settled by this Court. In view of the stand taken by the respondents before this Court, this writ petition succeeds and is allowed. Notice dated 01.04.2022 issued under Section 3(1) of U.P. Control of Goondas Act, 1970 stands quashed. Liberty, however, stands reserved to the authorities concerned to proceed afresh, in accordance with law and in light of the observations made by this Court in the aforesaid judgments. Order Date :- 6.8.2022 Ashok Kr. Digitally signed by ASHOK KUMAR Date: 2022.08.06 16:11:07 IST Reason: Location: High Court of Judicature at Allahabad