Rajesh Awasthi vs State Of U.P. 2 Ors.
2014 Latest Caselaw 7957 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Crl. Misc. Writ Petition No. 18550 of 2014
 
Rajesh Awasthi Vs. State of U.P. and Ors.
 

 
Hon. Ravindra Singh, J.

Hon. Mohd. Tahir, J.

Heard Sri Sushil Shukla and Sri Shikher Awasthi, learned counsel for the petitioner and Sri Neeraj Kant Verma, learned Addl. Government Advocate for the State of U.P.

The petitioner Rajesh Awasthi has preferred the present writ petition with the following prayer:

1.To, issue a writ, order or direction in the nature of certiorari quashing the impugned notice dated 24.09.2014 issued by the respondent No. 2 under section 3 of the U.P. Control of Goondas Act, 1970 as against the petitioner and consequent proceedings initiated thereof, And

2.To pass any other writ or order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

3.To award the cost of the petition in favour of the petitioner.

The facts in brief of this case are that Addl. District Magistrate (City), Kanpur Nagar has issued a notice to the petitioner under section 3 of U.P. Control of Goondas Act in case No. 262 of 2013 on 24.09.2014 mentioning therein that the petitioner shall appear before his court on 4.10.2014 at 11.00 A.M. to explain in writing as to why the order under section 3(3) of the U.P. Control of Goondas Act may not passed against him. In the impugned notice it has been mentioned that on the basis of the report dated 29.7.2014 submitted by S.S.P. Kanpur Nagar it appears:

A. that the petitioner is goonda, either he commits or attempts or abets commission of an offence punishable under chapter XVI, XVII or section 22 of the I.P.C. and he generally reputed to be a person who is desperate and dangerous to the community and that

B. his movements or acts in Kanpur Nagar region are causing or are calculating 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 the any offence punishable under chapter XVI, XVII or section 22 of the I.P.C or Arms Act or under the U.P. Excise Act 1910 or into abetment of any such offence and that

C. Witnesses are not willing to come forward to give evidence against him by writing, apprehension with regard to safety of their persons and of their property

D. and whereas the material allegation against him in support of the aforesaid clause are of the following general nature;

(i) he along with his associates fired upon Sri Naveen Mishra, Pariyojna Nideshak, Bhartiya Rastriya Rajmarg, Kanpur Nagar, R/o 128/681, Kidwai Nagar, Kanpur and to create obstruction on national highway appellate, consequently the member of the staff became injured and the JCB was also damaged, consequently case crime No. 476 of 2012 under sections 147, 148, 149, 307 IPC, P.S. Chakeri, District Kanpur Nagar was registered.

Against the impugned notice dated 24.09.2014 the petitioner preferred the writ petition on the following grounds:

1.The petitioner could not be said to answer the description of a "Goonda" as defined u/s 2(b) (i) of the Act inasmuch he is not alleged to have repeated commission of any of offences as defined under either of Chapter 16,17 or 22 of the I.P.C. and therefore, was not habitually including in crimes. Thus, on the basis of sole criminal case enlisted against the petitioner, the respondent No. 2 ought not to have assumed the jurisdiction of issuing impugned show cause notice under the Act against the petitioner, which is without jurisdiction and is bereft of propriety. (as held by this Hon'ble Court in Imran @ Abdul Quddus Khan Vs. State of U.P. - 2000 CrlJ 1328 and Baldeo Singh Vs. State of U.P. - (1978) 15 ACC 345).

2.The complicity of a person in an isolated offence is not a material of any help to conclude that a particular person like petitioner is a "Goonda" or bears a reputation of being desperate and dangerous to the community unless there is a material suggesting his complicity in number of cases, which lead to a reasonable conclusion that the person is a habitually criminal. Habit implies frequent & usual practice and habitually to mean repeatedly or persistently implying a thread of continuity stringing together similar repetitive acts but not isolated, individual or dissimilar acts. As no material was laid before the respondent No. 2 for him to infer that the petitioner was habitually indulging in criminal activity, he ought not to have recorded prima facie satisfaction against the petitioner branding him to be 'Goonda' (See: Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner of Police & others - (1995) 3 SCC 237).

3.Even otherwise, the impugned notice is bad in law inasmuch as it fails to indicate the general nature of material allegations in respect of the clause (a), (b) & (c) of S. 3(1) of the Act and therefore renders the petitioner in capable of tendering his explanation to the impugned notice in its given form. In absence thereof, the impugned notice be comes liable to be quashed by this Hon'ble Court in exercise of its extra ordinary jurisdiction so as to prevent violation of fundamental right of liberty of the petitioner. ( See: Full Bench Decisions of this Hon'ble Court in Ramji Pandey Vs. State of U.P. - 1981 CrLJ 1983 and Bhim Sain Tyagi Vs. State of U.P. - 1999 (39) ACC 321)

4.Apart from all, the sponsoring authority i.e. the police failed to provide any plausible explanation as to why the proceedings under the Act were sought to be initiated against the petitioner after a gap of nearly 2 years from the time when the FIR of enlisted case was registered against him. The impugned notice since is based on stale incident therefore becomes invalid inasmuch for enforcing preventive law such as the Act, there must not be long gap of time between the complained act of a person and invocation of preventive order against him. The nexus between the activity and the preventive action must continue. As the sponsoring authority has proposed action against the petitioner after a long gap of unreasonable time of nearly two years, the issuance of impugned notice is seriously impaired in law ( See: Ramnarain Singh Vs. State of Bihar - (1972) 2 SCC 532).

In reply of the above contention, it is submitted by Sri Neeraj Kant Verma, learned Addl. Advocate General for the State of U.P. that in the present case only notice has been given to the petitioner to appear before the Addl. District Magistrate (City), Kanpur Nagar to tender an explanation in writing regarding said material allegation therein as to why the order under section 3(3) of under section 3(3) of the U.P. Control of Goondas Act 1970 may not be made against him also intimating whether he desires to examine himself or any other witness in support of his explanation. It has also been informed that if he fails to appear as aforesaid or if no explanation or intimation is received within the time specified it will be presumed that he is not desire to tender any explanation/ examine any witness with regard to the said allegation and the said authority may proceed to pass the proposed order. Here in the present case no final order has been passed. The petitioner is under obligation to appear before the authority concerned and may tender his explanation in writing regarding the said material allegation. The statement made by learned counsel for the petitioner that one case has been shown in the impugned notice, therefore, he may not said to be habitual of committing the offence mentioned therein, is having no substance for issuing the notice. The term Goonda has been explained under section 2(b) of the U.P. Control of Goondas Act 1970 in which for declaring a person to be Goonda seven conditions have been given. If any of the condition is applicable upon a person, he may be said to be Goonda. Here in the present case only the allegation is not with regard to the involvement of the petitioner in a criminal case, but other allegation have also been made which comes under the purview of definition of Goonda. In such circumstances, the impugned notice may not be quashed and the present petition may be dismissed.

Considering the impugned notice, submission made by counsel for the petitioner and following cases cited by the petitioner:

1.2000 CrLJ 1928 Imran @ Abdul Quddus khan Vs. State of U.P. & others (Allahabad High Court).

2.(1995) 3 SCC 237 Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner of Police & others.

3.(1978) 15 ACC 345 BaldeoSingh Vs. State of U.P. (Allahabad High Court).

4.(2011) 72 ACC 183 Lalani [email protected] Vijay Shanker Pandey Vs. State of U.P. and others (Allahabad High Court).

5.1972 All L J 726 Harsh Narain @ Harshu Vs. District magistrate, Allahabad & another (Allahabad High Court).

6.(2005) 52 ACC 638 Shankar Ji Shukla Vs. Ayukt, Allahabad Mandal, Allahabad & others (Allahabad High Court).

7.2013 (80) ACC 309 Azad Singh VS. State of U.P. & others (Allahabad High Court, Lucknow Bench).

8.1981 Cr.LJ 1083 Ramji Pandey Vs. State of U.P. @ others (Full Bench, Allahabad High Court), and

9.1999 (39) ACC 321 Bhim Said Tyagi Vs. State of U.P. & Others (Full bench, Allahabad High Court) and written submission made by learned A.G.A. in which the cases cited as;

A. Nar Singh Vs. Addl. District Magistrate 1979 Crl.L.J 1426.

B. Shiv Pratap Singhs. District Magistrate 2000 (1) AWC 139.

C. Faiyaz Ahmad Vs. State of U.P. and others, 1994 (31) ACC 387.

D. Vijay Singh Vs. State of U.P. and others

E. Kabir Chawla Vs. State of U.P. and others 1994 SCC (Crl.) 577).

F. State of U.P. VS. Chandra Shekhar Shukla (2000) 9 SCC 392

G. Jainendra @ ChhotuSingh 2007 (57) ACC 791

It reveals that in the present case the impugned notice dated 24.9.2014 under section 3 of U.P. Control of Goondas Act, 1970 has been issued to the petitioner by Addl. District Magistrate (City), Kanpur Nagar in which the allegation have been made and the reply has been sought from the petitioner for appearing before the Addl. District Magistrate, (City), Kanpur Nagar. The allegations against the petitioner have been cited in clause A, B and C in the impugned notice on the basis of report dated 29.07.2014 submitted by S.S.P., Kanpur Nagar. With regard to clause No. 1 the reference of case crime No. 476 of 2012 under sections 147, 148, 149, 307 IPC, P.S. Chakeri, District Kanpur Nagar has also been mentioned in which the general nature of material allegation has also been mentioned. The counsel for the petitioner has given the emphasis in a submission that only one criminal case has been shown against the petitioner in the impugned notice. On the basis of only one case shown against the petitioner he may not be said to be a person habitually commits or attempts to commit or abates the commission of an offence punishable under chapter XVI, XVII or section 22 of the I.P.C. as defined under section 2(b)(i). But his submission is with regard to one condition he has not made any submission with regard to other condition on which basis a person said to be Goonda. In the impugned notice it has been clearly mentioned that the petitioner is generally reputed to be a person who is desperate and dangerous to the community. On the basis of this allegation the person may be said to be Goonda as defined under section 2(b) (iv). According to the definition, if any of the VII conditions as described in section 2(b) is applicable a person may be said to be Goonda. Here at this stage we are considering the contents of impugned notice. The truthfulness of the contents may not be ascertained at this stage by this court, it may be ascertained by the authority concerned who cited the reply in writing from the petitioner. The petitioner has right to tender the reply before the authority concerned, the same shall be considered by the authority concerned by passing the final order. There is no good ground to quash the impugned notice, therefore, the prayer for quashing the impugned notice dated 24.09.2014 passed by Addl. District Magistrate (City), Kanpur Nagar is refused.

However, considering the facts and circumstances of the case, it is directed that in case the petitioner is directed to furnish the bail bonds during pendency of the proceeding, on furnishing the bail bonds, if the bail bonds are sent for verification till then the petitioner shall be released on interim bail on the basis of his personal bonds furnished by him.

Accordingly this petition is disposed of.

Dt: 03.11.2014.

RPD/