Kareem vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 2 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR 
 
Court No. - 6
 

 
Case :- MISC. BENCH No. - 24256 of 2020
 

 
Petitioner :- Kareem
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. & Others
 
Counsel for Petitioner :- Anurag Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Rajan Roy,J.

Hon'ble Mrs. Saroj Yadav,J.

Heard Sri Anurag Singh, learned counsel for petitioner and Shri S.P. Singh, learned A.G.A.

This writ petition has been filed under Article 226 of the Constitution of India seeking a writ in the nature of certiorari quashing a notice dated 18.03.2020 issued by the District Magistrate, Sitapur under Section 3(1) of the U.P. Control of Goondas Act, 1970. He has also sought a writ of mandamus directing the opposite party no. 3 and 4 not to harass the petitioner in pursuance to the aforesaid notice, which is impugned herein.

The contention of learned counsel for petitioner Sri Anurag Singh is that the notice has been issued on the basis of a single criminal case, whereas, Section 2(b)(i) defines 'Goonda' to mean a person who either by himself or as member or leader of a gang, habitually commits or attempts to commit, or abates the commission of an offence punishable under Section 153 or 153-B or Section 294 of the Indian Penal Code or Chapter XV, or Chapter XVI, or Chapter XXII of the said code. The lodging of a single criminal case against the petitioner does not make him, a person, who habitually commits any aforesaid offence. In this regard he relies upon a judgment of this Court dated 23.05.2018 rendered in Writ Petition No. 12459 (M/B) of 2018; Suresh Tewari Vs. State of U.P. and Ors. He also relies upon an interim order passed by this Court on 22.09.2020 in Writ Petition No. 14688 (M/B) of 2020 wherein this Court interfered at the interim stage on the ground that a single criminal case would not make the person a Goonda under Section 2(b)(i) as it would not be proof of the fact that he is habitual of committing an offence referred in the said provision. It is also the contention of learned counsel for petitioner that in the single F.I.R. lodged against the petitioner there were five accused but only the petitioner and one other person, namely, Sahabuddin have been proceeded under the Goondas Act. He informed that petition of Sri Sahabuddin is pending, but, there is no interim protection therein.

We have perused the judgment dated 23.05.2018 as also the interim order dated 22.09.2020. We have also perused the record and we find that petition is directed against a notice under Section 3(1) of the U.P. Control of Goondas Act, 1970. Section 3(1) of the said Act pertains to Externment, etc. of Goondas. It requires the District Magistrate, on the satisfaction of the eventualities mentioned in Clause (a), (b) and (c) of Sub-section 1 of Section 3, to inform the person concerned by notice in writing of the general nature of the material allegation against him in respect of Clause (a), (b) and (c) and give him reasonable opportunity of tendering an explanation regarding them.

Sub-section 2 of Section 3 goes on to state the rights of the person, against whom an order under the said section is proposed to be passed, to consult and be defended by a counsel and also to have a reasonable opportunity of examining himself or 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. Thereafter, the District Magistrate, on being satisfied that the conditions specified in Clause (a), (b) and (c) of Sub-section 1 exists, may by order in writing take the actions contemplated in Clause (a) and (b) of Section 3(3) of the Act, 1970 for externment etc.

Now, in the present case as of now no order has been passed under Section 3 of the Act, 1970. All that has been by the District Magistrate is to issue a notice to petitioner under Section 3(1). In response to which, the petitioner shall have the rights as mentioned in the said sub-section as also sub-section 2 and only after such opportunity the final order, if at all, would be passed under Sub-section 3 of Section 3 of the Act, 1970.

Now, coming to the definition of 'Goonda' the Court finds that Goonda means a person who is covered by (i) of Section 2(b) or Clause (ii) or Clause (iii) or Clause (iv) or Clause (v) of the said Section. All the clauses are disjunctive as is evident from the use of the word 'or'.

Clause (iv) of Section 2(b) makes it very clear that a person can be categorized as Goonda if he is generally reputed to be a person who is desperate and dangerous to the community. This provision has not been considered in Suresh Tiwari' case (supra), though, Section 2(b) has been quoted in the said judgment. As regards the decision in Imran alias Abdul Qudus Khan the said case also considers meaning of the words 'habitual criminal' and does not delve upon other clauses of Section 2(b). The decision of the Supreme Court rendered in the case of Vijay Narain Singh Vs. State of Bihar and Ors. reported in (1984) 3 SCC 14 as referred in the judgement in Suresh Tiwari's case (supra) deals with Section 2(b) of Bihar Control of Crimes Act, 1981 and it was not a case of challenge to a notice.

Be that as it may, the specific issue as to maintainability of writ petition under Article 226 of the Constitution of India against a notice issued under Section 3(1) of U.P. Control of Goondas Act, 1970 came up for consideration before a Division Bench of this Court in case of Ballabh Chaubey Vs. Additional District Magistrate (Finance), Mathura and Anr; Criminal Misc. Writ Petition No. 2954 of 1996 decided on 22.01.1997 reported in 1997 A. Cr. R. 387 (1997 ALJ 1630). A Division of this Court specifically considered this issue and after referring to various decisions of this Court and that of the Hon'ble Supreme Court opined not to entertain the writ petition at the stage of notice and gave cogent and detailed reasons in support of its conclusion. Relevant extract of the said decision is quoted hereinbelow:-

"8. The detention laws like National Security Act, or Conservation of Foreign Exchange and Prevention of Smuggling Activities Act make serious in-road in the liberty of a person. Under these laws a person is detained without any prior notice and that too on the subjective satisfaction of the detaining authority which satisfaction cannot be challenged on merits. The person detained gets only a right to make representation against his detention but that too after he has been detained and he has been deprived of his liberty. The decision of the representation naturally takes time. The principle that the machinery provided by the Act should not be permitted to be by-passed by taking recourse to proceedings under Article 226 of the Constitution prior to execution of the detention order was reiterated even in such cases. In Additional Secretary to Government of India v. Smt. Alka Subhash Gadia, JT 1991 (1) SC 549, the submission on behalf of the detaining authority is noticed in para 25 of the Report which is as under :

"It was contended by Sri Sibbal, learned Additional Solicitor General, on behalf of the appellants that since the detention law is constitutionally valid, the order passed under it can be challenged only in accordance with the provisions of, and the procedure laid down, by it. In this respect there is no distinction between the orders passed under the detention laws and those passed under other laws. Hence, the High Court under Article 226 of this Court under Article 32 of the Constitution should not exercise its extraordinary jurisdiction in a manner which will enable a party to by-pass the machinery provided by the law."

The Court after considering the submissions of the parties held as follows in para 30 :

"................... The power under Article 226 and 32 are wide, and are untrammelled by any external restrictions and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self-restraint for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to evoke their discretionary extraordinary and equitable jurisdiction under Articles 226 said 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available ..............."

This decision has been subsequently followed in N. K. Bapna v. Union of India, JT 1992 (4) 49; State of Tamil Nadu v. P. K. Shamsuddin, JT 1992 (4) 179 and Subhash Mujimal Gandhi v. L. Miningliana, 1994 (6) SCC 14. The provisions of detention laws are far more stringent than the Control of Goondas Act as here order is passed after notice and trial and the person against whom order is passed does not lose his liberty. He is merely deprived of his right to live in a particular area from where he is externed but is free to reside any where else in the country. There is no reason why the same principle should not apply in the present case as well. The law being well-settled that where a Statute provides a machinery of its own, the aggrieved person should first exhaust the remedies provided under the Statutes before approaching the High Court under Article 226 of the Constitution and the High Court would not normally entertain a petition straightway, the present petition challenging the notice is liable to be rejected on the ground of alternative remedy.

9. In Raja Sukhnandan v. State, AIR 1972 All 498, the writ petition was filed at the stage of notice. The Division Bench examined the contention based upon the constitutional validity of U. P. Control of Goondas Act but refused to consider the submission regarding illegality of the notice on the ground that the same could be agitated before the District Magistrate and if the decision went against the petitioner, in appeal before the Commissioner. In Kabir Chawla v. State of U.P., 1994 SCC (Cri) 577, the validity of the notice under Section 3 of the Act was assailed but the Supreme Court declined to go into this question on the ground that the petitioner could satisfy the District Magistrate who was seized of the matter. It may be mentioned here that in all the cases where validity of notice issued under similar Statute relating to externment of Goondas was assailed before the Supreme Court, the matter had been taken in appeal against final orders of externment see Gurucharan Singh v. State of Bombay, AIR 1952 SC 221; Hari Khemu Gawli v. Dy. Commissioner of Police, AIR 1956 SC 559; Bhagubhaj v. District Magistrate, AIR 1956 SC 585 and State of Gujarat v. Mehboob Khan, AIR 1968 SC 1468.

10. There is another reason for not entertaining the writ petition at the stage of notice. As the preamble of the Act shows, it has been enacted to make special provisions for the Control and Suppression of Goondas with a view to the maintenance of Public Order. The provisions of the Act are intended to prevent further mischief by a Goonda and not to secure his conviction in a pending case. If a person is permitted to challenge the notice at the initial stage and seek stay of the proceedings, the very purpose for which notice is issued and the law under which it is issued will be frustrated as the externment order remains in operation only for a limited period.

11. Learned counsel has next submitted that in Ramji Pandey v. State of U. P., 1981 Cri LJ 1083, writ petition had been filed challenging the notice under Section 3 of the Act and the writ petition was allowed by a Full Bench of this Court and, therefore, the present petition also deserves to be entertained. The judgment of the Full Bench shows that the question whether a writ petition should be entertained against a notice was not at all considered. The only question which was canvassed and was considered by the Bench was whether the notice was in accordance with the requirement of Section 3 of the Act. No such argument that a writ petition under Article 226 of the Constitution should not be entertained at the stage of notice seems to have been canvassed and therefore no decision has been given on this point. It is well-settled that a decision is an authority for when it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in it. See M/s. Orient Paper and Industries Ltd. v. State of Orissa, AIR 1991 SC 672 para 19. Doctrine of precedent is limited to the decision itself and as to what is necessarily involved in it. Judicial authority belongs not to the exact words used in this or that judgment, nor even to all reasons given, but only to the principle accepted and applied as necessary grounds of decision see Krishna Kumar v. Union of India, AIR 1990 SC 1782 pages 18 and 19. The Full Bench having not considered the question of maintainability of the writ petition at the stage of notice, the decision rendered by it cannot be held to be an authority or binding precedent for holding the writ petition to be maintainable.

12. In view of the reasons discussed above the writ petitions are dismissed on the ground of alternative remedy."

The writ petitions were dismissed on the ground of availability of efficacious alternative remedy. As would be evident from a reading of the judgment, the Division Bench relied upon the decision of the Supreme Court reported in JT 1991 (1) SC 549; Additional Secretary to Government of India Vs. Smt. Alka Subhash Gadia. It also relied upon AIR 1972 All 498; Raja Sukhnandan Vs. State which is a judgment of this very Court. It also relied upon a judgment reported in 1994 SCC (Cri.) 577; Kabir Chawla Vs. State of U.P., wherein the validity of notice under Section (3) of the Goondas Act, 1970 was assailed but the Supreme Court declined to go into this question on the ground that the petitioner could satisfy the District Magistrate who was ceased of the matter. The Division Bench also noticed that all those cases which were cited before it in support of petitioner's contention, were those where the validity of notice had been seen by the Courts in Appeal against final order of externment. The relevant extract of the judgment in the case of Kabir Chawla (supra) is quoted hereinbelow:-

"The petitioner has made a grievance in relation to the proceedings that have been initiated against him by the District Magistrate, Nainital, by the show-cause notice dated March 10, 1993 under Section 3(1) of the U.P. Control of Goondas Act, 1970. The petitioner states that he has submitted his reply to the show-cause notice but no final order has been made so far and that he has to appear before the District Magistrate. The petitioner, however, prays that the said proceedings may be quashed. We do not find any ground for quashing the said proceedings at this stage. The matter is under consideration before the District Magistrate. It is open to the petitioner to satisfy the District Magistrate that no ground has been made out for passing the order against him. In the writ petition the petitioner has not made out a case that in issuing the show- cause notice the District Magistrate was actuated by mala fides. There is, therefore, no reason to assume that the District Magistrate would not give a fair consideration to the matter. We are, therefore, unable to accept the submissions of the petitioner in this regard."

Thereafter Hon'ble the Supreme Court proceeded to consider the other grievance of the petitioner before it regarding preventive detention on the basis of an order passed by this District Magistrate which was a different issue.

In view of the above, considering the fact that the petition is directed against a notice and the petitioner will have reasonable opportunity to defend himself in terms of Section 3(1) and Sub-section 2 thereof, there is no reason for this Court to interfere in the matter at this stage. The only reason we are not delving at length on the object of the Act, 1970 the scheme of the purpose sought to be achieved by it is that it might prejudice the petitioner in his defence before the District Magistrate, therefore, leaving it open for the petitioner to respond to the notice before the District Magistrate and to avail all the rights under Sub-section 1 and 2 of Section 3 before the District Magistrate., we are not inclined to interfere with the impugned notice.

We however make it clear that the District Magistrate while considering the response and granting reasonable opportunity to the petitioner shall not pay lip service to the provisions of the Act, 1970, so far as they grant right to the petitioner to defend his case and shall not act with a predetermined and mechanical mind but shall apply his mind duly, properly, objectively and effectively to the facts of the case and the material available before him before deciding as to whether any of the actions as contemplated under Sub-section 3 of Section 3 of the Act, 1970 are required to be taken or not.

Subject to aforesaid observations, the writ petition is disposed of without prejudice to the rights of the petitioner as aforesaid, without interfering with the impugned notice.

(Mrs. Saroj Yadav,J.)     (Rajan Roy,J.)
 
Order Date :- 4.1.2021
 
R.K.P.