Allahabad High Court
Rajendra Alias Rajendra Nishad vs State Of U.P. Thru. Prin. Secy. ... on 2 January, 2023
Bench: Devendra Kumar Upadhyaya, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 9
Case :- CRIMINAL MISC. WRIT PETITION No. - 9420 of 2022
Petitioner :- Rajendra Alias Rajendra Nishad
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Others
Counsel for Petitioner :- Ajey Singh
Counsel for Respondent :- G.A.
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Narendra Kumar Johari,J.
Heard learned counsel for the petitioner and learned Additional Government Advocate representing the State-respondents.
By instituting these proceedings under Article 226 of the Constitution of India, a challenge has been made to a Notice dated 28.10.2022, issued under Section 3(1) of U.P. Control of Goondas Act, 1970 whereby the petitioner has been required to furnish his explanation as to why he should not be externed.
Learned counsel for the petitioner impeaching the impugned Notice, dated 28.10.2022 has submitted that the notice has been issued only on the basis of one criminal case, namely, Case Crime No.196 of 2022, under Sections 323, 354-B, 506 I.P.C. and further that the age of the petitioner and his place of residence have wrongly been indicated in the notice. It has also been argued that for terming a person as Goonda as defined in Section 2(b) of 1970 Act, the authority concerned has to have some material to show that such a person is habitual of committing crime punishable under various provisions as per Section 2(b)(i) of the Act, but only on the basis of one case satisfaction arrived at by the District Magistrate while issuing notice that the petitioner is habitual of committing crime and as such he is Goonda, is not correct. Submission, thus, is that there is no material on the basis of which such an opinion could be formed by the District Magistrate.
Relying upon a judgment of Hon'ble Supreme Court in the case of Vijay Narain Singh vs. State of Bihar and others, (1984) 3 SCC 14 which has been relied upon by a Division Bench of this Court in the latest judgment, dated 14.11.2022, passed in Criminal Misc. Writ Petition No. 10241 of 2019, Kailash Jaiswal Vs. State of U.P., it has been argued by the learned counsel for the petitioner that it is essential to refer to at least two incidents of commission of crime for invoking the provision of Section 2(b)(i) of the Act. His submission, thus, is that accordingly on the basis of just one criminal case the provision of U.P. Control of Goondas Act, 1970 could not have been invoked against the petitioner.
On the other hand, opposing the writ petition, it has been argued by the learned Additional Government Advocate that Section 2(b)(iv) of the Act also states that in case a person is generally reputed to be a person, who is desperate and dangerous to the community, can also be described as Gonda and accordingly the provision of said enactment can be invoked.
Having regard to the respective submissions made by the learned counsel representing the parties, we are of the opinion that making statement in the show cause notice, under Section 3(1) of the U.P. Control of Goondas Act, 1970 vaguely and without any material does not fulfill the requirement of invoking the provisions of U.P.Controal of Goondas Act, 1970.
In view of the aforesaid, we dispose of this writ petition with the following directions :
(1) The District Magistrate within 10 days shall supply to the petitioner the entire material on the basis of which the Notice under Section 3(1) of the U.P. Control of Goonda Act, 1970, dated 28.10.2022 has been issued.
(2) On receipt of the material and documents, as observed above, the petitioner shall submit his reply. It will be open to him to take all the pleas which may be available to him under law including the pleas based on the judgment, dated 14.11.2022, rendered by this Court in Criminal Misc. Writ Petition No. 10241 of 2019, Kailash Jaiswal Vs. State of U.P. and also based on any other judgments of this Court or Hon'ble Supreme Court. The petitioner shall submit his reply within two weeks from the date the material and documents as directed above, are provided to him by the District Magistrate or his office.
(3) Once the petitioner submits his reply under this order, the District Magistrate shall consider the same and pass appropriate orders thereon by addressing all the issues including the issues which may be raised by the petitioner on the basis of judgments of this Court or Hon'ble Supreme Court.
(4) The decision by the District Magistrate shall be taken within a period of four weeks from the date the petitioner submits his reply.
Order Date :- 2.1.2023
Sanjay
