Allahabad High Court
Afsar vs State Of U.P. And 3 Others on 31 October, 2023
Bench: Rahul Chaturvedi, Mohd. Azhar Idrisi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:208474-DB
Court No. - 67
Case :- CRIMINAL MISC. WRIT PETITION No. - 17030 of 2023
Petitioner :- Afsar
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Sunil Kumar Dubey
Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
Heard Ms. Shruti Malviya, learned counsel for the petitioner, learned A.G.A. for the State and perused the record.
By means of the present writ petition under Article 226 of the Constitution of India, the petitioner is assailing the legality and validity of the impugned order dated 06.09.2023 passed by respondent no. 2-Additional Police Commissioner Commissionerate, Ghaziabad in Case No. 505 of 2023 (State Vs. Afsar), under Section 2/3 U.P. Control of Goondas Act, 1970, Police Station Bhojpur, District Ghaziabad.
Learned counsel for the petitioner submitted that a show cause notice dated 06.09.2023 was issued to the petitioner showing one case Crime No. 175 of 2022 (wrongly mentioned as 175 of 2019), under Sections 3/5/8 Cow Slaughter Act, Police Station Bhojpur, District Ghaziabad and one beet report. Learned counsel for the petitioner has relied upon a judgment of this Court in the case of Govardhan Vs. State of U.P. and others passed in Criminal Misc. Writ Petition No. 12619 of 2023 decided on 10.08.2023 wherein the Court has expressed anguish and displeasure and proceedings of Uttar Pradesh Control of Goondas Act, 1970 was quashed. Paragraphs 10, 13, 15 and 17 of the said judgment are quoted below:-
"10. The public perception regarding the individuals' image carries weight. If the individual is enjoying a bad reputation and name in the area and coupled with the fact that he has got a chequered past then executive authorities are well within their right to issue notice to that individual or to pass an externment order for that individual. Trivial and insignificant offences having one or two in number would not make the person branded as a "Goonda". This adjective "Goonda" itself carries.
13. In the impugned notice, there is a description of only one criminal case and one beat report against the petitioner while as per the definition and law settled by the Hon'ble Apex Court as well a by this Court "one" cannot be treated to be a 'habitual offender' unless and until there is a tendency of recurrence of the offence. In the instant case there is a solitary case to the credit of the petitioner, in which he has been granted anticipatory bail till the conclusion of trial, we find that this notice is nothing, but a sheer abuse of power vested in the executive authorities of the district.
15. But in the instant case, in the notice under challenge spells out the cases required against the petitioner which is allegedly issued on a "prescribed printed proforma" without application of mind by the executive authorities. Not only this, except enumeration of pending solitary case and a beat report, there is total lack of any judicial mind spelling out the general nature of material allegations against the petitioner, making entire impugned notice per se defective and cannot be acted upon any further.
17. At this juncture, learned A.G.A. stood up and informed the Court that in addition to the cases mentioned in the show cause notice, the petitioner is also involved in two-three more cases which do not find place in the show cause notice. This submissions advanced by the learned A.G.A. itself is amusing. This clearly indicates that one hand does not know what another hand is doing. All of a sudden learned A.G.A. woke up and revealed that in addition to two cases mentioned in impugned notices, the petitioner has got two more cases. The Court cannot take the judicial notice of those additional cases; we cannot permit this hide and seek practice with the proposed "Goonda" i.e. the petitioner."
Under these circumstances, relying upon the aforesaid judgment, impugned order dated 06.09.2023 passed by respondent no. 2-Additional Police Commissioner Commissionerate, Ghaziabad in Case No. 505 of 2023 (State Vs. Afsar), under Section 2/3 U.P. Control of Goondas Act, 1970, Police Station Bhojpur, District Ghaziabad (Annexure-1) is hereby quashed.
The writ petition is allowed.
Order Date :- 31.10.2023
Rmk.
