Anil Kumar vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 26152 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:61725-DB
 
Court No. - 10
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 7291 of 2023
 

 
Petitioner :- Anil Kumar
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Govt. U.P. Lucknow And Others
 
Counsel for Petitioner :- Bhanu Dutt Dwivedi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Narendra Kumar Johari,J.

Heard learned counsel for the petitioner, learned A.G.A. for the State/respondents and perused the record.

Present writ petition has been filed by the petitioner with the following main prayers :-

"(i) issue a writ, order or direction in the nature of Certiorari thereby quashing the Impugned Notice dated 28.8.2023, issued by the Additional District Magistrate, Gonda in Case No.1489/2023 State Vs Anil Kumar, U/s 3 (1) of the Uttar Pradesh Control of Goondas Act, 1970, Police Station -Motiganj, District - Gonda in the interest of justice, as contained in Annexure No.1 to this Writ Petition.

(ii) a writ, order or direction in the nature of mandamus commanding Opposite Parties not to give effect to the Impugned Notice dated 28.8.2023 issued by the Opp. Party No.3, as contained in Annexure No.1 to this Writ Petition."

It has been submitted by learned counsel for the petitioner that from a perusal of the impugned notice issued under Section 3 (1) of the Uttar Pradesh Control of Goondas Act,1970, the petitioner has been asked to submit his reply to the said notice. It has been submitted that from a perusal of the said notice, it is evident that there is only one single criminal case registered against the petitioner in case crime No.0142/2022, under Sections 147, 148, 323, 504, 506, 332, 427, 386 I.P.C. and Section 7 Criminal Law Amendment Act. The other fact mentioned therein is beat information dated 27.05.2023.

Learned counsel for the petitioner has placed reliance upon a Division Bench judgment of this Court in Criminal Misc. Writ Petition No.12619 of 2023 (Govardhan Vs. State of U.P.) decided on 10th August, 2023. It has been submitted that the case of the petitioner is similar to the writ petition of Govardhan (supra). In that case also, there was one single criminal case registered and a beat information was mentioned in the show cause notice issued under Section 3 (1) of the U.P. Control of Goondas Act, 1970.

It has been submitted that only because of one criminal case it cannot be said that the petitioner is a habitual offender and his case does not fall under the definition of Goonda under Section 2 (b) of the U.P. Control of Goondas Act, 1970.

This Court having perused the judgment passed by the Division Bench is of the opinion that the petitioner has statutory remedy of giving reply to the District Magistrate, as it the show cause notice. It cannot be said to be completely without jurisdiction.

The Constitution Bench of the Hon'ble Supreme Court in the case of N.P. Ponnuswami Vs. Returning Officer, AIR 1952 SC 64, has categorically held that when rights and liabilities are created under a statute and statutory remedy is provided therein, the statutory remedy should first be availed of before invoking the extra ordinary jurisdiction of this Court.

This writ petition is disposed of with the direction to the petitioner to submit his reply to the show cause notice, if he has not done so already, within a week from today. If such reply is submitted within the time prescribed by us, it shall be considered by the District Magistrate concerned, if not passed already, within a period of six weeks thereafter.

Order Date :- 25.9.2023

ML/-