Deepu Khatik @ Deepu Khatik vs State Of Up And 2 Others
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Allahabad High Court

Deepu Khatik @ Deepu Khatik vs State Of Up And 2 Others on 3 May, 2024

Author: Renu Agarwal

Bench: Renu Agarwal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:79737
 
Court No. - 83
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6725 of 2024
 

 
Petitioner :- Deepu Khatik @ Deepu Khatik
 
Respondent :- State Of Up And 2 Others
 
Counsel for Petitioner :- Jitendra Kumar Yadav
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Renu Agarwal,J.
 

1. Supplementary affidavit filed today is taken on record.

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

3. This petition has been filed on behalf of the petitioner with following relevant prayer:-

"i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 21.02.2024 passed by Additional District Magistrate, (Finance and Revenue), Jalaun in Case No. 90 of 2023 (State Vs. Deepu Khatik) and others, and order dated 02.04.2024 passed by Commissioner Jhansi Mandal Jhansi in appeal No. 280 of 2024 (Deepu Khatik Vs. State of U.P) (Annexure No. 1 and 1A to this writ petition.)"

4. The submission of the petitioner that the certain persons of his village are on inimical terms with the petitioner's family and on their instigation the petitioner has been implicated in case crime no. 111 of 2017 under sections 147, 148, 149, 323, 504, 506, 427 IPC, case crime no145 of 2017 under sections 147, 148, 149, 387, 452, 323, 325, 504, 506 IPC, case crime no. 207 of 2017 under sections 147, 148, 149, 323, 504, 506 IPC, NCR No. 72 of 2018 under Section 323/ 504 IPC and NCR No. 92 of 2018 and beat information No. 24 dated 23.09.2020. He submitted his reply against the notice. However in an arbitrary manner, without recording the satisfaction, as is required under section 6 of the Act of 1970, he has been externed by an order of the Additional District Magistrate (Finance and Revenue), Jalaun dated 21.02.2024. He preferred an appeal. The appeal has been dismissed without considering the facts and circumstances of the matter and without considering the fact that he is not a goonda. Argument is that Case Crime No. 111 of 2017 arise out of family disputed over division of ancestral property, and Case Crime Nos. 145 of 2017, 207 of 2017 were lodged as counter blast, NCR No. 72 of 2018 was withdrawn therefore he cannot be classified as goonda. Further there was no tangible material to show that his movements or acts have been calculated to cause alarm or harm to any person or property. The appellate court ignored the fact that the allegation against him are false and that from no angle, he can be branded as a habitual offender. His activities were such that the action against him under section 3 of the Act of 1970 ought to have been taken. It is also submitted that notice was served on 22.09.2020 and the order of externment was passed on 21.02.2024 after a gap of more than three years.

5. The notice mentions that his activities are calculated to cause alarm, danger or harm to person or property and further that the witnesses are not willing to come forward to give evidence against him and that he is a dangerous and desperate criminal.

6. The Apex Court in Vijay Narain Singh versus State of Bihar and others, (1984) 3 SCC 14 observed that it is essential to refer to at least two incidents of commission of crime for applicability of Clause (i) of section 2(b) of the 1970 Act.

7. A Division Bench of this Court in Suresh Tewari Vs. State of U.P. and others (Misc. Bench No. 12459 of 2018 decided on 23.5.2018), after considering the Apex Court judgement in Vijay Narain Singh Vs. State of Bihar, 1984 (3) SCC 14 and Full Bench judgement of this Court in Bhim Sain Tyagi Tyagi Vs. State of U.P. 1999 (39) ACC 321, while considering the issue relating to slapping of the penal provisions of the Act against an individual on the basis of a solitary case, has observed as follows:-

"The Hon'ble Apex Court in the case of Vijay Narain Singh versus State of Bihar and others (1984) 3 SCC 14 has been pleased to hold that it is essential to refer to at least two incidents of commission of crime for applicability of Clause (i) of section 2(b) of the Act. Since there is reference of one incident only in the notice, it falls short of the legal requirement as provided in Clause (i) of section 2(b) and in this way the notice being illegal could be challenged before this Court as laid down by the Full Bench of this Court in the case of Bhim Sain Tyagi v. State of U.P. And others 1999 (39) ACC 321. If there had been reference of two or more incidents in the impugned notice, then the minimum legal requirement of section, 2(b) Clause (i) would have been satisfied, and then in that case sufficiency of the material on merits could not be challenged before this Court, but before the authority concerned as laid down in the Division Bench ruling in the case of Jaindendra @ Chhotu Singh Versus State of U.P. (supra). But since the impugned notice in the present case is short of the legal requirement, it could be challenged in this Court. The observations in para 12 of the ruling in the case of Jaindendra (supra) which have been quoted above, also support this conclusion."

8. Learned counsel for the petitioner has also placed reliance upon the judgment of this Court in the case of Shankar Ji Shukla Vs. Ayukt, Upper Zila Mgistrate (Prashahaan) Criminal Misc. Writ Petition No. 4511 of 1998 decided on 6.2.2004 wherein it was held:

"The notice in the present case has been served upon the petitioner on 13.5.96 and the order has been passed on 30.4.98 after a gap of about two years. There is no explanation by the authorities for passing the order after two years of the service of notice on the petitioner.?

9. Though the notice mentions that he is a desperate and dangerous person and that his activities are calculated to cause alarm, danger and harm to person and property and that the witnesses are not willing to come forward, however not a single name or instance has been mentioned in the notice to intimate the noticee to enable him to give an effective explanation. No prudent person may be expected to give a proper reply to such a notice. It is full of rhetoric but lacks in substances. Unless there is some specifics, it cannot be expected from any person to give a proper and appropriate reply or explanation.

10. To further elaborate, I find it appropriate to refer to the judgment given by the Allahabad High Court in Pavan @ Pavan Singhal vs. State of U.P. and 2 Others; 2021:AHC:42767 has observed in para no. 31 as below:-

?31. The inevitable conclusion from the consistent position of the law regarding the requirements of a valid notice under Section 3(1) of the Act of 1970 is, thus, well settled, at least since Harsh Narain was decided and has not undergone any change. The law, as laid down in Ramji Pandey and otherwise consistent, is that in order to satisfy this statutory requirement about the notice carrying "general nature of material allegations" postulated under Section 3(1), there has to be some mention of what the person proposed to be proceeded with against has done, relevant to form an opinion under Clauses (a), (b) and (c) and sub-Section (1) of Section 3. It is also beyond doubt that post mention of the fact that the person put under notice has indulged in acts or done something which attracts Clauses (a), (b) and (c) of sub-Section (1) of Section 3, it is not sufficient compliance with the requirement of informing that person about the "general nature of material allegations" against him, that a list of case crimes or the first information reports registered against him be mentioned. No doubt, particulars of the allegations are not required to be detailed in a notice under Section 3(1) of the Act of 1970, such as the date, time and place of a specific act, as in the case of a charge, but some substance of it must be mentioned. If a person is sought to be proceeded with against on ground that he is a goonda under Clause (a) of Section 3(1), the general nature of material allegations may, for instance, indicate the number of acts that he has habitually committed, abetted or attempted, that constitute commission, attempt or abetment of an offence punishable under Section 153-B of the Penal Code, over a specified period of time, in a particular locality or part of the town. The date, time and place of occurrence of each of those repeated acts, that constitute the habitual commission of that offence, may not be mentioned in the fashion of a charge; but it would be no compliance with the quintessence of Section 3(1) of the Act of 1970, if a list of the case crimes alone were to be indicated in the notice as the raison de etre for the invocation of Clauses (a), (b) and (c) of sub-Section (1) of Section 3. The notice would be vitiated. For the further removal of any doubt, that the District Magistrates may harbour, this Court is minded to say that a notice under Section 3(1) of the Act must say something about the act, which the person put under notice has done, rather than listing the cases registered against him. If the mandated course is followed, the notice would certainly be valid.?

The Court was at that time dealing with a case where the notice simply listed the FIRs registered against him and did not say anything in addition.

11. In my opinion, the notice issued in this case just replicates a language as mentioned in section 3 of the Act of 1970 but fails to give minimum details so as to enable the noticee to give a proper reply. In my opinion the legislature while enacting this provision, used the words ?general nature of the material allegations? which necessarily meant that adequate details should have been disclosed, rather than reproducing the language of section 3 of the Act of 1970. In my opinion, not only the notice is bad in law but the impugned orders have been passed ignoring the settled principles of law by adopting the same tactics. The impugned orders are full of rhetoric and less in substance, hence are not sustainable in law.

12. On the basis of above discussion, I am of the view that the petition deserves to be allowed and is allowed. The impugned orders dated 21.02.2024 passed by Additional District Magistrate(Finance and Revenue) Jalaun and the order dated 02.04.2024 passed by Commissioner Jhansi Mandal Jhansi are hereby set aside.

(Renu Agarwal,J.)

Order Date :- 3.5.2024

Nadeem