Allahabad High Court
Gulam Rasul vs State Of U.P. And Another on 1 October, 2020
Bench: Naheed Ara Moonis, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 47 Case :- CRIMINAL MISC. WRIT PETITION No. - 9977 of 2020 Petitioner :- Gulam Rasul Respondent :- State of U.P. and Another Counsel for Petitioner :- Jai Prakash Singh,Sanjay Kumar Pal Counsel for Respondent :- G.A. Hon'ble Naheed Ara Moonis,J.
Hon'ble Vivek Varma,J.
Heard learned counsel for the petitioner and learned Additional Government Advocate for the State.
By means of the present writ petition, the petitioner invokes extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging a show cause notice dated 04.06.2020 issued by the District Magistrate, Mau respondent no.2 in Case No. D-202015510000662 (State Vs. Gulam Rasul) under section 3 (1) of the U.P. Prevention of of Goonda's Act.
Learned counsel for the petitioner submitted that the respondent no. 2 District Magistrate, Mau issued a notice to the petitioner while exercising powers under section 3 (1) of the Act to appear and show cause as to why an order under section 3 of the Act be not passed against him. The case mentioned in the show cause notice will not be sufficient to delineate that the petitioner is audacious and dangerous to the society. There is nothing on record showing his habitual involvement in commission of serious offences in the eyes of law. The impugned notice does not contain the general nature of material allegations as required by section (1) (a) (b) (i) (ii) & (c) of the Act. The respondent no. 2 has not accorded his satisfaction that on the information received by him, he was satisfied that the petitioner was goonda. The impugned notice is defective and illegal hence the impugned show cause notice is liable to be brushed aside.
Per contra learned A.G.A. contended that the writ petition filed by the petitioner is not maintainable under Article 226 of the Constitution of India. The writ petition against the impugned show cause notice will be maintainable only when the authority issuing the notice has no power to issue the same or any other similar ground which makes the notice prima facie illegal. The District Magistrate is competent to issue the show cause notice. Ordinarily a writ petition would not lie against a show cause notice as the show cause notice does not give rise to any cause of action which affects the right of any party. After considering the reply to the show cause notice or after holding an enquiry, the authority concerned may drop the proceedings. A show cause notice does not infringe the right of any person. It is only the final order imposing some punishment will have adverse effect.
A perusal of the notice shows that it has described the petitioner as a Goonda who commits, or attempts to commit, or abets the commission of offences under chapters 16, 17 and 22 of the IPC, and his general reputation is that he is dangerous to the community, and that his activities have posed a threat to the life and property of the common people, who are afraid to lodge a report against the petitioner or to give evidence against him. Some cases have been cited to prop up the invocation of the provisions of the U.P. Control of Goondas Act against the petitioner.
In this connection reference may be made to two decisions of the Apex Court: (1) Kabir Chawla V. State of U.P. 1994 SCC (Crl) 577 and (2) State of U.P. v. Chandra Shekhar Shukla (2000) 9 SCC 392.
In Kabir Chawla Vs. State of U.P. (supra) the Apex Court has set aside the order of High Court quashing the notice at the initial stage by observing that the petitioner could show cause before the District Magistrate that no case was disclosed for passing the order against him, and there was no reason for pre-supposing that the D.M. would not give a fair hearing on the matter.
In the case of State of U.P. v. Chandra Shekhar Shukla (supra) the Apex Court criticized the High Court for mechanically staying proceedings consequent to a notice under section 3 of the U.P. Control of Goondas Act, 1970, by means of an interim order which disclosed non application of mind.
We, therefore, see no ground to interfere with the issuance of the notice by the District Magistrate, Mau. However, considering the facts and circumstances of this case in case the petitioner files his reply in pursuance of the impugned notice within three weeks from today, the same shall be taken as within time and final decision in the matter shall be taken by the respondent no. 2, as expeditiously as possible, preferably within a period of four weeks from the date of filing of a copy of this order along with the objection.
With the aforesaid direction, this writ petition is finally disposed.
Order Date :- 1.10.2020 Shahnawaz