Hon'ble Mrs. Saroj Yadav,J.
Heard Sri Dinesh Kumar, learned counsel for the petitioners, Sri S.P.Singh, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record.
This petition has been filed by the petitioners, Chhotu alias Shivendra Pratap, Pankaj Kumar, seeking a writ of certiorari to quash the notice dated 30.07.2021 issued by the respondent No.2-Additional District Magistrate (Judicial), Sitapur, under Section 3(1) of U.P. Control of Goondas Act, 1970 in Case No. D-20211064000, Police Station Mahmoodabad, District Sitapur, contained in Annexure No. 1 to the writ petition.
Learned counsel for petitioner submits that the impugned notice dated 30.07.2021 has been issued only on the basis of F.I.R. which was lodged against the petitioner bearing Case Crime No. 65 of 2018, under Sections 341, 324, 323, 308, 504 I.P.C., at Police Station Mahmoodabad, District Sitapur and beat report dated 24.03.2020, which is highly improbable and illegal. He further submits that Section 3(1) of U.P. Control of Goondas Act, 1970 shall be applicable only if there are reasonable grounds for believing that the accused is engaged or about to engage in commission of offence in the District or any part thereof. He further submits that Section 2(b)(i) clearly states that "Goonda" means a person who either by himself or as a member or leader of a gang, habitually commits or attempts to commit, or abets the commission of an offence punishable under Section 153 or Section 153-B or Section 294 of the Indian Penal Code or Chapter XV, or Chapter XVI, Chapter XVII or Chapter XXII of the said Code.
Learned Counsel for the petitioner has also submitted that no evidence is coming forth that the petitioner is running a gang and, therefore, impugned notice dated 30.07.2021 under Section 3(1) of U.P. Control of Goondas Act, 1970 is illegal and issued without application of mind.
Learned A.G.A., on the other hand, opposed the prayer for quashing of the impugned notice dated 30.07.2021 and submitted that it is always open for the petitioner to file reply to the show cause notice before competent authority. He further submits that petitioner is indulged in criminal activity and there is every possibility that he is running a gang and on account of his fear and terror, no one has come forward to give any complaint or evidence against him, therefore, the present petition is liable to be dismissed.
Having examined the submissions advanced by learned counsel for the parties, perusing the impugned notice dated 30.07.2021 and also considering the gravity of offence levelled against the petitioner, it transpires from the impugned show cause notice that before issuing show cause notice to the petitioner, the Additional District Magistrate, Sitapur has gone through the report of the Superintendent of Police, Sitapur, which shows that the movement of the petitioner and his acts are causing and are calculated to cause alarm, danger and harm to person or property in various police station of district Sitapur; his engage or likely to engage in the commission of offence punishable under Chapters XVI, XVII and XXII of the Indian Penal Code; and on account of fear and safety of life or property, no person has come forward to lodge F.I.R. against the petitioner nor anyone has gone to give evidence against him in the Court. The Additional District Magistrate, Sitapur after going through the aforesaid report of the Superintendent of Police, Sitapur has opined that though a solitary case has been registered against the petitioner but he is indulged in criminal activities since 2018 and continued and dangerous so as to render him being at large in Sitapur district or in any part thereof is hazardous to the community and further the witnesses are not willing to come forward to give evidence in public against him by reasons of apprehension on their part as regards the safety of their person or property. Therefore, the Additional District Magistrate, Sitapur has reasoned to believe that the petitioner is likely to engage himself in such commission of offences. In these backgrounds, the Additional District Magistrate, Sitapur has issued the impugned show cause notice.
From the aforesaid, it is crystal clear that the Additional District Magistrate, Sitapur, after having sufficient reasons to believe that the act and the movement of the petitioner is hazardeous to the public at large in Sitapur district, has issued the impugned show cause notice, requiring the petitioner to show cause as to why order under Section 3 (3) of Act, 1970 cannot be passed against him but the petitioner, instead of replying to the said show cause notice, has approached this Court straightaway under Article 226 of the Constitution of India by filing the instant writ petition, which, from the facts and circumstance of the case, is not maintainable as has been held by the Apex Court in the case of Executive Engineer State Housing Board vs. Ramesh Kumar Singh : AIR 1996 SC 691, Jainendra @ Chhotu Singh vs. State of U.P. : 2007 (57) ACC 791, Commissioner of Central Excise, Haldia Vs. Krishna Wax (P) Ltd. : (2020) 12 SCC 572 and also the judgment and order passed by this Court in Criminal Misc. Writ Petition No.869 of 2018; Pramod Katyayn vs. State of U.P. and others.
Moreso, learned Counsel for the petitioner has failed to satisfy us that prior to issuing the impugned show cause notice, the Additional District Magistrate, Sitapur was not having sufficient reasons to believe that the act and movement of the petitioner is hazardous to the public at large in Sitapur district. Thus, from the facts and circumstances of the case, The writ petition is, accordingly, dismissed. However, it shall be open for the petitioner to file reply to the show cause notice before the competent authority.
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(Saroj Yadav, J.) (Ramesh Sinha, J.) Order Date :- 12.8.2021 Ajit/-