Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 1648 of 2019 Petitioner :- Jharkhandey Rai Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vishwanath Mishra Counsel for Respondent :- G.A.
Hon'ble Naheed Ara Moonis,J. Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioner and the learned A.G.A. for the State.
By means of the present writ petition, the petitioner has invoked extraordinary jurisdiction of this Court with a prayer to quash the impugned order dated 27.12.2018 passed by the District Magistrate, Gorakhpur, respondent no. 2 in the proceedings of Case No. 1975 of 2017 computerized No.D2017053101975, under Section 3/4 U.P. Control of Goondas Act, 1970.
It is submitted by the learned counsel for the petitioner that in a proceeding under Section 3/4 of U.P. Control of Goondas Act (hereinafter referred to as an 'Act') District Magistrate, Gorakhpur, the respondent no.2 has passed the order of externment dated 27.12.2018 against the petitioner externing him for a period of six months from the date of the order. The aforesaid order was challenged before the respondent no.3, Commissioner, Gorakhpur Division, Gorakhpur, by preferring an appeal under Section 6 of the Act, but the learned Commissioner instead of passing any order on the stay application dated 31.12.2018 fixed the date on 14.2.2019 for final hearing of the appeal itself. It is further submitted that as the appeal and the stay application are pending before the learned Commissioner in the absence of any interim order, it has caused great prejudice. The order of externment against the petitioner for a period of six months passed by the respondent no.2 is wholly unjustified and not legally sustainable. Hence the proceeding against the petitioner deserves to be quashed.
Per contra learned A.G.A. has contended that an NCR No. 74 of 2015, under Sections 323, 504, 506 and 352 IPC, P.S. Gagaha, District Gorakhpur and a case registered as Case Crime No. 360 of 2014 under Section 302 IPC and information report no. 51, dated 22.8.2017 on the basis whereof the proceeding under the Act has rightly been initiated against him. The petitioner has already availed opportunity to assail the impugned order dated 27.12.2018 passed by the District Magistrate, Gorakhpur, respondent no. 2 before the respondent no.3, Commissioner, Gorakhpur Division, Gorakhpur by filing the appeal. Hence the petition deserved to be dismissed.
Having regard to the facts and circumstances of the case, we are of the considered opinion that when alternative remedy is available and the appeal itself and the stay application are pending before the respondent no.3, Commissioner, Gorakhpur Division, Gorakhpur, then there is no justifiable reason to interfere on the merits of the case under Article 226 of the Constitution of India. The petitioner is not entitled to invoke two parallel proceeding simultaneously for the same cause and relief. Hence the writ petition sans any merit, accordingly dismissed.
However, the respondent no.3, Commissioner, Gorakhpur Division, Gorakhpur is directed to make an endeavour to decide the Appeal No.C201805000002489 of 2018, pending under Section 6 of U.P. Control of Goondas Act, Jharkhandey Rai Vs. District Magistrate, Gorakhpur expeditiously in accordance with law.
Order Date :- 22.1.2019 M. Tariq