Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 1635 of 2019 Petitioner :- Shahzad Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Umair Mahmood 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 AGA and have been taken through the material on record.
By means of the present writ petition, the petitioner has invoked extraordinary jurisdiction of this Court challenging a show cause notice dated 20.9.2018 issued by the respondent no.2 under section 3 (1) of the U.P. Control of Goondas Act, 1970.
It is submitted by the learned counsel for the petitioner that the petitioner is involved in only one case vide Case Crime No. 260 of 2016 under sections 147/148/332/336/160 IPC read with section 7 Criminal Law Amendment Act, Police Station Sherkot, District Bijnor as per notice dated 20.09.2018 thus it cannot be said to be habitually engaged in impermissible activities for describing him as Goonda. The general nature of material allegations are missing from the notice thus the notice issued in a mechanical manner deserves to be quashed.
Per contra learned AGA contended that the show cause notice dated 20.9.2018 has been issued in public interest. The petitioner is involved in committing the act prejudicial to the public order and is a curse to the society hence his externment pursuant to the show notice is just and legal to maintain law and order. The show cause notice dated 20.9.2018 does not suffer from any legal or procedural infirmity or perversity.
In Kabir Chawla Vs. State of U.P., 1994 SCC (Crl) 577 the Hon'ble 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. vs. Chandra Shekhar Shukla, (2000) 9.SCC 392, the Hon'ble 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.
Regard being had to the facts and circumstances of the case as well as the submission advanced by the learned counsel for the parties, a perusal of the show cause notice demonstrates that the petitioner as a Goonda 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 and deleterious 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.
After the analysis of the rival submission advanced by the learned counsel for the parties it is not appropriate for this Court to interfere with the interim order such as order issuing the show cause notice under the Goonda Act at this stage. It is open for the petitioner to satisfy the Magistrate concern that there is no ground for passing the impugned show cause notice against him. We do not see any cogent reason or justifiable ground to interfere with the issuance of the notice by the Magistrate concern even otherwise two parallel proceedings cannot run simultaneously for the same cause and relief before two different forum hence the prayer for quashing the impugned show cause notice is refused.
However, considering the facts and circumstances of this case it is provided that in case the petitioner files his reply pursuant to the impugned notice within three weeks from today, the same shall be treated as within time and final decision in this matter shall be taken by the said respondent, as expeditiously as possible, preferably within a period of four weeks from the date of filing of a certified copy of this order together with the reply.
It is made clear that till then, the petitioner shall not be taken into custody pursuant to the aforesaid notice.
With the aforesaid observation, this writ petition is finally disposed.
Order Date :- 22.1.2019 Vandana