Court No. - 54
Case :- CRIMINAL MISC. WRIT PETITION No. - 11427 of 2019 Petitioner :- Zia-Ur-Rahman @ Babu Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Mahesh Kumar Srivastava,S. Kamal Akhtar Khan Counsel for Respondent :- G.A.
Hon'ble Naheed Ara Moonis,J. Hon'ble Anil Kumar-IX,J.
Heard learned counsel for the petitioner, the learned AGA for the respondents-State and perused the record.
The instant writ petition has been filed by the petitioners invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to quash the order dated 20.4.2019 passed by the Additional District Magistrate, (F. & R.), Rampur in Case No. 00588 of 2019 (Computer No. D-201913590000588), under Section 3 (3) of U.P. Control of Goonda Act as well as notice date Nil under Section 3 of U.P. Control of Goonda Act, police Kotwali, district Rampur.
It is submitted by the learned counsel for the petitioner that the respondent no. 2 has issued a notice on 30.3.2019 under Section 3 of U.P. Goonda Act, 1970 showing three cases against the petitioner viz, (1) case Crime No. 217/19, under Sections 189, 506 I.P.C. and Section 67 I.T. Act, police station Kotwali, Rampur; (2) N.C.r. No. 23/19, under Sections 352/504 I.P.C., police station Kotwali, Rampur and (3) Beat Information No. 37/17.3.2019, police station Kotwali, Rampur. While issuing the aforesaid notice it was directed to appear before him to show cause as to why the proceeding may not be initiated under Section 3 of U.P. Goonda Act and if no response is given the proceeding shall be initiated against him.
It is submitted by the learned counsel for the petitioner that in response to the aforesaid notice the petitioner has filed his objections on 8.4.2019 along with an affidavit indicating about the reason for not proceeding against the petitioner on the basis of the three cases, which prima facie does not show that the petitioner comes within the purview of habitual offender. The respondent no. 2 on 20.4.2019 has passed the impugned order. On one hand the objection has been rejected and on the other hand also proceeded to fix 22.4.2019 granting opportunity of hearing to the petitioner, thus the order per se is illegal when once the objection has been rejected no further dates ought to have been fixed. It has further been contended that while passing the impugned order no reason has been assigned in rejecting the objections, hence the order is illegal and erroneous in the eyes of law.
Per contra learned A.G.A. has contended that the date has already been fixed whereby granted further time to the petitioner to file any evidence in support of his submission but instead of appearing before the concerned authority, the petitioner has filed the instant petition. The petitioner has still opportunity to submit his reply to the show cause notice as such the notice cannot be said to have been finally decided. It is open to the petitioner to rebut the notice.
We have given anxious consideration to the submission of the learned counsel for the parties. We are of the view that the order dated 20.4.2019 passed by the respondent no. 2 is a non speaking order, as such the respondent no. 2 is directed to decide the notice issued under Section 3 of the Act after considering the objection filed by the petitioner expeditiously, if possible, within a period of one month from the date of production of a certified copy of this order.
With the above direction, this petition is finally disposed of.
Order Date :- 30.4.2019 Shahnawaz