Criminal Misc. Writ Petition No. 7111 of 1999

1ALL] Imran alias Abdul Quddus Khan V. State of U.P. and others 1 25,*,1$/ -85,6',&7,21 Master of Arts can be dubbed as ‘Goonda’ &5,0,1$/ 6,'( primarily for the reason that he adopted an '$7(' 7+( $//$+$%$' agitational approach to espouse the cause of the students of the college with a view to get %()25( 7+( +21·%/( 23 *$5* - the memorandum of their demand accepted by 7+( +21·%/( 9. &+$7859(', - the college authorities. The thumb nail sketch of the case is as follows: &ULPLQDO 0LVF :ULW 3HWLWLRQ 1R RI 2. Imram alias Abdul Quddus Khan, a ,PDUDQ DOLDV $EGXO 4XGGXV .KDQ«3HWLWLRQHU student of Master of Arts in Bundelkhand 9HUVXV College, Jhansi has been issued a show cause 6WDWH RI 83 DQG RWKHUV «5HVSRQGHQWV notice by Sri Bhagwat Prasad Misra, District Magistrate Jhansi under the provisions of &RXQVHO IRU WKH 3HWLWLRQHU Section 3 of the U.P. Control of Goondas Act, 6KUL 63 6KDUPD 1970 (Act No. VIII of 1971) (hereinafter referred to as ‘the Act’) case no. 65 of 1999. &RXQVHO IRU WKH 5HVSRQGHQWV This show cause notice has been challenged $*$ on the ground that it has been issued by the 83 &RQWURO RI *RRQGD $FW 6HFWLRQ District Magistrate on insufficient and :ULW 3HWLWLRQ FKDOOHQJLQJ WKH VKRZ FDXVH perfunctory material and there has been total QRWLFH LVVXHG XQGHU VHFWLRQ RI $FW 1R 9,,, non-application of mind to the stringent RI LV PDLQWDLQDEOH JXLGHOLQHV LVVXHG WR provisions of law and since the notice has DOO WKH 'LVWULFW 0DJLVWUDWHV VR WKDW WKH\ PD\ been issued in an arbitrary, perfunctory and EH FDXWLRXV HQRXJK DQG VKRXOG QRW LVVXH cursory manner to repress the legitimate 1RWLFHV LQ D URXWLQH FDVXDO DQG PHFKDQLFDO PDQQHU ZLWKRXW DSSO\LQJ WKHLU PLQGV DQG demands of the students, it may be quashed. REVHUYLQJ WKH SURYLVLRQV RI ODZ 3. The learned A.G.A. took notice on +HOG ± behalf of the District Magistrate/State and vehemently urged that a writ petition against a 6KRZ FDXVH QRWLFH FDQ EH LVVXHG RQO\ LI WKH ‘show cause notice’ is not maintainable. The 'LVWULFW 0DJLVWUDWH LV VDWLVILHG RI WKH WZLQ FRQGLWLRQV RQ EDVLV RI WKH PDWHULDO EURXJKW submission was repelled and appears to be EHIRUH KLP WKDW D SHUVRQ DQVZHUV WKH against the well established legal position. GHVFULSWLRQV RI µ*RRQGD¶ DV GHILQHG LQ 6HFWLRQ E RI WKH $FW DQG WKH FRQWURO 4. Normally, a writ petition against a show DQG VXSSUHVVLRQ RI VXFK D µ*RRQGD¶ LV cause notice is not maintainable as has been QHFHVVDU\ IRU WKH PDLQWHQDQFH RI µSXEOLF held in Executive Engineer, Bihar State RUGHU¶ 3DUD &DVH /DZ 'LVFXVVHG Housing Board Vs. Ramesh Kumar Singh and $,5 6& 3 others (A.I.R. 1996 SC-691) wherein, the 83&U 5XOLQJ 3 apex court was concerned with the 83&U 5XOLQJ 3 )% entertainment of the writ petition against a 6&& 3 show cause notice issued by the competent 6&& 3 authority. In that case there was no attack $,5 $OOG 3 against the vires of the statutory provisions governing the matter and no question of By the Court infringement of any fundamental right guaranteed by the Constitution was alleged or 1. The neat point for determination in the proved. It could also not be said in that case present writ petition under Article 226 of the that the notice was ex facie ‘nullity’ or totally Constitution is whether a bona fide student of 2 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 ‘without jurisdiction’ in the traditional sense this stage. The scanning of this question does of that expression that is to say, that even the not call for any further material. commencement or initiation of the proceedings on the face of it and without 7. The crucial point for consideration in anything more, was totally unauthorized. In the present case is whether in the light of the the backdrop of these facts, the apex court facts and circumstances, as mentioned in the observed as follows :- show cause notice, a copy of which is Annexure 6 to the writ petition, the District “ ………In such a case, for entertaining a Magistrate was justified in labelling the writ petition under Article 226 of the petitioner as Goonda and clamping upon him Constitution of India against a show cause with a notice. notice, at that stage, it should be shown that the authority has no power or jurisdiction, to 8. Before taking up the legal question it enter upon the enquiry in question. In all other would be advantageous to advert to the cases, it is only appropriate that the party definition of ‘Goonda’ as contained in Section should avail of the alternative remedy and 2 (b) of the Act, which is as follows :- show cause against the same before the authority concerned and take up the objection “2. Definitions : ………. regarding jurisdiction also, then. In the event (a)…………………. of an adverse decision, it will certainly be (b) “ Goonda” means a person who open to him, to assail the same either in appeal or revision, as the case may be, or in (i) either by himself or as a member or appropriate cases, by invoking the jurisdiction leader of a gang, habitually commits or under Article 226 of the Constitution of attempts to commit, or abets the commission India.” of an offence punishable under Section 153 or Section 153-B or Section 294 of the Indian 5. Learned counsel for the petitioner urged penal Code or Chapter XV, or Chapter XVI, that in view of the law laid down by a full Chapter XVII or Chapter XXII of the said Bench decision of this Court in Bhim Singh Code; or Tyagi V. State of U.P. – 1999 U.P. Criminal Rullings-417, in which the earlier decision of (ii) has been convicted for an offence this court in Ramji Pandey V. State of U.P. punishable under the Suppression of Immoral and others (1982) U.P. Cr. R 1 (F.B.) has been Traffic in Women and Girls Act, 1956; or relied upon and approved and in the light of the observations of the apex court in the case (iii) has been convicted not less than of Whirlpool Corporation V. Registrar of thrice for an offence punishable under the Trade Marks, Mumbai and others 1998) SCC- U.P. Excise Act, 1910 or the Public Gambling 1, alternative remedy does not affect the Act, 1867 or Section 25, Section 27 or Section jurisdiction of the High Court under Article 29 of the Arms Act, 1959; or 226 of the Constitution of India, the present writ petition is maintainable. (iv) is generally reputed to be a person who is desperate and dangerous to the 6. We have heard Sri S.P. Sharma, learned community; or counsel for the petitioner as well as Sri Mahendra Pratap, Additional Government (v) has been habitually passing indecent Advocate at some length. Since purely a legal remarks or teasing women or girls; or question is involved in the present case, we propose to decide the writ petition finally at (vi) is a tout; 1ALL] Imran alias Abdul Quddus Khan V. State of U.P. and others 3 9. The preamble to the Act gives a clue to Explanation: ‘Tout’ means a person who- the intention which impelled the law makers to enact the legislation. It makes it clear that (a) accepts or obtains, or agrees to the Act was brought on the Statute book with accepts or attempts to obtains, or agrees to a view to make special provisions for the accept or attempts to obtain from any person control and suppression of Goondas with a for himself : or for any other person, any view to the maintenance of ‘public order’. A gratification whatever as a motive or reward bare reading of the various provisions of the for inducing, by corrupt or illegal means any Act makes it clear that there are two pre- public servant or member of Government, requisites which are required to be fulfilled Parliament or of State Legislature, to do or before issuing a show cause notice under forbear to do anything or to show favour or Section 3 of the Act, firstly, a person should disfavour to any person or to render or fall within the definition of the expression attempt to render any service or disservice to ‘Goonda’ and secondly, it is necessary to any person, with the Central or State control and suppress him with a view to the Government, Parliament or State Legislature, maintenance of ‘public order. If either of the any local authority, corporation, Government two prerequisites are missing, the District Company or public servant: or Magistrate shall not be entitled to initiate action under the Act. (b) procures in consideration of any remuneration moving from any legal 10. Let us now take up the first point practitioner interested in any legal business or whether the petitioner answers the description proposes to any legal practitioner or to any of a ‘Goonda’ as defined in Section 2 (b) of person interested in legal business to procure, the Act. For this purpose, it would be in consideration of any remuneration moving necessary to wade through the recitations, or from either of them, the employment of legal say the grounds as unfolded from the practitioner in such business; or impugned show cause notice issued by the District Magistrate. Rendered in English, in (c) for the purposes mentioned in the prefatory clause of the notice, it has been explanation (a) or (b), frequents the precincts substantially mentioned as follows: of civil, criminal or revenue courts, revenue or other offices, residential colonies or “……Sri Imram son of Mohd.

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