Shajid Husain vs State Of Uttarakhand And Others

Ravindra Maithani, J

The instant writ petition under Article 226 of the Constitution of India has been preferred against the order dated 03.04.2019, passed in Case No. 51/01 (Old No. 51/15) year 2019 passed by the learned Court of Additional District Magistrate administration Udham Singh Nagar. By the impugned order petitioner has been directed to remove himself outside District Udham Singh Nagar, till the completion of the process of Lok-Sabha Elections, 2019. This order has been passed under Section 3 of the Uttar Pradesh Control of Goondas Act, 1970 (hereinafter referred to as "the Act").

Heard learned counsel for the petitioner, learned A.G.A and perused the records.

Learned counsel for the petitioner would argue that petitioner has been leading a normal life in the society. He has no criminal record in the recent past. He has settled himself in the society. A notice under Section 3 of the Act was served upon him on 01.04.2019 to appear in the proceedings, on 03.04.2019 but due to ill-health, he could not appear. The petitioner had instructed his counsel to appear in the proceedings on 03.04.2019 but he also did not appear for some reasons and the impugned order was passed on 03.04.2019 without affording any reasonable opportunity of hearing to the petitioner, therefore, it is argued that the impugned order deserves to be set aside and the petition allowed. In addition to it, it has also been argued that soon after the impugned order was passed, petitioner has already moved an application on 05.04.2019 before the District Magistrate, Udham Singh Nagar for recalling the order dated 03.04.2019, and affording him an opportunity of hearing.

On the other hand, learned counsel appearing for the State would urge that many cases have been registered against the petitioner. He is a goonda as defined under Section 2(b) of the Act, who kept on threatening the people; witnesses are not willing to come forward to give evidence against him for the reason of apprehension, therefore under Section 3 of the Act, after affording an opportunity of hearing, externment order has been passed. It is further argued that the impugned order has been passed in accordance with law; opportunity of hearing was given to the petitioner, which he did not avail, therefore, it is urged that no interference is warranted and the instant petition deserves to be dismissed.

Impugned order, categorically mentions that there have been five cases registered against the petitioner, the oldest being in the year 2009 and the recent in the year 2017. It appears that In-charge Inspector, submitted a report against the petitioner that he is a potential danger to the public order. In view of the process of Lok Sabha Election, 2019, he may threaten the voters. Police had requested that an order of externment need to be passed.

It is true that the petitioner did not appear in the proceedings. It is also true and admitted that the petitioner was served with a notice as required under Section 3 of the Act before passing an order of externment. The contention of the petitioner is that due to ill-health, he could not appear on the date fixed in the matter and his counsel did not appear for some reasons, therefore, it is argued that "reasonable opportunity" was not given to the petitioner.

"Reasonable opportunity" depends upon facts and circumstances of the case. There cannot be any universal rule specifying the days or hours which may be necessarily given to qualify that "reasonable opportunity" has been given to a person to explain the things. The proceeding against the petitioners has been taken under the Act, which has been enacted to the maintenance of the public order. Definitely, these are emergent measures as well. Before any analysis on the facts of the case is done, it would be expedient to have a glance at the scheme of the Act.

Section 3 of the Act, provides for the procedure, under which order of externment may be passed. An order passed under Section 3 of the Act is appealable under Section 6 of the Act. What is important to notice is that under Section 7 of the Act, in order to secure the attendance of any person against whom any order is proposed to be passed under Section 3, such person may be required to execute bond with or without sureties. Not only this Sub-Section 2 of Section 7 of the Act also empowers that while issuing notice to show-cause under Section 3 of the Act, a bailable warrant may also be issued against such persons. An order passed under Section 3 can be rescinded under Section 9 of the Act. These provisions categorically shows that depending upon urgency, actions are taken i.e., a simple show-cause under Section 3 of the Act or requiring the person to execute a bond while issuing notice under Section 3 or issuance of bailable warrants.

In the instant case, notice was issued to the petitioner on 30.03.2019, requiring him to appear on 03.04.2019. According to the petitioner he himself received the notice on 01.04.2019, but he could not appear. These facts are required to be appreciated in the background that on 11.04.2019, the voting was to be done in the State of Uttarakhand for Lok-Sabha Election, 2019. The process is still on. The Court cannot ignore the fact that during election, maintenance of law and order is one of the challenging jobs of the administration. The context, in which the Act, has been enacted and the background in which notice under Section 3 of the Act was served to the petitioner, which includes old cases against him as well as report of the police that he is a potential threat to the voters in the ongoing Lok-Sabha Election, 2019 the time given to the petitioner to explain, as to why an order under Section 3 of the Act, may not be passed against him cannot be termed as less than affording "reasonable opportunity." Therefore, this Court is of the view that "reasonable opportunity" was afforded to the petitioner before passing the impugned order.

Another argument is with regard to the peace loving nature of the petitioner that he has himself established in the society. Recent registered case against the petitioner belongs to 2017 under Sections 147, 148, 149, 323, 332, 353, 307, 393, 427, 504 and 506 I.P.C, but not only this, there has been a police report and recommendation of the Senior Superintendent of Police, District Udham Singh Nagar that the petitioner is a potential danger to the peaceful conduct of Lok Sabha Election, 2019, as he can threaten the voters and can create an atmosphere of fear amongst them. After considering the facts and materials, impugned order has been passed in accordance with law.

Insofar as the case for non-appearance of the petitioner on 03.04.2019 is concerned, the petitioner has already filed an application to the District Magistrate, Udham Singh Nagar, on 05.04.2019, that application will definitely be considered and appropriate order will be passed thereon. Therefore, this Court has no reasons to go into the cause of non-appearance of the petitioner on 03.04.2019, in the proceedings under the Act.

In view of the forgoing discussion, this Court is of the view that the impugned order has been passed in accordance with law and there is no reason which may warrant interference by this Court and accordingly the instant petition deserves to be dismissed.

The writ petition is hereby dismissed.