Shishupal Yadav vs District Magistrate, Udham Singh Nagar

Umesh Chandra Dhyani, J.—The petitioner, by means of present Criminal Writ Petition under Article 226 of the Constitution of India, seeks to issue writ, rule or direction in the nature of Certiorari quashing the notice dated 24.04.2014, issued by the respondent no. 1 u/s 3 U.P. Control of Goondas Act, 1970 on the recommendation of the S.S.P. Udham Singh Nagar alongwith Inspector Incharge Kotwali, Rudrapur, and proceedings in consequence thereof registered as case no. 51/28 of 2014, pending in the Court of District Magistrate, Udham Singh Nagar.

Learned counsel for the petitioner stated that one such notice was already issued to the petitioner on 13.01.2012 (Annexure-3). Petitioner responded to such notice and the proceedings in respect thereof are pending before the District Magistrate, Udham Singh Nagar. Learned counsel representing State does not object to such facts.

The contention of learned counsel for the petitioner is that, on the basis of almost same facts, but with the inclusion of more criminal cases in the list, a fresh notice u/s 3 of the U.P. Control of Goondas Act, 1970 was issued to him on 24.04.2014 (Annexure-1).

Learned counsel for the petitioner further contended that if his response to the earlier notice fails, and his contention is not accepted by the District Magistrate, then the petitioner will face externment, as is provided u/s 3 of the said Act. It is also the contention of the learned counsel for the petitioner that even if reply to second notice issued to him fails and his response is not accepted by the District Magistrate, then the punishment will be the same, i.e., externment. When the case relating to first notice is pending, why should the District Magistrate issue fresh notice under the same Act and in respect of almost same criminal cases?

It will be useful to reproduce Section 3 of the U.P. Control of Goondas Act, 1970 herein below for convenience:-

Externment, etc. of Goondas. -Where it appears to the District Magistrate-

a. that any person is a Goonda; and

b. (i) that his movements or acts in the district or any part thereof are causing, or are calculated to cause alarm, danger or harm to persons or property; or

[(ii) that there are reasonable grounds for believing that he is engaged or about to engage, in the district or any part thereof, in the commission of an offence referred to in sub-clauses (i) to (iii) of clause (b) of Section 2, or in the abetment of any such offence; and]

c. that witnesses are not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or property-

the District Magistrate shall by notice in writing inform him of the general nature of the material allegations against him in respect of clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them.

(2) The person against whom an order under this section is proposed to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires, and also of examining any other witnesses that he may wish to produce in support of his explanation, unless for reasons to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay.

(3) Thereupon the District Magistrate on being satisfied that the conditions specified in clauses (a), (b) and (c) of sub-section (1) exist may by order in writing-

[(a) direct him to remove himself outside the area within the limits of his local jurisdiction or such area and any district or districts or any part thereof, contiguous thereto, by such route, if any, and within such time as may be specified in the order and to desist from entering the said area or the area and such contiguous district or districts or part thereof, as the case may be from which he was directed to remove himself until the expiry of such period not exceeding six months as may be specified in the said order;]

(b) (i) require such person to notify his movements or to report himself, or to do both, in such manner, at such time and to such authority or person as may be specified in the order;

(ii) prohibit or restrict possession or use by him of any such article as may be specified in the order;

(iii) direct him otherwise to conduct himself in such manner as until the expiry of such period, not exceeding six months as may be specified in the order.

The scheme of Section 3 will indicate that if any person is a Goonda, the District Magistrate may direct to remove himself outside the area for a specified period and to desist from entering him from said area, until the expiry of such period, not exceeding six months. The District Magistrate, in the instant case, is entitled to pass such order, if he thinks fit, on the first notice itself. It was not necessary for him to have issued another notice for the same, with the inclusion of some more criminal cases in the list. It was held by the Hon''ble Allahabad High Court in Fayyaz Ahmad vs. State of U.P. and Others, 1994 (31) ACC 387 that the order of externment can be passed after strictly complying with the provisions of the statute.

Nobody should be vexed twice for the same cause. One of the grounds, on the basis of which such fresh notice was issued to the applicant, was that his presence might influence the law and order situation in the upcoming Lok Sabha elections. Such ground does not exist any more, inasmuch as, the Parliamentary elections are already over and no such threat exists anymore. He is, according to learned counsel for the petitioner, not a previous convict.

Criminal writ petition, therefore, succeeds. The same is disposed of summarily at the threshold, with the consent of learned counsel for the parties, by quashing the notice dated 24.04.2014, issued by the respondent against the petitioner, as also, criminal proceedings emanating therefrom.

This order will, however, not come in the way of the respondent in issuing fresh notice to the petitioner, in case the earlier notice dated 13.01.2012, issued against the petitioner, fails. In other words, first notice should be permitted to reach to its logical conclusion before issuing second notice.