Ramayan Singh v. State Of U.P. Thru. ...

Neutral Citation No. - 2023:AHC-LKO:63105-DB

Court No. - 10 Case :- CRIMINAL MISC. WRIT PETITION No. - 7479 of

2023

Petitioner :- Ramayan Singh

Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Govt. Civil Sectt. Lko And Others

Counsel for Petitioner :- Meenakshi Singh Parihar

Counsel for Respondent :- G.A.

Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Narendra Kumar Johari,J.

1. Heard Sri H. G. S. Parihar, learned Senior Counsel assisted by Ms. Meenakshi Singh Parihar, learned counsel for the petitioner and learned A.G.A. who appears on behalf of the State Respondents.

2. This petition has been filed with the following main prayers:-

"i) issue a writ direction or order in the nature of certiorari quashing the impugned notice dated 28.08.2023 issued by the O.P. No.3 U/s 3(1) of U.P. Control of Goondas Act 1970 in Case No. 1484 of 2023, as contained in Annexure No.1 to this writ petition.

ii) issue a writ direction or order in the nature of mandamus commanding the opposite parties not to threaten the liberty of the Petitioner in relation to the impugned notice dated 28.08.2023."

3. It has been submitted by the learned counsel for the petitioner that from a perusal of the notice issued to the petitioner under Section 3 (1) of the U. P. Control of Goondas Act, 1970, it is evident that the petitioner has been implicated only in two criminal cases and once only two cases are registered against a person, he cannot be said to be a habitual offender or goonda under the definition of Goonda given under the Act.

4. Learned counsel for the petitioner has placed reliance upon the judgement rendered by the Division Bench of this Court in

Criminal Misc. Writ Petition No. 12619 of 2023, 'Goverdhan Vs. State of U.P. and Others', decided on 10.08.2023 Neutral Citation No. 2023:AHC:169934-DB.

5. This Court has gone through the judgement rendered by the Division Bench of this Court wherein reference has been made of a Division Bench judgement of this Court in the case of

Kailash Jaiswal Vs. State of U.P. and Others (Criminal

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Misc. Writ Petition No. 10241 of 2019) decided on 14.11.2022 in which a co-ordinate Bench of this Court while relying upon the judgement of this Court in the case of Suresh Tiwari Vs. State of U.P. and Others reported in 2018 (5) ALJ 1 has held that proceedings initiated by the District Magistrate are a colourable exercise of power and only because there is one case registered against the petitioner, he cannot be treated as a habitual offender. There should be a tendency of recurrence of offenses committed by the petitioner.

6. This Court has only considered paragraph 19 of the Division Bench judgement in the case of Goverdhan (Supra) wherein the Registrar General of the High Court was directed to circulate the copy of the judgement apprising all the executive authorities of the State of U.P. to strictly adhere to the ratio laid down by it and that the authorities would necessarily spell out "general nature of particular allegations against the proposed Goonda", his personal image amongst the masses, his social family background, and then only pass a well reasoned order and should not pass an order on a prescribed performa for externment. All the District Magistrates and the executive authorities working under them were directed to take appropriate action and to proceed against an individual only when they had got strong reason to believe that the individual is rogue to the society and his externment is desirable.

7. This Court having considered the judgement finds that the Division Bench has not taken into account statutory remedy available to a person against whom notice under Section 3 (1) of the U. P. Control of Goondas Act is issued.

8. A Constitution Bench of the Hon'ble Supreme Court in the case of N. P. Ponnuswami Vs. Returning Officer, AIR (1952) SC 64 has held that where rights and liabilities are created under the statute and remedies provided under same statute, extraordinary writ jurisdiction under Article 226 should not ordinarily be exercised.

9. This Court finds that the petitioner has remedy of filing a representation/reply to the notice dated 28.08.2023 which has not been availed of by the petitioner and he has straightaway approached this Court.

10. Accordingly, the writ petition is not maintainable and it is

dismissed as such.

Order Date :- 3.10.2023 Darpan Sharma

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