^13"^- &»^-.S..M.- ^ ® IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR 0^5 I 2009 c^- W.P. (^ N0. ^ pE'nnoNER /,.." ^^-'^m^... z^":, ^l^ .^•.^^^^ ^"" Karim Khan S/o Shri Isak Khan, Aged about 24 years, R/o Baramkela, Raigarh, District - Raigarh (C.G.) VERSUS RESPONDENT ./' District Magistrate, District - Raigarh (C.G.) WRFT PETITION UNDER ARTICLES 226 OF THE CONSTITUTIOILOF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS. PROHIBITION. CERTIORAM ETC. OR ANY OTHER DIRECTION OR ORDER TO DO JUSTICE IN THE MATTER .^^ /^^ HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava. J. WritPetition (Cr.lNo.304&2009 Petitioner Resoondent Karim Khan Versus District Magistrate, District Raigarh (C.G.) •ZM (Petition under Article 226 of the Constitution of India) Present:" Shri Sushil Sahu, counsel for the petitioner. Shrs Ajay Dwivedi, Deputy Govt. Advocate for the State/respondent« ORALORDER (Passedon 02-02-2011) By this petition, the petitioner has assailed correctness, validity and legatity of show cause notice dated 01-12-2008 issued by the DJstrict Magjstrate, Raigarh. 2. Case of the prosecution is that by impugned show cause notice, the District Magistrate, Raigarh has required the petitioner to show cause as to why the order of externment be not passed against the petitioner in view of the provisions contained in Section 6 (c) of the Chhattisgarh Rajya Suraksha Adhjniyam. 1990 (For short "the Act of 1990"). 3. Learned counsel for the petitioner argued that in order to attract the proceedings of externment drawn in view of the provisions contained in Section- 6(c) of the Act of 1990, it has to be alleged in the notice that the petitioner has been convicted thrice, of an offence within a period of three years under Section 3 or 4 of the Public Gambling Act, 1867 (For short 'the Act of 1867") in its application to the State of Chhattisgarh. Referring to the contents of the show cause notice, it is submitted that show cause notice refers to various incidents /^•% ^ g "^K:^, :13 \^-y l~:"s^^'s ^ and conviction ofthe petitioner under Section 4-A and 13 ofthe Act of 1867and also refers to certain criminal case registered against the petitioner for alleged commjssion of offence under various provisions of I.P.C. It is contended that as notice does not reflect that the petitioner has been convicted thrice in an offence within a period of three years under Section 3 or 4 of the Act of 1867, show cause notice itseif is in excess of jurisdiction and authority under the law. It is forther submitted that no proceedings could at all be inftiated against the petitioner, and therefore, under these circumstances, show cause notice itself is without jurisdiction and liable to be set aside.In support of his submission, learned counsel for the petitioner relied upon the decision in the case of Yunus v. District Magistrate, Dewas, 2005(1) M.P.W.N.43 and Pappu @ Dinesh Gupta vs. State ofM.P. and others, 2007(3) M.P.H.T. 168. 4. No return has been fited by the respondent/State in this matter, though time was granted. Learned State counsel referring to the provisions contained in the Act of 1867 and Section 6 of the Act of 1990, submitted that show cause notice states that the petitioner has been convicted for offences under Section 3, 4 and 4-A oftheAct of 1867 and these convictjons are within a period of three years from 21-06-2003 to 29-09-2005. Learned counsel further submits that the petitioner is not entitted to invoke jurisdiction of this Court against show cause notice particuiariy when the petitioner has already submitted to th^ jurisdiction of the authority and filed its reply. It is fLirther argued that at present, the authority has not taken any decjsion in the matter of the petitioner, and there is no cause ofactionto approach this Court. 5. From the show cause notice (Annexure P-2), which has been placed on record, it is revealed that the petitioner was convicted on 26-08-2(X)3 and a fine of Rs.50/- was imposed, and thereafter, the petitioner was again convicted on ,^T,... ? ^ %.^l-, /f , il^"-y k^^!' 04-03-2004 under Section 4-A of the Act of 1867 and fine of Rs.400/- was imposed. "niereafter, the petitioner was again convteted in Crime No.41/2004 for commissjon of offence under Section 4-A ofthe Act of 1867. 6. "TTie show cause notice reads that conviction in Crime No.21 of 2004 and 41 of 2004 is under Section 4-A ofthe Act of 1867 whereas the notice does not say anything with regard to section under which the petitioner was convicted in Crime No.66 of 2003. However, the notice states that the petitioner was prosecuted forgambling by cards and money. In the petitfon also, the petitioner has not given any specific details nor has placed on record the judgment of conviction in each ofthe offences. 7. In order to attract provisions contained in Section 6(c) ofthe Act of 1990, conviction must be for offence, within a period ofthree years, under Section 3 & 4 of the Act of 1867. Even if the conviction stated in para-1 of the show cause notice is assumed to be convictjon under Section 3 or 4 of the Act of 1867, according to the notice jtself, conviction stated in para-2 and 7 of the notice is under Section 13 of the Act of 1867 whereas conviction stated in para-3 & 4 of the notice is under Section 4-A of the said Act. Tlierefore, apparently, there are no facts stated in the show cause notice to state that the petitioner has been convicted thrice, of an offence within a period of three years under Section 3 or 4 ofthe Act of 1867. Tlierefore, on the basis ofthe those facts alleged in the show cause notice. no proceedings of externment could have been initiated against the petitioner in vjew ofthe provision ofthe Act of 1990. TTie legislature has in its wisdom, provided that externment proceedings could be drawn only in case of conviction for offences under Section 3 or 4 of the Act of 1867 and that too thrice within a period of three years. "Riese jurisdictional facts are absent Jn the show cause notice. TTierefore, in the opinion of this Court, on the facts stated in the ^ '^:^.^ show cause notice, no proceedings for externment could have been jnjtiated against the petitioner by the District Magistrate, Raigarh vide Annexure P-2. 8. In the resuft, the petition is allowed. Show cause notice dated 01-12-2008 (Annexure P-2) issued by the District Magistrate, Rajgarh is declared illegai and quashed. TTiis order would not prevent the competent authorjty to issue fresh show cause notice, if authority finds that the petitioner has been convicted thrice on an offence within a period of three years under Section 3 or 4 of the Act of 1867. No Orders as to cost. —-— ~—~~— Sd/- Manindra Mohan Shrivastava Jude ^' <1