HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Writ Petition No. 354/2009 Sanjay Ghayee .....Petitioner Versus State and ors. ...Respondents Mr. Arvind Vashisth, Advocate for the petitioner. Mr. G.S. Sandhu, Government Advocate for the State. Dated:- 21st May, 2009 Hon’ble J. C. S. Rawat, J. This petition has been filed under Article 226 of the Constitution of India for seeking the following reliefs:- (i) A writ, order or direction in the nature of certiorari quashing the notice dated 1-6-2007 issued under Section 3 (1) U.P. Control on Goonda’s Act and the proceedings in consequence thereof registered a case as Case No. 37 of 2007 pending before District Magistrate, Dehradun. (ii) any other suitable writ, order or direction which his Hon’ble Court may deem fit and proper in the circumstances of the case. (iii) Award the cost of petition to the petitioner. 2. A notice was issued under Section 3 (1) of the U.P. Control of Goondas Act, 1970 to the petitioner. The notice is quoted hereunder:- “U;k;ky; ftyk eftLVªsV nsgjknwu Okkn la[;k 37/07 ” vk0/kkjk&3¼1½ xq.Mk vf/kfu;e Fkkuk&clUr fcgkj] tuin & nsgjknwu ljdkj cuke lat; ?kbZ Jh lat; ?kbZ iq= nsodhuUnu ?kbZ] fuoklh 2 vkf’kZokn bUDyso] Fkkuk clUr fcgkj] tuin nsgjknwuA Okfj’B iqfyl v/kh{kd nsgjknwu dh vk[;k fn0 20-5-2007 ds vuqlkj vfHk;qDr Jh lat; ?kbZ iq= nsodh uUnu ?kbZ fuoklh 2 vkf’kZokn bUDyso Fkkuk clUr fcgkj tuin nsgjknwu ,d “kkfrj fdLe dk vijk/kh gSA blds fdz;kdykiksa ls vke turk esa uke ls gh vkard O;kIr gSA rFkk vkijkf/kd xfrfof/k;ksa ls vke turk vius vkidks v”kqjf{kr eglwl djrh gSA vfHk;qDr nqLlkgfld o [krjukd vkijkf/kd izo`fRr dk O;fDr gSA blds fo:) turk dk dksbZ O;fDr xokgh nsus dks rS;kj ugha gksrk gSA blds fo:) Fkkuk clUr fcgkj esa fuEu vfHk;ksx iathd`r gSA ftldh lwfp layXu izsf’kr gSA vr% vkidh lkekU; [;kfr nq%Lkkgfld vkSj leqnk; ds f[kykQ [krjukd gksus dh gSaA vkidks vkijkf/kd xfrfof/k;ka lEHkzkUr O;fDr;ksa dh tku ,oa eky ds fy, [krjukd ladV rFkk vigkfu djus dh gS A lkFk tku ,oa lEifRr ds [krjs ds dkj.k vkids fo:) dksbZ Hkh lk{; nsus dks rS;kj ugha gSaA vr% vkids fdz;kdykiksa dks n`f’Vxr j[krs gq, vkids fo:) xq.Mk fu;U=.k vf/kfu;e dh /kkjk 1970 dh /kkjk 3 dh mi/kkjk ¼1½ ds vUrxZr dk;Zokgh dh tkuh visf{kr gSA vr% fn0 27-6-07 rd viuk i{k U;k;ky; esa izLrqr djsaA vkt fn0 1-6-2007 dks esjs gLrk{kj ,oa U;k;ky; dh eqnzk vafdr dj tkjh fd;k A ftyk eftLVªsV] nsgjknwu* Fkkuk/;{k clUr fcgkj nsgjknwu dks bl funsZ”k ds lkFk izsf’kr dh uksfVl dh izfr foi{kh ij rkehy dj rkehy”kqnk izfr bl U;k;ky; dks fu;r fnukad ls iwoZ HkstsaA ftyk eftLVªsV] nsgjknwu^^ 3. The said notice has been challenged by way of this writ petition. 4. The counter affidavit was filed by State/respondent. The learned counsel appearing for the petitioner contended that the notice is bad in the eyes of law; and the notice did not contain the general nature of material allegations as such the notice is wrong. Learned G.A. refuted the contention and contended that para 1 of the said notice clearly indicates the general nature of the material allegations. 5. I have perused the entire record. I have also perused the judgment of the Allahabad High Court reported in 1981 CRI L. J. page 1083, Ram Ji Pandey Vs. State of U.P. & ors. and B.S. Tyagi Vs. State of U.P. & ors reported in 1999 (39) (HC-FB). In the case of Ram Ji Pandey (Supra) the notice was issued to the petitioner Ram Ji Pandey in which the allegations of Rule 4 of Section 3 was complied with and there was a Clause-d in which the Court submitted the details of the cases against him. The Hon’ble Apex Court quashing the notice in para 15 and 16 has held as under:- Para 15-“The above notice is in the form prescribed under Rule 4 of the U.P. Control of Goondas Rules, 1970. In column (d) of the notice meant for setting out material allegations of general nature against the petitioner, no statements of fact relating to the petitioner’s conduct has been stated, instead it mentions details of a criminal case where the petitioner was convicted for an offence of robbery and the list of criminal cases pending against him and also a list of first information report lodged with the police. Column (d) does not contain any allegation or material allegation against the petitioner. It was argued that if column (d) is read with clauses (a), (b) and (c) of the notice, it is possible to discern the material allegations against the petitioner. A notice under Section 3 (1) cannot be issued unless the District Magistrate is satisfied about the matters set out in clauses (a), (b) and (c) of Section 3 (1). The prescribed form also requires the District Magistrate to state in the notice that on the basis of the information laid before him he is satisfied that the person concerned is Goonda and that his movements and acts and conduct fulfil the conditions as set out in clauses (a), (b) and (c) of Section 3 (1) of the Act. In the impugned notice the District Magistrate has set out matters as required by clauses (a), (b) and (c) in the prescribed form. The prescribed form as well as the impugned notice both seek to maintain a distinction between material allegations and the matters set out in clauses (a), (b) and (c) of the notice. The facts stated in column (a), (b) and (c) of the notice refer to the satisfaction of the District Magistrate with regard to the matters set out in clauses (a), (b) and (c) of Section (1) of the Act. Clause (d) of the notice is intended to set out general nature of material allegations against the petitioner with a view to give him opportunity to submit his explanation and to defend himself. In this view of the matter, it is not possible to accept the contention that columns (a), (b) and (c) of the notice set out the general nature of material allegations against the petitioner”. Para 16-“In the instant case, the general nature of material allegations appears to be that the petitioner was waylaying persons and robbing them within the circle of police station Sikanderpur district Ballia and also committing theft. The allegation further appears to be that the petitioner has been assaulting people and causing injuries to them within the circle of police station Sikanderpur district Ballia and that witnesses are not willing to come forward to give evidence against him on account of apprehension to their lives and property. These matters could have been stated in a narrative for as was done in the case of Mehbub Khan’s (1969 Cri LJ 26) (SC) and Pandharinath (1973 Cri LJ 612) (SC) but the impugned notice does not contain these allegations, instead it contains a list of first information reports and pending cases. In our opinion, it is difficult to uphold the respondent’s contention that the list of first information reports or list of cases in which the petitioner was convicted or the list of cases in which the petitioner was acquitted or the list of pending criminal cases against the petitioner is sufficient to meet the requirement of setting out “the general nature of material allegations”. The impugned notice is, therefore, not in accordance with Section 3 (1) of the Act as it fails to set out general nature of material allegations against the petitioner. 6. Thereafter the matter was given referred to a larger bench before the Allahabad High Court. A Full Bench was constituted and the Full Bench also noticed the fact that the notice which was given in the Ram Ji Pandey case (supra) was not in accordance with the law and again in B.S. Tyagi case (supra) followed the decision of the Division Bench of the Allahabad High Court and observed in Para 17 and 20 of the case which reads as under:- Para 17-“The aforesaid anxiety of the Division Bench should be taken due note by the Executive and whenever a show cause notice is issued it should strictly comply with the provisions of the Act and rules. Once the decision of Ramji Pandey has held the field in this State for more than 18 years there does not seem to be any necessity of taking a contrary view for the simple reason that all that the District Magistrate was expected by that decision to do is that the proposed Goonda should be made award of general nature of material allegations against him, which is the requirement of the law. By asking the respondents to furnish to the proposed Goonda the general nature of material allegations against him, the Full Bench in Ramji Pandey only required the law to be followed. None should doubt that once in the show cause notice the general nature of the material allegations exists, no Court interference with such a show cause notice is called for. Challenge to a valid show cause notice complying with the requirement of law has always failed and no scope of exercising provisions under Article 226 of the Constitution of India exists in such matters. On the contrary, whenever general nature of material allegations are absent and the proposed Goonda raises a grievance through a petition under Article 226 of the Constitution of India, this Court’s interference to the extent of the illegality of the notice being examined has been rightly upheld in Ramji Pandey but simultaneously it must be added that always ensuring that, fresh notice may be issued by the District Magistrate in accordance with law. It has already been noticed above that in Subhas Singh (supra) the respondents right to issue fresh notice in accordance with law was upheld and even in Harsh Narain (supra) subsequent proceedings alone were quashed due to the defective notice. Para 20- “In view of the aforesaid discussion the combined answer to the aforesaid three questions is that the decision in Ramji Pandey is good law, a show cause notice which fails to indicate general nature of material allegations may be challenged and quashed on that ground under Article 226 of the Constitution of India with liberty to the respondents always to issue fresh notice in accordance with law. 7. The Full Bench of the Allahabad High Court also noticed a case of the Hon’ble Apex Court reported in AIR 1968, SC page 1468, State of Gujarat Vs. Mehbub Khan wherein a notice was given under Section 59 read with Section 56 of Bombay Police Act (22/1951) in which the details of the allegations were also given and it was proposed to extern him for a period of two years from the Ahmedabad Rural, District Kaira and Mehsana. The said notice was challenged before the Hon’ble Apex Court and the Hon’ble Apex Court allowed the appeal and set aside the order of the Gujarat High Court. Para 20 reads as under: Para 20-“In the instant case, the learned Judges of the Gujarat High Court, accept the position that under Section 59, of the Act, the notice should inform the person, in writing of the general nature of the material allegations against him, and it need not contain particulars. But they have held that the allegations, regarding the two respondents, consuming eatables, from places of public entertainment, without payment, and beating persons, when legal dues were demanded, contained in the two notices, are vague. The reasoning of the learned Judges that the said allegation should have contained all the particular places of public entertainment, or what particular establishment the respondents were supposed to have visited, is not warranted, by the provisions of Section 59. In fact, if we may so, with respect, there is a slight inconsistency in the reasoning of the learned Judges, because, in the later part of the judgment they say that a party is not entitled to be supplied with particulars of the allegations made against him. We are therefore, not inclined to accept the above reasoning of the Gujarat High Court. The notices, refer to the periods during which the act are stated to have been committed, as well as the area where they are said to have been committed. No doubt, the expression ‘place of public entertainment’, is defined in Section 2 (10) of the Act; but the mere fact that the said definition takes in various types of places, does not militate Criminal Application No.3 of 1965, or allegation No.3, in the connected application, being of a general nature of the material allegations as contemplated under Section 59. Without attempting to be exhaustive, we may state that when a person is stated to be a ‘thief’ that allegation is vague. Again, when it is that ‘A stole a watch from X on a particular day and at a particular place the allegation can be said to be particular. Again, when it is stated that ‘X is seen at crowded bus stands and he picks pockets’ it is of a general nature of a material allegation. Under the last illustration, given above, will come the allegations, which, according to the Gujarat High Court, suffer from being too general, or vague. Considering it from the point of view of the party against whom an order of externment is proposed to be passed, it must be emphasized that when he has to tender an explanation to a notice, under Section 59, he can only give an explanation, which can be of a general nature. It may be open to him to take a defence, of the action being taken, due to mala fides, malice or mistaken identity, or he may be able to tender proof of his general good conduct, or alibi, during the period covered by the notice and the like. The allegations made in the notices, issued under Section 59, as against the respective respondents in our opinion, contain the general nature of the material allegations made against each of the, in respect of which the respondents had been given a reasonable opportunity of tendering an explanation, regarding them. Therefore it follows that the view of the Gujarat High Court that the notices, under Section 59, and the orders of externment, passed under Section 56, are invalid, cannot be sustained. The orders of the Gujarat High Court are, accordingly, set aside, and these criminal appeals, allowed. But, we may make it again clear, that in spite of our decision, in favour of the appellants, no action can be taken against the respondents, in these appeals on the basis of the order, which are now held to be valid”. 8. In the case in hand, the notice extracted above clearly reveals that the para 1 deals with the report of the SSP in which some list has been annexed and the general nature of material allegations have not been given in this notice as has been held in the case of B.S. Tyagi (supra) and Ram Ji Pandey (supra). The aforesaid judgments squarely cover the controversy raised in this petition and in both the cases the notice has been quashed for not indicating the general material allegations in the notice. In the case in hand no general material allegations have been mentioned. 9. In view of the above I am of the view that the impugned notice is not in accordance with law and is liable to be quashed. The writ petition is allowed and the impugned notice dated 01-06-2007 is hereby quashed. However, the District Magistrate will be at liberty to issue a fresh notice to the petitioner in accordance with law. (J.C.S. RAWAT, J.) Dated 21.05.2009 Bhaskar